Children under 12 cannot be arrested

All who call for the violation of the rights of Palestinian child suspects must first consider whether they would consent to a similar violation of an Israeli child’s rights.

Palestinian schoolchildren (R370) (photo credit: REUTERS/Mohamad Torokman)
Palestinian schoolchildren (R370)
(photo credit: REUTERS/Mohamad Torokman)
One afternoon, B, a mother of six, was alarmed to hear the sound of shattering glass coming from her children’s bedroom. Rushing to the bedroom, she saw the window had been broken and was relieved to see that her children were not there. Through the broken window she saw several young children throwing stones at her house.
Although no one was injured in this case, stone-throwing is no laughing matter. We all know stones can wound and even kill.
In this case, though, B is a Palestinian who lives in Hebron. The children who attacked her home were Israeli settlers from Tel Rumeida.
A police investigation into the incident was opened. One 10-year-old boy was identified in the incident and referred to the welfare authorities.
Several other very young children, thought to be around nine years old, were not officially identified. The Judea and Samaria police informed B’Tselem that the investigation was closed and the file shelved, as “the children are unpunishable, due to their young age.”
In this case, the stone throwing children were the young sons of Israeli settlers in Hebron. Yet stone-throwing is probably the most common offense Palestinian minors commit in the West Bank. Whereas Israel rightfully upholds the rights of Israeli children suspected of ideologically motivated criminal offenses such as stone-throwing, its treatment of Palestinian children is very different.
Between the years 2005- 2010, the army tried 835 Palestinian minors charged with stone-throwing in military courts, and 834 were convicted. This number includes 24 children who were only 12 or 13 years old.
Many other Palestinian minors were arrested on suspicion of stone-throwing but never charged; the military cannot provide the exact figures.
Detention is an inherently traumatic experience for any minor, but Palestinian minors are subjected to additional hardships. Most of the children are arrested in the middle of the night. Some complain of violence in the course of the detention. All of them are interrogated without their parents being present.
Most are not released on bail – which puts tremendous pressure on the families to agree to a plea bargain rather than wait months for a trial.
In fact, virtually all minors are convicted by plea bargain.
In a recent article in The Jerusalem Post, Maurice Ostroff expressed his dismay at our demand that Palestinian children be protected, even as the authorities deal with their alleged offenses: “I’m sure the Israeli government and the IDF would be very grateful to learn B’Tselem’s secret about how to effectively deal with these hate-indoctrinated kids. In what other way could kids be dealt with whose violence emanates from indoctrination to hate.”
This would be an apt description for the actions of the children who assaulted B’s home. However, in their case, alternative options for dealing with child offenders appear to have been available.
For example, one child was referred to the welfare authorities for supervision under the Youth (Care and Supervision) Law, 1960. Parents could also be made to guarantee their children do not reoffend.
According to Ostroff’s reasoning, the children who attacked B’s home ought to be arrested and prosecuted.
Thankfully, Israeli law offers additional protections to young minors in the criminal justice process under Amendment No. 14 of the Youth Law, which took effect in 2009, and which has the expressed purpose of enshrining international-law standards on adjudication of juveniles in Israeli statutory law.
The amendment states that incarceration is to be used only as a last resort, in the absence of any other alternative.
Moreover, the amendment prohibits the incarceration of minors under age 14.
In addition, the amendment raised the upper age limit – from 14 to 18 – at which minors are still entitled to have their parents or an adult representative present on their behalf during interrogation.
The above safeguards apply only to Israeli citizens and residents, not to Palestinian residents of the West Bank, who are subject to Israeli military law. But one principle applies to all child suspects: neither Israeli nor Palestinian children under the age of 12 can be held to be criminally responsible. This means there is no legal option of prosecuting young children, regardless of their alleged offense.
They may be held for short periods in order to stop them in the act, but cannot be tried in a criminal court. Though the age of criminal responsibility for Israeli and Palestinians children is the same, the law is not always observed with regard to Palestinians.
B’Tselem has documented cases of very young children – 8, 9, 10 years old – detained by the Israeli military, in some cases for several hours.
Stone-throwing in the context of the Israeli-Palestinian conflict is, indeed, an ideological offense. Unlike shoplifting or vandalism or other offenses a teenager might commit, stone-throwing can be socially sanctioned by some within the child’s community – this is true both for Palestinians and settlers in the West Bank. And as we well know, stone-throwing can be dangerous.
When we are dealing with stones thrown at cars on the road or into people’s homes, the matter cannot be taken lightly. Law enforcement authorities are responsible for the safety of civilians, including protecting them against stone-throwing. That said, the criminal justice system cannot be used to address stone-throwing by minors under the age of criminal responsibility, period. This is true regardless of the minors’ nationality.
Law enforcement authorities must find another way to deal with this problem. All who call for the violation of the rights of a Palestinian child suspects must first consider whether they would consent to a similar violation of an Israeli child’s rights. For me the answer is a categorical no.The writer is executive director of B’Tselem.