Army raises age of minority in military-justice system in West Bank to 18, same as in Israel, but fails to make other necessary changes to protect minors
On 27 September 2011, OC Central Command signed Amendment 10 to the Order Regarding Security Provisions. The amendment changes provisions relating to minors in the military-justice system, which applies to Palestinians in the West Bank. Israelis living in the West Bank are prosecuted according to Israeli penal law.
The amendment raises the age of minority from 16 to 18. B'Tselem welcomes this amendment, which aptly conforms the age of minority in the West Bank to the customary age around the world, including in Israel. However, it does not deal with the grave infringement of Palestinian minors’ rights, as Israeli authorities have not, thus far, respected the rights of Palestinians under the age of 16. B'Tselem’s report No Minor Matter revealed how the authorities breach the rights of Palestinian minors suspected of stone- throwing at all stages of the process: arrest, interrogation, trial, and imprisonment.
- Involvement of parents: The obligation to notify parents, without delay, that their child has been arrested existed in the pre-amendment legislation. The amendment slightly expanded the requirement to include the giving of immediate notice to parents with respect to both arrest and interrogation of their child. However, the amendment contains several qualifications that enable those responsible to refrain from such notification. First, if the minor does not provide details on his parents, the authorities are not obligated to obtain the details. Second, the amendment requires the authorities only to make a “reasonable effort under the circumstances” to locate the parents, but fails to define the expression “reasonable effort.” A third exception arises where there is a “reasonable suspicion” that notice will obstruct the interrogation or “harm the security of the region.” The order does not interpret these expressions, thus giving the interrogators great discretion.
- Caution and right to consult: The amendment requires the authorities to inform minors who have been arrested of their right to consult with an attorney in private. However, the amendment does not properly guarantee realization of the right: it only requires the interrogator to inform the minor’s attorney about the interrogation, and specifies that the giving of notice will not delay the interrogation. In addition, the interrogator must give notice to “a defense attorney whose particulars were provided by the minor,” although it is unlikely that a minor under arrest will be in possession of an attorney's contact details.
- Statute of limitations: Under the pre-existing legislation, a minor could not be prosecuted for an offense if two or more years had passed since commission of the offense. The amendment reduces the period to one year, except as regards a long list of offenses that are defined security offenses, such as causing death, assault, stone-throwing, organizing and participating in demonstrations, disturbing a soldier in the performance of his duties, and throwing a burning object. In effect, the amendment will not apply to most minors accused of committing what are classified as security offenses.
- Holding minors with adults in detention and in prison: Holding minors with adults in detention and in prison: The amendment contains an exception to the sweeping prohibition on holding minors with adults, and states that minors over age 16 may be kept with adults, provided that doing so benefits the minor, and that adults do not have access to minors during sleeping hours. There is no explanation why minors above age 16 are allowed to be held with adults, the age of minority now having been raised to 18. Holding minors and adults together is problematic. As a judge of the Youth Military Court in Judea, Major Sharon Rivlin-Ahai, said regarding incarceration of 16 and 17 year olds with adults: “It is unnecessary to go into detail on the damage such incarceration can cause a minor later in life” (Mil. Ct. (Judea) 1261/09, Military Prosecutor v. H.P., 23 February 2009).
These slight changes do not provide for proper protection the rights of Palestinian minors suspected of having committed offenses. There still is a substantial gap between the rights granted minors under Israeli and international law and those granted under the military legislation. B'Tselem calls for immediate changes in the military legislation to provide Palestinian minors with the protections to which they are entitled, including the right to have a parent present at the interrogation, prohibition of interrogation at night, strict prohibition on imprisoning minors under 14, advancement of to alternatives to detention and imprisonment, and all other protections provided in Israel’s Youth Law.