On 22 July 2013, the Israeli military's Legal Advisor in Judea and Samaria sent B'Tselem a response. In his letter, he addressed the general issue of soldiers having to deal with a complex reality in which children under the age of criminal responsibility throw stones. Regarding the detention of Wadi' Maswadeh, the advisor justified the soldiers' conduct from beginning to end, except their blindfolding and handcuffing the child's father. B'Tselem sent a reply, emphasizing that the soldiers had acted in a fundamentally unacceptable way throughout the incident, and that acknowledging the complexity of the reality in which they operate cannot justify blatantly unlawful violation of children's rights and harm to their welfare.
B'Tselem has written urgently to the Legal Adviser in Judea and Samaria, demanding his response to a grave incident in which soldiers detained a five-year-old boy in Hebron for two hours, after he threw a stone. The soldiers threatened the child and his parents, handcuffed and blindfolded the father, and handed the boy over to the Palestinian Police. Detaining a child below the age of criminal responsibility, especially one so young, has no legal justification.
On Tuesday, 9 July 2013, at around 3:30 P.M., seven soldiers and an officer detained Wadi' Maswadeh, who is five years and nine months old (his birthdate on his mother's ID card: 24 September 2007) close to 'Abed checkpoint, near the Tomb of the Patriarchs in Hebron, after he threw a stone. B'Tselem field researcher Manal al-Ja'bari, who was present at the scene, recorded the entire event on video. After local residents who had gathered at the spot tried to intervene, the soldiers put the crying child into a jeep with another Palestinian resident and took him home. When they reached the house, the officer informed Wadi's mother that he intended to hand him over to the Palestinian Police. The mother refused to let them take the child before his father, Karam, came home. About half an hour after Wadi' was detained, Karam Maswadeh came home. The officer informed Maswadeh that he was arresting his son in order to hand him over to the Palestinian Police. Meanwhile, Wadi'a had spent the entire time hiding behind a pile of mattresses in the house and crying. The parents made it clear to the officer that the child is five years old, but the officer insisted on taking him to the DCO and threatened them, saying that the army would arrest the father if they did not comply. The soldiers then made Karam and his son leave the house and walk to the army camp on a-Shuhada street.
The first part of the incident, recorded by B'Tselem's field researcher Manal al-Ja'bari
In his testimony to B'Tselem, Karam Maswadeh said:
"When I got home, I saw several soldiers standing at the entrance to my house. An officer came up to me and ordered me to get my son, Wadi'a. Before I got home, the soldiers had tried to persuade my wife to hand Wadi'a over, but she had refused to do it until I came back. The officer told me that he was going to arrest Wadi'a and hand him over to the Palestinian Coordination. I asked him: "Why arrest a five-year-old boy?" A soldier standing next to the officer showed me a stone and claimed that my son had thrown it, and that it had hit the car of a settler who was driving north, near 'Abed checkpoint. I tried to persuade the officer not to take Wadi' to the DCO, but he said that if I didn't bring him, I'd be arrested. […] I went inside the house and got Wadi', who was hiding there. He was crying."
Wadi' and his father were taken to the army base, where they were detained for half an hour. Then, the soldiers handcuffed and blindfolded Karam and walked him, in full public view, together with his son, to the Policeman's checkpoint (56), where the soldiers detained them for another thirty minutes. At that point, a lieutenant colonel arrived whom the father, who speaks Hebrew, understood to be an Israeli coordination officer from the DCO. The officer questioned Wadi' and asked him why he had thrown stones. He also reprimanded the soldiers for arresting the father and son in the presence of video cameras, and complained that "you're harming our public image". The officer made it clear to the soldiers that, when detainees are held with cameras around, they must be "treated nicely". Then, one of the soldiers untied the father's hands, removed his blindfold and gave him water. A few minutes later, an officer from the Palestinian DCO and several Palestinian policemen arrived. The soldiers handed Karam and Wadi' Maswadeh over to them, and the two were taken to a Palestinian police station, where they were briefly questioned and released.
The second part of the incident, documented by a B'Tselem volunteer 'Imad abu-Shamsiyeh:
Father and son detained at checkpoint
Transfer to Palestinian Police
In her letter to the Legal Adviser to Judea and Samaria, B'Tselem Director Jessica Montell stated: "The footage clearly shows that this was not a mistake made by an individual soldier, but rather conduct that, to our alarm, was considered reasonable by all the military personnel involved, including senior officers. It is particularly troubling that none of them apparently thought any part of the incident wad problematic: not the fact that they scared a five-year-old boy out of his wits, nor threatening him and his parents to "hand him over" to the Palestinian Police, nor threatening to arrest the father on no legal grounds, nor handcuffing and blindfolding the father in front of his son.".
Based on B'Tselem's ongoing experience, there appears to be a procedure in which soldiers detain Palestinian minors suspected of stone throwing and transfer them to the Palestinian Police, at the Palestinian DCO. In the case at hand, the soldiers apparently acted according to that procedure, which does not, and cannot, have any legal grounds when the minor is below the age of criminal responsibility.
In the military judicial system in the West Bank, the age of criminal responsibility is 12, as in Israel. The legal meaning is that the security forces are not allowed to arrest or detain children under that age, even when they are suspected of having committed criminal offenses, and the authorities must deal with the law breaking in other ways. Indeed, B'Tselem has documented many incidents in which Israel minors under the age of criminal responsibility threw stones at Palestinians, and no measures were taken against them. Under the Convention on the Rights of the Child, which Israel signed, minors must be protected in criminal proceedings, especially when they are so young.