Newsletter - December 2017
According to the Israeli Prison Service (IPS), as of 30 November 2017 there were 5,881 Palestinians (West Bank, East Jerusalem and Gaza) held as "security prisoners" in Israeli detention facilities including 313 children (12-17 years). In the case of children there was a 2 percent decrease in the number compared with the previous month and an annual decrease of 17 percent compared with 2016. These figures also include 2 children held in administrative detention. According to the IPS, 51 percent of child detainees and 84 percent of adults were transferred and/or detained inside Israel contrary to Article 76 of the Fourth Geneva Convention during the month. A further 1,597 Palestinians were held as "criminal prisoners" including 16 children. These figures do not include children detained by the military and held for short periods (generally less than 24 hours) without entering an IPS facility.
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Transfer and detention outside the West Bank
Under the Fourth Geneva Convention ratified by Israel in 1951, Palestinian civilians prosecuted in military courts in the West Bank must not be transferred or detained outside the West Bank - a legal safeguard adopted following World War II. In spite of this legal requirement most Palestinians detained by the military authorities are held in IPS prison facilities in Israel. Two reports published in 2012/13 by a delegation of British lawyers and UNICEF [pdf] recommended that: "In accordance with international law, all Palestinian children detained in the Israeli military detention system shall be held in facilities located in the occupied Palestinian territories." However, in February 2015 UNICEF announced that it had been informed by the military authorities that there would be no change to this policy. In 2017 this policy affected 61 percent of child detainees and 83 percent of adults, or approximately 7,000 individuals. As a matter of course, all female detainees are transferred and detained outside the West Bank, including 16-year-old Ms. Ahed Tamimi. It is relevant to note that the military authorities rely on the provisions of the Convention as the legal basis for prosecuting Palestinian civilians in military courts in the West Bank while ignoring the provisions relating to transfer.
21,000 Palestinian detainees transferred and detained outside the West Bank since the ICC Office of the Prosecutor initiated a Preliminary Investigation
In December 2017 the Prosecutor of the International Criminal Court (ICC), Mrs Fatou Bensouda, published her annual Report on Preliminary Examination Activities (2017). The report provides an overview of the Prosecutor's preliminary examination activities conducted between 1 October 2016 and 30 November 2017 in relation to 10 situations under consideration for possible investigation, including Palestine. Since the Prosecutor opened a preliminary examination into the situation in Palestine it is estimated that the number of Israeli settlers living in East Jerusalem and the West Bank contrary to Article 8(2)(b)(viii) of the Rome Statute has increased by 73,500. During the same period it is estimated that 21,000 Palestinian men, women and children have been transferred and detained outside the West Bank contrary to Article 8(2)(a)(vii) of the Statute. In both situations there is no dispute of fact or viable domestic remedy.
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Concerns raised re transfer of detainees outside the West Bank
In December 2015, Military Court Watch (MCW) raised concerns with a number of diplomatic missions in the region regarding the decades long policy of transferring Palestinian detainees, including children, out of the West Bank contrary to Article 76 of the Fourth Geneva Convention and Article 8(2)(a)(vii) of the Rome Statute. In particular, MCW noted that: "a violation of the Convention of this magnitude and duration has the potential to undermine the credibility of the international legal order and its institutions with adverse implications for the rule of law extending beyond Israel and Palestine." During the intervening period MCW has received responses from the UK, US and Norway. At the time of writing MCW has yet to receive responses from missions including: Australia, Belgium, Canada, European Union, France, Germany, Ireland, Italy, Netherlands, Portugal, Spain and Sweden.
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No military liaison officer appointed on child detention after 12 months
Following the release of reports published by a delegation of British lawyers and UNICEF in 2012/13 into the treatment of children in military detention, the Israeli Ministry of Foreign Affairs (MOFA) announced that it would "study the conclusions and work to implement them through on-going cooperation with UNICEF." In order to facilitate this cooperation MOFA delegated the task of implementing the recommendations to the then Military Prosecutor in the West Bank, Lt. Col. Maurice Hirsch. In December 2016, Lt. Col. Hirsch retired as Military Prosecutor and to date, MOFA has not appointed a replacement liaison officer. There is a concern that this failure to replace the liaison officer is one reason for the delayed publication of UNICEF's third update to its 2013 report in which progress made in implementing the UN agency's recommendations will be reviewed. UNICEF's last update (Bulletin No. 2) was published in February 2015.
Haaretz: Two-thirds of Palestinian minors testify to abuse in Israeli detention
About two thirds of the 70 Palestinian minors who testified about their arrest and incarceration in 2017 reported that they were subjected to violence and physical abuse by soldiers during their custody. The kinds of violence reported were slaps, kicks, pinches, blows with various objects, pushing and being forced to sit in painful positions, according to the October report published by Military Court Watch, a group of lawyers and social activists that monitors the treatment of children in Israeli military detention. The 70 minors, ages 12 to 17, are but a sample of the hundreds of Palestinian minors arrested this year by the Israeli army. The final figures for 2016 and this year haven’t been submitted yet. According to Israel Prison Service figures, by June 2017, 318 Palestinian minors were classified as security detainees in Israeli prisons. Since 2013, when the survey was first taken, the number of arrested minors who reported physical abuse against them rose from 60 percent to 64 percent.
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A child's testimony
On 22 October 2017, a 17-year-old youth from Tuqu was arrested by Israeli soldiers at 1:30 a.m. and accused of throwing stones and Molotov cocktails. He reports being interrogated without being informed of his legal rights prior to interrogation. "I was watching television at around 1:30 a.m. when I heard the sound of military jeeps in the neighbourhood. I looked out the window and saw three jeeps and an armoured vehicle. Shortly afterwards I heard loud banging at the door of my father's shop below our house. Then I heard somebody shouting “open up, open up”. I woke my mother up and told her soldiers were downstairs. When the soldiers saw my father on the balcony they told him to let them into our house. About 30 soldiers surrounded our house and some entered. Three soldiers were wearing masks. They immediately asked to see my identity card and the commander compared it to a list he had. He then said I was under arrest. He did not give a reason or say where he wanted to take me."
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A soldier's video testimony - Patrols at night and house incursions
In this video a former Israeli soldier provides a testimony to Breaking the Silence describing night incursions into Palestinian villages in circumstances where there was no specific intelligence. "I remember when we got there I was in a patrol jeep, the company CO's command jeep came with us, we got in at night, I don't remember how late, whether it was 10 p.m. or 2 a.m. at night. But we got in, stopped and started going in, 8 soldiers in all, going into houses, checking ID's, turning over mattresses, making sure nothing was hidden, peeking into tents, and getting out. It was, how should I put it? Our way of introducing ourselves, introducing the new authority in town. From that point on, every once in a while the patrol commander, my squad leader or a sergeant, would decide on his own accord and say: 'Alright, let's pass half an hour doing searches in Palestinian Susia'."
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