Around 30 soldiers invaded my home at 2:30 am on August 17, 2001. They searched the home and messed up our belongings, breaking the windows and confiscating our telephone agenda. They took me to the roof of the house for two hours and asked me about people they wanted. After that they took me to the street, blindfolded me and tied my hands with plastic ties behind my back…. When we reached the jeep they pushed me inside and I hit my head on the roof. My brother Abed was inside the jeep. They forced us both to sit on the floor of the jeep.… There were four soldiers who beat us while the jeep drove for about half an hour. They swore and insulted us throughout the journey and threatened to sexually assault us. After that we reached the military camp where they took us to the clinic. Then they put us in a yard where we were tied and blindfolded. We spent the whole night outside without food or drink.
—Muhammad al-Jabiri [1]

Muhammad al-Jabiri, 17, is one of over 2,000 Palestinian children from the West Bank and Gaza Strip detained by the Israeli military since the beginning of the Palestinian uprising in September 2000. Like al-Jabiri, these children report a consistent pattern of maltreatment that includes physical and psychological abuse from the moment of arrest throughout their interrogation and incarceration. Al-Jabiri was released after eight days of interrogation without being charged. Though not yet an adult according to international standards, al-Jabiri had already served eight and a half months in Megiddo military prison following his first arrest in 2000.

Each year, numerous Palestinian, Israeli and international human rights organizations appeal to UN bodies and world governments to bring Israel’s treatment of Palestinian children into line with its obligations under international law. To date, however, these efforts have been largely unsuccessful. Israel’s systematic human rights abuses highlight two inherent weaknesses in the UN human rights system: the ability of states to manipulate the system to their advantage and the political nature of enforcement. Israel, like many countries, has a history of both denying the applicability of treaties to which it is bound and refusing to cooperate with various international bodies designed to check compliance with international human rights and humanitarian treaties. While human rights standards may be universal and “objective,” their application requires a conscious political will. Powerful nations determine when and where human rights provisions will be enforced.

Biased Courts

Since the beginning of the Israeli occupation in 1967, the Israeli military has imprisoned thousands of Palestinian children. These children’s testimonies point to countless violations of international law that have been well-documented by Palestinian, Israeli and international human rights organizations, including Amnesty International, Human Rights Watch and the World Organization Against Torture (OMCT).

As of October 2003, around 350 Palestinian children were detained in Israeli prisons and detention centers, located in Israel and the Occupied Territories. Before and during interrogation, usually carried out by Israeli soldiers or police, Palestinian children face extreme physical and psychological pressure to confess, and are often pressured to provide information on the political activities of other Palestinians. Seventeen year-old Murad Abu Judeh recounts the abuse to which he was subjected prior to his interrogation in December 2000:

[A masked soldier wearing civilian clothes] took me outside, handcuffed me and put a sack on my head. It was raining. A group of soldiers began punching me and they were telling each other to beat me, speaking in Arabic so that I could understand them. Following that two soldiers carried me and threw me inside a jeep. I fell on someone else in the jeep — another prisoner — and hurt him. The jeep began moving and one of the soldiers started beating us and swearing at us until we reached the Etzion interrogation center.… Before I entered interrogation, one of the soldiers threatened that he would return back to my house and destroy it if I didn’t confess. [2]

In this climate of intimidation, children tend to confess relatively quickly, even if they are innocent.

After interrogation, the child is prosecuted through the Israeli military court system — a maze of bureaucratic procedures that serves as enforcer of the Israeli occupation. Within this system, there is no neutral and separate judicial apparatus. Judges and prosecutors are appointed by the Israeli military, the same body that arrests, detains and interrogates Palestinian children. If the military’s primary role in the Occupied Territories is maintaining the occupation, the Palestinian children brought before their courts are charged with resisting occupation — primarily through throwing stones at Israeli jeeps, soldiers and settlers in the West Bank and Gaza Strip.

Lawyers face extreme difficulties defending Palestinians before the military courts, in addition to the language barrier encountered by Palestinian lawyers for whom Hebrew is not their first language. While the pre-trial period is vital for building a proper defense, Palestinian child detainees have no guaranteed right to legal representation. Lawyers must seek permission to visit their clients from the Israeli military or prison authorities, who often refuse access or revoke permission without prior notice. Palestinian human rights attorney Khaled Quzmar estimates that he is allowed to visit only 10 percent of the children he represents prior to their first court appearance. [3] Those visits that do occur are neither comfortable nor confidential — children are often handcuffed or behind iron mesh during the meeting, and prison guards or soldiers are almost always present. Adding to the difficulty, most children have already confessed, “secret” evidence to which the lawyer and client are denied access is often introduced and judges tend to accept the prosecution’s arguments without much debate. Convictions are often based heavily on third party testimony, with little or no corroborating evidence. Alternatives to imprisonment, such as a suspended sentence, release or a fine, are rare.

In practice, lawyers have little room to maneuver and their role is usually reduced to damage control involving some mitigation and plea bargaining. Attorneys working within the military court system understand that the system is weighted against the child. As Israeli lawyer Andre Rosenthal noted in an interview, “Palestinian minors are treated as suspects from the moment they enter the military court system.… Our role is purely damage limitation. Basically, it’s very frustrating and a waste of time.” Another Israeli attorney, Tamar Peleg, echoed Rosenthal’s frustrations:

One of the most difficult things for me as a lawyer is living with the double injustice: the detention and the use of the courts as a tool of oppression…. Objectively, I am colluding with the system. [The Israeli military] need lawyers to provide the appearance of legality…. The occupying judiciary and the lawyers and accused have differing concepts about what is happening in court. The “judiciary” has some illusion that they are administering justice. The accused and their lawyers don’t experience this as justice but as another kind of shooting. [4]

Rulings in administrative cases appealed to Israel’s High Court of Justice, which falls under Israel’s domestic legal system, have been similarly biased. [5] Because efforts to bring Israeli practices into compliance with international law through the military courts and Israel’s domestic legal system have failed, child rights advocates have turned to the UN human rights system to seek redress.

Excused from Obligations

The international community has developed detailed legal standards defining the minimum acceptable treatment of children, including prisoners. The cornerstone is the 1989 UN Convention on the Rights of the Child (CRC), the most widely supported human rights treaty in history. Only two countries — the United States and Somalia — have failed to ratify it. Similar to other human rights treaties, implementation of the CRC is monitored by a group of independent experts, the UN Committee on the Rights of the Child, which reviews reports on compliance prepared by state parties. Additionally, the committee meets with and receives information from non-governmental organizations.

Israel’s first report to the CRC committee, due in 1993, was submitted seven years late and included no information on Palestinian children in the West Bank and Gaza Strip. In June 2002, the committee requested additional data from Israel, including an explanation of “why the state party report does not contain any information on the implementation of the Convention in the Occupied Palestinian Territories.” [6] The committee specifically requested that Israel supply the number of Palestinian “children detained, the conditions of their detention and the length of detention.” [7] In an August 2002 response to the Committee’s inquiries, Israel set out a number of legal arguments in support of the position that Israel is neither legally obligated nor able to comment on the situation in the West Bank and Gaza Strip.

Israel began by contending that, since 1994, the Palestinian Authority (PA) had assumed responsibility for the Palestinian population with regard to matters covered by the Convention. With over 98 percent of the Palestinian population under the direct jurisdiction of the PA, it was not possible for Israel to gather most of the information needed to fulfill reporting requirements. Israel then deployed a two-part argument to buttress its claim that the Convention does not apply to the West Bank and Gaza Strip. First, in Israel’s assessment, the Convention only applies to the territory of the state itself. While states can note upon signing the Convention their intention to apply it in another area under their control (such as a trusteeship), because Israel has not done so, it is only bound to report on the territory of Israel. Second, Israel argued that international human rights law and international humanitarian law are two similar, yet distinct, bodies of law. In times of armed conflict, it is the latter which applies. The CRC, as a human rights treaty, is therefore not applicable to the West Bank and Gaza Strip, given the onset of direct hostilities in September 2000.

Though the Committee repeatedly requested the additional information from Israel during a face-to-face meeting in October 2002, Israel refused to comment on its practice in the Occupied Territories. Instead, Israel repeated its arguments that the CRC does not apply. The Committee, as other UN bodies have done before, affirmed its opinion that the treaty does indeed apply and expressed “concern” about particular issues, but the discussion essentially ended there. Despite the countless pages documenting Israel’s gross child rights violations which non-governmental organizations presented to the Committee in June 2002, the encounter between Israel and the UN’s human rights watchdog was reduced to legal semantics.

The results of the meeting were neither surprising nor unique. Israel’s rebuff of the Committee is typical of its interaction with UN human rights treaty monitoring bodies. As a country that seeks to align itself with liberal, Western democracies, Israel presents the image of a state that firmly supports the rights embodied in international human rights and humanitarian law, and it generally acts to uphold them in dealing with its Jewish citizens. Rather than disavow the importance of human rights treaties, Israel uses multiple, complex legal arguments to argue that human rights treaties do not apply to the Occupied Territories, and thereby excuses itself from the obligation to provide information on its practices there.

Manipulating the UN System

The UN monitoring system, reliant as it is upon self-reporting, enables Israel to exclude the requested information on Palestinian children from the Occupied Territories — though its CRC report stretched longer than 300 pages. Palestinian child prisoners and the abuse they endure are effectively rendered invisible by the reporting framework. Moreover, the ability of states to focus on technical legal arguments can obscure the very violations that the human rights system is set up to address. With Israel invoking a legal argument every time the Committee requests concrete information about Palestinian children, attention is diverted from substantive human rights issues. The limited time allowed for direct discussion with a state party quickly degenerates into a circuitous conversation.

Certainly, states can acknowledge the legal applicability of a treaty while failing to apply its provisions. Nevertheless, acknowledging applicability is a crucial first step, since if a state denies this, it can then argue that it is not bound to apply the treaty’s provisions or to report on territories to which the treaty is not applicable. The case of Israel demonstrates clearly the manner in which a state can manipulate the legal discourse of “applicability” to avoid acknowledging non-compliance with their legal obligations and reporting requirements.

Israel is not unique in employing this strategy. Commenting on general issues concerning the applicability of the Fourth Geneva Convention, the International Committee of the Red Cross notes: “When confronted with situations in which the Convention should be applied, the states party to it almost invariably cite some grounds or other on which, in their view, it is not applicable.” [8] But Israel’s policies and actions indicate that Israel itself views those areas to be under its jurisdiction and considers the CRC applicable. In the years between the Oslo accords and the uprising, Israel never stopped arresting Palestinian children from areas under the limited control of the PA, and prosecuting them through the Israeli military court system. Israel’s claim of ultimate jurisdiction in the entirety of the West Bank and Gaza has been particularly evident since 2002, when the Israeli army began conducting mass arrests in areas under the administration of the PA, such as the city centers of Ramallah, Jenin and other West Bank towns.

But the most revealing point relates to Israeli children who reside in the Occupied Territories. Settler children are citizens of Israel and subject to Israeli domestic legislation, rather than Israeli military orders. With the exception of settlements in the Jerusalem area, Israel has not annexed the territory on which the settlements are located. Given Israel’s argument that the CRC is not applicable to the West Bank and Gaza Strip, settler children, technically, should not be covered in its reporting to the Committee. But the Israeli population figures covered in the report coincide exactly with population figures provided by the Israel Central Bureau of Statistics that expressly include the Israeli settler population. Thus, settler children are in fact included in the report. In contrast, though most detained Palestinian children from the Occupied Territories are imprisoned in facilities inside Israel, information on them is not incorporated into the report. This discrepancy indicates that Israel recognizes the applicability of the CRC to the Occupied Territories, but on the basis of nationality, rather than territory, as required by the Convention.

Israel employs the same legal rationale vis-à-vis each of the main human rights treaties to which it is a party. Though Israel argues that international humanitarian law is the sole body of law applicable in situations of armed conflict, it fails to acknowledge the de jure applicability of the main humanitarian treaty, the Fourth Geneva Convention. In addition to human rights treaty monitoring bodies, there are two UN mechanisms which are designed specifically to monitor Israel’s human rights practice in the Occupied Territories. The UN Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories has prepared an annual report for the General Assembly since 1968. Another body, the Special Rapporteur of the Commission on Human Rights on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, was established in 1993. Israel has rejected the mandate of both bodies and refuses to cooperate with them.

More recent examples of Israel’s refusal to cooperate with UN initiatives include the delegation mandated by the UN Human Rights Commission in 2002 to gather information in the wake of Israel’s military offensive in March-April of that year. A fact-finding mission proposed by UN Secretary-General Kofi Annan, and endorsed by the Security Council, to gather information about conditions in Jenin refugee camp before and during Israel’s military operations there in April 2002 was disbanded due to Israel’s non-cooperation. Though then Foreign Minister Shimon Peres indicated Israel’s willingness to cooperate after the Council, threatened with a US veto, had diluted the language of an earlier draft calling for an “investigation,” Israel later refused to cooperate, questioning the team’s precise mandate and composition.

The Powerless Need Not Apply

The arbitrary detention and maltreatment of 8,500 Palestinians in the winter and spring of 2002 prompted Amnesty International to call upon the Israeli government to establish an independent commission of inquiry to “investigate the arbitrary arrests and the cruel, inhuman or degrading treatment immediately after detention of Palestinians arrested after February 27, 2002.” Despite condemnation by international human rights organizations, however, mass detentions continued.

In April 2003, the Israeli military was widely criticized for its behavior during the mass roundup and expulsion of Palestinian males from Tulkarm refugee camp. [9] Using loudspeakers, Israeli soldiers ordered all Palestinian males between the ages of 15 and 40 to report to the courtyard of the UN Relief and Works Agency girls’ school. Those who refused the order were detained during the house-to-house searches of the camp. Samir Omar, 17, recounted the experience of his three-day expulsion:

When the soldiers came they threatened to arrest, beat or shoot us if we did not come outside immediately. So, as we were ordered to, thousands of male residents went to the grounds of the UN school…. This was at around 6 am. Once we got there, the soldiers split us into groups, forcing the guys who were between 15 and 20 years old into one corner, separated from the rest. Some of the younger ones were too young to have ID, but the soldiers did not care. They then moved us into one of the school rooms. We were in the room together and the commander started to ask us if we wanted to work for the Israelis, saying he would give us money if we did. When the commander left one of the soldiers made us rip up pictures of martyrs and spit on them — for no reason except that he had the gun. Then he took a Qur’an and threw it on the floor and demanded that one of the guys stand on it, but he refused so the soldier then tried to force him by pointing his gun at his head. But the commander came back then so the soldier stopped it. At this point we were blindfolded and our hands were tied and we were put into one of the big military trucks and were driven to Nur Shams refugee camp eight kilometers away. It was 10 am at this time, I think. The soldiers took off our blindfolds, untied our hands and let us go, saying we could go anywhere as long as it was not back to our homes in the Tulkarm camp. [10]

At the end of the operation, the Israeli military announced that, out of the 1,000-2,000 Palestinians arbitrarily detained for three days during the invasion of Tulkarm refugee camp, it had arrested 21.

Governments’ failure to enforce human rights stems not from ignorance but from a conscious political decision not to act. As British and US government support for apartheid-era South Africa governments or Australian governments’ support for Suharto’s dictatorship in Indonesia demonstrate, governments regularly provide both covert and overt support to unjust regimes, even where their violations are well-documented. Likewise, Israel’s human rights violations in the Occupied Territories are enabled by the active support of other governments, particularly the US.

US military aid guarantees Israel a qualitative edge in the region, its financial support bolsters an Israeli economy beleaguered by the costs of ongoing occupation and settlement construction, and the threat and use of the US veto blocks attempts to address Israel’s violations of human rights within the UN Security Council. The unwavering political support of the global hegemon discourages interventions by other countries which might be inclined to take action. The occupation would be much harder to maintain without this political, economic and military support. This reality highlights undeniable double standards in the international legal system and a fundamental contradiction inherent in the framework of universal rights, which is purportedly above politics.

While acknowledging the influence of politics on decision-making, the Red Cross emphasizes: “What counts is actual protection for the victims of armed conflict.… Political considerations should under no circumstances be allowed to weaken the protection to be enjoyed by civilians under hard law.” [11] But that is precisely what has happened in the case of the Occupied Territories. To date, Palestinians have not had a sufficiently strong international sponsor, nor has the systematic violation of their rights posed a threat to international equilibrium, or to political and economic interests, sufficiently compelling for powerful states to actively and effectively intervene.

As long as enforcement depends on the will of powerful nations, it is unlikely that justice will be served to the most common victims of human rights abuses — the powerless. In the meantime, children like Muhammad al-Jabiri, Murad Abu Judeh and Samir Omar will pay the price for the international community’s failure to live up to its human rights commitments.

Endnotes

[1] Defence for Children International/Palestine Section (DCI/PS) case file 43B/2001.
[2] DCI/PS case file 17A/2001. Abu Judeh was charged with throwing stones and sentenced to ten months in Megiddo Military Prison. He also received a one-year suspended sentence should he commit the same offense in the following five years. His family was fined 3,000 NIS (approximately $690).
[3] Interview with Khalid Quzmar, December 12, 2002.
[4] Interview with Tamar Peleg, March 16, 2003.
[5] See Jonathan Cook, “Declining to Intervene: Israel’s Supreme Court and the Occupied Territories,” Middle East Report Online, August 4, 2003.
[6] Committee on the Rights of the Child, List of Issues: Israel, CRC/C/Q/ISR/1.B.1.
[7] Ibid., A.4b.
[8] International Committee of the Red Cross, General Problems in Implementing the Fourth Geneva Convention, Report for Meeting of Experts (Geneva, October 27-28, 1998), p. 4.
[9] Haaretz, April 4, 2003.
[10] Palestine Monitor Update, “The Threat of ‘Transfer’ Becomes Temporary Reality for Thousands from Tulkarm Refugee Camp,” April 5, 2003.
[11] ICRC, p. 4.

How to cite this article:

Adah Kay, Catherine Cook, Adam Hanieh "Paying the Price of Injustice," Middle East Report 229 (Winter 2003).
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