Dostoyevsky In The West Bank
“Not even world harmony is worth the tears of a single tortured child.” When Fyodor Dostoyevsky wrote these words in his final novel, The Brothers Karamazov, it was still the nineteenth century, before the world experienced the monstrous crimes that would take place a century later. The term “human rights” was not yet in vogue, and the possibility of establishing the United Nations was not yet on the agenda.
These words are now the basis of the humanistic approach, which sanctifies people and the richness of their spirit, sees in humankind a purpose and not a means, and relates to children and youths first and foremost as human beings worthy and in need of protection and care. Today this view is enshrined among other places in the U.N. Convention on the Rights of the Child and domestic legislation in most countries, including Israel. Yet when it comes to Palestinians under Israel's control, the humanistic approach to children's welfare tends to wither.
Several weeks ago, the Central Command GOC announced his decision to shorten the detention periods for Palestinian minors. Beginning April 1, 2013, it will no longer be permissible to hold a 12-year-old child in detention for up to 8 days, without judicial oversight, as is allowed by the law today. Under the new regulation, children under 14 will be detained for a maximum of 24 hours—twice as long as Israeli children of the same age. The change is not an expression of goodwill. It came in response to questions raised by the Supreme Court about the excessive detention periods imposed upon Palestinian minors in the context of a petition filed by the Association for Civil Rights in Israel (ACRI), The Public Committee Against Torture, Yesh Din and the Palestinian Ministry for Prisoners' Affairs.
Until recently, military law in the West Bank did not distinguish between children and adults. In 2009, a symbolic yet important step was taken: a military juvenile court was established, and some judges underwent special training for cases involving minors. In 2011, repeated requests by ACRI yielded another symbolic yet important amendment to the legal framework: the age of legal adulthood for Palestinians was raised from 16 to 18.
However, even after these important changes, military legislation is almost totally devoid of special protections for minors. For example, 12-year-old children can be and often are sentenced to prison, and the statute of limitations for petty crimes classified as security offences committed by Palestinian children is equal to the statute of limitations for crimes committed by adults. It is important to note that the list of security offences under military law is vastly longer than it is under the equivalent Israeli law, and includes offences such as participating in an unapproved demonstration.
Yet the most blatant and significant violation of children's rights and dignity is what occurs regularly during the arrest and interrogation phases. Youths, usually suspected of throwing stones, are arrested in the middle of the night after having their homes raided and searched. Blindfolded, with their hands tied behind their backs, they are taken to a checkpoint or military base where they spend many long hours, often without food or water, before they are brought to the police station. Many minors report that curses, threats, and sometimes even beatings are customary during this experience.
Under military law, Palestinian minors do not have the right to have a parent present during their interrogation, and authorities are not obligated to create visual and audio recordings of the interrogations of minors. Israeli minors are protected by such provisions under Israel's Youth Law. Some police stations in the Occupied Territories do record interrogations, and in rare cases, Palestinian minors are even allowed to have their parents present during the interrogation, but these concessions are voluntary, completely at the investigators' discretion.
Due to these circumstances, during the most critical and sensitive moments of the ordeal—the moment of initial shock following the arrest and the moments where his or her fate is decided—the child is helpless, bereft of emotional support, and completely isolated in the face of a formidable system.
Treatment and rehabilitation, considered by Israel and the West as a desirable alternative to imprisonment for minors, is practically nonexistent in the West Bank. Perhaps, owing to the circumstances of the occupation, in which the system of government is perceived by the population as hostile by definition, the existence of such practices is impossible. But the consequence of this situation is that a Palestinian child who is convicted (which happens about 99 percent of the time) will in many cases serve an actual prison sentence, regardless of the health, psychological, social and educational implications that prison entails.
Hundreds of thousands of Palestinian children have been born in the West Bank since the occupation. Decade after decade, new generations of Palestinian children must contend with a legal system for which their welfare is secondary to the perceived risk they represent.
The state undoubtedly has a duty to prevent terror and save lives, and this includes using the means provided by criminal laws. This is non-negotiable. The question is whether the violent and abusive detention of a child suspected of "throwing a stone at a time that is unknown to the prosecution" contributes anything to the achievement of this duty. Does holding a 12-year-old child in detention for 48 hours without allowing him to appear before a judge prevent terror? Does failing to record interrogations help to maintain national security? Are Palestinian children not worthy of the same protections given to Israeli children who also live in the occupied territories?
If world harmony does not justify a single tear of a child, certainly slogans such as "security considerations" do not justify senseless cruelty to children. It seems that after 45 years of military rule in the West Bank, the time has come for military law and the military justice system to ensure the protection of Palestinian children by granting them all the appropriate rights of minors.
This post was adapted from a piece originally published in Hebrew in Haaretz.