Introduction

On December 6^th, 2017, the President of the United States declared Jerusalem to be the capital of Israel. As part of this statement, he confirmed that “Israel is a sovereign nation with the right like every other sovereign nation to determine its own capital.” Such a declaration stands in stark contrast to the status of Jerusalem’s Palestinian population.

As of 2018, over 323,700 Palestinian residents live in occupied East Jerusalem, although some estimated that numbers are actually higher. [1] Due to Israel’s illegal annexation of East Jerusalem, Palestinians are solely subject to the Israeli Municipal authority and Israeli civil law despite their legal status of protected persons under international law.

In response to a wave of protests and unrest beginning in October 2015, which was primarily emanating from East Jerusalem, the Israeli authorities escalated their constant attempts to suppress the population into a concerted campaign of arrest and imprisonment that, for the most part, has continued to this day. The year 2017 saw a total of 1,138[2] arrests of Palestinian children in East Jerusalem. This figure represents around 17% of total arrests for the entire Palestinian population for the same year. When the fact that the Palestinian Jerusalem population only represents around 6%[3] of the total Palestinian population of the occupied territory, it is safe to say that Jerusalemite children are experiencing a concentrated campaign of arrest.

This factsheet will provide the details surrounding the Israeli escalation of its policies of arrest and detainment of children in East Jerusalem from December 2016 until  February 2018, including the legal status of Jerusalemites, the laws they are subject to, and the effects this has on childhood development.

The Jerusalem context

Following the beginning of the Israeli occupation of the West Bank in 1967, Israel de facto annexed around 70,000 dunums (27 square miles) from East Jerusalem and its surrounding villages by including them within the borders of the unilaterally established Jerusalem Municipality. By doing so, the 68,600 Palestinians living in these areas were, in contravention of IHL, brought under the direct rule of Israeli law.[4] This illegal annexation was formalized into Israeli basic law in 1980 with an act of the Israeli Parliament.[5]

In practice, this annexation has meant that the Palestinians of Jerusalem have been stuck between two worlds. While under occupation officially in regard to international law, they have been governed directly by Israeli authorities.[6]

What this has meant for them is that while in theory they have the same legal protections in the civil legal system as an Israeli citizen, the reality is often startlingly different. In stark contrast to the rights of a ‘citizen’, Jerusalemite Palestinians face substantial, state-based discrimination. The key discriminatory policies are residency revocation, discriminatory planning regime, house demolition, inadequate allocation of municipality resources, and high rates of arrest and detainment.[7]

According to the UN Office for Coordination of Humanitarian Affairs (OCHA), these discriminatory policies in East Jerusalem create a coercive environment, which can, and does, lead to forced displacement. [8]

Despite the fact that Jerusalemites are ‘permanent residents’, 14,595 Palestinians have had their residency status revoked in the period from 1967 to the end of 2016.[9] The reasons are mostly connected to the inability to prove that their ‘center of life’ is based in Jerusalem and, more recently, as a punitive measure for individuals, and their family members, who have been convicted of ‘nationalistic’ crimes or ‘breaches of loyalty’.[10]

As for house demolitions, the most recent data is from 2017, with 142 structures (around 23% of which were inhabited houses) demolished in East Jerusalem.[11] The majority of these demolitions were due to a lack of building permit, which takes years to be issued if at all due to a discriminatory system of allocation[12], but a number of them were punitive. From July 2014 till March 2017, six homes were demolished punitively.[13]

Due to a deliberate poor and discriminatory allocation of resources, the educational situation of Palestinian children of East Jerusalem remains grim.[14] The combination a poverty rate of 86% and a shortage of around 2,000 classrooms[15] means that the potential of large sectors of the juvenile population will go unrealized within a system that is already systematically discriminatory based on ethnicity.  

Israel’s Obligations under International Law

As an occupied people, Palestinians as a group hold the status of protected persons under International Humanitarian Law (IHL). This means that the primary law, which is to govern the conduct of the occupying power in regard to the protected persons, is international humanitarian law. According to the International Court of Justice’s 2004 Advisory Opinion on the Wall, human rights law is additionally applicable in regard to the conduct of Israel toward the protected populace.[16]

That said, the Fourth Geneva Convention of 1949 is rather bare in regard to the specific needs of child members of the occupied population. Besides general statements concerning food and medicine, the primary prescription comes in Article 38(5) “Children under fifteen years […] shall benefit by any preferential treatment to the same extent as the nationals of the State concerned.” Taking into account the insight of the Commentary of 1958, published by the International Committee of the Red Cross, this essentially means that children under 15 years are to be afforded preferential treatment in essentially all regards.[17]

The primary body of laws protecting children comes from human rights law, with the Convention on the Rights of the Child (CRC) being particularly pertinent. Beginning with the International Covenant on Civil and Political Rights, Article 10(3) calls for special measures of protection and assistance for all children, meaning any individual under the age of 18.

The CRC elaborates such protections further. In Article 3, the principle of the best interest of the child is emphasized. The article stresses that, “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.”[18]

According to General Commentary 14 (2013) of the Committee on the Rights of the Child, this means that there is an “obligation to ensure that all judicial and administrative decisions as well as policies and legislation concerning children demonstrate that the child’s best interests have been a primary consideration.”[19]

Finally, in regard to child prisoners, Article 27(b) of CRC is of the utmost importance. It states that, ”[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily.”[20] The article further emphasizes that in the case of arrest, “the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.[21]

Thus, in regard to IHL and human rights law, children are to be treated in an exceptional manner in keeping with their exceptional vulnerabilities. They are to be provided with the upmost support in regard to material needs and are to be kept out of situations that may be detrimental to their social, psychological, educational and physical development.

Israeli Law

For the most part, Israeli domestic legislation meets the required threshold in regard to taking the best interest of the child into account. As such, the majority of the violations of international law comes in the law’s inequitable and discriminatory application. As for military law, the system of law that governs the West Bank and a number of ‘security cases’ from Jerusalem, it, as a system, is in violation of international standards in both law and practice.

The Youth Code, or ‘The Youth (Judiciary, Punishment, and Methods of Treatment) Law, 5731-1971, is the primary piece of legislation that governs interactions between the police, judiciary, and children in Israeli civil courts. The Youth Law explicitly aims at the rehabilitation of violators and seeks to limit imprisonment. Article 10(a) of the law states, “[i]t will not be decided to detain a minor if the purpose of detention can be achieved in a manner that does not violate their freedom”. Additionally, the same article seeks to take age, and potential effect of detention into account. More broadly, the law restricts the use of physical restraints, places restrictions on the interrogation of minors at night, allowing access to family members, the right to speak to an attorney, and the right to have a family member present during interrogation.[22] That said, the investigating officer can choose to not contact a parent prior to interrogation if there is a reasonable belief that doing so would delay the investigation, or if a reasonable attempt has been made to contact a relevant adult.[23]  All these provisions are, broadly, in keeping with international law, and the requirement to take the child’s best interests into account.

An addition to the Youth Code, which is not in keeping with international law, came in response to the wave of unrest beginning in October 2015. On August 2^nd, 2016, under Amendment 22, the criminal age of liability for acts such as murder, attempted murder, or manslaughter was lowered to 12. As part of the law, sentences will be deferred until the age of 14.

The Project  

In collaboration with Terre des Hommes Italy (TDH It), Addameer is documenting and providing legal support to Palestinian children of East Jerusalem. With the aim of ensuring the proper educational outcomes for all children in East Jerusalem, TDH Italy is committed to provide novel ways to ensure that children who entered in contact with the Israeli juvenile justice system receive tailored educational support, with the aim of ensuring access to their right to education and promoting advocacy work towards the mistreatment of children.

The joint effort of TDH Italy, through its Mobile Team, and Addameer, through a dedicate lawyer, allowed the identification of 54 arrested children in the timeframe May 2016 - February 2018.

Detainment, Interrogation and Sentencing

Based on the collection of information by Addameer’s dedicated lawyer, additional documentation staff, and the consultation of additional resources, patterns and trends have become clear in regard to the detainment of Palestinian children in East Jerusalem. It is safe to say that the average experience of a Jerusalemite child under arrest is one of humiliation, intimidation, and the denial of their basic rights.

Children are either arrested from the homes, in the early hours of the morning, or from the street in the afternoon. Then they are either taken to the interrogation facility in the Russian Compound, known as al-Mascobiyya, or they are taken to a police station in Jerusalem.

A.Z, a 17-year-old child from al-Issawiya, who has been arrested 6 different times since he was 14, recalls his latest arrest in 2017. He said that “soldiers broke into our home at 4:00 am, they searched the home, handcuffed me and carried me to the jeep, which then drove me to al-Mascobiyya.”

A.H. recalls that during her arrest, “one of them [the police] hit me on my chest; the blow caused internal bleeding.” She was later denied adequate medical treatment for her injuries, with prison guards giving her medicine in the water without her knowledge.  

Interrogations often begin without parents being aware of their child’s whereabouts and, occasionally, even that they have been arrested. These interrogation sessions are conducted without a parent, guardian, or attorney being present, leaving the children completely in the hands of their arrestor. Interrogations can last for hours, and, contrary to domestic and international legislation, involve physical and psychological abuse. The most common abuses observed in the cases documented were slapping, and verbal threats to the child or their family members.

M. A., a 16-year-old from al-Issawiya who was arrested from his home in the early hours of July 19^th, 2017, recounted that the Israeli occupying forces began questioning him during the arrest and prior to his arrival at Oz police station. His interrogation lasted a total of three days, and it ended only when he agreed to sign a confession written in Hebrew, a language he does not understand, without the presence of a lawyer. During the interrogation, he was beaten and verbally abused by three officers. He remained handcuffed for the majority of the three days.

Of his interrogation, he said:

They put me under a lot of pressure, they said they would cancel my Jerusalem identity card and issue an order for the demolition of my family’s house […]. one of them told me that if I worked with them, I would make it all easier for myself.

After the signing of a confession, the legal proceedings lack substantial safeguards and fail to uphold child protection. Prior to 2015, the application of the Israeli Youth Law for Palestinian children was largely in keeping with international law. Children arrested for throwing stones were often released without receiving a report from the Juvenile Discipline officer, as stipulated in article 10(a) of the Youth Code. This radically changed after October 2015, with children being held in prison while awaiting the report for around 20-25 days. Since then, the majority of Palestinian children have been sentenced to prison time, house arrest, or community service for such offences.

D. A., is a 17-year-old child who was arrested after being summoned to al-Mascobiyya interrogation Center on August 3^rd, 2016. Prior to sentencing, he was held for a period of 2 months rather than being released during the court proceedings. He was subsequently convicted of throwing stones. His family was fined USD $1,400, and he was sentenced to 9 months of home detention. He lost a year of schooling due to his detention.

The trauma of being taken from your house in the middle of the night, to be abused and yelled at by a group of police officers is an experience that would rattle an adult. The effects on a child are extremely detrimental to their overall wellbeing and development. A large number of ex-child detainees visited as part of the project drop of school (48% of the visited children) or substantially worsened in their school performance. When interviewed, the majority of them report experiencing feelings of disorientation, frustration, anxiety, and fear, which often negatively affect the family life.

K.S. had already missed 5 months of school when he was allowed to go back to school with the accompaniment of his mother. He eventually stopped going to school both because he was too lost in class and because he was embarrassed to be dropped off and picked up by his mother.

His mother observed that, “He has been feeling anxious, confused and 'without direction' ever since the day he was arrested, I think they want to destroy the boy.”

Conclusion

While formally the Israeli domestic law is in keeping with the international legal framework, there is a large gap between law and practice. In this gap is where the Jerusalemite children find themselves.

Addameer calls on the international community, and UN human rights bodies, to use all diplomatic and legal means to pressure Israel to end its violations against Palestinian children in East Jerusalem. Additionally, competent UN and diplomatic channels should be activated in order to ensure accountability for Israel’s violations of international humanitarian law and international human rights law.

Additionally, we call on civil society to mobilize in support of East Jerusalem’s children. Contact your political representatives, organize a protest, or engage in information campaigns to ensure that Israel’s violations of the right