How Israel violates international law to detain minors under military law

When Israel and Hamas carried out a prisoner swap during a week-long truce in the last week of November, the world watched in shock as children after children walked out of Israeli prisons.

Among the 210 Palestinians released by Israel – all of them children and women –was a 14-year-old boy, the youngest of the lot.

The large number of children among the freed Palestinians has put the spotlight back on one of Israel's most brutal and illegal practices in the occupied Palestinian territories.

An examination of available statistics and credible reports reveals a pattern of Israel detaining and prosecuting a staggering number of minors over the decades.

Since 1967, Palestinian children in the occupied West Bank have been subject to Israeli military law, making them the only minors in the world consistently prosecuted in military courts.

Remarkably, Israel is the only country systematically employing military court systems to prosecute children.

Annually, an estimated 500-700 Palestinian children, some as young as 12, end up detained and facing prosecution in the Israeli military court system.

B'Tselem, an Israeli human rights organisation, reported that as of September, the Israel Prison Service was holding 146 Palestinian minors for reasons classified merely as "security-related".

In 1991, the rights group Defense for Children International - Palestine (DCIP) started documenting the detentions of Palestinian children by the Israeli military in the occupied West Bank, including East Jerusalem and besieged Gaza.

Over the past two decades, DCIP says, approximately 13,000 Palestinian children have experienced detention, interrogation, prosecution, and imprisonment within the Israeli military system.

These minors – mostly boys aged 12-17 – come under the purview of Israeli military law, which deems individuals criminally responsible from the age of 12, contrary to international law, which recognises anyone under 18 as a child.

Between January 1, 2016, and December 31, 2022, DCIP gathered sworn affidavits from 766 child detainees held by Israeli forces in the occupied West Bank and prosecuted in Israeli military courts.

"None of the 766 Palestinian children reported that Israeli authorities provided them with an arrest warrant at the time they were arrested," According to DCIP.

Only 111 out of 766 children (14.5 percent) said they were generally informed about the reasons for their arrest afterwards.

DCIP's data highlights that three-quarters of the children experienced some form of physical violence after arrest. In 97 percent of cases, no parent was present during interrogation, and two-thirds were not properly informed of their rights. Israeli forces failed to inform children of the reason for their arrest in 85.5 percent of cases.

The statistics further reveal that 80 percent of children underwent strip searches, and 42 percent were denied adequate food and water while 31 percent denied access to a toilet.

Palestine is occupied in every aspect

In 1991, Israel ratified the UN Convention on the Rights of the Child (UNCRC), committing to uphold the rights and protections outlined in the treaty for all children within its jurisdiction. This includes prioritising the best interests of the child in decision-making.

However, Israel rejects the applicability of the UNCRC to its responsibilities for children in the occupied Palestinian territories.

Israel's treatment of children within its legal system has been marred by violations of international law, including (i) maintaining two separate legal systems in a single territory based on nationality, (ii) detaining children within the military court system, (iii) denying access to legal assistance, (iv) forcibly transferring detainees out of the occupied territory, and (v) perpetrating crimes against humanity on children.

Israel's breach of international law begins at its very foundation. While Palestinian civilians face military law, illegal Israeli settlers living in the same territory are governed by civil law, a duality slammed as an example of an "apartheid regime" by the Jerusalem-based Israeli human rights organisation, B'Tselem.

According to the United Nations Committee on the Rights of the Child, "the conduct of criminal proceedings against children within the military justice system should be avoided."

And yet, any Israeli police officer, security personnel, or soldier is authorised, without the need for a warrant, to arrest any child under "administrative detention" if there is "cause for suspicion" that the child has committed an offence, according to Israeli military orders.

Administrative detention relies on secret evidence, keeping the child and their lawyer in the dark and hindering their ability to mount a legal challenge against the detention and its purported legal reasons.

These children are not informed of charges and thus can't show evidence to defend themselves. Military court judges, usually Israeli army officers, can extend these detentions up to six months with unlimited renewals, leading to indefinite imprisonment for children and exacerbating their everyday struggles in prison.

Moreover, Israel imprisons children in military courts for offences like throwing stones—a specific violation under Military Order 1651 and the most frequent charge—with potential sentences of up to 20 years in jail.

In another matter, Israel forcibly transferred Palestinian children to prisons within Israel, violating Article 76 of the Fourth Geneva Convention. This article prohibits the forcible transfer of protected persons from an occupied territory, including detainees, outside of that territory.

According to data from the Israel Prison Service, Israel transferred over two-thirds of Palestinian children from the occupied territories. As a practical consequence of this, children's family members are not able to or allowed to visit them in prison.

Another violation of the law occurs in contravention of Article 5 of the Universal Declaration of Human Rights, a crucial document for human rights. This article guarantees the right to be free from torture, cruel, inhuman, or degrading treatment or punishment.

And yet, detained children report abuse from arrest to release, including binding, blindfolding, verbal abuse, and intimidation. Nearly two third of the children (59 percent) were arrested during the night, with 97 percent having their hands bound and 89 percent blindfolded. Additionally, over half of them encountered verbal abuse, humiliation, or intimidation during or after their arrest.

Israel's treatment towards detained Palestinian children has been overshadowed by its lethal strikes on civilians, resulting in an estimated 7,000 child casualties in the past two months.

While some Palestinian children were freed from prison during the hostage swap deal last month, hundreds of others are still awaiting freedom.