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Children's Rights, State Criminality and Settler Colonialism: Violence and Child Arrest in Occupied East Jerusalem
Abstract
Over the past few years, Palestinian children in Occupied East Jerusalem (OEJ) have faced high rates of arrest. The article examines violence against children during arrest by juxtaposing state official documents recording debates and analyses of children's rights with published reports by human rights and civil society organizations. The article suggests that arrested children in OEJ suffer from three intersecting discriminatory regimes: structural discrimination that targets them as criminals based on their ethnicity; a lack of assistance as they fall under the responsibility of neither the Palestinian nor the Israeli socio-legal systems; and limited access to welfare, justice, and educational opportunities. The article concludes by suggesting that Palestinian children face severe structural violence that amounts to state-hate criminality.
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Author and article information
Notes
On 7 July 2014, humanitarian emergency was declared in the Gaza Strip, following a severe escalation in hostilities involving intense Israeli aerial and navy bombardment and Palestinian rocket fire. Hostilities de-escalated following an open-ended ceasefire, which entered into force on August 26 (United Nations Office for the Coordination of Humanitarian Affairs – Occupied Palestinian Territory [UNOCHA OPT] 2014).
Convention on the Rights of the Child (CRC), supra note 1, Art 38, 28 I.L.M. at 1470, 1989.
Second Protocol, supra note 134, Art 77(3), 1989.
The accepted definition of children, detailed in Article 1 of the CRC, is “Every human being below the age of 18 years unless, under the law applicable to the child, the majority is attained earlier.” For the purpose of this article, Palestinian children are youth aged 10 to 18 in the area designated as East Jerusalem.
CRC, supra note 5, Art 2(1).
Jews of European descent.
Statistics from around the US indicate that youth of colour comprise 18 per cent of the population while they make up 72 per cent of incarcerated juveniles.
Black youth comprise 15 per cent of the youth population in the US.
Eighty per cent of the sample used by the State Comptroller Report for 2014 relates specifically to Occupied East Jerusalem (OEJ) and the West Bank.
The Youth Law (Trial, Punishment and Modes of Treatment), 1971, determines the methods of operation of government agencies that focus on youth involved in criminal activities. The law applies to minors aged 12 to 18 years. In July 2008, the Knesset passed Amendment No. 14 to the Youth Law. The amendment is intended to help realize the rights of minors in criminal proceedings while maintaining their dignity and giving due weight to their rehabilitation and integration into society. The amendment added special provisions concerning the right of the child to express his or her position before a decision is made on his or her case.
International treaties: United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules 1985, https://www.ncjrs.gov/pdffiles1/Digitization/145271NCJRS.pdf); the CRC General Comment Number 10 ( 2007): Children's Rights in Juvenile Justice ( http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf); Guidelines for Action on Children in the Criminal Justice System (ECOSOC, 1997, https://www.unodc.org/pdf/criminal_justice/Guidelines_for_Action_on_Children_in_the_Criminal_Justice_System.pdf); UN Rules for the Protection of Juveniles Deprived of Their Liberty ( 1990, http://www.un.org/documents/ga/res/45/a45r113.htm); Nations Model Strategies and Practical Measures on the Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice ( 2015, http://www.unodc.org/pdf/criminal_justice/Model_Strategies_violence_children.pdf).
The right for parental presence during each phase of the juvenile justice procedure is grounded in the Beijing Rules Article 7.1.
According to the Israeli Youth Law, Section 34f of the Penal Code 1977: “A person shall not be held criminally responsible for acts committed before he was twelve years old.”
Article 9(2) to the Youth Law, determining the exception to night arrest in cases where the punishment for the felony is at least three years in prison.
Military legislation, as applied in the Occupied Palestinian Territories (OPT), barely deals with minors in criminal proceedings. The order concerning adjudication of young offenders was enacted in 1967 and includes the following clauses: Prohibition to impose a prison sentence greater than six months on minors under the age of 14; limited imprisonment of minors aged 14 to 15 to a maximum of one year; prohibition on detaining minors together with adults (B'Tselem 2011: 10–11).
Although the Israeli Annual State Comptroller Report for 2014 and some of the non-governmental organization (NGO) reports referred to Palestinian children in OEJ and the OPT as being adjudicated under one umbrella, the judicial systems applied in the two places differ. This article looks only at children in OEJ, which is under the Israeli jurisdiction.