WP 3 Justice and Reconciliaton online - Final by Jose

WALKING PATH 3 Justice and Reconciliation: Restoring Dignity after Violence and Injustice

INDEX Walking Path 3 Programme FIDH (2003). Les prisonniers palestiniens en Israël : conditions inhumaines des détenus politiques Breaking the Silence (2011). Children and Youth - Soldiers' Testimonies ACT Alliance (2015). Palestine and the International Criminal Court Defence for Children International – Palestine (2012). Bound, Blindfolded and Convicted: Children held in military detention Addameer (2013). Courageous Voices, Fragile Freedoms: Israel’s Arrest and Detention of Palestinian Human Rights Defenders against the Wall M. Fischer (2011). Transitional Justice and Reconciliation Bishop Kevin Dowling (2013). The Spirituality of Transformative Justice and Democracy Kairos Palestine (2010). Come and See: A Call from Palestinian Christians - A journey for peace with Justice Guidelines for Christians Contemplating a Pilgrimage to the Holy Land

2 6 9 80 88

228 266 292 300

WALKING PATH 3 JUSTICE AND RECONCILIATION: RESTORING DIGNITY AFTER VIOLENCE AND INJUSTICE A. SUMMARY Pax Christi members have witnessed many times the long road to reconciliation, which is at the heart of our mission. Violence and injustice that are pervasive during armed conflicts and oppressive regimes and structures need a long time and complex social and political processes to heal. Participants in this walking path will interact with relatives of political prisoners and victims of torture. Later on, they will reflect on how Member Organisations around the world are promoting processes of reconciliation and building and sustaining integrative, inspirational and empowering processes of dealing with the past in view of reaching transformative justice. B.

RECONCILIATION AND TRANSFORMATIVE JUSTICE

Reconciliation describes a process rather than an end state or outcome, aiming at building relationships between individuals, groups and societies. Reconciliation has also been defined as a process “through which a society moves from a divided past to a shared future”; looking at the past in a way that allows people to see it in terms of “shared suffering and collective responsibility” may help to restore confidence. The need for reconciliation is emphasised in particular for societies that have gone through a process of ethnopolitical conflict, as these are marked by a loss of trust, intergenerational transmission of trauma and grievances, negative interdependence (as the assertion of each group’s identity is seen as requiring the negation of the other group’s identity) and polarisation. Given that antagonists live in close proximity, not addressing these legacies means risking that they will form the causes of new spirals of violence. (M. Fischer, Berghof Foundation, 2011) The Church teaches that true peace is made possible only through forgiveness and reconciliation. It is not easy to forgive when faced with the consequences of war and conflict because violence, especially when it leads “to the very depths of inhumanity and suffering”, leaves behind a heavy burden of pain. This pain can only be eased by a deep, faithful and courageous reflection on the part of all parties, a reflection capable of facing present difficulties with an attitude that has been purified by repentance. The weight of the past, which cannot be forgotten, can be accepted only when mutual forgiveness is offered and received; this is a long and difficult process, but one that is not impossible. (Pontifical Council of Justice and peace, Compendium of the Social Doctrine of the Church, 2004) Transitional Justice places the emphasis or focus on the centrality of justice as the cornerstone of the both the process and the outcomes a time of transition from conflict and violence. One objective is to create and nurture an environment where the past evils and atrocities can never be repeated, and the ways to achieve this. But, Transitional Justice also speaks to the possibilities of justice for the victims, accountability for the perpetrators and the past beneficiaries of injustices, and a process leading to reconciliation, if possible, and a minimally decent society. 1

C. PAX CHRISTI AND THE WORK FOR RECONCILIATION Pax Christi was born from an initiative of Reconciliation. Martha Dortel-Claudot’s inspiration was aimed to ending the hostilities between France and Germany. Martha contacted Msgr. Théas, who came back after the end of World War II from a camp of war prisoners where he had been incarcerated for helping Jews to escape persecution. During his captivity he prayed – during the war, for the German people, in front of the French officers who were with him in captivity. Pax Christi’s spirituality is rooted in an absolute belief in the dignity and worth of every human person. God calls us to right relationships which are built on the respect of the dignity of every human person and observance of social justice. Peace and reconciliation can possibly be attained if we can find them within ourselves and then promoting them in our societies. Pax Christi’s spirituality and practice also link reconciliation with justice for the victims. Member Organisations promote the honest investigation of sensitive periods in the history of countries affected by atrocious violence. In Latin America, Africa, Asia, and Eastern Europe, members have encouraged and supported truth and reconciliation commissions and post-conflict reconciliation programs. D. PROGRAM THURSDAY: PILGRIMAGE TO RAMALLAH 12h30-14h00 14h00-15h30

Bus leaves hotel. Trip to Ramallah -

Meeting with representatives of Defence for Children International – Palestine and Addameer: Their mission and projects run in the country.

Video on detainees’ conditions (especially children)

Debriefing on situation of prisoners with both organizations – Q/A

15h30 – 16h00

Break

16h00-17h30

Meeting with Seeds of Peace: Processes of dialogue between Palestinian and Israeli young people. TBC

Coffee/Tea

17h30

Back to the Hotel

FRIDAY: DEEPENING THE DISCUSSION ON JUSTICE AND RECONCILIATION During this session, through a participatory methodology, participants will look at how their own organizations and other member organizations around the globe are forging peace by promoting reconciliation and justice, especially for those groups most affected by injustice and violence in its different forms. 2

8h30-8h45 8h45-10h15

10h15-10h45 10h45-12h00 12h00 E.

Introductions “Fishbowl” conversation Facilitator: Christine Hoffman, Germany, Secretary General of Pax Christi Germany. Panelists: Etienne De Jonge, Belgium, Former Secretary General of Pax Christi International; Dom Enemésio Lazzaris, Brazil, President of the Comissão Pastoral da Terra; local person, region, tbd; local person, Palestine, tbd. Expanding the conversation Break Open space to deepen the conversation Discussion about various topics in small groups Return to large group End discussion session

RESOURCE ORGANIZATIONS 

Addameer – Prisoner Support and Human Rights Association: Palestinian nongovernmental, civil institution that works to support Palestinian political prisoners held in Israeli and Palestinian prisons. Established in 1992 by a group of activists interested in human rights, the center offers free legal aid to political prisoners, advocates their rights at the national and international level, and works to end torture and other violations of prisoners' rights through monitoring, legal procedures and solidarity campaigns. Website: http://www.addameer.org



Defence for Children International – Palestine: National section of Defence for Children International (DCI), established in 1979. They are dedicated to promoting and protecting the rights of Palestinian children in accordance with the United Nations Convention on the Rights of the Child, as well as other international, regional and local standards. They aim to build a Palestinian community fit for all children: free and independent; where justice, equality and respect for human dignity prevails; where children can enjoy and exercise their human rights without any kind of discrimination. Website: http://www.dci-palestine.org



Seeds of Peace: Since 1993, Seeds of Peace gives rise to new generations of leaders uniquely inspired and equipped to build lasting peace. They provide young people and educators from regions of conflict the opportunity to meet face-to-face in Maine, USA. They also build understanding through year-round local programs that focus on the core leadership capacities needed to advance peace. There are now over 5,000 Seeds and Educators from 27 countries who prove that solutions exist, peace is possible, and there is reason to have hope for a better future. Website: http://www.seedsofpeace.org

ANNEXES (online)  

ACT Alliance (2015). Palestine and the International Criminal Court. Link FIDH (2003). Les prisonniers palestiniens en Israël : conditions inhumaines des détenus politiques. Link 3

    

Defence for Children International – Palestine (2012). Bound, Blindfolded and Convicted: Children held in military detention. Link Addameer (2013). Courageous Voices, Fragile Freedoms: Israel’s Arrest and Detention of Palestinian Human Rights Defenders against the Wall. Link M. Fischer (2011). Transitional Justice and Reconciliation. Link Bishop Kevin Dowling (2013). The Spirituality of Transformative Justice and Democracy. Link Kairos Palestine (2010). Come and See: A Call from Palestinian Christians - A journey for peace with Justice Guidelines for Christians Contemplating a Pilgrimage to the Holy Land. Link

Palestine and the International Criminal Court 31 March, 2015

What is the International Criminal Court and why is it important? ................................................ 2

Is the Rome Statute system universal? ........................................................................................... 2

What are the underlying principles of the Rome Statute? ............................................................. 3

4. How can a state seize the Court? What is the difference between accession and ad-hoc recognition of the Court’s jurisdiction?................................................................................................... 3 5.

How was the ICC seized with the Palestinian situation? ................................................................. 3

What crimes fall under the ICC’s jurisdiction, in the case of Palestine? ......................................... 4

7. The ICC Prosecutor has opened a preliminary examination into the situation in Palestine. What does this mean? ...................................................................................................................................... 4 8.

How does the ICC examine jurisdiction? ......................................................................................... 4

Who can challenge the Court’s jurisdiction?................................................................................... 4

10.

If the Court has jurisdiction, which cases are admissible? .......................................................... 5

11.

What happens if Palestine refers a “situation” to the ICC? ........................................................ 5

12.

What kind of “situation” can be referred to the ICC? ................................................................. 5

13. Does the State of Palestine need to take any further steps before an investigation can be opened?................................................................................................................................................... 5 14. When and how does an investigation start? How long does it normally take to start an investigation? .......................................................................................................................................... 6 15. Who defines the cases and selects the alleged crimes to be investigated? Can Palestine "bring cases"? ..................................................................................................................................................... 6 16.

Who can provide information to the Prosecutor? ...................................................................... 6

17.

Does the accession grant ICC officials access to the Palestinian territory? ................................ 6

18.

What types of crimes did the Prosecutor investigate in the past? ............................................. 7

19.

What are the most likely potential cases that the Prosecutor would investigate in Palestine?. 7

20.

Will the ICC only investigate leaders? ......................................................................................... 7

21.

Can the ICC investigate settlements that were built before 13 June? ........................................ 7

22.

Are states obliged to cooperate with the ICC?............................................................................ 8

23.

Can Palestine withdraw from the Rome Statute? ....................................................................... 8

1. What is the International Criminal Court and why is it important? In 1998, more than 160 States convened in Rome and negotiated the Rome Statute of the International Criminal Court. The Rome Statute, which established The International Criminal Court (the ”ICC” or the ”Court”), was the culmination of years of negotiation and discussion, and came into force on 1 July 2002. The Rome Statute builds and expands on existing obligations derived from international law and grants the Court power to investigate, prosecute and punish perpetrators of “the most serious crimes of concern to the international community as a whole”, namely, war crimes, crimes against humanity, genocide and the crime of aggression.1 States have the primary responsibility to investigate and prosecute war crimes, crimes against humanity and genocide. The Court has been designed to complement the work of national judicial systems. Based on this “complementarity principle”, the ICC serves the international community by dealing with alleged crimes that states are unwilling or unable genuinely to deal with themselves. As such, the ICC seeks to ensure accountability for the most heinous crimes that are left unaddressed by national authorities, and to fill a gap where the victims’ rights to justice are not fulfilled. The Court has been established with the highest fair trial and due process standards in mind, with the necessary judicial checks and balances drawing from the experiences of the founding states. All States are obliged to ensure the investigation and prosecution of grave crimes, as part of their long-standing commitments under international law, in respect for victims’ rights to justice and in accordance with the international commitment to address impunity for international crimes. 2 2. Is the Rome Statute system universal? No, not yet. However, 123 states have ratified3 the Rome Statute and every year States Parties to the Rome Statute collectively invite “States not yet parties to the Rome Statute of the International Criminal Court, to become parties […] as soon as possible” in addition to issuing a general call to “all States Parties to intensify their efforts to promote universality”.4 The European Union is a strong promoter of the universality of the Rome Statute5 has included adherence to the values of the Rome Statute and its ratification as part of the “acquis communautaire” to be fulfilled prior to becoming a member of the EU.6 The African states, the

An amendment to define “crime of aggression” was agreed to in 2010 and means the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State. The ICC cannot exercise its jurisdiction over crimes of aggression until the amendment has been ratified by thirty States Parties and upon further decisions by the majority of the States Parties to the Rome Statute (not before 1 January 2017). 2 The preamble to the Rome Statute of the International Criminal Court recalls “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. The 1949 Geneva Conventions require States to search for persons alleged to have committed, or ordered to have committed, grave breache s and to try or extradite them. According to the ICRC, customary international law provides that States must investigate war crimes under their jurisdiction. The obligation to investigate and prosecute is found in a number of treaties; Genocide Convention, Article VI; Hague Convention for the Protection of Cultural Property, Article 28; Convention against Torture, Article 7; Chemical Weapons Convention, Article VII(1); Amended Protocol II to the Convention on Certain Conventional Weapons, Article 14 ; Ottawa Convention, Article 9; Second Protocol to the Hague Convention for the Protection of Cultural Property, Articles 15–17. 3 Palestine becomes the 123rd State party to the Rome Statute when the Statute enters into force, on 1 April 2014. 4 Assembly of States Parties Resolution ICC-ASP/13/Res.5, December 2014 5 See EU Decision and Action Plan on the ICC, 2011 6 See also EU’s calls for universality in December 2014, including calls on Ukraine and Iraq to ratify the Rome Statute.

largest regional block of State Parties to the ICC, also views universal ratification as a key objective, joined by the United Nations Secretary General and many others.7 3. What are the underlying principles of the Rome Statute? In recognising that genocide, crimes against humanity and war crimes threaten the peace, security and well-being of the world, the preamble to the Rome Statute demonstrates the determination of the States Parties “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”. The preamble also declares that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”. States Parties to Rome Statute are obliged to abide by the Statute and states who have signed the Rome Statute are obliged not to act in ways that may defeat the object and purpose of the Statute, which are to ensure accountability and justice for the most serious crimes. 4. How can a state seize the Court? What is the difference between accession and ad-hoc recognition of the Court’s jurisdiction? By acceding to the Rome Statute of the International Criminal Court on 1 January, 2015, Palestine becomes a State Party on 1 April 2015 (date of the entry into force of the Statute for Palestine), granting the ICC jurisdiction over any future grave crimes committed in Palestine after that date. This means that Palestine also becomes a member of the Assembly of State Parties, the political body of the Rome Statute and may, for example, appoint and elect judges and other senior officials to the Court, vote on resolutions, etc. Palestine is the fifth member of the Arab League to join the ICC and signify its commitment to justice and the rule of law, after Jordan, Tunisia, Comoros and Djibouti. The Rome Statute allows states to grant the ICC ad-hoc jurisdiction for a particular situation or length of time, known as an Article 12(3) declaration. On 1 January 2015, parallel to acceding to the Statute, Palestine submitted such a declaration giving the Court retroactive jurisdiction over grave crimes committed on its territory or by its nationals since 13 June 2014, prior to becoming a State Party to the Statute.8 5. How was the ICC seized with the Palestinian situation? The Rome Statute provides that a “State” can grant its jurisdiction to the Court by becoming a Party to the Rome Statute or by making an ad-hoc declaration accepting the Court’s jurisdiction.9 In 2009, the Palestinian government submitted a 12(3) declaration, granting the Court retroactive jurisdiction for “acts committed on the territory of Palestine since 1 July 2002”. Three years later, in April 2012, the Prosecutor of the ICC announced his uncertainty as to whether Palestine qualified as a State for the purposes of the Rome Statute, and deferred the decision to the UN or eventually the Court’s Assembly of States Parties. Based on the vote of the United Nations General Assembly on November 29, 2012, to admit Palestine as a non-member observer state to the UN, the ICC Prosecutor accepted Palestine’s 12(3) declaration to the Rome Statute received by the Court on January 1, 2015. On 6 January 2015, the 7

See for instance Statement by ambassador to Lesotho to the UN on behalf of African state parties to the Rome Statute at th the 13 session of the Assembly of states parties to the Rome Statute, New York, December 8 2014; Secretary-General's message to opening of 12th Session of the Assembly of States Parties of the International Criminal Court, The Hague, th November 20 2013; Opening Statement by UN High Commissioner for Human Rights at 27 session of the UN Human Rights Council, Geneva, September 8 2014. 8 Press release by the ICC: “Palestine declares acceptance of ICC jurisdiction since 13 June 2014”, January 5 2015. 9 Article 12, Rome Statute of the International Criminal Court.

UN Secretary General, acting in his capacity as depositary, accepted Palestine's accession from January 2, 2015. Thus Palestine was welcomed as the 123rd State Party. 6. What crimes fall under the ICC’s jurisdiction, in the case of Palestine? Based on the Article 12 (3) Declaration, the Court has jurisdiction over all crimes listed in the Rome Statute (acts of genocide, crimes against humanity and war crimes) allegedly committed by individuals on the territory of Palestine or by Palestinian nationals since 13 June 2014. However, the Court can only exercise its jurisdiction if national authorities with jurisdiction are genuinely unable or unwilling to investigate and prosecute the crimes in question. 7. The ICC Prosecutor has opened a preliminary examination into the situation in Palestine. What does this mean? On 16 January, the Prosecutor opened a preliminary examination into the situation in Palestine. This is not a full investigation. Rather, the aim of this examination is to ascertain whether there is a reasonable basis to launch a full investigation. As part of the examination, the Prosecutor must satisfy that the alleged crimes are both within the jurisdiction of the Court and are admissible before the Court.10 During a preliminary examination, the Prosecutor can request and accept information from governments, international organisations and civil society, amongst other sources. The Prosecutor can also send a team to the location in question to assess or gather information. 11 There is no set timeframe for a preliminary examination. Currently (as of 19 February, 2015), preliminary examinations are being undertaken also in Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria and Ukraine. Some of these examinations have been ongoing for between five and ten years. The Prosecutor has three options when it comes to these examinations; request authorisation to launch a full investigation, decline to open a full investigation, or continue with the examination. 8. How does the ICC examine jurisdiction? Jurisdiction involves a determination of the legal parameters of the Court in relation to the concerned situation. In order to proceed, the Court must have temporal and material jurisdiction over the acts in question. That is, the Prosecutor must consider when and how the alleged crimes were committed. The Court must then determine that it has either personal or territorial jurisdiction. In the case of Palestine, the Court has jurisdiction over war crimes, crimes against humanity and genocide committed on the territory of Palestine, or by Palestinian nationals, since 13 June 2014. Issues of statehood, territory and nationality for the purpose of jurisdiction will be determined by the judges in the relevant chamber. 9. Who can challenge the Court’s jurisdiction? The Prosecutor may seek a ruling from the Court on jurisdiction on her own initiative (“proprio motu”). The accused or a person for whom an arrest warrant has been issued can challenge the jurisdiction of the Court and the admissibility of a case. In addition, the state that has jurisdiction over a particular crime can challenge the Court’s jurisdiction, on the ground that it is investigating or prosecuting the case or has already investigated or prosecuted. The state from which acceptance of jurisdiction was required, in this case Palestine, can also challenge the Court’s jurisdiction or the 10 11

Article 15, Rome Statute of the International Criminal Court. See also CICC Q&A on Preliminary Examinations by the Prosecutor of the ICC.

admissibility of a case.12 A person or State can only make the challenge once, as early as possible, prior to or at the start of the trial. In exceptional cases, the Court may grant a second challenge at a later date. 10. If the Court has jurisdiction, which cases are admissible? Complementarity is one of the core principles of the ICC. The Court is designed to complement, or supplement, domestic judicial systems, to help them ensure that there is no impunity for the most serious crimes. Before launching an investigation, the Prosecutor must examine existing overlapping domestic proceedings, and assess how genuine they are. As part of the complementarity assessment in any situation, the Prosecutor looks for sham proceedings, trials undertaken with a view to shielding the perpetrators from the ICC. If there are no investigations or prosecutions at all, the case is admissible subject to the assessment of the other admissibility requirements: gravity and interest of justice. Gravity involves an assessment of the scale, nature, manner and impact of the crimes. Cases must be of “sufficient gravity” to warrant investigation by the Court. There is no exact formula or equation for assessing gravity, but the Prosecutor’s assessment will include both quantitative and qualitative considerations. If the requirements of complementarity and gravity are met, the Prosecutor can still decide not to go ahead with an investigation if she has substantial reason to believe that the interests of justice will not be met. This assessment includes consultation with victims and their representatives. The Prosecutor has been clear that a decision not to proceed on these grounds would be highly exceptional. 11. What happens if Palestine refers a “situation” to the ICC? On 1 April 2015, when the Rome Statute enters into force for Palestine, Palestine will be able to refer situations to the Prosecutor as a State Party to the Rome Statute. The Prosecutor would then analyse the information contained in the referral as part of the preliminary examination, decide whether to initiate an investigation and determine which persons should be charged with crimes.13 In such a referral, Palestine should specify as far as possible, the relevant circumstances together with supporting documentation available to it. The referral gives the Prosecutor a procedural shortcut, because it would allow her, following a preliminary examination, to initiate an investigation without the authorisation (judicial review) of the Pre Trial Chamber as would otherwise be necessary under a proprio motu investigation. 12. What kind of “situation” can be referred to the ICC? A referral can concern the entire territory or parts of it. When the Central African Republic (CAR) issued a self-referral to the ICC, it concerned the entire territory of CAR while the self-referral by Uganda limited itself to the situation in northern Uganda. A referral can also be limited to one event, such as the referral by the Union of the Comoros with respect to the “31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip”. 13. Does the State of Palestine need to take any further steps before an investigation can be opened? No. As things stand, the Prosecutor can decide to open an investigation proprio motu, on her own initiative. If the Prosecutor does so, she will need to obtain authorisation from the Pre-Trial Chamber. 12 13

Article 19, Rome Statute of the International Criminal Court. Article 14, Rome Statute of the International Criminal Court.

14. When and how does an investigation start? How long does it normally take to start an investigation? The decision to move from a preliminary examination to a formal investigation is at the discretion of the Prosecutor. She can take this decision once she has collected information providing a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed, that the case is not being genuinely tried in domestic courts, and that there are no substantial reasons to believe that an investigation would not serve the interests of justice (see below). There is no clear formula as to how long a preliminary examination may take.14 For those referred cases that have moved from preliminary examinations to investigations, the time between a referral and the initiation of an investigation has varied from 2 months to 2 years. If initiated proprio motu, judicial review is required (see above) which may further delay the initiation of a formal investigation. If the Pre-trial chamber judges refuse to give authorization, the Prosecutor may try again at a later stage. 15 15. Who defines the cases and selects the alleged crimes to be investigated? Can Palestine "bring cases"? As a State Party, Palestine can refer a situation (see above), but not bring cases against certain individuals. It is up to the Prosecutor to define the case and the individuals allegedly responsible based on the information she has collected and request the Pre-Trial Chamber to issue a warrant of arrest. The Pre-Trial Chamber can issue arrest warrants where there is reasonable ground to believe that the person has committed a crime within the jurisdiction of the Court and the arrest appears necessary in the eyes of the Court. 16. Who can provide information to the Prosecutor? Anyone can provide information to the Prosecutor, and the Rome Statute provides that the Prosecutor may seek additional information from States, organs of the United Nations, intergovernmental and non-governmental organisations, or other reliable sources that she deems appropriate. In his capacity as President of Palestine, Mr Abbas has issued a presidential decree setting up a National Committee to coordinate Palestinian actions and policies in relation to the ICC. The roles and functions of this Committee do however not change or adjust the responsibilities and mandate of the Prosecutor and the Court in relation to the rights and access of victims, witnesses, lawyers and defendants. 17. Does the accession grant ICC officials access to the Palestinian territory? The access of the ICC officials is always dependent on the cooperation with states where they are acting. As long as Israel occupies and thereby controls access to and from the oPt (with the exception of the Gaza border with Egypt), the access of investigators and other ICC officials will be dependent on Israel’s cooperation with the ICC. However, although lack of access will complicate investigations, it is not a precondition for an investigation. The Court cannot try individuals in absentia which means that the Court is unable to proceed to trial unless the person appears before the Court, either voluntarily or by way of an arrest.

See for example, the preliminary examinations of: the situation of Georgia, began in 2008; the situation of Afghanistan since at least 2007; the situation of Guinea since 2009; the situations of Nigeria, and of Honduras and since at least 2010, all of which are ongoing. 15 Article 15, Rome Statute of the International Criminal Court.

18. What types of crimes did the Prosecutor investigate in the past? As of January 2015, the Office of the Prosecutor is reportedly conducting investigations and judicial proceedings in 8 situations (Central African Republic, Côte d’Ivoire, Darfur (Sudan), Democratic Republic of the Congo, Kenya, Libya, Mali and Uganda), and conducting preliminary examination activities in 9 situations (Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria, Palestine and Ukraine).16 Since 2002, 21 cases in 9 situations have been brought by the Prosecutor before the Court. Most of the charges have been for crimes against and humanity and war crimes, with only one arrest warrant issued for the crime of genocide against the President of Sudan. 19. What are the most likely potential cases that the Prosecutor would investigate in Palestine? There is a detailed list of the possible crimes in articles 6, 7 and 8 of the Rome Statute, and all grave breaches of the Fourth Geneva Convention are listed as war crimes under the Rome Statute. Some of the potential allegations that could be made against Palestinian and Israeli nationals include deportation or forcible transfer of population, willful killings, extensive destruction and appropriation of property; willfully depriving a protected person of the rights of fair and regular trial; and the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies. The Court obviously operates on the principle that persons are innocent until proved guilty. As with any criminal court, a high burden of proof is required, and any charges made by the Prosecutor will depend on the evidence available. 20. Will the ICC only investigate leaders? The ICC will not be able to bring to justice all individuals accused of committing crimes. The initial prosecutorial strategy of the ICC Prosecutor was to focus on investigating and prosecuting the most responsible perpetrators.17 Subsequently, the Prosecutor has explained that the required evidentiary standards might, in certain situations, force the Prosecution to adjust its approach by starting with mid- and high-level officials and then building upwards gradually to those most responsible. This is particularly true where investigation proves difficult or in light of lack of cooperation. If lower level perpetrators have allegedly committed particularly grave crimes, the Prosecutor could consider investigating them as well.18 21. Can the ICC investigate settlements that were built before 13 June? Based on International Humanitarian Law, the Rome Statute criminalises the transfer, directly or indirectly, by the Occupying Power of its own population into the occupied territory. If the Prosecutor decides to investigate this, the Court will assess whether the Prosecutor has proven the individual responsibility for having committed, ordered, facilitated or contributed to such transfers, directly or indirectly, since 13 June 2014. Continuous crimes, or continuing crimes, refer to crimes that were committed before the Rome Statute entered into force, but have continued after its entry into force. Examples of this could include forcible disappearance, where the original crime was initiated prior to the Court’s existence, but the disappearance is maintained long after the Court’s entry into force. While the question of continuous crimes was discussed during the drafting of the Rome Statute, no definitive position was reached by the drafters. As such, a determination would be left to the discretion of the Court.

ICC Website, as of 31 March 2015. Prosecutorial Strategy adopted in 2010, for the period 2010-2012. 18 OTP Strategic Plan 2012 -2015. 17

22. Are states obliged to cooperate with the ICC? According to Part 9 of the Rome Statute, all States Parties are obliged to cooperate fully with the Court and to support the investigation and prosecution of serious crimes. States not party to the Rome Statute and UN members are obliged to cooperate with the ICC for situations referred to by the United Nations Security Council, but may of course agree to cooperate with the Court on an adhoc basis. 23. Can Palestine withdraw from the Rome Statute? Yes, as with any other State Party, it can. However, it will only be effective one year after the withdrawal. The withdrawal would not stop the Court from finishing a matter already under consideration by the Court at the time of the withdrawal becoming effective.

Contact: agnes.bertrand@actalliance.eu or esther.martinez@actalliance.eu

Les prisonniers palestiniens en Israël : conditions inhumaines des détenus politiques Uittreksel van FIDH : mouvement mondial des droits de l'Homme https://www.fidh.org/La-Federation-internationale-des-ligues-des-droits-de-l-homme/maghreb-moyen-orie nt/israel-territoires-palestiniens-occupes/Les-prisonniers-palestiniens-en

Israel

Les prisonniers palestiniens en Israël : conditions inhumaines des détenus politiques - [français] - Maghreb & Moyen-Orient - Israël & Territoires Palestiniens Occupés -

Online geplaatst op: juillet 2003

Omschrijving:

Depuis le début de la seconde intifada, en septembre 2000 et jusqu'en avril 2003, plus de 28000 Palestiniens ont été incarcérés dans les prisons ou camps de prisonniers.

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Les prisonniers palestiniens en Israël : conditions inhumaines des détenus politiques

Depuis le début de la seconde intifada, en septembre 2000 et jusqu'en avril 2003, plus de 28000 Palestiniens ont été incarcérés dans les prisons ou camps de prisonniers. En avril 2003, il avait plus de 5500 prisonniers. Les arrestations ont augmenté dès janvier 2002 et connu une croissance fulgurante avec la mise en oeuvre du Plan « mur de protection » en mars/ avril 2002. La FIDH note que la question des prisonniers palestiniens est enfin à l'ordre du jour depuis les discussions autour de la « feuille de route ».

Les prisonniers palestiniens en Israël : conditions inhumaines des détenus politiques

Le rapport met en exergue la situation juridique volontairement obscure et mouvante dans laquelle se trouvent les prisonniers palestiniens. Israël ne reconnaît pas aux prisonniers palestiniens, le statut de prisonniers de guerrre. Dans la pratique, des ordres militaires israéliens régissent les conditions de détention et notamment le régime de la détention administrative qui permet de détenir une personne jusqu'à 6 mois renouvelables sans obligation de jugement. En outre, les conditions de défense des prisonniers sont très préoccupantes : une personne peut rester 32 jours sans voir un avocat, seuls les avocats israéliens peuvent plaider devant les juridictions militaires, leur accès aux camps est limité, le nombre d'avocats disponibles à cette fin très faible, d'autre part les entretiens avec leurs clients ne sont pas confidentiels. Dans les cas de détention administrative, les conditions d'un procès équitables sont loin d'être garanties, l'avocat n'ayant même pas accès auxéléments de preuve.

Les premières vagues d'arrestations se sont attachées à étêter la société palestinienne de ses cadres, puis ont été arrêtées les activistes les plus marqués. Les arrestations se déroulent le plus souvent aux checkpoints, lors des incursions israéliennes dans les villes et villages des Territoires occupés, aux points de contrôle frontaliers ou par kidnapping.

Bien que la mission n'ait pas obtenu l'autorisation de visiter les camps de détention, elle a pu recueillir des informations sur les conditions de détention. L'arbitraire des conditions de détention, vaguement régies par un décret de 1971, est renforcé par l'existence de trois systèmes pénitentiaires parallèles. D'après les témoignages recueillis, les conditions de détention se sont gravement détériorées depuis la première intifada : nourriture de mauvaise qualité, surpopulation des camps, pas de change vestimentaire, service médical déficient. En outre, les prisonniers ne peuvent pas recevoir de visite de leur famille, les autorisations de visite étant impossibles à obtenir et les Territoires bouclés. Dans les camps d'Ofer et de Ketziot, les prisonniers sont logés sous des tentes dans des conditions d'hygiène très préoccupantes. Les femmes, souvent des membres de familles d'activistes palestiniens, sont également détenues dans des conditions extrêmement difficiles. La mission exprime sa préocupation quant à la détention de mineurs - à partir de 12 ans - (325 mineurs prisonniers en avril 2003), qui sont souvent détenus sans séparation avec les adultes.

La mission a également recueilli des témoignages de mauvais traitements, de tortures et de pressions psychologiques, qui subsistent malgré la décision de la Cour suprême du 6 février 1999 proscrivant le recours à certaines de ces méthodes, sauf sous certaines conditions. La FIDH s'inquiète également de la quasi-impunité des forces armées israéliennes.

En conséquence la FIDH recommande aux autorités israéliennes :

· De laisser un libre accès des lieux de détention et de faciliter la libre circulation des O.N.G. israéliennes, palestiniennes ou internationales et de coopérer avec elles.

Page 2/3

Les prisonniers palestiniens en Israël : conditions inhumaines des détenus politiques · D'appliquer pleinement la 4ème convention de Genève · De mettre un terme aux poursuites à l'encontre des personnes à qui il n'est reproché aucun crime de guerre. · De supprimer la procédure dite de détention administrative · De supprimer les juridictions militaires · De respecter l'exercice des droits de la défense, ce qui implique le libre accès de l'avocat aux personnes arrêtées dès leur arrestation et leur présentation à un juge civil dans le même délai ainsi que la liberté de déplacement des Avocats qu'ils soient palestiniens ou israéliens. · D'assurer aux personnes détenues le respect des standards minimaux quant à la nourriture, aux soins, à la dimension des lieux de détention,à la protection face aux conditions climatiques et aux visites de leurs familles et de leurs proches. · De mettre un terme sans délai à tous mauvais traitements et tortures que ce soit lors de l'arrestation ou lors de la détention et d'adopter une législation en ce sens. · D'assurer la poursuite des membres des forces de l'ordre qui commettent des crimes et des délits, de rendre publiques les sanctions prises et de dédommager les victimes des conséquences des actes de guerre. · De mettre un terme aux exécutions extra judiciaires.

Ce rapport sera présenté lors de l'examen de l'Etat d'Israël par le Comité des droits de l'Homme des Nations unies les 24 et 25 juillet prochains.

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Bound, Blindfolded and Convicted: Children held in military detention

April 2012

“The test of a democracy is how you treat people incarcerated, people in jail, and especially so with minors.”

Mark Regev Spokesman for the Israeli Prime Minister, Benyamin Netanyahu The Guardian, 22 January 2012

Contents

A. B. C.

Executive summary .............................................................................. Introduction ......................................................................................... Methodology ................................................................................................................ Map ................................................................................................................................ Overview of the Israeli military detention system ............................... Structural framework ................................................................................................. Legal framework ......................................................................................................... Establishment of a military juvenile court ............................................................ Recent amendments to the military law – Military Order 1676 ..................... Raising the age of majority ...................................................................................... Notifying parents of arrest ........................................................................................ Notifying a lawyer of arrest ...................................................................................... Offences under military law and sentencing ....................................................... Children in the Israeli military detention system .............................. Arrest .................................................................................................... Time of arrest ............................................................................................................... Notification of reasons for arrest and location of detention ............................ Methods and means of restraint ............................................................................. Physical violence: Excessive use of force during arrest ....................................... Summary of findings: Arrest ..................................................................................... Transfer ................................................................................................. Transfer on the floor of a vehicle ............................................................................. Physical violence, verbal abuse, humiliation and threats ................................. Medical checks, prolonged exposure to the elements and strip searching ... Summary of findings: Transfer .................................................................................

6 10 12 13 14 15 16 17 18 18 18 19 19 22 24 24 25 26 27 27 30 30 30 30 31

Interrogation ........................................................................................ Physical violence and the use of restraints ........................................................... Threats and verbal abuse .......................................................................................... Solitary confinement ................................................................................................. Confessions and documentation written in Hebrew ......................................... Summary of findings: Interrogation ...................................................................... Military juvenile court proceedings ................................................... Administrative detention .................................................................... Imprisonment, release and rehabilitation ......................................... Separation from adults ............................................................................................. Prison conditions ........................................................................................................ Education ...................................................................................................................... Medical care ................................................................................................................. Imprisonment inside Israel and family visits ........................................................ Release and rehabilitation ........................................................................................ Psychological opinion ......................................................................... The soldier’s perspective ..................................................................... Discrimination and the disparity in treatment .................................. Accountability ...................................................................................... Summary of findings ........................................................................... Concluding remarks ............................................................................. Recommendations ...............................................................................

34 35 36 36 37 38 41 44 46 46 46 46 47 47 47 52 56 60 62 66 68 72

Annex 1 – Cumulative table of issues of concern – January 2008 to January 2012 ... Annex 2 – Additional case studies ......................................................................................... Annex 3 – DCI-Palestine statistics (2008-2012) ................................................................... Annex 4 – UN reports (2008 – 2011) ...................................................................................... Annex 5 – Governmental and NGO reports (2008 – 2011) ............................................... Annex 6 – Sampling of media reports (2009-2012) ...........................................................

74 86 118 124 126 130

End notes ............................................................................................................

132

E. F. G. H. I. J. K.

| Bound, Blindfolded and Convicted

Executive summary

ince 1967, Palestinians from the West Bank have been living under Israeli military law and prosecuted in military courts. The United Nations (UN) estimates that during the last 44 years, around 726,000 Palestinian men, women and children have been prosecuted and detained under these emergency laws. In the past 11 years alone, around 7,500 children, some as young as 12 years, are estimated to have been detained, interrogated, and imprisoned within this system. This averages out at between 500-700 children per year, or nearly two children, each and every day. This Report is the culmination of four years’ work during which time sworn testimonies were collected from 311 children held in Israeli military detention. The Report focuses on the period of time between the child’s arrest and being brought before a military court for the first time. The testimonies reveal that the majority of children are detained in the middle of the night in what are typically described as terrifying raids conducted by the army. Most children have their hands painfully tied behind their backs and are blindfolded, before being taken away to an unknown location for interrogation. The arrest and transfer process is often accompanied by verbal abuse and humiliation, threats as well as physical violence. Hours later the children find themselves in an interrogation room, alone, sleep deprived, bruised and scared. Unlike Israeli children living in settlements in the West Bank, Palestinian children are not accompanied by a parent and are generally interrogated without the benefit of legal advice, or being informed of their right to silence. The testimonies reveal that most children undergo a coercive interrogation, mixing verbal abuse, threats and physical violence, generally resulting in a confession. The most common offence children confess to is throwing stones. The Report also finds that in 29 percent of cases, the children are either shown, or made to sign, documentation written in Hebrew, a language they do not understand. Within eight days of their arrest, the children are brought in chains to a military court where, in most cases, they will see a lawyer and their parents for the first time. Although many children maintain their innocence, in the end at least 90 percent will plead guilty, as this is the quickest way out of a system that denies children bail in 87 percent of cases. Within days of their arrest, nearly two-thirds of the children are transferred to prisons inside Israel in violation of Article 76 of the Fourth Geneva Convention, which prohibits such transfers. The practical consequences of this is that many children receive either limited, or no family visits, due to freedom of movement restrictions and the time it takes to issue a permit to visit the prisons. In addition to an analysis of the 311 testimonies collected from children detained in the military detention system, the Report includes 25 detailed case studies of children, as well as interviews with a lawyer, a rehabilitation expert, a former Israeli soldier and an expert medical report into the mental health implications for the children. The Report also contains a complete list of all 311 testimonies with details of the ill-treatment and issues of concern encountered by each child, as well as a comprehensive list of relevant UN, governmental and NGO reports, and media articles. The Report finds that when the totality of the evidence is considered, a pattern of systematic ill-treatment emerges, much of which amounts to cruel, inhuman or degrading treatment or punishment, as defined in the UN Convention against Torture, and in some cases, torture – both of which are absolutely prohibited. The Report also finds that there is a general absence of effective complaint mechanisms, which is best summed up in the

| Bound, Blindfolded and Convicted

following extract taken from a report published by a well respected Israeli organisation: “The chances of a criminal offence carried out by an IDF soldier against a Palestinian successfully navigating the obstacle course of the complaint procedure [...] are almost nil.” Although no child should be prosecuted in a military court which lacks comprehensive fair trial and juvenile justice standards, the Report concludes by making 10 recommendations intended to provide a series of simple and practical protective measures. These recommendations include a call for an end to night time arrests, children to have access to a lawyer prior to questioning, all interrogations to be audio-visually recorded, and every child to be accompanied by a parent. The following table presents a summary of the findings following analysis of the 311 testimonies and highlights 12 issues of concern that were selected because of the frequency with which they were raised by the children. Table 1 – Common complaints and areas of concern – January 2008 January 2012 Common complaints and areas of concern

Number of cases

Percentage of children

Hand ties

296

95%

Blindfolds

281

90%

Physical violence

234

75%

Detention inside Israel in violation of Article 76

196

63%

Arrested between midnight and 5:00 am

188

60%

Confession during interrogation

180

58%

Threats

178

57%

Verbal abuse and/or humiliation

169

54%

Strip searched

102

33%

Transferred on floor of vehicle

32%

Signed/shown documents written in Hebrew

29%

Solitary confinement

12%

Ofer military court: © Sylvie Le Clezio

| Bound, Blindfolded and Convicted

Introduction

| 11

ince the establishment of Defence for Children International-Palestine Section (DCIPalestine) in 1991, the organisation has represented over 3,000 Palestinian children in Israeli military courts, and visited a similar number of children held in prisons. Over the past 20 years, the organisation has received reports on a weekly basis from these children alleging that they have been mistreated whilst in the custody of Israeli military and civilian authorities. If proven, many of these reports would violate the UN Convention on the Rights of the Child, and constitute cruel, inhuman or degrading treatment or punishment, for the purposes of the UN Convention against Torture.1 In some cases, the treatment would amount to torture.

Due to the serious nature of these allegations, and the absolute prohibition against torture and other cruel, inhuman or degrading treatment or punishment (torture and ill-treatment), DCI-Palestine, with the support of the European Union, has undertaken an extensive documentation project commencing on 1 January 2008.2 The Report presents the findings of this work so far, between 1 January 2008 and 31 January 2012 (reporting period). During the reporting period, in addition to providing free legal assistance and conducting prison visits, lawyers and fieldworkers for DCI-Palestine have collected sworn testimonies from children detained within the system, with a view to better assessing and verifying the reports of torture and ill-treatment, as well as highlighting other issues of concern within the system. The Report presents the findings of the analysis of 311 testimonies collected during the reporting period. In addition to these testimonies, DCI-Palestine has collected a further 68 testimonies from children detained in occupied East Jerusalem. The findings of these testimonies are included in a separate report as Israel applies its civilian law in East Jerusalem, as opposed to military law which is applied to Palestinian children living in the West Bank.3

Child arrest, Beit Ummar: © Maan News

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Methodology The Report is based on the testimonies of 311 children from the West Bank, who were detained by the Israeli army or police during the reporting period. A comprehensive list of all 311 testimonies collected during the reporting period, including the child’s age, date of arrest and the type of treatment experienced, is contained at the end of the Report in Annex 1. The testimonies were collected by DCI-Palestine lawyers and fieldworkers in accordance with established UN standards.4 The lawyers and fieldworkers were trained to ask a series of non-leading questions specifically focussing on the period of time between the child’s arrest and being brought before a military court for the first time. The overwhelming majority of the testimonies were collected from children while they were in detention, and the events were still fresh in their memories. The age ranges of the children who provided testimonies are presented in Table 2: Table 2 – Age ranges of the 311 children who provided testimonies Age range

Number of children

Percentage

0 – 11 years

12 – 13 years

14 – 15 years

116

37%

16 – 17 years

176

57%

Total

311

100%

In the overwhelming majority of cases, the testimonies were provided by boys (97 percent), with nine testimonies being provided by girls (3 percent) – a split that slightly over represents the number of girls detained in the system at most given times (Annex 3). In their testimonies, the children recount their experiences in chronological order, from the moment of their arrest, through their transfer to a detention facility and their subsequent interrogation and appearance before a military court. The time frame covered in the testimonies generally ranges from several days, up to several weeks, but occasionally longer. The Report follows these children on their journey through the system and seeks to identify any commonly recurring patterns of ill-treatment, such as the excessive use of force and painful methods of restraint. The Report also seeks to identify other aspects of the system which either alone or cumulatively, may have an adverse physical or mental impact on children, such as conducting arrests in the middle of the night using heavily armed soldiers. This analysis forms the primary evidentiary basis for the Report. Where relevant, the Report also refers to reports by UN agencies and experts, governments and NGOs, media outlets and data obtained from the Israel Prison Service (IPS) (Annexes 4, 5 and 6).

| 13 Israeli military juvenile detention system - 2012

Akko Haifa 6

1 Jenin

Tulkarm Qalqiliya Tel Aviv

Nablus 2

3 7

Ramallah 9

A Jerusalem

Askelan

5 4

Gaza City

Hebron

Bethlehem

Military Courts A B

Ofer Military Court Salem Military Court

Principal Interrogation Centres 1. Salem 2. Huwwara 3. Ari’el 4. Gush Etzion 5. Al Mascobiyya (Jerusalem) 6. Al Jalame (Israel) 7. Petah Tikva (Israel)

Beersheba

Prisons 8. Megiddo (Israel) 9. Ofer (West Bank)

Occupied Palestinian Territory Israel

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Overview of the Israeli military detention system

| 15

ince the occupation of Palestinian territory in 1967, Palestinians have been charged with offences under Israeli military law and tried in military courts. It is estimated that 726,000 Palestinian men, women and children have been detained under these orders during the past 44 years.6 Israel, as an occupying power, claims the right under international humanitarian law to establish military courts in the territory it has occupied since 1967.7 However, applicable international human rights and humanitarian law nevertheless restricts the jurisdiction of such courts and guarantees certain fundamental fair trial rights.8 Furthermore, it is doubtful whether the use of military courts to try civilians can ever satisfy the requirements under international human rights law to a trial before an independent and impartial tribunal, particularly in the circumstances of a prolonged military occupation that is now of questionable legality.9 Generally speaking, the Israeli military courts prosecute Palestinians who live in the West Bank and hold West Bank identity cards. Palestinians with Jerusalem identity cards are generally prosecuted in the Israeli civilian criminal justice system, even though East Jerusalem is considered to be part of the Occupied Palestinian Territory under international law.10 Since Israel’s “disengagement” from the Gaza Strip in September 2005, Palestinians from Gaza detained by Israeli authorities are generally prosecuted in Israel under civilian security legislation, and not under military law. Palestinians living inside Israel, who hold Israeli citizenship or rights of residency, are also prosecuted in the civilian criminal justice system, as are Israeli children, including those living in settlements in the occupied West Bank and East Jerusalem.11 Palestinians from the West Bank, who are accused of offences against other Palestinians, are generally prosecuted in Palestinian courts.

Structural framework The Israeli military detention system consists of a network of military bases, interrogation and detention centres and police stations in the West Bank, East Jerusalem and in Israel. Palestinians, predominantly from the West Bank, are initially taken to one of these facilities for questioning and temporary detention.12 Some of these facilities are inside settlements in the West Bank. Palestinians, including children, remain at these facilities while awaiting sentencing by the military courts, or are transferred to prisons, most of which are located inside Israel, where they wait to be sentenced, or to serve out their prison terms.13 It should be noted that the transfer of Palestinian detainees, including children, to temporary detention facilities and prisons inside Israel, violates Article 76 of the Fourth Geneva Convention, which prohibits such transfers.14 There are currently two military courts used to prosecute Palestinians, including children, both of which are in the West Bank.15 Access to both military courts is strictly controlled. The military courts are presided over by judges who are military officers in regular or army reserve service.16 The prosecutors are also in regular or reserve army service, some of who are not yet certified by the Israeli Bar Association.17 The defence lawyers consist of a few dozen Palestinians and Israelis, some of whom are in private practice and some working for NGOs.18 Decisions of the military courts can be appealed to a military appeals

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court, and in limited circumstances a petition to the Israeli High Court of Justice can be filed on questions of jurisdiction and reasonableness, but the latter rarely intervenes.19

Legal framework The authority of Israel to establish military courts in the Occupied Palestinian Territory in which to prosecute local civilian residents is found in international humanitarian law, otherwise known as the laws of war.20 Generally speaking, a local population living under military occupation should continue to be bound by their own penal laws and tried in their own courts. However, local laws may be repealed or suspended by the occupying power “in cases where they constitute a threat to its security” and replaced with military orders enforced in “properly constituted, non-political military courts.”21 However, it is important to note that this authority rests on an underlying principle that military occupations must be temporary in nature, and cannot be legally maintained indefinitely. Military law was imposed on Palestinians immediately on cessation of hostilities in June 1967, with the issuance of a military order empowering the Israeli area commander with full legislative, executive and judicial authority over the West Bank.22 Acting on this authority, over the past 44 years, successive Israeli military commanders in the West Bank have issued nearly 1,700 orders. Contrary to basic democratic principles, the local Palestinian population has no say whatsoever in how this legislative, executive or judicial authority is exercised. These orders relate to a range of issues, including the authority to arrest and imprison Palestinians for “security offences,” such as: causing death, personal injury or property damage; public order offences; weapon and explosive offences; and organising and participating in protests.23 The offence Palestinian children are most commonly accused of is throwing stones. International human rights law also applies to the Occupied Palestinian Territory.24 Particularly relevant to this Report, is the Convention on the Rights of the Child (CRC), the Convention against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR), all of which have been ratified by Israel. These treaties relevantly provide that: in all actions concerning children their best interests shall be a primary consideration; children should only be detained as a measure of last resort and for the shortest appropriate period of time;25 all persons shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal;26 the rights contained in these treaties must be applied without discrimination;27 and torture and ill-treatment are absolutely prohibited, without exception.28 In addition to this web of international and military law, some provisions of Israeli civilian criminal legislation also apply in the military courts, including laws relating to criminal procedure and evidence.29 Finally, under international law, all penal provisions applied by Israel to Palestinians in the Occupied Territory must be translated and widely distributed in Arabic.30 This legal and practical requirement is frequently ignored and at the date of publication, Military Order 1676 (September 2011) which, among other things, partially raises the age of majority for children in the military courts, has still not been distributed in Arabic. Further, some Israeli

| 17 criminal legislation, which also applies in the military courts, has never been translated. The failure to make the applicable laws (as amended) and decisions of the courts readily available in Arabic, places Palestinian defence lawyers at a distinct disadvantage and jeopardises the chance of an accused person receiving a fair trial.

Establishment of a military juvenile court A military juvenile court was established in September 2009, following mounting criticism relating to the prosecution of children as young as 12 years in the same military courts used to prosecute adults.31 Under the new provisions, children should now generally be tried separately from adults in a military juvenile court;32 and after conviction, the court can direct that a social welfare report be prepared into the child’s circumstances in order to inform the court as to the appropriate sentence.33 The new order also provides that children should be detained in separate facilities from adults, and where possible, be brought to court separately.34 Military juvenile judges have been appointed from the ranks of existing military court judges to hear cases involving children, and under the new order, they must have received “appropriate training.”35 Significantly, under the new order, bail applications and hearings to determine whether a child remains in detention pending the conclusion of the case can still be heard by adult military courts, where judges have not necessarily received training to handle cases involving children.36 Further, the new order makes no change to the time period during which a child can be denied access to a lawyer and does not impose specific guidelines relating to the release of children on bail – both of which are governed by the same provisions that apply to adults. Finally, the new order does not introduce any new guidelines specifically addressing the special needs of children when it comes to sentencing. In practice, the military juvenile courts use the same facilities and court staff as the adult military courts. Children continue to be brought into court in groups of twos and threes, wearing leg chains around their ankles and dressed in the same brown prison uniforms worn by adults. Handcuffs are usually removed from the child on entering the court room, and replaced on exiting. On occasion, adults and child defendants have been observed being brought into court together.37 The new provisions relating to the preparation of social welfare reports are almost never invoked. According to a recent report published by the Israeli organisation, B’Tselem, there are few improvements in the situation facing children prosecuted in the military courts since the introduction of the military juvenile court, as the following extract highlights:38 “The rights of Palestinian minors are flagrantly violated at every stage of the proceedings conducted against them, from the initial arrest and removal from their homes, through interrogation and trial, to serving the prison sentence, and then release [...] The amendments to the military legislation are marginal and have failed to bring about meaningful change in the military system’s treatment of minors.”

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This conclusion is also echoed by a report published by the Israeli organisation, No Legal Frontiers:39 “The findings show that the establishment of the military juvenile court brought about only a marginal change in the legal proceedings against Palestinian minors in the West Bank. The amendment of military law that led to the establishment of the military juvenile court had no effect at all on the interrogation and arrest procedures, which are the de facto critical stages that dictate the outcome of the whole legal process.” These conclusions are shared by DCI-Palestine. The establishment of a military juvenile court and recent amendments to the military law in respect of children have had no discernable beneficial impact on the treatment of children during the first 48 hours after their arrest – the period in which the most serious violations occur.

Recent amendments to the military law – Military Order 1676 In September 2011, the Israeli military commander in the West Bank issued an amendment to the military orders, partially raising the age of majority in the military courts, as well as introducing new notification requirements upon the arrest of a child.40

Raising the age of majority Military Order 1676 raises the age of majority in the military courts from 16 to 18 years, in respect of some provisions. After 44 years of military rule, this amendment brings Israeli military law partially in line with international and Israeli civilian law.41 In practice however, the amendment makes little substantive difference in the way in which older children are treated (16-17 years), and significantly, does not appear to apply to the sentencing provisions. Accordingly, although the military juvenile court now has jurisdiction over older children, the sentencing provisions applicable to adults still apply to children aged 16 and 17 years.42

Notifying parents of arrest Military Order 1676 also makes provision for the notification of a detained child’s parents. Under the new provisions, a police officer must inform a child’s parents, as soon as possible after the child has been brought to the police station, that the child is being detained, provided that the child can supply the parent’s contact information.43 However, in cases where the child is being investigated, but is not formally under arrest, notification can be delayed for up to eight hours, if the police officer reasonably believes that notification would disrupt the investigation, or if the child is suspected of a “security” offence.44

| 19 This provision is seriously flawed as it only applies to the Israeli police, and not the army. In practice, it is the Israeli army that conducts arrests in the West Bank, and it is the army that has custody of the child for many hours and sometimes days before they are handed over to the police. Under the new law, there is no notification requirement imposed on the army. Further, although there is now an obligation for the police to notify parents, there is still no legal requirement entitling parents to be present when their child is being questioned – a practical safeguard generally guaranteed in regards to Israeli children.45 Finally, since the introduction of this limited notification requirement in September 2011, DCI-Palestine is aware of just one case in which this requirement has been followed.

Notifying a lawyer of arrest Military Order 1676 also makes provision for notifying children that they have the right to consult with a lawyer in private. Prior to commencing the investigation, the police must also contact the lawyer named by the child, provided that this does not delay the investigation.46 This provision is also seriously flawed for a number of reasons. First, it assumes that a child will be in possession of the contact details of a lawyer. Secondly, although the police are now obliged to inform a child that he/she can consult with a lawyer, there is no stipulation as to when this consultation must occur, either before, during or after questioning. Finally, since the introduction of this requirement in September 2011, DCIPalestine has not documented a single case in which a child has consulted privately with a lawyer either before, or during their interrogation. In practice, children continue to be questioned in the absence of their parents; generally do not meet with a lawyer until after the conclusion of their interrogations; and are still not being effectively informed of their right to silence.

Offences under military law and sentencing Military Order 1651 establishes a minimum age of criminal responsibility at 12 years, so in other words, children under the age of 12 cannot be prosecuted in the military courts.47 The Order also sets the maximum penalties that can be imposed on children in various age categories from 12 years and upwards. The maximum penalties can vary dramatically depending on the child’s age. It is important to note, that although the age of majority was raised to 18 years in September 2011 in respect of some provisions, the amendment does not apply to the provisions relating to sentences.

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Table 3 - Age categories for sentencing under Military Order 1651 Age

Classification

Criminal responsibility

0 –11 years

Child

No child shall be arrested or prosecuted in the military courts.48

12–13 years 14–15 years51 16-17 years

Juvenile Young adult

Maximum six months’ imprisonment.50 Minor

As an adult53

Maximum 12 months’ imprisonment, unless the offence carries a maximum penalty of five years or more.52 Same provisions that apply to adults.

During the reporting period the single most common charge faced by children in the military courts was for throwing stones (Annex 3). Throwing stones is an offence under Military Order 1651, which provides as follows: (i) Throwing an object, including a stone, at a person or property, with the intent to harm the person or property, carries a maximum penalty of 10 years’ imprisonment.54 Therefore, applying the limitation on sentences that can be imposed on a child presented in Table 3 above, a child aged between 12 and 13 years can receive a maximum sentence of six months, but a child aged 14 and above, can in law, receive the maximum penalty of 10 years, as the maximum penalty for the offence exceeds five years; and (ii) Throwing an object, including a stone, at a moving vehicle, with the intent to harm it or the person travelling in it, carries a maximum penalty of 20 years’ imprisonment.55 Again, a child aged between 12 and 13 years can receive a maximum sentence of six months, but a child aged 14 and above, can in law, receive the maximum penalty of 20 years, as the maximum penalty for the offence exceeds five years. It must be noted that at the time of writing, children charged with throwing stones and prosecuted in the military courts are generally receiving prison sentences in the range of two weeks up to around 10 months. Other offences under Military Order 1651 include: (i) Insulting or offending a soldier’s honour or harming his or her position as a soldier. The maximum penalty stipulated for this offence is one year imprisonment;56 and (ii) An act or omission which entails harm, damage, disturbance or danger to the security of the region or the security of the Israel Defense Forces (IDF), or to the operation, use or security of a road, dirt path, vehicle or any property of the State of Israel or of the IDF. The maximum penalty stipulated for such an act or omission is life imprisonment.57 Again, the maximum penalties stipulated for these offences, must be read in conjunction with Table 3 above.

| 21

Ofer military court: © Sylvie Le Clezio

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Children in the Israeli military detention system

| 23

ach year approximately 500-700 Palestinian children (12-17 years) from the West Bank are prosecuted in military courts after being arrested, interrogated and detained by the Israeli army, police and security agents.58 It is estimated that since 2000 alone, around 7,500 Palestinian children have been detained and prosecuted in the system. The following figures are compiled by DCI-Palestine every month from information obtained from the IPS and from Israeli army temporary detention facilities. The figures are not cumulative, but a snapshot of the number of children in detention at the end of each month. Table 4 - Total number of Palestine children in Israeli detention at the end of each month Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

Ave

2008

327

307

325

327

337

323

324

293

304

297

327

342

319

2009

389

423

420

391

346

355

342

339

326

325

306

305

355

2010

318

343

342

335

305

291

284

286

269

256

228

213

289

2011

222

221

226

220

211

209

202

180

164

150

161

135

192

2012

170

During the reporting period the average number of Palestinian children (12-17 years) detained by Israeli authorities at any given time was 265, of which on average, 34 (13 percent) were young children aged between 12 and 15 years. The following sections of the Report are based on an analysis of 311 testimonies, and describe the passage of a child through the system, from the moment of arrest, transfer and interrogation, concluding with the prosecution of the child in a military court and imprisonment. These sections are not intended as an exhaustive list of all issues of concern, but instead focus on issues that are repeatedly raised by the children in their testimonies.

Child arrest: © Husam Abu Allan

| Bound, Blindfolded and Convicted

Arrest Most children report being arrested from their family homes in the middle of the night by heavily armed soldiers. Some children are arrested in the streets near where they live, while others are arrested in close proximity to settlements or roads used by the Israeli army and settlers. A smaller proportion of children report being arrested at Israeli army checkpoints. These are the friction points where most arrests occur.

Time of arrest [Abu Dis] – “At around 1:00 a.m., I was sleeping in my room when I woke up to banging on the door. I saw windows had been smashed. I was very scared. My whole family woke up and my father went to answer the door. When he opened the door, I saw a group of Israeli soldiers standing behind it.” Khalil Q. (13) – Arrested: 15 September 2010

The testimonies reveal that the majority of children (60 percent) are arrested from the family home between midnight and 5:00 a.m. Many children report waking up to the sound of soldiers banging on their front door and shouting instructions to the family to leave the house. In a few cases, children report waking up to see heavily armed soldiers in their bedroom with flashlights and weapons pointed at them. Most children report being scared and some say they were terrified.

There are no specific guarantees or safeguards under international law that specifically regulate the times at which a child can be arrested. Israeli civilian law, on the other hand, does restrict the times at which children can be interrogated, which in turn, influences the times at which Israeli children are arrested.59 However, no such protection is included in the Israeli military orders applied to Palestinian children living in the West Bank. In any event, it is difficult to reconcile these night time arrests with one of the guiding principles of the UN Convention on the Rights of the Child, which provides that “in all actions concerning children […] the best interests of the child shall be a primary consideration.” To give effect to this guiding legal principle, children should generally only be arrested and questioned during day light hours, in order to minimise the sense of fear which is evident from the testimonies. A practical alternative to arresting children at night [Bethlehem] – “At around 2:30 a.m., would be to issue a summons to appear at a I was sleeping [...] when I woke up to soldiers screaming through loudpolice station during the day – a procedure that speakers and saying: ‘Open up imhas been successfully employed by the Israeli mediately.’ I looked out of the winauthorities in a limited number of cases. dow and saw many military jeeps and soldiers with their lights focused on the house [...]. When the soldiers saw me, they pointed their weapons at me.” Hamza K. (15) – Arrested: 5 January 2011

On 3 October 2010, the Israeli organisation, B’Tselem, wrote to the attorney-general demanding that children not be arrested at night. As of February 2012, the organisation had not received a substantive response to its letter.60

| 25 Notification of reasons for arrest and location of detention61 The testimonies reveal that once all family members, including children, have been woken up, the soldiers generally require all the occupants of the house, regardless of age, to assemble in one room or to gather outside. The commanding officer will then usually demand to see all I.D. cards for inspection. In some cases, the house will be searched while the family members are held in one room, and the testimonies reveal some evidence of property damage. In few cases do children or parents report being informed of the reasons for arrest, or where the child is being taken, at the time of arrest.

[Osarin village] – “At around 4:00 a.m., my mother woke me up and told me that Israeli soldiers had stormed the house [...]. They gathered us on the balcony and one of them was reading from a piece of paper: ‘Where are Deia’ and Fadel?’ My father pointed at us. ‘You’ll be arrested and taken with us,’ the soldier said, without telling us where they would take us.” Fadel A. (16) – Arrested: 28 November 2011

In a small minority of cases, there is evidence that the arresting soldiers are in possession of documentation that the families assume are arrest warrants, but the paperwork is generally written in Hebrew. Following the mistaken issuing of documentation written in Hebrew on a family of a seven-year-old boy in June 2010, which required the child to attend an interrogation conducted by the Shin Bet (Israel’s internal security agency), the military authorities gave an undertaking in the media that they would ensure that all future documentation would be written in both Arabic and Hebrew (Case study 6).62 In spite of this undertaking, documentation written only in Hebrew continues to be issued. Once the child’s identity has been verified from his I.D. card, his family will often only be told words to the effect that: “He is coming with us and we will return him later,” or simply that the child is “wanted.” Many children report only finding out why they have been arrested during their subsequent interrogation. Further, there is no official notification process to inform parents where their child has been taken to, often in the middle of the night – a situation that could foreseeably cause acute stress to parents and children. In practice, many parents find out the whereabouts of their children through lawyers who have seen the child in the military courts, or via other unofficial communication channels.63 [An Nabi Saleh] – “At around 1:15 Under international law and relevant norms, children and their parents should always be informed immediately of the reasons for arrest, or in the shortest possible time thereafter if immediate notification is not possible.64 This information should be conveyed in a language they can clearly understand (Arabic in this case) and preferably in writing. As a further safeguard, both the child and parents should be provided with a statement written in Arabic, informing them of their rights whilst in custody. Under recent amendments

a.m., I woke up to soldiers shouting and banging on our door [...]. One soldier asked for my I.D. He checked it and started talking on the radio. I heard him saying my name as he was reading from a paper that had names written on it [...]. They ordered me to put on some shoes and come with them. I was still wearing my pyjamas. My mother objected and asked them to let me change my clothes, and their officer agreed. I changed my clothes and they took me away.” Mo’tasem (15) – Arrested: 24 November 2011

| Bound, Blindfolded and Convicted

to Israeli military law, the police are supposed to notify parents that a child has been detained once the child arrives at a police station. However, this notification requirement may be delayed for a number of reasons, including “security.” Further, these amendments impose no obligations whatsoever on the Israeli army, which is the authority that generally conducts the arrest and which often has custody of the child for many hours, and sometimes days, before being transferred to a police station.65

Methods and means of restraint Once the soldiers have identified the child they want to arrest, in the overwhelming majority of cases (95 percent), he will have his hands tied, or in a small number of cases, be restrained using metal handcuffs. The most common method of restraining a child is by tying his hands behind his back with a single plastic tie. Many of the children report in their testimonies experiencing Abdullah E. (15) – Arrested: 12 Sep 2011 pain sometimes referred to as “extreme pain” as a result of these ties. In some cases children report that the blood circulation to their hands was cut off by the ties, causing their hands to swell and turn blue. Many children report remaining tied for lengthy periods of time, including throughout their interrogation. In a small number of cases, children also report having their feet shackled shortly after arrest. [Hebron] – “After the soldiers verified my identity, one of them grabbed me by the arm and violently twisted it behind my back and tied my hands with two sets of plastic ties and tightened them up. They kept me tied this way until around 10:00 p.m.” [19 hours]

In April 2010, new procedures for tying detainees were introduced after numerous complaints and the initiation of legal action by the Israeli organisation, the Public Committee Against Torture in Israel (PCATI). The new procedures for using restraints were stated as follows: • • • • •

Hands should be tied from the front, unless security considerations require tying from behind; Three plastic ties should be used, one around each wrist, and one connecting the two; There should be a finger space between the ties and the wrist; The restraints should avoid causing suffering as much as possible; and The officer in charge is responsible for ensuring compliance with these procedures. [Gush Etzion police station - Following a lengthy interrogation] – “When David forced me to sign, he wanted to remove the ties but they were embedded in the skin. When he removed them, pieces of flesh came off and my wrists started bleeding.” Malek S. (16) – Arrested: 9 January 2011

Since 1 April 2010, DCI-Palestine has documented four cases in which children were tied using three hand ties. In one of these cases the child reports that the ties were very tight causing “much pain” indicating that the finger space requirement between the wrist and the tie was not implemented. In the remaining three cases the new procedures appear to have been followed, indicating a compliance rate of less than two percent.

| 27 Physical violence: Excessive use of force during arrest Nearly one-third of the children reported in their testimonies that they were subjected to physical violence during their arrest (30 percent). The violence usually consists of being pushed, slapped or kicked. Although law enforcement officers conducting a lawful arrest are permitted to use reasonable and proportional force in order to affect an arrest, some testimonies reveal that children were subjected to physical violence after being tied and blindfolded, in circumstances where there could be no possible justification for the force used.

[Qalqiliya - Soldiers entered the child’s home at 1:30 a.m.] – “Soldiers took me downstairs to the first floor [...]. One of them tied my hands behind my back with one set of plastic cords, and tightened them. He also blindfolded me. They took me out and forced me to stop near a military truck near the house. While I was standing there, one of them hit me so hard in my testicles and I felt much pain.” Malek S. (16) – Arrested: 9 January 2011

The UN Committee against Torture has concluded that in circumstances where law enforcement or military personnel use excessive force, this may amount to torture and/or ill-treatment.66 In order to make this determination, the particular facts and circumstances of each individual case must be considered, including taking into account certain subjective factors, such as the victim’s age and position of inferiority.67

Summary of findings: Arrest The testimonies reveal that the ill-treatment starts from the moment of arrest when many children report experiencing terrifying night-time raids on the family home, before being tied, often painfully so, and blindfolded. The destabilising effect of these night-time arrests is compounded by the fact that few children or parents are informed where the child is being taken. Table 5 - Analysis of 311 cases: Issues of concern during arrest #

Issues of concern during arrest

Number of children

Percentage

Use of hand restraints

296

95%

Use of blindfolds

281

90%

Arrested between midnight and 5:00 am

188

60%

Physical violence

30%

Verbal abuse and/or humiliation

Threats

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Case study: 1 Name: Date of Incident: Age: Location: Accusation:

Ahmad F. 6 July 2011 15 ‘Iraq Burin village, occupied West Bank Throwing stones

On 6 July 2011, a 15-year-old boy from ‘Iraq Burin village, near Nablus, is arrested by Israeli soldiers from the family home at 2:00 am. At around 2:00 am, on 6 July, 15-year-old Ahmad was up late socialising with family members who had just arrived from Jordan. “We were all sitting on the balcony […] when we heard people climbing up the stairs,” recalls Ahmad. “Suddenly, many soldiers stormed the house. We were surprised to see them. They started shouting at us and ordering us into the living room.” Some soldiers started searching the house causing a big mess. Ahmad’s two-year-old nephew started crying which “annoyed the soldiers who started shouting and asking his mother to shut him up.” Approximately one hour after the soldiers arrived Ahmad was informed that he was “wanted for interrogation”. “One of the soldiers immediately tied my hands from the front with three sets of plastic cords. One cord for each hand and one cord connecting the two. The ties were very tight and caused me much pain. Then another soldier grabbed me by the arm and took me out of the house.” Ahmad’s brother asked the soldiers where he was being taken and was attacked by a soldier. “He started hitting him hard with the barrel of his rifle in front of the family, including the children who became horrified and started crying,” recalls Ahmad. On exiting the house Ahmad was also blindfolded. Ahmad reports being led about 50 metres to some waiting vehicles which then transported him to Huwwara interrogation centre, on the outskirts of Nablus. On arrival at the centre Ahmad was pulled out of the vehicle and made to stand beside it. “They were chanting, laughing and shouting in my ears,” recalls Ahmad. “They were making fun of me. One of them placed his mobile phone beside my ear and played a police siren so loud. Then one of them grabbed me by the arm and placed my head against the car engine, as another one kept stepping on the accelerator. They did this several times. My whole body started shaking.” Ahmad reports that he was then taken inside the gates of the centre but left outside from about 5:00 am until 3:00 pm the following day. He was not brought any food. Whilst waiting outside, Ahmad reports being verbally abused and told: “We want you to die out here.” Whenever Ahmad tried to sleep a soldier would start shouting and kicking him to keep him awake. At one point whilst Ahmad was waiting outside some soldiers brought a dog and Ahmad was pushed to the ground. “I managed to see the dog from under my blindfold,” he says. “They brought the dog’s food and put it on my head. I think it was a piece of bread, and the dog had to eat it off my head. His saliva started drooling all over my head and that

| 29 freaked me out. I was so scared my body started shaking because I thought he was going to bite me. They saw me shaking and started laughing and making fun of me. Then they put another piece of bread on my trousers near my genitals, so I tried to move away but he started barking. I was terrified.” Later that day Ahmad was taken to the police station in Ari’el settlement and interrogated. “The interrogator removed my blindfold but kept me tied,” recalls Ahmad. “The interrogator accused me of throwing stones, but I denied it.” The following day Ahmad was placed inside another vehicle and transferred to Megiddo prison, inside Israel, in violation of Article 76 of the Fourth Geneva Convention which prohibits such transfers. “The air conditioner was turned on and it was freezing inside. I asked them to turn it off, but they refused even though my body started shivering.” The vehicle made a number of stops before arriving at Megiddo at around 11:00 pm. Ahmad was not provided with any food during the eight hour journey, and was strip searched on arrival at the prison.

Beit Ummar: © Maan News

| Bound, Blindfolded and Convicted

Transfer Once a child has been identified, tied and blindfolded, he will usually be led to a waiting military vehicle for transfer to an interrogation facility. Some children report being prevented from saying goodbye to their parents and prevented from putting on warm clothes for the journey.

Transfer on the floor of a vehicle [Bethlehem] – “When we got to the jeeps, one of them pushed me hard inside and knocked me down on the floor. They made me sit on the floor near their feet. When the jeep started travelling, one of the soldiers forced me to lie down and my head would hit a metal object whenever the jeep sped up. I felt pain all over my body because they kept me lying down on the metal floor.”

In 32 percent of cases, the children report being placed on the metal floor of a military vehicle for the duration of the journey from their home to an interrogation centre, which in some cases can take many hours. The overwhelming majority of these children are also tied and blindfolded, adding to their discomfort and distress. Children often report suffering additional injuries as a result of being transferred on the floor of a vehicle, particularly when the roads are uneven.

Hamza K. (15) – Arrested: 5 January 2011

Physical violence, verbal abuse, humiliation and threats In 38 percent of cases, the children report being subjected to some form of physical violence during their transfer to an interrogation centre. In the overwhelming majority of cases, these violent acts occur while the child’s hands are tied and he is blindfolded. The nature of the reported violence usually involves slapping and kicking the child. Children also report being verbally abused or humiliated (23 percent) Mahmoud S. (15) – Arrested: 4 July 2011 during transfer, and in some cases, threatened (6 percent). The verbal abuse usually consists of derogatory statements directed against the child’s mother or sister. [Qalandiya refugee camp] – “One of the soldiers pushed me hard inside one of the jeeps and I hit the metal floor. They kept me sitting on the metal floor. There were other soldiers inside and they started punching me hard all over my body. They were slapping and kicking me as well.”

Medical checks, prolonged exposure to the elements and strip searching The testimonies reveal that the children are frequently not transferred directly to an interrogation centre, but stop off at a military base or small settlement in the West Bank, where they wait until daybreak. During these intermediate stops, many children report

| 31 being taken to what they describe as a “clinic” [Haris village] – “I was transferred and being asked a series of questions about their to a clinic where a military doctor health by a person they assume to be a military removed my blindfold, but kept my doctor. In very few cases is the child physically hands tied. The doctor just asked me examined. During this medical questioning, the a few questions about my health and child’s blindfold is usually removed, but his hands filled out a questionnaire. Then they often remain tied. In some cases, the children took me back to the truck and kept me inside until around 3:00 p.m.” report that they informed the doctor that they have been ill-treated, but their complaints are Wadda’ B. (16) – Arrested: 21 Nov 2011 ignored.68 The children are usually asked a series of questions whilst the doctor fills in a form. The whole process generally takes less than 10 minutes following which the child’s blindfold is replaced before he is taken outside again. In some cases children report being left outside in the cold, rain or burning sun for extended periods of time, usually at one of the intermediate stops on the way to an interrogation centre. Some children also report being denied food, water or the use of a toilet for extended periods of time. In 33 percent of cases, children report being strip-searched at some point during their progression through the system, and many of these children describe experiencing feelings of embarrassment and shame as a result. In addition to the absolute prohibition against torture and ill-treatment, there are internationally recognised norms relating to the treatment of detainees during transfer, which stipulate that unnecessary physical hardship is prohibited.69 In the Israeli military detention system, children are transferred at various stages of their detention by the army, police and the IPS. The regulations governing the transfer procedures of the army are not publicly available, but the testimonies indicate that the current practice falls far short of any acceptable standard.

[Azzun village] – “The jeep arrived at the settlement of Karni Shamron. Soldiers pulled me out and took me to a room where they strip-searched me. Then they kept me and Ahmad in the hot sun until noon without giving us any water even though we asked them for some water, but they refused.” Sabra S. (17) – Arrested: 3 May 2010

Summary of findings: Transfer The testimonies reveal that the common experience of many children is that the journey to the interrogation centre is routinely accompanied by further ill-treatment, either because of the way the child is restrained and positioned in the vehicle, or because of further physical or verbal abuse. The transfer process can take many hours and often includes intermediate stops at settlements or military bases where further ill-treatment is reported, including in some cases, prolonged exposure to the elements, and a lack of water or access to toilets.

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Table 6 - Analysis of 311 cases: Issues of concern during transfer #

Issues of concern during transfer

Number of children

Percentage

Physical violence

117

38%

Strip searched

102

33%

Transfer on floor of a vehicle

32%

Verbal abuse and/or humiliation

23%

Threats

Case study: 2 Name: Date of Incident: Age: Location: Accusation:

Thaer B. 16 December 2011 15 Azzun village, occupied West Bank Throwing stones

On 16 December 2011, a 15-year-old boy from Azzun village is detained by Israeli soldiers whilst on his way to collect firewood. “On Friday, 16 December 2011, at around 2:00 pm, I headed west to our land to collect some wood for heating and baking,” recalls 15-year-old Thaer. “My friends were already there as they had gone with the donkey cart about an hour before. I was walking on a dirt road at around 2:30 pm, and I saw around six Israeli soldiers walking towards me. I was surprised to see them. I was very scared,” says Thaer. “They were about 150 metres away from me. ‘Boa, boa,’ one of them shouted at me, but I did not respond. I turned around and ran back to the village, and a small military jeep chased me.” The military jeep soon caught up with Thaer and he stopped and was surrounded by soldiers. “They signaled for me to raise my hands. They kept ordering me to do things in Hebrew, but I did not understand […] I saw one of them cocking his rifle and I became very scared because I thought they would shoot me,” says Thaer. A short time later Thaer was taken to the jeep and made to sit on the metal floor. “Two of the soldiers then got inside and stepped on my body as I was lying on the floor, and that hurt me a lot. The jeep started moving and they started kicking me and hitting me in the face and arms with their hands and rifles, as they were laughing and speaking to each other in Hebrew.” The jeep stopped at a gate near Thaer’s village and he was taken out and searched. He was then tied with a single plastic tie with his hands behind his back and blindfolded.

| 33 A short time later somebody approached Thaer. “‘I’m the officer. Talk to me,’ he said in fluent Arabic. ‘Tell me you threw stones and I promise I’ll let you go home,’ he said. ‘But I didn’t,’ I said, and he then asked me about certain older boys from the village. He ordered me to give him a list of my friends, but I told him I didn’t have any,” says Thaer. “‘If you don’t talk, I’ll take you to Tel Aviv and who knows where you’re going to end up after that. We’ll detain you and beat you,’ he said. ‘What were you doing if you were not throwing stones?’ he asked. ‘I was on my way to our land,’ I said. ‘Then why didn’t you respond to the soldiers when they called you?’ he asked. ‘Because I was scared of them,’ I said. At that point he started slapping me across the face and hitting me with his rifle in my stomach, and that really hurt,” says Thaer. “I was very scared, especially when the officer said they would shoot me if I did not talk and would take me to a place where no one would find me.” Although terrified, Thaer refused to confess to throwing stones because he says he did not throw any stones. Thaer was then put back in the military jeep and made to sit on the floor. He reports that he was beaten again inside the vehicle. Thaer does not know where he was taken but recalls being pulled out of the jeep and taken inside a room, still tied and blindfolded. Once inside the room, the ties and blindfold were removed. “Then they tied my hands behind my back to a chair and my feet in front. Then they put the blindfold back on and started beating me.” Thaer was kept inside this room for around five to six hours. He was not given anything to eat or drink, and was not permitted to use the toilet. Later that evening Thaer was again put into a vehicle which travelled for about half-anhour. He was then handed over to Palestinian security and was then released into the custody of his father. Thaer arrived home with his father at 10:30 pm.

Hebron: © DCI

| Bound, Blindfolded and Convicted

Interrogation [Police station] – “He removed my blindfold but kept my hands tied. He accused me of throwing stones and starting a fire near the settlement of Kochav Ya’akov, and I denied it but he slapped me hard on the face. ‘Denying it won’t do you any good because everyone who was with you has already confessed,’ he said. I didn’t confess, so he grabbed me by the hand and took me to another room to another interrogator. ‘Tell me everything from A to Z,’ said the second interrogator. ‘All your friends already confessed, so you better confess or we’ll lock you up for two years in prison,’ he said. He was shouting and threatening to beat me. I became very scared of the second interrogator, so I confessed to throwing stones.” Mahmoud S. (15) – Arrested: 4 July 2011

The child’s journey to an interrogation centre can take anywhere from one hour, up to an entire day.70 In most cases, the child is taken to an interrogation room soon after arriving at the centre. Many children report being interrogated by men in civilian clothes, making it difficult to identify the responsible authority. However, many children also report being interrogated by Israeli policemen inside a settlement in the West Bank, identified by the children from their blue uniforms and the fact that they are inside a police station. In other cases, children report being interrogated by men in military uniform. Out of 311 testimonies, no child was accompanied by a lawyer during their interrogation, and only two children (0.6 percent) were accompanied by a parent. This is significant because third-party scrutiny of the methods of interrogation can be an effective measure to limit the use of torture, illtreatment and other coercive techniques during questioning.71

This oversight can be provided by having the child’s lawyer and/or family member present during questioning, as well as having the proceedings audio-visually recorded. The practice of audio-visually recording, which is used in a number of jurisdictions, including the Israeli civilian legal system in certain circumstances, provides some measure of protection to the detainee against torture and ill-treatment, as well as protecting the interrogator against false allegations of wrongdoing.72 In recent amendments to the military orders which came into effect in September 2011, a child is now supposed to be informed before he is interrogated that he has the right to consult with a lawyer. Further, if the child informs the interrogator that he has [Kirya Arba’ settlement] – “The intera lawyer, the interrogator should contact the rogation lasted for an hour, during which time a policeman came to lawyer, assuming the child has the lawyer’s the room. He grabbed my neck and contact details, and inform the lawyer of the pushed so hard that it nearly choked details of the investigation. However, under me. He kept pushing down on my these new amendments, the investigation can neck for about two minutes for no still proceed in the absence of the lawyer.73 The reason. He wasn’t interrogating me above amendment must also be read in the at all. The other interrogator didn’t context of existing military orders, which provide interfere at all. He just kept laughing and making fun of me.” that although the child has the right to meet with a lawyer,74 if he or she is arrested “during Yaswer S. (15) – Arrested: 7 January 2011 operational activity in the fight against terror

| 35 where circumstances of detention raise suspicion that he [...] endangers the security of the region,” he or she has no right to see a lawyer within the first 48 hours after arrest.75 Further, any child can be denied access to a lawyer for up to 90 days on the order of the relevant authorities.76

[Hebron] – “The two interrogators kept me standing and never allowed me to sit in a chair. They kept slapping me around, but I never confessed. The interrogation lasted about two hours. After that, they printed out some papers in Hebrew and forced me to sign them. Later on it turned out that I had signed a confession saying I threw stones. This is what my lawyer told me later in court.”

On even a cursory reading of these military orders, it is apparent that a detained child has few effective Husam S. (15) – Arrested: 12 September 2011 rights to see a lawyer prior to interrogation, and in practice, in the overwhelming majority of cases, children do not see a lawyer until they are inside a military court, long after they have been interrogated. During the reporting period, in no case in which DCI-Palestine provided legal assistance did a child see a lawyer prior to, or during his or her interrogation, and children are still not being effectively informed of their right to silence. Under the same amendments to the military orders, parents are now supposed to be notified of their child’s detention “Upon the arrival [...] to a police station.” However, this notification requirement can be delayed for up to eight hours if the police interrogator believes that notifying the parents would disrupt the investigation, or if the offence relates to “security.”77 Significantly, there is still no provision in the military orders that permit a parent to be present during interrogation, a right which Israeli children are entitled to in most cases.78 Further, as previously mentioned, these amendments do not apply to the Israeli army, which is the authority which carries out the overwhelming majority of arrests in the West Bank. Again, on even a cursory reading of these amendments, it is clear they provide little [Gush Etzion] – “David blindfolded me and ordered me to kneel down. effective protection to children in custody.

Physical violence and the use of restraints The interrogation usually begins with the child being led, still tied and blindfolded, into a room and placed on a chair. The blindfold is generally removed and the child sees his interrogator for the first time. In 57 percent of cases, children report remaining tied, often painfully so, throughout the duration of the interrogation, which can last for many hours. In some cases, children also report being tied to the chair they are sitting on for extended periods of time, causing pain to their hands, backs and legs.

He immediately slapped me hard across the face. The huge man came from behind, grabbed my ties and lifted me up and I felt sharp and terrible pain. He also put his foot on the ties and pressed down so hard that made me scream more. To shut me up, he gagged me while David was standing there watching. ‘Confess so we can spare you the pressure,’ David said. ‘I’ll give you 15 minutes to think,’ he added. ‘I have nothing to confess,’ I said, and he went crazy and started screaming. He started slapping me and kicking me. He even grabbed my head and slammed it against the metal wall of the room where we were. My forehead swelled and I felt my hands bleeding because of the pressure.” Malek S. (16) – Arrested: 9 January 2011

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Restraints should only be used for as long as is strictly necessary, and it is difficult to ascertain from the testimonies any legitimate reason why so many children remain tied during interrogation whilst inside a secure military or police facility. In 37 percent of cases, children also report experiencing some form of physical violence during the interrogation. The violence most commonly reported includes pushing, slapping and kicking. In a smaller number of cases the violence is significantly more serious, including punching, slamming the child’s head against a wall and in three cases during the reporting period, children say they were given electric shocks from a handheld device by a police interrogator in Ari’el settlement (case study 7).79

Threats and verbal abuse [Osarin village] – “The interrogator started shouting at me and accusing me of being a liar. He threatened to beat me. ‘I’ll break your head if you don’t confess,’ he said. I’ll put you in prison for a long time,’ he added. He kept shouting and threatening me for about an hour. Sometimes he would raise his hand to hit me. I became very scared of the interrogator, so I had to confess to throwing stones.” Abdullah E. (15) – Arrested: 12 September 2011

• • • • • • • •

The testimonies reveal that many interrogations involve a combination of physical violence, threats and verbal abuse. The prohibition against torture and ill-treatment also covers acts that cause mental suffering to the victim, such as intimidation and other forms of threats. As with physical forms of torture and ill-treatment, in assessing the severity of psychological forms of ill-treatment, the victim’s age and relative position of inferiority must be taken into consideration. In 52 percent of cases, children report being threatened at some point during their interrogation. The types of threats reported by the children in their testimonies include:

Threat of physical violence; Threat of long-term imprisonment; Unspecified threats, such as: “It’s better that you confess, or I’ll make you.” Threat of sexual assault; Threats against family members; Threat of electric shocks; Threat of being held in solitary confinement; and Death threats.

In addition to being threatened, many children also report being shouted at and verbally abused (31 percent) during interrogation. These psychological methods of interrogation, such as making threats and constant shouting and verbal abuse, can have a profound effect on a child under interrogation, potentially leading to the provision of false confessions.80

Solitary confinement In 12 percent of cases children report being held in solitary confinement for an average period of 11 days. The purpose behind placing children in solitary confinement appears to be to facilitate the obtaining of a confession, and most commonly occurs at

| 37 the Al Jalame, Petah Tikva and Al Mascobiyya interrogation centres inside Israel.81 The detrimental psychological and physical effects of detaining persons in solitary confinement are well documented and include: panic attacks; fear of impending death; depression, including clinical depression; social withdrawal; a sense of hopelessness; unprovoked anger; short attention span; disorientation; paranoia; psychotic episodes; self-mutilation; and attempted suicide.82 For these reasons, the UN Special Rapporteur on Torture, Mr Juan Méndez, called for a complete ban on the use of solitary confinement on children, in a report submitted to the UN General Assembly in October 2011.83 In his report, Mr. Méndez concluded that the use of solitary confinement “can amount to torture or cruel, inhuman or degrading treatment or punishment when used as a punishment, during pretrial detention, indefinitely or for a prolonged period, for persons with mental disabilities or juveniles.”The call for the prohibition on the use of solitary confinement for children echoes a similar demand made by the UN Committee on the Rights of the Child in 2007, which recommended that the practice be “strictly forbidden” in the case of children (see: General Comment No. 10 – paragraph 89).84

[Al Jalame] – “I was strip searched and given a prison uniform. Then they took me to an interrogation room with a low metal chair tied to the floor in the middle of the room [...] he tied my hands to it. After that an interrogator came into the room and introduced himself as ‘Assaf’. He said he would interrogate me and hoped I would cooperate [...]. About an hour later I was detained in Cell No. 36. It is a very small cell, which had a mattress on the floor and a toilet with a horrible smell, as well as two concrete chairs. The lights in the ceiling were dim yellow and on 24 hours, and they hurt my eyes. The walls were grey and had a rough surface. The cell had no windows, just two gaps for letting air in and out. The food was served through a flap in the door [...]. Assaf and Amos interrogated me for several days and I eventually decided to confess because of the pressure they put on me. I was in a bad psychological state because they kept my hands tied for several hours during interrogation and detained me in a small cell.” Rami J. (17) – Arrested: 24 October 2011 (Held in solitary confinement for 24 days)

Confessions and documentation written in Hebrew In 58 percent of cases children provided a confession at the end of what was typically a coercive interrogation. In other cases, children report being forced to sign documents without being given the opportunity to read them. Further, in 29 percent of cases, children report being shown, or forced to sign, documentation written in Hebrew – a language the overwhelming majority of Palestinian children do not understand. These documents are then included in the court files which are in the possession of both the military prosecutors and military juvenile court judges, neither of who express surprise or criticism regarding this practice.85

[Qalandiya refugee camp] – “‘Liar,’ the interrogator shouted. ‘You better confess,’ he shouted, but I never confessed. He was typing what I was saying in the computer. Then he printed it out in Hebrew and ordered me to sign it, but I refused so he slapped me hard across the face while shouting. He got up and pushed me towards the wall and I slammed against it. I was so scared of him I immediately signed the papers.” Malek Z (15) – Arrested: 4 July 2011

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Summary of findings: Interrogation The testimonies reveal that the common experience of many children is that they are brought to an interrogation centre tied and blindfolded, sleep deprived and in a state of fear. Unlike their Israeli counterparts, Palestinian children have no right to be accompanied by their parents during interrogation, and in practice, do not get to meet with a lawyer until long after their interrogation is over. Although children in the military detention system are supposed to have the right to silence, few are ever informed of this right in a manner in which they can understand. Many children remain painfully tied for the duration of their interrogation, which is generally mentally and physically coercive, resulting in the provision of confessions, some of which are written in Hebrew, and many of which are of dubious veracity. Table 7 - Analysis of 311 cases: Issues of concern during interrogation #

Issues of concern during interrogation

Number of children

Percentage

Confession

180

58%

Use of restraints

176

57%

Threats

161

52%

Physical violence

115

37%

Verbal abuse and/or humiliation

31%

Signed or shown documentation in Hebrew

29%

Solitary confinement

12%

Accompanied by a parent

0.6%

Hebron: © GhtH

| 39

Case study: 3 Name: Rami J. Date of Incident: 24 October 2011 Age: 17 Location: Haris village, occupied West Bank Accusation: Throwing stones and Molotov cocktails On 24 October 2011, a 17-year-old boy from Haris village is arrested by Israeli soldiers at 2:00 am and taken to Al Jalame interrogation centre, inside Israel, and held in solitary confinement for 24 days. “At around 2:00 am, I was sleeping when I woke up to banging on the door: ‘Open up, it’s the IDF.’ I opened the door and soldiers pointed their rifles at me, ordering me to step aside and they stormed the house,” recalls 17-yearold Rami. The soldiers ordered the family to gather in one room while they searched the house. Around half-an-hour later an intelligence officer arrived and asked to see the family’s ID cards. When the officer looked at Rami’s ID card he simply said “we’re taking you with us.” Rami’s hands were then tied behind his back with three sets of plastic ties and he was blindfolded. Rami was then led out of the house to a military vehicle which was parked approximately 600 metres away. “Two of the soldiers grabbed me and pushed me hard inside one of the jeeps and I fell on the metal floor,” recalls Rami. “The soldiers kept me lying on my back on the metal floor of the jeep, with my hands tied behind my back and my eyes blindfolded for about two hours. I was kept tied and blindfolded for at least 18 hours, during which time I was never provided with any food or water, and they never allowed me to use the bathroom,” says Rami. Whilst on the floor Rami says that soldiers pushed him about with their boots. “Whenever I felt pain they would laugh loudly and insult me.” The jeep travelled for around two hours and then stopped. Rami was pulled out and asked some questions about his health. His hand ties and blindfold were briefly removed so that he could sign a medical form. He was then re-tied and blindfolded and taken back to the jeep and put on the metal floor. Rami reports that the jeep then travelled to several more locations. At one location he was taken out and made to sit on the ground for about one-and-a-half hours. He says that it was cold and he was shivering. At around 5:00 pm, the jeep arrived at Huwwara interrogation centre, near Nablus, in the West Bank. Rami reports being made to sit on the ground for another hour, still tied and blindfolded. Later on that evening, Rami was transferred to Al Jalame interrogation centre, inside Israel. The removal of Rami out of the occupied West Bank to an interrogation centre inside Israel, violates Article 76 of the Fourth Geneva Convention, which prohibits such transfers. On arrival at Al Jalame, Rami was strip searched and taken for interrogation. “There was a low metal chair tied to the floor in the middle of the room,” recalls Rami. “A jailer forced me to sit on the chair and tied my hands to it. After that an interrogator came into the room and introduced himself as Assaf. He said he would interrogate me and hoped that

| Bound, Blindfolded and Convicted

I would cooperate with him. ‘I’m very hungry because I haven’t had any food,’ I said. The interrogator brought me a piece of bread and a small piece of cheese and a glass of water. He untied me so I could eat. ‘I want you to tell me what you did,’ Assaf said before I started eating. ‘I didn’t do anything,’ I said. ‘Liar,’ he shouted. ‘Put down the bread,’ he shouted and took it away. He did not give me the glass of water. He even re-tied my hands to the back of the chair,” says Rami. The interrogation lasted about an hour during which time Assaf kept shouting and threatening to hit Rami, “but I did not tell him anything.” “About an hour later, I was detained in Cell No. 36. It is a very small cell, which had a matress on the floor and toilet with a horrible smell, as well as two concrete chairs. The lights in the ceiling were dim yellow and on 24 hours, and they hurt my eyes. The walls were gray and had a rough surface. The cell did not have windows, just two gaps for letting air in and out. The food was served though a flap in the door.” Rami reports that he was held in solitary confinement in Cell No. 36, and a similar cell (Cell No. 1) for a total of 24 days. “During my detention in Al Jalame I knocked on the door of my cell and asked for more bread because the bread they gave me was not enough. An old jailer immediately opened the door and started shouting. He approached me and put his arm around my neck and started choking me, saying: ‘I’ve worked here for a long time and no one has ever knocked on the door. If you ever do that again, I’ll wring your neck.’ The following day, the same jailer brought me a bucket of water and ordered me to clean up the cell. I did what he asked. When I finished cleaning, I put the empty bucket near the door. He opened the door and kicked it away. He shouted at me and ordered me to bring it back to him. He wanted to humiliate me. I refused to do it, so he came in and stepped on my right foot with his boot – I was barefooted. I felt a lot of pain and my foot was swollen for three days […] I wrote a complaint but I don’t know what happened to it.” “During my detention in Al Jalame, another interrogator named Amos also interrogated me. He and Assaf interrogated me everyday for about nine hours, except on Fridays and Saturdays. They accused me of throwing stones and Molotov cocktails. I denied it. They said I was a liar and said that a man from my village had said in a statement that I had thrown stones and Molotov cocktails with him […] Eventually a list of charges was made against me that included throwing stones. I had to confess to throwing stones because of the painful interrogation and the harsh conditions of my detention.” After approximately one month in Al Jalame, Rami was transferred to Megiddo, another prison also situated inside Israel.

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Military juvenile court proceedings Following their interrogation, children are brought before a military court within eight days of their arrest, although this time period will be reduced to four days by an amendment to the military law which comes into effect on 1 August 2012.86 It is inside the military court room where children generally see their lawyer and parents for the first time following their arrest. A child will generally appear in the military court on multiple occasions before the conclusion of his or her case. On each occasion, the child will be brought from prison with his hands cuffed and chains around his ankles. In some cases the journey to and from the prison, with waiting time at court, can take an entire day leaving the child physically and emotionally exhausted. A critical feature of the system is that in the overwhelming majority of cases (87 percent), children will not be released on bail but remanded in custody until the conclusion of the legal process.87 In practical terms, although the evidence against many children is weak, consisting primarily of the child’s own confession and sometimes the confession of another child, the overwhelming majority will plead guilty (90 percent) in return for a lighter sentence, rather than remain in prolonged pre-trial detention for a period that will frequently exceed the sentence that would have been imposed had a plea of guilty been accepted – in short, pleading guilty is the quickest way out of the system whether the offence was committed or not.88 The denial of bail for children in the military courts removes any incentive to challenge the system. In the rare cases where lawyers do challenge the system, the results are rarely favourable.89 This point is perhaps best made by reference to the military courts’ own records which indicate that in 2010, the courts achieved a conviction rate of 99.74 percent.90 Table 8 - Legal rights of children under Israeli military law #

Military court system

Event

Minimum age of criminal responsibility.91

Minimum age for a custodial sentence.92

Age of majority.93

16-18

Legal right to have a parent present during interrogation.

Legal right to consult with a lawyer prior to, or during interrogation.

Legal right to have interrogation audio-visually recorded.

Maximum period of detention before being brought before a judge.95

8 days

Maximum period of detention without access to a lawyer.

90 days

Maximum period of detention without charge.97

188 days

Maximum period of time between charge and trial.98

2 years

No 94

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Interview: Name: Occupation: Organisation: Date:

Iyad Misk Lawyer DCI-Palestine 29 February 2012

DCI-Palestine has been providing legal aid services to Palestinian children detained in the Israeli military detention system since 1991. During the past 20 years, DCI lawyers have represented over 3,000 children. Question:- “How long have you been representing children in the military courts?” Iyad:- “I started with DCI in 2005, and I have been representing children since 2008.” Question:- “What do you do when you hear a child has been arrested?” Iyad:- “As soon as the parents or other parties inform me that a child has been arrested and detained, I contact the detention centres and the police stations to find the child, and to get initial information about the arrest, place of detention and the date of the trial. Once these basic facts are established, I try to coordinate a visit to the child as soon as possible to obtain details of the arrest and the interrogation.” Question:- “As his lawyer is it easy to get access to the child?” Iyad:- “No. In reality due to coordination difficulties with the Israeli authorities, the first time I see most of the children is when the child appears in the military court after they’ve been interrogated. Under Israeli military law a child can be legally denied access to his lawyer for up to 90 days.” Question:- “In the court, do you try to get the child released on bail?” Iyad:- “Yes, the first thing I do is ask the judge to release the child. In some cases I suggest various alternatives to detention, such as bail, a third party guarantee, or even house arrest until the end of the legal proceedings.” Question:- “What usually happens, does the judge release the child?” Iyad:- “In most cases the request is denied. The judge claims that there is no appropriate alternative to detention and that the release of these children endangers the community. They see the child as guilty until proven innocent, not vice versa.” Question:- “How common is it for children to be found innocent?”

| 43 Iyad:- “Not common. In most cases children are either found guilty, or plead guilty.” Question- “So, what happens if the child pleads innocent?” Iyad:- “If the child decides to plead innocent, this will prolong the proceedings and he will spend a much longer time in detention. It could be twice as long as it would have been if the case ended in a plea bargain. Our experience in the courts shows that in the end, he will almost certainly receive a guilty verdict, with a stiffer sentence than if he had pleaded guilty to begin with. I explain this to the child and the family, and in most cases the child chooses not to plead innocent and concludes a deal with the prosecutor to end the case and reach a verdict.” Question:- “So, you have to advise children to plead guilty in order to be released sooner. How does that make you feel when your work is reduced to plea bargaining?” Iyad:- “I reiterate, the cases are concluded this way due to one key reason: the child and the family are afraid of prolonging the proceedings, keeping the child in prison for a much longer time than he would have been were he to plead guilty and reach a plea bargain. Of course I feel frustrated and at times overwhelmed by a sense of injustice in this system which does not take the best interests of the child into account.” Question:- “What motivates you to keep going?” Iyad:- “I still have hope that it is possible in some cases to improve the situation and help these children, even if we are just talking about a change on the psychological level. At the end of the day, I consider any child I meet in prison or in court as a relative of mine or even a son, because these children rely heavily on the lawyer and they believe he is their sole saviour in their time of hardship, especially if they are detained for the first time. If it’s their first time they see me as if I’m a god, as if I can do anything. But actually I’m just like him.” Question:- “Do you believe the system is intrinsically flawed?” Iyad:- “As a lawyer, I believe in the principle of the separation of powers: the judiciary, the legislature, and the executive, however in the case of the military courts they are all the same entity: the Israeli army.”

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Administrative detention [Ofer prison] – “On the eighth day of my detention, one of the jailers told me that I had a six-month administrative detention order. He handed me the order that was written in Hebrew and ordered me to sign it [...]. Four days after the issuance of the administrative detention order, I was taken to Ofer military court and the order was confirmed. Then I was taken to the appeals court and the order was reduced to two months. In May the order was extended for four months and in November it was extended for another four months. I still don’t know why they arrested and detained me. I didn’t do anything.” Imad A. (17) – Arrested: 21 February 2010

In a relative small proportion of cases during the reporting period, children were held in administrative detention. Administrative detention is a procedure whereby a person is detained without charge or trial, by order of a military commander. Administrative detention is permitted under international law in strictly limited circumstances, and only if “the security of the state [...] makes it absolutely necessary” and in accordance with “regular procedure.”99 Further, under the Convention on the Rights of the Child, “no child should be deprived of his or her liberty arbitrarily and detention should only be used as a measure of last resort for the shortest appropriate period of time.”100 Administrative detention should never be used as a substitute for criminal prosecution where there is insufficient evidence to obtain a conviction.

In the military detention system, administrative detention orders are authorised under Military Order 1651, for a period of up to six months, with an indefinite number of renewals permitted.101 Administrative detention orders are issued at the time of arrest or at some later date, and are often based on “secret evidence” collected by the Israeli Security Agency (ISA). The detainee must be brought before a military judge within eight days of the issuing of an administrative detention order at which point the order can be confirmed, reduced or cancelled. Neither the detainee, nor the detainee’s lawyer are given access to the secret evidence, and therefore have no effective means of challenging the detention, as is required under international law.102 In 2009, the UN Committee against Torture expressed the view that Israel’s extensive use of administrative detention on Palestinians frequently amounts to cruel, inhuman or degrading treatment or punishment and deprives detainees of basic safeguards including the right to challenge the evidence. The Committee found that the procedure was being used for “inordinately lengthy periods.”103 In 2010, the UN Human Rights Committee also expressed concern at the “frequent and extensive” use of administrative detention and recommended that Israel refrain from using the procedure, in particular, for children.104 During the reporting period, the number of children held in Israeli administrative detention has fallen dramatically, and DCI-Palestine recommends that the Israeli authorities now amend the military orders to prohibit the use of administrative detention orders in all cases of persons below the age of 18.

| 45 Table 9 - Total number of Palestine children held in Israeli administrative detention Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

Ave

2008

2009

1.8

2010

1.6

2011

0.2

2012

Za'tara checkpoint: © DCI

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Imprisonment, release and rehabilitation Immediately following arrest, children are held briefly in temporary detention facilities in the West Bank before being transferred to prison facilities operated by the Israeli Prison Service (IPS). At the time of publication Palestinian child detainees are being held in Ofer prison, in the West Bank, and Megiddo prison, inside Israel.

Separation from adults During the reporting period, significant improvements have been made in ensuring children are separated from adults. These improvements are most notable in Megiddo prison, where children are held in a separate area from adults. In Ofer prison, attempts are made to separate adults from children, but mixing does still occur from time to time.

Prison conditions The conditions of detention for Palestinian detainees in IPS facilities are regulated by Israeli domestic law and general IPS regulations as well as regulations specific to “security detainees.” Specific regulations apply to various aspects of the conditions of detention, including: physical conditions; medical care; personal hygiene; possession of personal belongings; food; daily exercise; use of telephones; family visits; letters; religion; restraint and disciplinary measures.105 Significantly, Palestinian child detainees are not permitted to have telephone contact with their families. In practice, common complaints received from Palestinian children detained in the Israeli military court system include overcrowding, poor ventilation and access to natural light, poor quality and inadequate amounts of food, harsh treatment by prison officials and boredom.

Education In the military detention system, the law provides that Palestinian children in Israeli detention facilities are entitled to the same education as Israeli child prisoners, which includes an education programme based on the Palestinian curriculum,106 but that this right is “subject to the security situation.”107 The prison authorities have interpreted “subject to the security situation” to permit only very limited education in one of the prisons where Israel detains Palestinian children,108and in none of the interrogation and detention centres.109 At the date of publication, three Arab-Israeli teachers enter Megiddo prison to teach Arabic and Maths. Children are separated into three classes based on their age. The children are only given exercise books and pencils for the duration of the class and then made to return these resources at the end of the lesson. According to recent reports, children in Megiddo prison are receiving about five hours of tuition per day, five days per week. The education provided is not compulsory. No education whatsoever is provided by the prison authorities to Palestinian female child detainees, or in other detention facilities.110

| 47 Medical care In the prisons operated by the IPS, the law provides that detainees are entitled to medical care.111 In the case of children, this care includes psychological and psychiatric treatment.112 Palestinian children are typically given a cursory medical examination on arrival at a temporary detention facility. These medical examinations are conducted by military doctors and generally last several minutes and involve reading through a checklist of illnesses and injuries, frequently whilst the child remains tied by the hands. In practice there are reports of children being ignored when they complain about their health during their medical examinations.113 There are also reports that some children have been denied adequate medical care, and in some cases, undue force has been applied to existing wounds causing additional suffering. Once Palestinian children are transferred to a prison, their medical care is governed by IPS regulations which provide that “every detainee is entitled to receive the medical treatment he requires to maintain his health.”114

Imprisonment inside Israel and family visits The imprisonment of Palestinian children in facilities inside Israel violates article 76 of the Fourth Geneva Convention which prohibits the transfer of prisoners out of occupied territory.115 The practical consequences of this violation is that many children receive either limited, or no family visits, due to freedom of movement restrictions, and the time it takes to issue permits to visit a prison. After being sentenced, the IPS prison regulations provide that children are entitled to a family visit every two weeks, for 45 minutes. These visits take place behind reinforced glass and no physical contact is permitted. However, as prison visit permits can take as much as two months to process, some children sentenced for short periods of time receive no visits at all whilst detained.

[Megiddo prison] – “One of the detainees from my village was told by his family that the Red Cross had called my mother and informed her that they could not visit me. I still don’t know why they don’t allow family visits. When the children in my room receive family visits, I feel terrible because they get to see their families and I don’t. When they return to the room they have money and clothes and things get a little better for them. I don’t know the news of my family, my friends or my school. I feel a huge gap because of the lack of communication. I’m losing so many details that I consider important to know.” Jihad A. (16) – Arrested: 29 April 2010

Release and rehabilitation In some cases, parents are informed in advance the date when their child will be released and wait for them at the nearest checkpoint. Sometimes they may wait for the best part of a day as a precise time for release is generally not given. In other cases, children are simply dropped off at checkpoints by the army, and then must find their own way home, sometimes many hours away (case study 5).

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The Israeli authorities provide no assistance for the rehabilitation of Palestinian children held in its detention facilities. Since its establishment in 1989, the East Jerusalem YMCA has provided rehabilitation services to children, and now provides counselling services to approximately 350 ex-child detainees each year under the motto – “Giving hope to the hopeless”.116 The programme operates from facilities in Beit Sahour, near Bethlehem, in the West Bank, and it also has an outreach programme.

Interview: Name: Occupation: Organisation: Date:

Nader Abu Amsha Director YMCA rehabilitation programme 29 February 2012

Nader Abu Amsha is the director of the Beit Sahour branch of the East Jerusalem YMCA rehabilitation programme. Each year the programme provides counseling to around 350 Palestinian children released from Israeli detention facilities. Question:- “Can you tell me a little bit about the programme?” Nader:- “The programme started three years ago. At the moment, we are treating on average 350 children per year through 11 counselling teams that work all across the West Bank, including East Jerusalem.” Question:- “How does the work begin?” Nader:- “Our works starts from the moment the child is arrested. Our counsellors start working with the family to help them cope with the situation and advise them on how to deal with the child when he or she is released from prison. The parents tend to think that when their child is released, that is the end of the story. We always tell them it is only the beginning. The family needs to understand that the experience of arrest and imprisonment might have changed the child and affected his development. Question:- “In what ways does prison change a child?” Nader:- “When children come out of prison they feel old and mature and they think they know it all. For the parents though, he is still the same child who left three, four or five months ago, so they tend to become over-protective. This causes problems and disputes

| 49 within the family. Through our programme, we try to help both the child and the family so that the home remains a place where the child feels comfortable and safe.” Question:- “What are some of the things you notice when a child is released from prison?” Nader:- “In most cases we notice that when children are released from prison they want to talk about what happened to them; they want to narrate the sequence of events from the moment of arrest as if it was a movie. They do not talk much about their feelings. But when we start digging and asking specific questions, the children start talking about their feelings. They get very emotional and start sharing their frustration, their anger, perhaps their desire for revenge etc.” Question:- “What are some of the other things you notice?” Nader:- “We have noticed that one of the most traumatising experiences for the children is being arrested in the middle of the night in big raids, finding the soldiers in their rooms pointing their weapons at them, the shouting, and the breaking of things in many cases. This makes the detention very traumatic from the first minute. Also, the handcuffing, the blindfolding, being transferred in the floor of the military jeeps, being beaten, threatened and humiliated during interrogation. Being alone during all this process is a terrifying experience for the children. The child feels that the whole Israeli military system is against him, and he has no one to protect or accompany him. Then, being imprisoned for months far from the family, with people he doesn’t know, sometimes even with adults, not being able to talk about his feelings, and having to deal with the conflict between the different political affiliations of other prisoners, it’s all a very difficult experience for the child.” Question:- “What are some of the methods you use to help the children?” Nader:- “Our counsellors and social workers are trained to help the children disclose all their feelings, because once they start talking, that’s when the therapy really begins. This is how the children release all the stress and reduce their anxiety. The therapy helps them organise their thoughts and channel their feelings in a positive direction.” Question:- “Does this always work?” Nader:- “In some cases the children are too traumatised by the experience, by the illtreatment, and they refuse to open up. Being tortured might lead the children not to trust anyone. Many times our counsellors have to make a big effort to earn the child’s trust, because without trust there can be no counselling or therapy. In cases where despite all our efforts the child refuses to open up, we still help him return to school or with vocational rehabilitation and re-integration into the community.” Question:- “What other issues have you come across?” Nader:- “When treating the children, we have also noticed that one of the most difficult issues for them to deal with - and this is very sensitive - is Israel’s attempt to recruit them as informants or collaborators, and the use of the ‘stick and carrot’ method to get information out of them. Many children often say the Israelis tried to recruit them, but they never say they accepted, although in some cases they might have due to fear and the desire

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to end the ill-treatment and to get out of the situation. It is very hard to deal with these cases, because they are related to many other issues, such as the security of the child, community values, the fear it generates in the child and the need for protection.” Question:- “When do you approach the children about joining the programme?” Nader:- “We invite children to enrol in our programme as soon as they are released from prison. We offer them our help in getting back to school, we do vocational assessment, facilitate their re-integration into the community, and give them psychological counselling.” Question:- “What are some of the biggest challenges you encounter when the children are released?” Nader:- “The issue of returning to school is one of the most difficult, because these children tend to look for all kinds of excuses not to go back to school. Most of them come from poor families, so they say they want to start working to help the household. We challenge their arguments and make them see the advantages of completing their education, as well as the difficulties in finding a good job without the necessary qualifications. However, if the child decides not to go back to school, we have to respect his decision, so we help with vocational training.” Question:- “Can you tell me a little bit about the vocational training?” Nader:- “We use a very effective system for vocational assessment, and have signed agreements with a number of companies, workshops etc. where the children can have training in different areas, such as carpentry, mechanics, etc. It is important that the children undergo this training within a system, because this is pivotal for the success of the counselling process. These children should not be left alone.” Question:- “How would you rate the success of the programme?” Nader:- “In general the programme is very successful. Most children recover from the trauma and re-integrate well into the community, but of course they never forget what happened to them. They will have flashbacks all their lives, but they learn how to cope with these memories. In some cases the children get re-arrested, and as soon as they are released they immediately come back to our programme.”

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Ofer prison: © Sylvie Le Clezio

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Psychological opinion

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sychoactive is a group of practising and academic mental health professionals who are active in areas of social and political concern, particularly in regards to the Palestinian/Israeli conflict.117 In preparation of the Report, DCI-Palestine provided a group within Psychoactive, who are currently investigating the issue of military detention of Palestinian minors, with 15 randomly selected testimonies relied on by the Report for the purpose of obtaining an insight into some of the psychological effects on children of being held in the Israeli military detention system. The full psychological opinion will be available on Psychoactive’s website, with a summary presented below:

Beit Ummar: © Sylvie Le Clezio

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Opinion: Organisation: Sample: Age range: Date:

1 Psychoactive-Mental Health Professionals for Human Rights 15 testimonies 9-17 March 2012

From the testimonies it emerges that from the moment of an often traumatic night time arrest, the child or youth is cut off from family, from everyday life, and we suspect that in many ways, from the experience of himself as he was before. We learn from the testimonies that the boys are alone and often exposed to violence, and thus to fear, physical and psychic pain, as well as to a chain of experiences which are likely to give rise to disorientation, humiliation, and helplessness, all the more so once having witnessed the helplessness, and perhaps also the fear, of their parents.

The boys’ descriptions of the conditions leading up to the interrogation and the way in which the interrogations are conducted cast serious doubts as to the credibility of the confessions extracted as suggested in the PHR-Israel report, dated May 2011.118 But more importantly, exposure to such potentially traumatic events is liable to have lasting debilitating psychological and physiological effects.

According to the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) criteria for Post Traumatic Stress Disorder (PTSD), a potentially traumatizing event is one in which an individual experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and in which the individual’s response involved intense fear, helplessness or horror. Lack of control in painful and distressing situations is known to engender feelings of intense helplessness which is one of the factors in causing trauma. The arrests and interrogations as described in the boys’ testimonies are potentially traumatic events, and in many of the testimonies a sense of helplessness and horror is evident.

Since most of the statements were taken while the boy was still in detention, within a short time from the arrest and interrogation, only short term effects are described in the testimonies. However, the concentration and severity of potentially traumatic events described in the testimonies raises the likelihood that these boys may suffer lasting psychological traumatisation which may result in the impairment of important areas of daily functioning, at home, at school and with their peers. Even without considering PTSD, there may be emotional and psychosomatic reactions, such as difficulties in falling asleep, nightmares, bedwetting, increased startle response, difficulties in concentrating, loss of interest, loss of self worth, anxiety disorders and depression.

| 55 5.

Family support is very important in contributing to the child’s sense of safety, which is likely to have been severely damaged during the arrest and detention. Such support is mostly denied by restricting the families’ visits while the boys are in detention. In addition, after their release the children and youth will return to a home that in many ways is no longer the safe haven it had been and to parents whose authority and dignity is likely to have been damaged, who presumably suffer a great deal of guilt at not having been able to protect their child, and whose ability to help the youths process their experiences and recover their psychic equilibrium may, therefore, be severely handicapped.

It is striking that emotions are only rarely expressed directly in these testimonies. There are several possible explanations for this. Firstly, the lack of emotive expression could be cultural, and especially for adolescent boys on their way to manhood. Also, the testimonies were taken by lawyers and field workers whose questioning may have been directed towards a more factual account. However, as the testimonies were given for the most part while still in detention, this lack of emotional description may reflect the continuing need to keep feelings at bay in order to cope with the situation. The shame surrounding the feelings engendered by traumatic experience may inhibit the children and adolescents ability to share their emotions, and when detained in groups they are likely to develop among themselves a language of bravado to describe their situation. Shame about feelings of vulnerability may later seriously impair the possibility of healing. The factual dryness of the testimonies may in some cases reflect emotional dissociation, one of the more harmful and dangerous results of trauma.

The most expressions of emotion are found in the descriptions of the way in which the confession was extracted. The boys report being very scared and confessing or surrendering information in order to stop the psychological or physical abuse. This might suggest that most of the boys who confess, and especially those who were induced to give names of others, often friends and relatives, feel a need, perhaps due to embarrassment or guilt, to present some sort of justification for having succumbed to the pressure.

There are many open questions about the potential individual repercussions to the children and adolescents in terms of coping with parental helplessness, with their own helplessness, fear and guilt feelings, with harsh memories, with the interruption of the school curriculum and with the many emotional and psychosomatic manifestations characteristic of persons who undergo traumatic events. In addition, in order to understand these events in the full context of these boys’ lives it is important to take into account that what they describe in their testimonies is not simply a detached onetime event. This specific experience is embedded in the collective and personal experience of life under occupation and military threat. It is very difficult to estimate the psychological and social repercussions for those maltreated and humiliated children and adolescents after their return home. And yet we can assume that forced reciprocal incriminations scar the vulnerable fabric of family and social life within the community, and diminish the possibility for social support.

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The soldier’s perspective

| 57

reaking the Silence is an organisation of veteran combatants who have served in the Israeli military since the start of the Second Intifada and have taken it upon themselves to expose the Israeli public to the reality of everyday life in the Occupied Palestinian Territory. According to the organisation’s website:119 “Soldiers who serve in the Territories witness and participate in military actions which change them immensely. Cases of abuse towards Palestinians, looting, and destruction of property have been the norm for years, but are still explained as extreme and unique cases. Our testimonies portray a different, and much grimmer picture in which deterioration of moral standards finds expression in the character of orders and the rules of engagement, and are justified in the name of Israel’s security. While this reality is known to Israeli soldiers and commanders, Israeli society continues to turn a blind eye, and to deny that what is done in its name. Discharged soldiers returning to civilian life discover the gap between the reality they encountered in the Territories, and the silence about this reality they encounter at home. In order to become civilians again, soldiers are forced to ignore what they have seen and done. We strive to make heard the voices of these soldiers, pushing Israeli society to face the reality whose creation it has enabled.” DCI-Palestine is grateful to Breaking the Silence for providing three testimonies taken from soldiers involved in the arrest of Palestinian children. One of these testimonies is presented below:

Hebron: © DCI

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Interview: Reference: Occupation: Location: Date:

Breaking the Silence – Z5/002 Soldier Hebron, occupied West Bank 2010

An Israeli soldier provides a testimony to Breaking the Silence about arresting a Palestinian child in the Hebron area in 2010. Soldier: - “Once there was this stone throwing at Gross Square so we headed out there and this kid suddenly appeared. The lookout came over the radio and said: ‘Stop, he‘s right there next to you.’” Question: - “How old was this kid?” Soldier: - “Fifteen-years-old. His name was Daoud. Anyway, we arrested him. We stopped our vehicle, ran, and he was in total shock. We took him to the Jewish side of Gross, and he began to cry, to scream, sweat and tears streaming from him onto the floor. There was nothing we could do with him, suddenly you’ve got this crying kid on your hands, a second ago he was throwing tiles at Gross Square army post and you were dying to beat him to a pulp, after being alerted there in this heat. You’re dying to kill him but he’s crying his heart out. We didn’t know what to do so we began to stand watch over him. Once a guy who was with him lost it and hurt him, and then he ran off. So at some point when I was with him I tried to calm this kid down because he was tied up, blindfolded, and crying, as if all of him was just dripping from tears and sweat. I began to shake him, then the deputy company commander took him and shook him, too. ‘Shut up already! Cut it out!’ Then we took him to the Hill of the Patriarchs, and he went on and on crying because the police didn’t come and he wasn’t taken in for questioning. This went on, was so annoying, totally insane. In the middle of this mess, as he was creeping on the floor, the communications man takes out his Motorola, you know what that is?” Question: - “The communications gear?” Soldier: - “Yes. Boom, hits him over the head with it. Not with any ill intentions, it was simply after over two hours of unbearable crying.” Question: - “This was still at Gross Square?” Soldier: - “No, at the Hill of the Patriarchs.” Question: - “At the police station?” Soldier: - “Yes.” Question: - “Somewhere off to the side or [...]?” Soldier: - “No, in the area where all the police cars are […] Outside the interrogation

| 59 rooms. There was a point when I was with him and the communications took a picture of me. I didn’t want to be photographed with him, it was a fucked up situation. You just don’t know what to do with your life at that point. We were terribly confused. And angry. Because you saw the stones he threw, you know what he’d done, you know it’s dangerous. Again, you keep experiencing bad things but those who do them are just people, I don’t know […]” Question: - “How long was he at Gross Square until you took him to the Hill of the Patriarchs?” Soldier: - “I don’t remember if it was an hour or a quarter of an hour. It was a serious amount of time. The worse thing was that he spent a lot of time at the Hill of the Patriarchs. The worst thing when you are in contact with those people, every time someone, one of the Arabs, does something bad, you take him up to the Hill of the Patriarchs (police station) and there he vanishes. He’s either taken to some base or something for three-four days.” Question: - “Have you any idea where?” Soldier: - “No. We were always told it was somewhere in the territories.” Question: - “Ofer camp?” Soldier: - “Maybe. I don’t know. We’d just drop them at the police station and forget about them. They would come back after a while. They don’t really go anywhere.” Question: - “Earlier you mentioned that at Gross Square the deputy company commander shook this boy.” Soldier: - “Right. We all did. He blew up at him.” Question: - “What does that mean? Why?” Soldier: - “Because they were such worms, from a certain point on I remember we literally loathed them. I did. I was such a racist out there, too, I was so angry at them for their filth, their misery, the whole fucking situation: you threw a stone, now why did you do it? Why did you have to make me bring you here? Just don’t do it. He is there on the floor crying. Hands tied. At some point we unshackled his hands because he wept and pleaded. He screamed there, and was all wet from tears and sweat and mucus. You just don’t know what to do about it. We were shaking him out of desperation. It wasn’t necessarily an act motivated by violence. I think we even began to laugh already, even now when I think about it, you get so lost out there in a situation like this.” Question: - “You’re saying that not only you and the communications man did it, right? The deputy company commander was involved, too?” Soldier: - “Sure. What does it do? We didn’t shake him to such an extent that […] It was like, cut it out, you’re driving us crazy, we kept yelling ‘stop it!’ at him in Arabic, every word we knew in Arabic. “Great” and “what’s your name’ and stuff like that.”

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Discrimination and the disparity in treatment

| 61

t the time of publication, there are well over 311,000 Israeli settlers living in the West Bank and nearly 200,000 in East Jerusalem in violation of international law.120 Although technically the settlers are subject to the same military orders as the Palestinian population, in reality, settlers are governed by Israeli civilian law, which contains significantly more safeguards and protections than military law. Since June 1967, Palestinians and Israelis living in the occupied West Bank have been judged under different laws, and by different standards. Furthermore, no Palestinian has any say or influence over the manner in which Israeli military commanders exercise executive, legislative and judicial power over them, or say in the contents of nearly 1,700 military orders affecting their rights over the past 44 years.

The discriminatory nature of the legal systems is perhaps best illustrated by way of an example involving two children living in the West Bank who start throwing stones at each other. If one of these children happens to be Palestinian, he will be prosecuted under military law and treated in a manner described in the preceding pages. If the other child is an Israeli settler, he will be dealt with in Israel’s civilian juvenile justice system, with significantly more rights and protections.121 This disparity in treatment could be justified during the first few years of the occupation based on principles of humanitarian law, but after 44 years this situation is now untenable. Some of the key differences between the two legal systems are presented in Table 10. Table 10 – Rights of Palestinian and Israeli children: Comparative table #

Event

Civilian juvenile justice system

Military court system

Minimum age of criminal responsibility.

12122

12123

Minimum age for a custodial sentence.

14124

12125

Age of majority.

18126

16-18127

Legal right to have a parent present during interrogation.

Generally yes128

Legal right to have a lawyer present during interrogation.

No129

Legal right to have interrogation audio-visually recorded.

Partial130

Maximum period of detention before being brought before a judge.

12-24 hours131

8 days132

Maximum period of detention without access to a lawyer.

48 hours133

90 days134

Maximum period of detention without charge.

40 days135

188 days136

Maximum period of time between charge and trial.

6 months137

2 years138

Percentage of cases in which bail is denied.

20%139

87%

Percentage of cases in which a custodial sentence is imposed.

6.5%140

90%

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Accountability

| 63

n an interview given to The Guardian newspaper in January 2012, Mark Regev, spokesman for the Israeli Prime Minister, Binyamin Netanyahu, said:141 “If detainees believe they have been mistreated, especially in the case of minors […] it’s very important that these people, or people representing them, come forward and raise these issues. The test of a democracy is how you treat people incarcerated, people in jail, and especially so with minors.”

In reality, many Palestinian families refuse to file complaints against the Israeli authorities for fear of retaliation, or simply because they do not believe the complaint process will be fair or impartial. There is some evidence to support this last concern: (i) Between January 2001 and late 2010, 645 complaints were filed against Israeli Security Agency (ISA) interrogators for alleged ill-treatment and torture of Palestinian detainees. No criminal investigations were conducted.142 (ii) Between 2000 and 2010, a complaint lodged by a Palestinian against an Israeli soldier had a 96.5 percent chance of being dismissed without an indictment being filed.143 (iii) On 27 January 2011, an Israeli military court refused to imprison Lt. Col. Omri Burberg who was convicted of shooting a bound and blindfolded Palestinian detainee at close range in the foot with a rubber coated steel bullet. The court declined to impose a custodial sentence even though this was recommended by the prosecution.144 Since 2010, DCI-Palestine has submitted four complaints to the Israeli authorities on behalf of Palestinian children who allege they were mistreated whilst in detention. The results of these complaints are presented in Table 11 below:

Parents wait at Ofer military court: © Sylvie Le Clezio

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Table 11 – Complaints submitted by DCI-Palestine on behalf of child detainees #

Name

I.M.

A.R.

A.F.

R.J.

Date of complaint

Status

I.M. was arrested at 1:30 am, on 25 May 2010. I.M. reports that an interrogator named “Da’ud” in Gush Etzion settlement attached a pair of car battery jump leads to his genitals and threatened to electrify the cable.

15 Aug 10

Investigation closed - due to a “lack of evidence.”

A.R. was arrested at 1:30 am, on 20 May 2011. A.R. was ordered out of the house with the rest of his family and made to strip naked in front of everybody and was then tied and blindfolded. A.R. reports being beaten by soldiers inside a military vehicle. On arrival at Zufin settlement, A.R. was dragged out of the vehicle and fell, causing both his mouth and nose to bleed.

7 Sep 11

Unknown

A.F. was arrested by Israeli soldiers at 2:00 am, on 6 July 2011. A.F. was taken to Huwwara interrogation centre where he reports that soldiers placed food on his body and then brought a dog over to eat the food, in what A.F. describes as a terrifying experience.

11 Oct 11

Investigation opened on 27 November 2011

R.J. was arrested by Israeli soldiers on 4 November 2011, and transferred to the Al Jalame facility, inside Israel. R.J. reports being held in solitary confinement in a windowless cell for 13 days and was repeatedly interrogated whilst tied to a chair. R.J. also reports being verbally abused and spat on in an attempt to make him confess.

14 Feb 12

Receipt acknowledged

Age

Details

In a recent report published by B’Tselem, the organisation investigated two complaint files opened by the Israeli Department of Investigation of the Police (DIP) in cases where Palestinian children alleged wrongdoing by police interrogators. B’Tselem concluded that: “The investigative material in the two cases indicates that DIP carried out a superficial investigation and made no real attempt to get to the bottom of the matter.”145

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Child arrested at Beit Ummar: © Husam Abu Allan

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Summary of findings

| 67

he following table presents a summary of findings following the analysis of 311 testimonies collected from children detained during the reporting period. The findings focus on 12 issues of concern that were selected because of the frequency with which they were raised by children in their testimonies. The table combines the findings of ill-treatment from each stage of the system considered in the preceding pages. It is important to note that all of the children were subjected to multiple types of ill-treatment, and the cumulative effect on the children must be kept in mind (see Annex 1). Table 12 – Common complaints and areas of concern – January 2008 January 2012 #

Common complaints and areas of concern

Number of cases

Percentage of children

Hand ties

296

95%

Blindfolds

281

90%

Physical violence

234

75%

Detention inside Israel in violation of Article 76

196

63%

Arrested between midnight and 5:00 am

188

60%

Confession during interrogation

180

58%

Threats

178

57%

Verbal abuse and/or humiliation

169

54%

Strip searched

102

33%

Transferred on floor of vehicle

32%

Signed/shown documents written in Hebrew

29%

Solitary confinement

12%

Ofer military court: © Annie Tritt

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Concluding remarks

| 69

he body of evidence presented in this report reveals a systematic pattern of illtreatment, and in some cases torture, of children held in Israeli military detention.

The ill-treatment starts at the moment of arrest, when many children report experiencing terrifying night-time raids on the family home, before being tied, often painfully so, and blindfolded. The destabilising effect of these night-time arrests is compounded by the fact that parents and children are generally not informed of the reasons for arrest or where the child is being taken, often in the middle of the night. The common experience of many children is that the journey to the interrogation centre is routinely accompanied by further avoidable suffering, either because of the way the child is restrained or positioned in the vehicle, or because of further physical or verbal abuse. As reported in many testimonies, the transfer process can take many hours and often includes intermediate stops at settlements or military bases where further ill-treatment is reported, including in some cases, prolonged exposure to the elements, and a lack of water or toilet facilities. On arrival at the interrogation centres, children are questioned alone and rarely appear to be informed of their rights, particularly their right to silence. The testimonies reveal a method of interrogation that frequently mixes intimidation, threats and physical violence with the clear intention of obtaining a confession from the child. From the time of arrest to interrogation, three-quarters of the children report being subjected to some form of physical violence, with over half reporting being verbally abused or threatened. This treatment culminates in most children providing confessions which could not be used as evidence in the courts of most modern democracies, whilst in nearly one-third of cases, children are shown, or made to sign, documentation in a language they do not understand. Once the interrogation stage of the system is concluded, 87 percent of children remain in pre-trial detention awaiting their prosecution before a military court. The primary evidence against most children in the military courts is their confession, or the confession of another child who has been subjected to similar treatment. For reasons explained in the Report, at least 90 percent of children end up pleading guilty and accepting a plea bargain, even if they insist they are innocent of the charges for which they stand accused, as this is the quickest way out of the system. Once sentenced, nearly twothirds of the children will be transferred to prisons inside Israel, in violation of the Fourth Geneva Convention. In practical terms this makes family visits difficult, and in some cases impossible, due to freedom of movement restrictions placed on Palestinians with West Bank ID cards. In assessing the gravity of the ill-treatment reported by the children in their testimonies, it is important to consider the totality of the evidence from the moment of arrest to their appearance in the military court, as well as taking into account their age, physical and psychological development and relative position of inferiority. It is important to note that in all 311 cases, children report experiencing multiple forms of ill-treatment, as opposed to a single incident. This feature of the system is particularly relevant when assessing the gravity of the ill-treatment, as the cumulative effect must be taken into consideration, rather than viewing any individual act in isolation. Accordingly, when the totality of the evidence is considered, a pattern of systematic ill-treatment emerges, much of which amounts to cruel, inhuman or degrading treatment or punishment, as defined in the UN Convention against Torture, and in some cases, torture – both of which are absolutely prohibited. Evidence of the cumulative effect of the treatment is presented in Annex 1.

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Reports of ill-treatment and torture within the military detention system are not new. Numerous reports have been documented and published by Palestinian and Israeli lawyers, as well as human rights’ organisations working in the field. UN bodies, such as the Committee on the Rights of the Child, the Committee against Torture and the Human Rights Committee, as well as numerous UN independent experts, have also frequently reported ill-treatment for many years (Annexes 4 and 5). One reason for the persistence and frequency of these reports can perhaps be attributed to the lack of any effective accountability mechanisms, where in the words of one Israeli organisation: “The chances of a criminal offence carried out by an IDF soldier against a Palestinian successfully navigating the obstacle course of the complaint procedure [...] are almost nil.”146 Finally, the testimonies reveal that most children held in the military detention system are arrested from villages located close to friction points, namely settlements built in violation of international law, and roads used by the Israeli army or settlers. The final section of the Report makes a number of recommendations intended to reduce the level of ill-treatment, but no one should be under any illusion that the treatment documented in this report can be eliminated so long as the friction points remain and Palestinian children are treated as second-class individuals.

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Hebron: © GhtH

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Recommendations

| 73

CI-Palestine maintains the view that no child should be prosecuted in military courts which lack comprehensive fair trial and juvenile justice standards. However as a minimum safeguard, the following recommendations are intended to provide a series of simple and practical measures to assist in the protection of children held in the Israeli military detention system, and to curtail the practices that breach the absolute prohibition against torture and ill-treatment. 1.

Except in extreme and unusual circumstances children should only be arrested during daylight hours.

In all cases the use of single plastic hand ties and blindfolds should be prohibited and the prohibition must be effectively enforced.

All children must have access to a lawyer of their choice prior to interrogation, and preferably, throughout the interrogation process.147

All children must be entitled to have a parent present at all times during their interrogation.148

In every case the interrogation of children must be audio-visually recorded, and a copy of the recording must be given to the child’s legal representative at the conclusion of the interrogation.149

In all cases evidence obtained as a result of torture or ill-treatment must be excluded by the military courts.150

In all cases where incriminating evidence is obtained during interrogation when the child was not appropriately informed of his/her right to silence, this evidence must be excluded by the military courts.

The practice of using solitary confinement and administrative detention orders on children in Israeli detention facilities must be stopped immediately, and the prohibition must be enshrined in law.

Effective accountability measures must be introduced to ensure all credible reports of torture and ill-treatment are properly investigated in accordance with international standards, perpetrators are brought promptly to justice, and appropriate sanctions are given.

10. In accordance with recommendations made in 2002 by the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, John Dugard, an independent inquiry meeting with international standards should be established to investigate reports of torture and ill-treatment of children in the Israeli military detention system.

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Annex 1

Cumulative table of issues of concern – January 2008 to January 2012

| 75 Key 1

Arrested between midnight and 5:00 am.

Verbal abuse and/or humiliation

Hand ties

Solitary confinement

Blindfolds

Strip searched

Transferred on floor of vehicle

10 Signed/shown documents in Hebrew

Physical violence

11 Confession

Threats

12 Detained inside Israel

Name

Age

Date of arrest

3 2008

Shadi H.

22 Jan

Mahmoud D.

5 Feb

Mohammad A.

5 Feb

Ather A.

5 Feb

Abed S.

10 Feb

Ahmad Z.

17 Feb

Mohammad ‘A.

25 Feb

Fadi D.

27 Feb

Mohammad B.

1 Mar

Imad T.

7 Mar

Samir K.

10 Mar

Jameel K.

25 Mar

Mohammad A.

10 Apr

Simoud A. (Girl)

16 Apr

Abed A.

23 Apr

Wa’ad H.

28 Apr

Abdulla O.

5 May

Salwa S. (Girl)

5 Jun

Sara S. (Girl)

5 Jun

Entima L.

13 Jul

Hamdi T.

25 Jul

Mohammad B.

25 Jul

Mohammad Q.

11 Aug

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Ihab S.

11 Aug

Abdullah A.

12 Aug

Hamdi A.

14 Aug

Mahmoud S.

27 Aug

Mahmoud N.

15 Sep

Muhannad K.

7 Oct

Abed S.

23 Oct

Mujahed S.

30 Oct

Mohammad A.

26 Nov

Mahmoud M.

30 Nov

Bara’a M. (Girl)

2 Dec

Samah S. (Girl)

2 Dec

Hamdi T.

18 Dec

Haitham ‘Ayasi

30 Dec

Islam M.

31 Dec

2009 •

•

7 Jan

•

11 Jan

•

Mohammad M.

13 Jan

Ahmad S.

13 Jan

Mohammad Z.

13 Jan

Habib M.

14 Jan

Osaid Q.

20 Jan

Imad A.

20 Jan

Mohammad A.

20 Jan

Amir Q.

20 Jan

Bashir Q.

20 Jan

Murad Q.

20 Jan

Mu’taz S.

22 Jan

Mohammad Z.

22 Jan

Ahmad Q.

1 Jan

Fadi D.

1 Jan

Mohammad S.

5 Jan

Husam H.

Hamzi F.

•

Y Y

•

Y Y Y

Y Y

•

Y Y

•

Y Y

•

Y Y

| 77 56

Tarik K.

22 Jan

Mohammad F.

23 Jan

Omar Z.

26 Jan

Mohammad R.

30 Jan

Mohammad W.

9 Feb

Udai M.

24 Feb

Jihad T.

25 Feb

Mohammad N.

1 Mar

Naji R.

6 Mar

Monther A.

10 Mar

Rashad F.

21 Mar

Abed A.

25 Mar

Amir K.

26 Mar

Rabi’ D.

26 Mar

Ma’zouz K.

26 Mar

Walid O.

30 Mar

Hasan S.

1 Apr

Baha M.

7 Apr

Walid M.

7 Apr

Yazan A.

8 Apr

76 Maimouna (Girl)

22 Apr

Ismail Z.

4 May

Ibrahim H.

14 May

Ahmad N.

30 May

Mustafa D.

Rami O.

Y Y

Y Y Y

Y Y

30 May

Hamad S.

31 May

Hamad H.

1 Jun

Nedal M.

2 Jun

Mohammad Q.

14 Jun

Jihad F.

14 Jun

Mahdi F.

25 Jun

Mohammad H.

25 Jun

Y Y

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Abdullah H.

25 Jun

Ashraf H.

29 Jun

Mahdi K.

2 Jul

Abed O.

5 Jul

Mohammad B.

6 Jul

Jihad S.

14 Jul

Baha S.

14 Jul

Thaer E.

14 Jul

Jafar S.

14 Jul

Atef H.

14 Jul

Jihad S.

26 Jul

100

Moath S.

29 Jul

101

Abdullah K.

9 Aug

102

Osaid S.

10 Aug

103 Mohammad K.

10 Aug

104

‘Ala S.

16 Aug

105

Mahmoud B.

18 Aug

106

Edrees K.

18 Aug

107

Qusai R.

24 Aug

108

Baha R.

24 Aug

109

Hasan E.

31 Aug

110

Ahmad A.

31 Aug

111

Yousif S.

22 Sep

112

Abed S.

22 Sep

113

Zeyad M.

23 Sep

114

Udai ‘E.

30 Sep

115

Ahmad R.

30 Sep

116

Ibrahim H.

30 Sep

117

Omar A.

30 Sep

118

Imran D.

30 Sep

119

Anas S.

3 Oct

120

Abed H.

19 Oct

27 Oct

121 Mohammad A.

Y Y

| 79 122

Malek H.

11 Nov

123

Ammar T.

14 Nov

124

Mohammad S.

25 Nov

125

Abed H.

26 Nov

126

Ahmad H.

26 Nov

127

Mahmoud F.

26 Nov

128

Ameer S.

9 Dec

129

Khaled K.

9 Dec

130

Musa ‘Ebayi

9 Dec

131

Ayman M.

9 Dec

132

Zakariya E.

14 Dec

133

Abed B.

23 Dec

134

Hasan A.

30 Dec

135

Hasan T.

30 Dec

Y Y

2010 136 Mohammad Q.

6 Jan

137

Udai ‘E.

6 Jan

138

Qusai H.

13 Jan

139

Yousif N.

4 Feb

140 Mohammad H.

6 Feb

141

Khaled D.

11 Feb

142

Ahmad G.

11 Feb

143

Nasr S.

11 Feb

144

Amr ‘A.

145

Malek N.

146 147

Y Y

11 Feb

Malek O.

11 Feb

Ahmad N.

11 Feb

148 Mohammad ‘A.

18 Feb

149

Imad A.

21 Feb

150

Zaki Q.

24 Feb

151

Ameer M.

27 Feb

152

Ameed Q.

2 Mar

153

Ahmad M.

18 Mar

Y Y Y

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154

Maher H.

18 Mar

155

Abed S.

18 Mar

156

Imad H.

18 Mar

157

Moatasem N.

20 Mar

158

Ahmad R.

1 Apr

159

Ahmad S.

22 Apr

160

Nadeem K.

22 Apr

161

Jihad K.

22 Apr

162

Hatem S.

23 Apr

163

Ahmad S.

23 Apr

164

Jihad A.

29 Apr

165 Sabreen J. (Girl)

30 Apr

166

Sabra S.

3 May

167

‘Ala Q.

16 May

168

Ibrahim M.

26 May

169

Anan H.

6 Jun

170

Ahmad B.

7 Jun

171 Mohammad M.

10 Jun

172

Fadi A.

10 Jun

173

Ahmad A.

174

Nehad ‘O.

175

Y Y Y Y Y Y Y

Y Y

14 Jun

14Jun

Moataz H.

14Jun

176

Moa’az T.

17Jun

177

Imad H.

20Jun

178

Naji E.

20Jun

179

Zeyad B.

20Jun

180

Ahmad S.

181

Ahmad Y.

182

Y Y

25Jun

1 Jul

Khaled S.

1 Jul

183

Saleh H.

6 Jul

184

Kathem Q.

6 Jul

185

Malek M.

20 Jul

186

Wasfi J.

27 Jul

Y Y

Y Y Y

| 81 187

Nahar I.

27 Jul

188

Yahia A.

5 Aug

189 Mohammad B.

5 Aug

190

Raed R.

5 Aug

191

Obada A.

8 Aug

192

Ahmad S.

9 Aug

193

Obaida M.

11 Aug

194

Murad J.

25 Aug

195

Malek H.

27 Aug

196

Raghad S.

5 Sep

197

Naji R.

13 Sep

198 Mohammad O.

13 Sep

199

Bara’ S.

14 Sep

200

Khalil Q.

15 Sep

201

Moaz O.

15 Sep

202

Jihad E.

16 Sep

203

‘Ala O.

17 Sep

204

Ahmad S.

205

Hammoudi S.

206

Y Y

17 Sep

Essam S.

17 Sep

207

Mahmoud J.

19 Sep

208

Ibrahim M.

19 Sep

209

Karam D.

22 Sep

210

Hatem A.

4 Oct

211

Allam Z.

22 Oct

212

Belal H.

23 Oct

213

Montaser S.

7 Nov

214 Mohammad K.

10 Nov

215

Hadeel T. (Girl)

14 Nov

216

Mahmoud A.

27 Nov

217

Qusai I.

5 Dec

218

Waleed S.

6 Dec

Y Y

| Bound, Blindfolded and Convicted 2011

219 Mohammad K.

1 Jan

220

Mohammad F.

1 Jan

221

Imran K.

4 Jan

222

Hamza K.

5 Jan

223

Moataz K.

6 Jan

224

Yaser S.

7 Jan

225

Malek S.

9 Jan

226

Mohammad S.

11 Jan

227 Mohammad Q.

12 Jan

228

Abed T.

13 Jan

229

Rami H.

14 Jan

230

Ezz Q.

14 Jan

231

Abed A.

25 Jan

232

Mohammad T.

26 Jan

233

Mohammad T.

26 Jan

234

Moawia R.

28 Jan

235

Nadeem K.

Feb

236

Mohammad S.

2 Feb

237

Rasheed A.

6 Feb

238

Khalil S.

16 Feb

239

Mahmoud A.

18 Feb

240

Musa E.

22 Feb

241

Tareq M.

22 Feb

242 Mohammad M.

22 Feb

243

Basel N.

23 Feb

244

Osama Z.

3 Mar

245

Ihab A.

8 Mar

246

‘Ala A.

8 Mar

247

Sami H.

8 Mar

248

Marwan S.

9 Mar

249

As’ad M.

11 Mar

250

Adam S.

11 Mar

| 83 251

Abed S.

13 Apr

252

Abdullah S.

16 Apr

253

Ahmad K.

24 Apr

254 Mohammad K.

24 Apr

255

Said H.

18 May

256

Ihab M.

18 May

257

Omar H.

18 May

258

Thaer R.

18 May

259

Khaled H.

18 May

260

Ahmad R.

20 May

261 Mohammad H.

31 May

262

Othman H.

1 Jun

263

Saji O.

7 Jun

264

Ahmad R.

26 Jun

265

Sameer S.

29 Jun

266

Kamal E.

4 July

267

Ahmad Z.

4 July

268

Abdullah S.

4 July

269

Mahmoud S.

4 July

270

Ahmad F.

6 July

271

Malek Z.

11 July

272

Deia’ S.

11 July

273 Mohammad A.

22 July

274

Anas M.

1 Aug

275

Said Z.

1 Aug

276

Ezz J.

16 Aug

277

Suhaib S.

31 Aug

278

Husam S.

4 Sep

279

Abdullah E.

12 Sep

280

Husam S.

12 Sep

281

Mazen Z.

12 Sep

282

Amir M.

13 Sep

283

Abed D.

14 Sep

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284

Ibrahim Q.

20 Sep

285

Karam S.

20 Sep

286

Moataz H.

8 Oct

287

Odai A.

15 Oct

288

Rami J.

24 Oct

289

Rasheed J.

4 Nov

290

Saleh N.

11 Nov

291

Muayyad A.

12 Nov

292

Thaer A.

13 Nov

293

Rashad S.

17 Nov

294

Wadda’ B.

21 Nov

295

Mo’tasem T.

24 Nov

296

Deia’ A.

28 Nov

297

Rebhi A.

28 Nov

298

Fadel A.

28 Nov

299

Osaid H.

7 Dec

300

Ala’ J. (Girl)

7 Dec

301

Ali D.

14 Dec

302

Thaer B.

16 Dec

2012 303

Mahmoud R.

1 Jan

304

Abdullah H.

1 Jan

305

Sa’d M.

4 Jan

306

Mahmoud R.

4 Jan

307

‘Ala D.

9 Jan

308

Ghaleb E.

16 Jan

309

Mahmoud F.

17 Jan

310

Khader A.

18 Jan

311

Baha M.

18 Jan

Totals

188 296 281

234 178 169

102

180 196

60%

32%

75%

12%

33%

29%

58%

95%

90%

57%

54%

63%

| 85

Qalandiya checkpoint : © Martin Hauschild

| Bound, Blindfolded and Convicted

Annex 2 Additional case studies

| 87

Case study: 4 Name: Date of Incident: Age: Location: Accusation:

Nadeem and Jihad 24 April 2010 14 and 15 Tuqu’ village, occupied West Bank Throwing stones

At around 3:00 am, on the morning of 24 April 2010, two brothers are arrested by Israeli soldiers from their family home, near Bethlehem. “I was sleeping,” recalls 14-year-old Nadeem, and “I woke up to the voice of my father trying to wake up jihad and me. He told us to get dressed. When I put on my clothes, I came out of the room and saw many Israeli soldiers in military uniforms. They were scary and I felt very scared.” Nadeem recalls bursting into tears when a soldier told his father that they would take Nadeem, and his 15-year-old brother, Jihad, for interrogation, but “it was pointless” as the two boys were led out of the house, tied and blindfolded. The boys were put into a military vehicle and made to sit on the metal floor during the 30 minute drive to Etzion interrogation centre, located in the Israeli settlement of Gush Etzion. On arrival at the interrogation centre, the two boys were made to sit in a corridor for about three hours, still tied and blindfolded. Later that morning, the boys were untied and taken separately for interrogation. Jihad recalls being slapped twice across the face by a soldier who told him “I’ll fuck you if you don’t confess you son of a whore.” Jihad recalls becoming very scared and starting to cry, but was told to “shut up” by the soldier, but “I kept crying in a low voice.” The boys were accused of throwing stones at Israeli settler cars travelling on a road near their village. Both boys were interrogated in the absence of a lawyer and both boys confessed and signed papers written in Hebrew without knowing the contents. Both boys say they confessed because they were threatened with further violence. After interrogation, the boys were re-tied and blindfolded and made to sit in the corridor again for several hours. “While I was sitting there,” recalls Jihad, “I was expecting to be released because the interrogator didn’t tell me that I would be sent to prison. I kept sitting there with this hope to be released.” However, after several hours of waiting, both boys were taken to Ofer Prison and placed in a cell with 10 other detainees, including adults and children. Ofer Prison is located next door to one of two military courts operated by the Israeli military authorities in the West Bank. According to court documents written in Hebrew, the boys were charged with throwing stones at Israeli vehicles near their village with the intention of injuring the passengers. Nadeem’s charge sheet alleges that “at an unknown time, on or about October 20, he threw 17 stones in the company of others.” On 29 April 2010, the boys’ lawyer entered into a plea bargain deal with the prosecution, in order to

| Bound, Blindfolded and Convicted

minimise their time in detention, under which both boys were sentenced to 31 days imprisonment, with a further four months imprisonment suspended for three years, and a fine of NIS 1,500. If the boys could not pay the fine, they would have to serve an additional one month in an Israeli prison.

Case study: 5 Name: Mohammad M. Date of Incident: 10 June 2010 Age: 16 Location: ‘Asira al Qibliya village, occupied West Bank Accusation: Starting a fire near a settlement On 1 July 2010, two 16-year-old boys are released without charge after spending 22 days in detention, including six days in solitary confinement at the Petah Tikva facility. “I was in our living room with my children on Thursday evening, 1 July 2010, when my husband, Ibrahim, walked in and said Mohammad had been released from prison,” recalls Mohammad’s mother, Khadra. At first, Khadra did not know whether to believe her husband and told him not to joke about Mohammad, “but he smiled and told me he wasn’t joking. He told me he had received a phone call from Mohammad who had been dropped off at Azzun Checkpoint by soldiers. I couldn’t believe it and began to cry with joy. It was totally unexpected.” Three weeks earlier, Mohammad was woken up at 2:00 am by somebody shouting “army, army” in Hebrew. “At that point I realised that Israeli soldiers had come to our house, which is the nearest house in the village to the settlement of Yizhar, which is built on lands taken from our village,” recalls Mohammad. He and his family exited the house and following a brief discussion, Mohammad’s hands were tied with plastic ties and he was blindfolded. Mohammad was terrified and started to cry. “Don’t be scared, be a man and stop crying,” Mohammad’s father called out, and Mohammad stopped crying. Mohammd and his friend, Fadi, were first taken to Huwwara and Salem interrogation centres in the north of the West Bank, where they were held for around eight days and taken briefly before a military court. During this time, Mohammad was interrogated by a man who called himself “Jihad” who accused him of starting a fire which had spread up the hillside from the village and threatened the settlement of Yizhar – “he accused me of starting the fire and threatened to shock me with electricity if I didn’t confess to what he wanted

| 89 me to confess,” recalls Mohammad. Fadi was similarly threatened, but was also told that “if you don’t confess, we’ll accuse you of having a hunting gun, and detain you on possession and stone-throwing.” Mohammad also recalls signing some papers but without knowing their contents. On 17 June the boys were taken before Salem Military Court and their detention was extended for a further eight days. The boys’ parents were present in court but the soldiers prevented them from talking. On 21 June, soldiers came and handcuffed the boys and shackled their feet together before transferring them to Petah Tikva, an interrogation centre and prison inside Israel, located near Tel Aviv. The transfer of the boys out of the Occupied Palestinian Territory and into Israel contravened Article 76 of the Fourth Geneva Convention, which prohibits such transfers. On arrival at Petah Tikva, Mohammad was again interrogated by a man who called himself ‘Nirva’ or ‘Durva’ – “Who started the fire on the mountain?” Mohammad recalls being asked, “not me,” replied Mohammad, “I was at school sitting an exam and after that I went with my friends to buy some food and I didn’t know anything about the fire.” The fact that Mohammad was at school sitting an exam when the fire started is confirmed by his mother. Both boys were brought before a military court in Petah Tikva on two further occasions (23 and 30 June) to have their detention extended by a military court judge. On these occasions the boys were represented by a lawyer but their parents were not present as they are not able to travel inside Israel without a special permit which is difficult to obtain. The families were in constant contact with the boys’ lawyer who updated them on their situation. “Throughout the three weeks the lawyer brought us bad news,” recalls Khadra, “he told us the court had secret evidence against Mohammad and that things were not looking good. He told us there is nothing a lawyer can do when the court relies on secret evidence. I couldn’t sleep for two days when I heard this. It felt like a dark black cloud had descended on me.” It was whilst in Petah Tikva, that both boys were placed in solitary confinement for six days. “He told me that on the sixth day in solitary confinement he began to bang on the door and to scream and shout, begging the guards to take him back to the other cell to be with other prisoners,” recalls Khadra, who describes Mohammad as a very sociable boy who is always surrounded by children his own age and younger. “The guards shouted back at him, cursed him and showed no sympathy. He was on his own for six days; he didn’t see anyone and didn’t talk to anyone. He was in a small room with a mattress on the floor and two blankets. He didn’t have a pillow. The room didn’t have any windows and he couldn’t tell whether it was day or night. The guards kept the lights on the whole time and he had difficulty falling asleep. He told me he hung his underwear on the light bulb to make it dimmer in order to fall asleep. They gave him prison clothes that were too big for him, and the trousers kept falling off. He had no idea how long he was going to be there and that alone made him loose his mind.”

| Bound, Blindfolded and Convicted

The ordeal of Mohammad’s detention was difficult for his mother to bear. “I cried most when I saw his friends flying kites in the empty piece of land behind the house without him. I knew Mohammad was innocent but I also knew that wasn’t going to make it any less of an ordeal for him. I blamed myself for not talking to him about prison, to make sure he never confesses to anything he did not do,” says Khadra. According to Mohammad, the boys considered confessing because they could not stand it any longer, but because they were not involved in the fire, they did not know what story to tell. On 1 July 2010, without prior notice, Israeli soldiers dropped the two boys off at a checkpoint far from home at 8:30 pm and told them to “go home.”“I cannot believe he has been released,” says Khadra, “but he is not the same boy anymore. He has changed a lot. He spends hours alone, gazing and doing nothing. He does not eat with us and spends a lot of time sleeping. He listens to adult prison songs. He breaks my heart. I don’t know what to do […] I will do anything to make Mohammad happy again.’

Case study: 6 Name: Date of Incident: Age: Location: Accusation:

Muhsen M. 10 June 2010 7 Beit Ummar, occupied West Bank Unknown

At around 2:45 am, on the morning of 10 June 2010, Israeli soldiers deliver a summons to the family of a seven-year-old boy from Beit Ummar. “We woke up to banging on the front door of our house accompanied by people shouting in Hebrew: ‘open the door, it’s the IDF,’” recalls ‘Alia, the mother of seven-year-old Muhsen. “My husband answered the door and three Israeli soldiers stormed the house. One of the soldiers asked my husband, in mixed Arabic and Hebrew, for our son Muhsen, our youngest child.” ‘Alia’s husband informed the soldier that Muhsen was seven-years-old, and showed the soldier his birth certificate. “The officer read the date of birth, which is on 17 September 2002, and laughed, but still handed him the summons ‘inviting’ my son to Etzion interrogation centre the next morning because he is ‘wanted for interview,’” recalls ‘Alia. The document handed to ‘Alia’s husband is a standard form document printed in Hebrew and Arabic with specific details filled in handwritten Hebrew. The unsigned document appears to have been issued by the Israeli District Coordination Office on behalf of the “Israeli Defense Forces” at Etzion. The document is an “invitation” for Muhsen to attend to meet Captain Tamir at Etzion Centre at 2:00 pm, later on the same day. Etzion Centre is a

| 91 place well known to the local residents as an Israeli interrogation and detention centre, located inside the settlement of Gush Etzion, halfway between Hebron and Bethlehem. Seven-year-old Muhsen slept through the night time raid by the Israeli army, but was told what had happened the next morning by his mother. “My siblings and my mother were shocked to know that the soldiers wanted me to go to Etzion centre because I am very young,” says Muhsen, “I am still in the second grade and after the summer break I’ll be in the third grade. I don’t want my father to take me to the centre because I know, and hear people saying, that it is a prison, and if I go there, they will take me away from my family.” Muhsen’s father had to visit a relative in hospital later that day and did not take his son to the interrogation centre as requested. “I still don’t know if my father will take me there or not,” worries Muhsen, “my family doesn’t know whether the soldiers will come back to the house and ask me why I haven’t gone. Israeli soldiers often come to our town. Six months ago they came and took my uncle, and he’s still in prison. They also took my cousin, and he’s still in prison.” Subsequent enquiries found that the summons was not intended for seven-year-old Muhsen, and the name on the document, written in Hebrew, is that of another person. It appears the Israeli army delivered the summons to the wrong house, in the wrong village. The family has not received an explanation or apology from the Israeli authorities.

Case study: 7 Name: Date of Incident: Age: Location: Accusation:

Abed H. 5 August 2010 16 Azzun village, occupied West Bank Throwing stones

On 5 August 2010, a 16-year-old boy from Azzun village, is arrested with three other children outside his village near a road used by Israeli settlers. Abed was accused of throwing stones and reports being given electric shocks in Ari’el settlement. “I was hanging out with my friends Yahia, Nahar and Raed,” recalls Abed. “It was around 12 noon and we were near the road which connects Qalqiliya to Nablus, near our village. Israeli settlers and soldiers travel on this road. While we were hanging out, an Israeli jeep passed by and Yahia jokingly waved at it.” The soldiers turned the jeep around and started chasing the boys who ran away. The jeep was joined by another vehicle and soon the boys grew tired and stopped running. “Two soldiers got out of the jeep and started running towards us,” recalls Abed. “They searched us then ordered us to walk with them until we reached the jeep.” A number of other jeeps soon arrived and the four boys were loaded into them and taken to the nearby Israeli settlement of Zufin.

| Bound, Blindfolded and Convicted

On arrival at Zufin settlement, the boys were pulled out of the jeeps and made to sit on the ground. “Then they tied our hands behind our backs with plastic cords and blindfolded us,” says Abed. “The cords were very tight and I felt pain.” Abed was not beaten at the settlement but he recalls hearing the sound of beating and his friend Yahia shouting: “Don’t beat me.” The boys were left sitting on the ground for about two hours, during which time Abed was briefly taken to see a doctor who asked him a few questions about his health whilst filling out a questionnaire. Abed’s blindfold was removed in the presence of the doctor, but his hands remained tied behind his back. About two hours after arriving at Zufin settlement, the boys were loaded into a truck and transferred to a police station in Ari’el settlement. On arrival at Ari’el settlement, Abed was led up some stairs and made to sit on a chair for 15 minutes before being taken for interrogation. “They removed my blindfold,” recalls Abed, “but kept my hands tied. I saw two interrogators in the room. One spoke Arabic and was called ‘Josef’. Josef accused me of throwing stones which I denied. He then called the other interrogator who spoke to me in Hebrew, which Josef translated. ‘If you don’t confess,’ said the other interrogator, ‘I’ll chop you into pieces.’ He was holding a small device which he said produced an electric shock. ‘I’ll shock you with it if you don’t confess,’ he said. ‘I didn’t throw stones and I don’t want to confess,’ I replied. The second interrogator then shocked me twice. The shocks were really painful and my body started shivering, but I didn’t confess. ‘This time I will shock you for longer,’ said the interrogator. The second interrogator then shocked me twice for longer than previously and I could no longer feel my arms or legs. My body started shivering and I started shouting. I felt my body was paralysed and I could no longer tolerate the shocks. ‘I threw stones and I’ll confess to anything you want,’ I said. The interrogator stopped shocking me and then Josef took my statement in which I confessed to throwing stones. The statement was written in Arabic but I wasn’t allowed to read it. The interrogation lasted about two hours during which time my hands remained tied behind my back.” After interrogation, Abed was transferred to Salem interrogation centre for seven days, and was then transferred to Megiddo Prison, inside Israel, in violation of Article 76 of the Fourth Geneva Convention which prohibits such transfers.

| 93

Case study: 8 Name: Date of Incident: Age: Location: Accusation:

Karam D. 22 September 2010 13 Hebron, occupied West Bank Throwing stones

On 22 September 2010, a 13-year-old boy from Hebron, is arrested by Israeli soldiers on his way home from school and later accused of throwing stones at a settler car. A military court orders house detention and no school. Thirteen-year-old Karam lives in the old city of Hebron. “My house is only 100 metres away from the settlement of Kirya Arba, and settlers walk by our house every day,” says Karam. On 22 September 2010, at around 12 noon, Karam was walking home from school. “I was in front of my grandfather’s store located near the road used by settlers. Suddenly, two Israeli soldiers grabbed me. Things were calm at the time and I hadn’t done anything wrong.” Karam was dragged 60 metres by the soldiers and was then punched and slapped, but ‘not hard’ he says. “I was scared and crying. I didn’t know what they would do to me.” The soldiers accused Karam of throwing stones at a settler car, which he denies, and they continued to beat him for about five minutes. Shortly afterwards, Karam’s hands were tied in front of him with plastic ties and he was blindfolded. He was then made to sit on the ground against a wall for two hours. “I felt very exhausted,” recalls Karam, “and kept wondering what would happen to me. I was very scared. It was the first time I went through something like this. I was hungry and thirsty because I had been at school all morning.” After about two hours, Karam was put in an Israeli police car and taken to nearby police station. “I knew it was a police car,” says Karam, “because a policeman lifted my blindfold and asked for my name.” A short time later Karam arrived at the police station and after another 30 minutes, was taken for interrogation. “I was made to sit on a wooden seat in front of the table. He [the interrogator] sat behind the table. ‘Why do you throw stones?’ he asked. ‘I didn’t,’ I said. ‘Yes you did, you threw stones at a settler’s car,’ he said. ‘No I didn’t,’ I said once again. He then started shouting at me: ‘Liar,’ he shouted. ‘I’m not a liar,’ I said.” Karam was interrogated for around 15 minutes and was then made to sit in a corridor. Shortly afterwards, one of Karam’s neighbours came to the police station and tried to persuade the police to release Karam because he is young and didn’t do anything wrong. Karam’s father was still at work at the time. After another hour of discussion, the police eventually released Karam into the custody of his neighbour. As they walked home, the pair bumped into Karam’s father who had heard about his son’s arrest and was rushing to the police station.

| Bound, Blindfolded and Convicted

“The next day,” recalls Karam, “I skipped school because of my eldest sister’s engagement party. At around 10:00 am, Israeli soldiers surrounded our house and an officer ordered my grandfather to bring me outside. I wasn’t scared that much,” says Karam, “because we’ve got used to soldiers.” Karam was again put in a police car and taken to the police station. Karam’s father, Khaled, insisted on accompanying his son, and the soldiers allowed him to do so. On arrival at the police station, father and son were separated, and Karam was again taken for interrogation. “I want you to tell me how you threw stones at a settler’s car and with whom,” asked the interrogator. Again, Karam denied that he had any involvement in throwing stones. After the interrogation, Karam was made to sit in a corridor for about four hours until two policemen came and shackled his hands and blindfolded him before placing him in a vehicle and transporting him to Ofer prison, near Ramallah. Whilst his son was being interrogated, Khaled was being held in a shipping container before being sent home alone. On arrival at Ofer prison, Karam was placed in Room Number 5 with six adult detainees. Over the course of the next week, Karam was taken to Ofer Military Court on three separate occasions before being released on a surety of 2,000 shekels (US $500) on 28 September 2010. Karam’s father says the court also imposed an additional condition of “putting Karam under home arrest at his uncle’s house, which is about 100 metres away from our house and further away from the road used by the settlers. Karam is not allowed to go to school during the home arrest.” Karam says the ruling is “very tough and I don’t know whether I will be able to handle it. I don’t know how I can be away from my house. I won’t pass the semester. I won’t be able to go to the store or my friend’s house. I’m very upset because of this. My family is very upset as well.” The military court ordered that Karam remain under home arrest at his uncle’s house until further notice.

Case study: 9 Name: Date of Incident: Age: Location: Accusation:

Mohammad S. 11 January 2011 16 Tulkarm, occupied West Bank Membership of a banned organization

On 11 January 2011, a 16-year-old boy from Tulkarm, is arrested by Israeli soldiers at 2:30 am. “At around 2:30 am, I was sleeping when I woke up to a noise outside the house,” recalls 16-year-old Mohammad. “A short time later I heard the door opening and soldiers stormed our apartment. Even before I got out of bed, soldiers entered my bedroom and surrounded me. One of the soldiers grabbed me by my shirt and lifted me. He asked for my name and ID number. After examining my ID he ordered me to get dressed because they would be taking me, but he didn’t tell me why.” Mohammad reports that whilst this was going on, Ibrahim, his 21-yearold brother was being beaten by soldiers.

| 95 Mohammad got dressed and his hands were then tied behind his back before being made to sit in the living room. “Meanwhile, my mother tried to come out of the kitchen and approach me, but the soldiers shouted at her and didn’t allow her to move,” recalls Mohammad. “The soldiers then started to tear down pictures of my relatives hanging on the wall and I asked them to stop, but they shouted at me and ordered me to ‘shut-up’.” Mohammad reports that the soldiers confiscated a computer and also took down a Palestinian flag. About 30 minutes later, Mohammad was blindfolded and taken out of the house to a waiting military vehicle. “I think it was a military truck,” says Mohammad, “because they made me climb up a small ladder and forced me to sit on the metal floor. That caused me harsh pain because I have problems with my left leg. I told them about my leg but they ordered me to ‘shut-up,’” says Mohammad. During his transfer, Mohammad says that he was insulted and verbally abused by the soldiers who were laughing loudly: “‘Your mother’s a cunt, you son of a whore’ they said to me.” Mohammad reports that the truck travelled for about 20 minutes before stopping. “Soldiers pulled me out and made me sit on the ground in the cold weather […] for about an hour.” Once the sun came up, Mohammad was put in a military jeep and taken to Huwwara interrogation centre, near the city of Nablus, in the West Bank. Mohammad estimates that they arrived at Huwwara at around 11:00 am, and after being strip searched, he was able to drink some water and use the toilet for the first time since his arrest. In the afternoon, Mohammad was tied and blindfolded and transferred to Al Jalame interrogation centre, inside Israel. Mohammad’s transfer out of occupied territory was in violation of Article 76 of the Fourth Geneva Convention which prohibits such transfers. “We arrived at Al Jalame late at night,” recalls Mohammad. He was then photographed and asked some general questions about his health. “Immediately after that they took me to an interrogation room to spend about 10 minutes with a man who spoke fluent Arabic. He told me that another interrogator would interrogate me the following day and that I should cooperate with him. I was then detained in Cell No. 37 which was small, measuring about 2x1 metres with two dim lights in the ceiling. There was an air conditioner which would switch from cold to hot air every five minutes, for 24 hours. I had to sleep on the floor until the morning because there was no mattress or blanket. It was very cold. They brought me a mattress and a blanket in the morning. They detained me in that cell for two weeks then moved me to Cell No. 38, which was similar to Cell 37,” recalls Mohammad. “On the second day of my detention, I was taken to an interrogation room and an interrogator named “Amous” was waiting for me. He interrogated me for four hours at least. He made me sit on a low metal chair tied to the floor, and tied my hand to the chair. Amous interrogated me almost every day for two to three hours in the same manner. I didn’t confess at first, but then couldn’t handle the pressure and the harsh interrogation, so I had to confess to trying to join Islamic Jihad. I got tired of life and wanted to be arrested and put in prison,” says Mohammad. Mohammad reports that on 8 February 2011, he was transferred from Al Jalame interrogation centre, to Megiddo prison, also inside Israel. On 13 February, Mohammad was charged with attempting to join a banned organisation. On 24 February 2011, Salem military court released Mohammad on bail of NIS 7,500 and on 3 April 2011, he pleaded guilty. Mohammad was sentenced by military court to 45 days in prison (time already served), an additional three month suspended sentence, and a fine of NIS 2,000.

| Bound, Blindfolded and Convicted

Case study: 10 Name: Date of Incident: Age: Location: Accusation:

Moawia R. 28 January 2011 16 Azzun village, occupied West Bank Throwing stones

On 28 January 2011, a 16-year-old boy from Azzun village is arrested by Israeli soldiers from his family home and accused of throwing stones. “At around 11:30 am I was on my way home from our land near the village, when I was surprised to see two soldiers rushing towards me,” recalls Moawia. “They grabbed me and dragged me away without saying anything. One of them beat me and pushed me against an electricity pole causing me harsh pain. He also kept pressing down on my hand and slapped me across the face whenever I asked him to stop.” The soldiers accused Moawia of throwing stones at Israeli settler cars travelling near his village. “I denied it immediately,” says Moawia, “but he started shouting at me and insulting me: ‘Your sister’s a cunt,’ he said. ‘Don’t say that,’ I said, but he kicked me hard in the legs and made me sit on the ground for about five minutes until three military jeeps arrived.” Moawia’s hands were then twisted behind his back and he was tied with plastic cords, before being placed inside one of the vehicles. Whilst inside the vehicle, Moawia reports becoming scared and so decided to confess. He was then blindfolded and transferred to the settlement of Zufin, close to his village. Following a brief medical check, Moawia was then transferred to Ari’el settlement. “When we arrived they took me to an interrogation room and forced me to sit in a chair. They untied me and removed the blindfold. I was then interrogated by a person speaking Arabic who kept shouting at me and insulting me by saying: ‘Your sister’s a cunt.’ He pushed me several times and wanted to knock me down even though I had already confessed to the accusations against me. He interrogated me for about three hours, during which time I confessed to throwing stones at Israeli cars travelling on the main road near my village.” Following his interrogation, Moawia was transferred to Huwwara Interrogation Centre and strip searched. Five days later, Moawia reports being taken back to Ari’el settlement and interrogated again and accused of throwing Molotov cocktails, which he denied. Moawia recalls that the interrogator’s name was Issa. “Issa started kicking me hard and slapping me,” recalls Moawia. “Then he forced me to stand against the wall on one leg with my hands in the air. He kept me like this for 20 minutes and whenever I lowered my leg he would shout at me. I felt harsh pain in my leg. Despite this, I didn’t confess. ‘I won’t confess to something I didn’t do even if you shoot me,’ I said to him, and he started shouting at me and beating me on the neck.” Moawia reports being interrogated by Issa again the next day in a similar manner.

| 97 On 10 February 2011, a military court denied Moawia bail, and shortly afterwards he was transferred to Megiddo prison inside Israel, in violation of Article 76 of the Fourth Geneva Convention.

Case study: 11 Name: Date of Incident: Age: Location: Accusation:

Mahmoud A. 18 February 2011 9 Beit Ummar, occupied West Bank Throwing stones

On 18 February 2011, a nine-year-old boy from Beit Ummar, is arrested by Israeli soldiers and taken to the settlements of Kirya Arba and Gush Etzion. “I live in Beit Ummar, about 70 metres away from the main road that connects Bethlehem with Hebron,” says Mahmoud. “Settler cars as well as Palestinian cars travel on that road, day and night, which means that Israeli military jeeps are always around to protect the settlers. That is what I’ve been seeing since I became aware of things around me and the circumstances in the village where I live.” On Friday, 18 February 2011, Mahmoud, his 15-year-old brother and their 13-year-old cousin were playing in front of their house at around 1:00 pm. Mahmoud recalls that four Israeli soldiers suddenly came running towards them shouting “stop, stop,” in Arabic. “We became very scared and ran to our uncle’s house, about 30 metres away from our house,” recalls Mahmoud. Their cousin managed to run inside the house, but the soldiers grabbed Mahmoud and his brother. Soon afterwards, two of the boys’ uncles arrived on the scene. “I was very scared and kept screaming: ‘I didn’t do anything.’ ‘You threw stones at the jeep,’ one of the soldiers said in Arabic. I didn’t know what jeep he was talking about. I didn’t know who threw stones or when. My uncles and the soldiers started arguing with each other and a few seconds later my father came. One of the soldiers was grabbing my left arm and my uncle Ibrahim was grabbing me from the other arm […] I was very scared and trying to hide behind my uncle and kept telling him and my father, ‘please don’t let them take me away.’” A short time later, six more Israeli soldiers arrived on the scene with two Israeli Border Policemen. “They shouted at my father and uncles and pointed their weapons at them and forced them to enter my uncle’s house. At the same time a soldier picked me up

| Bound, Blindfolded and Convicted

on his shoulder and started running,” recalls Mahmoud, who was soon placed inside an armoured jeep. Inside the jeep, Mahmoud reports that he was slapped across his face once, “but not hard.” His hands were then tied in front of him with a piece of cloth and he was blindfolded. Mahmoud was first taken to the settlement of Kirya Arba and made to sit on a chair outside a building whilst still tied and blindfolded. Mahmoud reports that somebody walked by and slapped him three times on each cheek, “but the slaps were not painful.” Mahmoud recalls that as time went by, “I felt less scared and less worried, but more tired and bored as they kept me sitting in the chair for about two hours.” Mahmoud was permitted to use the toilet and was offered food and water. At around 7:30 pm, Mahmoud was placed inside another military vehicle and transferred to the settlement of Gush Etzion, closer to Bethlehem. On arrival at Etzion, his blindfold was removed and he was released into the custody of his father at 8:00 pm.

Case study: 12 Name: Date of Incident: Age: Location: Accusation:

Tareq M. 22 February 2011 16 Beit Ummar, occupied West Bank Throwing stones

On 22 February 2011, a 16-year-old boy from Beit Ummar is arrested by Israeli soldiers and accused of throwing stones during a demonstration against land confiscation. Tareq dropped out of school and works as a farm labourer to help support his family. At around 3:00 pm, on 22 Feburary 2011, Tareq was returning home from work with two friends. “There was a peaceful demonstration going on near Karmi Zur, protesting the confiscation of village lands,” recalls Tareq. Karmi Zur is an Israeli settlement built close to Tareq’s village. “We saw the demonstration but kept walking to our houses after a long hard day at work. We approached the demonstrators and came near to a house, when a group of soldiers suddenly stormed out,” says Tareq. “I was so scared of the soldiers I decided to run away to the fields with my friends. At that point, another group of soldiers suddenly appeared and fired in the air. I was so scared I froze in my place. Three soldiers approached me while pointing their rifles at me and my friends. They knocked me down, tied my hands behind my back with plastic cords and blindfolded me,” recalls Tareq. ‘They kept me on the ground for about half-an-hour until a military jeep arrived. They put me in the jeep and started beating me with the barrels of their rifles in my back and stomach. They also insulted me: ‘You dog, throwing stones at us and running away,’ they shouted. ‘I didn’t throw stones,’ I said.”

| 99 Tareq was taken to an unknown location. On arrival, Tareq was taken out of the vehicle and was kept standing for about three hours whilst still tied and blindfolded. After three hours, Tareq recalls being dragged by the shirt to another location. “He removed the blindfold and I found myself in an interrogation room. There was a man in police uniform in the room,” recalls Tareq. “The interrogator slapped me across the face and kicked me on my bottom. ‘What did you do to be brought here you dog?’ he asked. ‘I didn’t do anything,’ I said, and he ordered the soldiers to leave the room. He sat behind the desk and kept me standing in front of him. ‘You are accused of throwing stones today at settlers and soldiers,’ the interrogator said. ‘I didn’t throw stones,’ I said. ‘I was on my way home from work,’ I said, and explained what had happened. ‘You’re a liar. Confess so I can help you out,’ he said. ‘I can’t confess to something I didn’t do,’ I said. ‘You want to teach me how to do my job?’ he replied. The interrogator approached me and started slapping and kicking me. He even knocked me down. ‘Get up and tell me how you threw stones at soldiers,’ he ordered me. ‘I threw stones at soldiers and settlers today in Karmi Zur,’ I said. ‘Why?’ he asked. ‘Because they took our land,’ I said. ‘What? You want to liberate Palestine now?’ he said. ‘It’s our land,’ I said. ‘Shut up dog,’ he replied, ‘you’ll see whose land it is.’” The interrogator then called a soldier into the room and ordered him to blindfold Tareq and take him to a cell. “He kept me tied and blindfolded in the cell for four hours,” says Tareq. After four hours Tareq was taken back to the interrogation room and ordered to sign papers without knowing their contents. “I had to confess because I was very scared,” says Tareq.

Case study: 13 Name: Date of Incident: Age: Location: Accusation:

Sami H. 8 March 2011 15 Beit Ummar, occupied West Bank Throwing stones

On 8 March 2011, a 15-year-old boy from Beit Ummar is arrested by Israeli soldiers from the family home at 1:00 am. “At around 1:00 am I woke up to banging on the door,” recalls Sami. “I went out to the living room and saw many soldiers who asked us for our names. They said they wanted to arrest me and my brother, M. The soldiers immediately took me and M. outside without allowing us to say goodbye to the family. They didn’t allow me to put on a jacket since it was very cold outside. Then they tied my hands behind my back with one set of plastic cords and tightened them up.” Sami reports that the soldiers then made them walk for about an hour, during which time they were kicked in the legs for no reason.

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“About an hour later,” recalls Sami, “we arrived at the settlement of Karmi Zur and the soldiers forced us to sit on the ground. They slapped us. They lifted our shirts and punched us in the chest. One of them punched me so hard in the chest I felt harsh pain. They kept us sitting there for about an hour, during which time they assaulted us. One of them kicked me hard with his boots. It was very cold outside.” About an hour later, the boys were put in the back of a vehicle and transferred to Etzion settlement. According to Sami, they were slapped along the way. Sami reports that he was interrogated at Etzion about an hour after arrival. “I was taken to an interrogation room to be interrogated by four interrogators. They removed the blindfold and untied me. Two of them introduced themselves as Sharif and Dawoud. They accused me of throwing stones and Molotov cocktails and I denied it. But Dawoud started shouting at me and that made me so scared I confessed to throwing stones only. I was interrogated for about two hours. After that the interrogators ordered me to sign papers written in Hebrew. They said it was my statement. I asked them to explain it to me but they refused and forced me to sign it.” Following the interrogation, Sami was taken outside, where he remained until 7:00 pm. He was not tied or blindfolded during this period. “At around 7:00 pm, soldiers tied my hands with one set of plastic cords. They did the same to another boy. They put the two of us in one jeep, and the jeep travelled for a short distance. Then they pulled us out and made us walk with them for about half-an-hour until we reached a room and detained us inside. On the way to the room, one of them slapped Ihab three times for no reason. He also tightened up our ties so hard that my hands swelled and I started to scream. Ihab was feeling dizzy and he vomited. I was screaming in pain because of the tight ties. Shortly after that soldiers took us out to another room and untied us. A doctor asked us some general questions. Then they took us back to the first room but without tying us. We fell asleep. They kept us in the room until around 1:00 am when they came and woke us up by pushing us hard. Soldiers tied us with plastic cords and blindfolded us. They then put us in a jeep and transferred us to Ofer prison. They insulted both of us on the way. We arrived at around 2:00 am and were strip searched before being taken to the detention rooms.” Sami was detained in Ofer prison for 20 days before being transferred to Rimonim prison, inside Israel, in violation of Article 76 of the Fourth Geneva Convention.

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Case study: 14 Name: Date of Incident: Age: Location: Accusation:

As’ad M. 11 March 2011 16 Azzun village, occupied West Bank Throwing stones

On 11 March 2011, a 16-year-old boy from Azzun is arrested by Israeli soldiers and accused of throwing stones. “At around 6:00 pm I was sitting near the main road connecting Qalqiliya to Nablus near our village with my friend Adam,” recalls As’ad. “Suddenly, a military jeep arrived and stopped in front of us. Two soldiers got out and ordered us to approach them. We approached them and they forced us to sit on the ground near the jeep.” A short time later more jeeps arrived and the boys report being questioned by an officer speaking Arabic. “Then he spoke with a soldier in Hebrew and the soldier tied my hands behind my back with one plastic cord and tightened it up, which was painful. I asked them to loosen it but they refused. They shouted at me, insulted me and beat me,” recalls As’ad, who was also blindfolded. Both boys were then placed inside a military jeep. “Some of them kicked me and slapped me several times because I complained about the tight plastic cords,” recalls As’ad. “The jeep travelled to several places unknown to me. At one point, they pulled us out and forced us to sit on the ground. While we were sitting there, one of them kept kicking me hard for no reason. He kicked Adam as well. Many soldiers passed by and they would slap and kick us. They kept us sitting there for a few hours before transferring us to Ari’el police station.” As’ad reports arriving at Ari’el police station at around 10:00 pm and being taken straight for interrogation. “I was interrogated by a man speaking Arabic who accused me of throwing stones. At first I didn’t confess, but he kept shouting and that made me scared, so I decided to confess to throwing stones in the past. He untied me when I confessed to throwing stones about two months ago,” says As’ad. “I was interrogated for about 30 minutes. Then the interrogator ordered me to sign a statement written in Arabic and I did so, but he didn’t allow me to read it. Then he tied my hands again.” After their interrogation, As’ad and Adam were both transferred to Zufin settlement, where they were both asked some general questions about their health by a military doctor. As’ad reports that his blindfold was removed but he remained tied whilst questioned by the doctor. The boys were then transferred to another location, where they were made to stand by the jeep, still tied and blindfolded, for approximately one hour, before being transferred again. “I had a headache,” recalls As’ad, “and I felt dizzy and started vomiting. The soldiers just insulted me.” At around 7:00 am, the boys were transferred again to another military base. “They made us sit near toilets that smelled horrible,” says As’ad. “It was very cold. It even started raining and our clothes became wet, so they moved us under a metal sunshade. They didn’t allow us to use the bathroom at all. They didn’t provide us

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with any water, though we asked several times. They kept us sitting there until the evening. I want to say that they kept us tied for almost 24 hours.” That evening the boys were transferred to Huwwara interrogation centre, near Nablus in the West Bank. Four days later, the boys were transferred to Megiddo prison inside Israel, in violation of Article 76 of the Fourth Geneva Convention.

Case study: 15 Name: Date of Incident: Age: Location: Accusation:

Jameel Z. 28 March 2011 12 Beit Ummar, occupied West Bank Throwing stones

On 28 March 2011, a 12-year-old boy from Beit Ummar is arrested by Israeli soldiers from his family home at 2:00 am. “At around 2:00 am I woke up to banging on the door of our house,” recalls Jameel’s father, Ahmad. “I headed to the door and shouted: ‘Who is it?’ I heard someone saying in Arabic: ‘Open up, it’s the Israeli army.’ I opened the door and a soldier pushed me back. Then around 12 soldiers in uniform with their faces covered in black masks stormed the house. They had two big scary dogs.” Once inside, the soldiers immediately deployed around the house. “I stopped them from entering the bedroom because my wife was still inside. I told them they had to wait,” recalls Ahmad. “Then I rushed to the girls’ room after seeing three soldiers entering with a dog. The girls were crying and screaming. The soldiers were looking around while the dog was sniffing the room. The girls were sitting close to each other on the mattress. I calmed them down and told them the dog wouldn’t approach them and that it’s trained to listen to his handler. The dog didn’t approach them and the soldiers didn’t move anything in the room. They just kept looking around. About two minutes later I asked the girls to go out to the hall. They were feeling a little better, but they were struggling in general. Both girls wet themselves because they were very scared.” Ahmad recalls being very tense. “I couldn’t focus on what exactly was going on around me. Then, I noticed that an officer was talking to Jameel in Arabic. He asked Jameel for his name and then told him he was under arrest. Jameel was so shocked he burst into tears and started shivering. It was a shock for us as well. It never occurred to me that they had come to arrest Jameel. ‘Are you serious?’ I asked the officer. ‘Yes, we want Jameel,’ he said. ‘If you want to arrest him, arrest me as well,’ I said. I was very tense and anxious. He

| 103 talked to the soldiers in Hebrew and signalled them to take me away. I don’t understand Hebrew. Then four soldiers surrounded me and took me to one of the balconies. ‘We don’t want any trouble,’ one of them said to me in Arabic. I understood they wanted me to stay on the balcony. About two minutes later the officer came to me and said: ‘Stay calm and we’ll take care of the child.’ I had to calm down,” recalls Ahmad, “I mean there was no need to be anxious and worried. They would arrest him anyway no matter what.” Ahmad again asked the officer if he could accompany Jameel but his request was refused. “After that the soldiers took Jameel and left the house. My wife and I wanted to follow them but they stopped us. They ordered us to go inside the house and close the door. We headed for the balcony and saw them tying Jameel’s hands behind his back with plastic cords. They didn’t blindfold him or beat him and they took him away on foot.” Later on that morning other residents of Beit Ummar told Ahmad that the soldiers had arrested another 13 children and taken them on foot to the nearby settlement of Karmi Zur. “On the third day of his detention, I spoke to Jameel in the military court,” recalls Ahmad. “He told me that the soldiers had kept him and the other children sitting on the ground in the settlement all night, before being transferred to Etzion interrogation centre.” Jameel was later charged with throwing stones at settler cars based on the confessional evidence of the other children.

Case study: 16 Name: Date of Incident: Age: Location: Accusation:

Ihab M. 18 May 2011 14 Azzun village, occupied West Bank Throwing stones

On 18 May 2011, a 14-year-old boy from Azzun village is arrested by Israeli soldiers from the family home at 2:00 am, and accused of throwing stones. “At around 2:00 am I was sleeping when I woke up to soldiers banging on our door and throwing stones at it as well,” says Ihab. “‘Open the door and come out,’ they were shouting. I immediately realised they had come to arrest me because they have already arrested me twice before, but released me shortly afterwards.” Ihab’s father opened the door and the family was ordered to sit in the garden whilst the house was searched. After about 20 minutes, the family was ordered inside and asked for their names. “When I told him my name, he said: ‘We’ll take you with us.’ Immediately after that he tied my hands behind my back with one set of plastic cords and tightened them. He also blindfolded me. He did this in the living room in front of my family,” recalls Ihab.

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Ihab was then led out of the house and placed inside a military vehicle and taken to an unknown location. “When we arrived, the soldiers pulled me out of the jeep and made me sit nearby for one-and-a-half hours, during which time I was taken to a clinic. I want to say that while I was sitting there, I asked the soldiers to allow me to use the bathroom but they refused. I only used the bathroom after my interrogation at around noon,” says Ihab. Sometime later, Ihab was placed in a truck and transferred to Ari’el settlement. “When we arrived, I was taken to an interrogation room and questioned by two interrogators. The tall, thin interrogator started by shouting and threatening me: ‘You better confess to throwing stones,’ he said, and I immediately denied it. He then punched me in the stomach and that really hurt me very much. He then started slapping me hard across the face. I was still tied with my hands behind my back but he removed the blindfold,” recalls Ihab. “After that, the tall thin interrogator tightened the plastic cords and I felt the blood had stopped flowing. I felt he wanted to paralyse me. I begged him to loosen the cords, but he said he would do it only if I confessed to throwing stones. ‘I didn’t throw stones,’ I said, but he started shouting at me and slapping me across the face very hard and in an insane manner. That scared me very much and I had to confess. ‘I want to confess,’ I said to him. I just wanted him to stop beating me. At that moment the other interrogator started interrogating me and he took my statement in Arabic. I confessed to throwing stones at settler cars. He finished writing the statement and forced me to sign it without reading it to me. I didn’t know what he wrote,” says Ihab. A short time later, Ihab was placed in a truck and taken to Ofer prison, near Ramallah. “We arrived around noon,” recalls Ihab. “They detained me in a room outside the prison with the others. It was a metal open room and exposed to the sun. It was very hot inside. They kept me inside the room until around 10:00 pm before they took me inside the prison. I was then strip searched.” The following day, Ihab was transferred to Megiddo prison inside Israel, in violation of Article 76 of the Fourth Geneva Convention.

Case study: 17 Name: Date of Incident: Age: Location: Accusation:

Thaer R. 18 May 2011 15 Azzun village, occupied West Bank Throwing stones

On 18 May 2011, a 15-year-old boy from Azzun village is arrested by Israeli soldiers from the family home at 2:00 am, and accused of throwing stones. “At around 2:00 am, I was sleeping in the same room with my brothers when my mother came and woke us up to say there were soldiers outside the house,” recalls Thaer. “I got up and quickly got dressed, even though I didn’t know they were coming to arrest me. My mother went downstairs to open the door. Then she came back alone to say the soldiers had come to arrest me. I took out my birth certificate and went downstairs with my

| 105 father. We came out of the house and I saw so many soldiers and became very scared. A soldier asked me for my ID and I gave him my birth certificate. Immediately, a soldier grabbed me without telling my father where they would take me.” The soldiers led Thaer away towards a military vehicle. “One of them tied my hands behind my back with one set of plastic cords and blindfolded me. The ties were very tight and hurt my hands. Then one of them grabbed me hard and pushed me inside a military truck. I fell on the metal floor and that hurt. They kept me sitting on the floor and didn’t allow me to sit on the seats. I heard so many soldiers talking around me. One of them insulted me and said: ‘Your mother’s a cunt, you motherfucker.’” The truck travelled a short distance to the nearby settlement of Zufin. “When we arrived, they pulled me out and forced me to sit on the ground. While I was sitting there, one of them approached me and started beating me for no reason. He punched and slapped me several times, while shouting in Hebrew. I didn’t understand what he was saying. I think he hit me like seven times at least.” After being taken to a clinic and asked some brief medical questions, Thaer was left tied and blindfolded outside and was not permitted to use the toilet. About an hour-and-a-half later, Thaer was placed in a truck with another child and transferred to Ari’el settlement. On arrival at Ari’el, Thaer was taken straight for interrogation. The interrogator removed his blindfold but kept him tied with his hands behind his back. “‘You’re accused of throwing stones and you better confess,’ the interrogator immediately said. ‘But I didn’t do anything,’ I replied and he started beating me hard. He slapped me several times and pushed me against the wall and that hurt my body. ‘You better confess because your friend confessed on you in his statement,’ he was saying. The interrogation lasted for about three hours during which time another interrogator came into the room. He never hit me, but he took my statement. He wrote it in Arabic. After he finished writing it, he ordered me to sign it but I refused, but he forced me to sign it. After that, he allowed me to use the bathroom,” recalls Thaer. Shortly afterwards, Thaer and another boy were placed in a truck and transferred to Ofer prison, near Ramallah. “One of the soldiers kept beating me hard for no reason. He slapped me hard several times,” says Thaer. “At around noon, we arrived at Ofer prison and the soldiers detained me in a small room in the yard outside the prison with two other children. It was very hot outside. They kept us in the room until 10:00 pm. Then they took us inside and strip searched us separately.” The next day, Thaer was transferred to Megiddo prison inside Israel, in violation of Article 76 of the Fourth Geneva Convention.

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Case study: 18 Name: Date of Incident: Age: Location: Accusation:

Sameer S. 29 June 2011 12 Azzun village, occupied West Bank Throwing stones

On 29 June 2011, a 12-year-old boy from Azzun village is arrested by Israeli soldiers from the family home at 2:00 am. “At around 2:00 am I was sleeping when I woke up to banging on the outside door,” says Sameer. “Someone was banging hard on the door and I didn’t know why. I got up and went to the living room and saw my parents and siblings. We were very scared.” Sameer’s father went and opened the door. “About five minutes later I heard my father saying: ‘Bring the boys downstairs and keep the girls upstairs.’ I felt so scared I started shivering. Me and my brother went downstairs with my mother and saw around six soldiers with my father. I was very scared of the soldiers whose faces were covered in black showing only their eyes. One of them did not cover his face and he was holding a digital camera.” The soldiers spoke to Sameer’s father in Hebrew and he translated. The boys were ordered to raise their hands and the soldier with the camera took their photo. “The soldier talking to my father took a piece of paper out of his pocket and started checking it and my father’s ID. ‘Where’s Sameer?’ he asked. I became terrified but I didn’t think they would take me. He talked to my father in Hebrew and then pointed at me and said: ‘Bau, bau,’ which I think means come here in Hebrew. At that moment I realised they wanted me. I was so shocked and horrified I couldn’t breathe a single word. My father comforted me and asked me not to be scared. Meanwhile, two soldiers grabbed me by the arms and took me out of the house. They all left the house and closed the door behind. I saw more than 15 soldiers around the house in the yard and near the front door. Two soldiers blindfolded me and they also tied my hands behind my back with one set of plastic cords. The soldiers were talking to each other in Hebrew.” Sameer was then led to a vehicle and made to sit on the floor. About 15 minutes later the vehicle arrived at an unknown location. Sameer was pulled out of the vehicle and made to sit on the ground. “Meanwhile, I heard dogs approaching us,” recalls Sameer. “I became terrified to hear dogs approaching. Soldiers were saying things in Hebrew and I didn’t understand. I felt they were getting closer and I shouted: ‘The dogs, the dogs,’ trying to move away, but I couldn’t because my hands were still tied behind my back. ‘Keep them away,’ I heard others shouting. ‘Keep the dogs away, we haven’t done anything to you,’ I cried. I was petrified because the dogs could jump at me at any moment. This continued for

| 107 about 20 minutes, during which time I kept crying and shouting. Others were shouting as well. Male and female soldiers were laughing and saying things in Hebrew,” says Sameer. After 20 minutes, Sameer was taken into a clinic and briefly asked some questions about his health. After the questions, Sameer was re-blindfolded and his plastic ties were replaced with metal cuffs tied to the front. Sameer was then placed on the ground for about one-and-a-half hours. “I felt very cold,” says Sameer. After sitting on the ground for more than an hour, Sameer was placed in another vehicle and transferred to Ari’el settlement for interrogation. “I was taken to a room measuring 3x3 metres,” recalls Sameer. “They removed the blindfold once I entered the room. There was a man in civilian clothes sitting behind one of the desks. He was short, bald and plump. He ordered me to sit in a wooden chair in front of him. There were another two men in civilian clothes in the room. ‘You threw stones at the bypass road near the gate,’ the short man said once I sat down. ‘No I didn’t,’ I said. ‘Where were you on Nakba day?’ He asked. ‘I was home because my father didn’t allow me to leave the house,’ I said. He spoke fluent Arabic. ‘I’ll beat you up if you don’t tell the truth and confess to throwing stones,’ the interrogator said. ‘I didn’t throw any stones and I didn’t do anything to you,’ I said while shaking with fear. He got up and approached me to slap me on the face and neck. ‘You’ll confess to everything,’ he shouted. He kicked me while I was sitting in the chair with my hands handcuffed to the front. ‘If you don’t confess, I’ll beat you more and throw you out of the window,’ he said. He then grabbed me by the shirt and said he would throw me out of the window. There was a big window in the room. I was terrified but I didn’t confess. ‘I didn’t do anything to you and I didn’t throw stones,’ I told him. He started talking to the other men in Hebrew. They never talked to me. They just kept coming in and out,’ recalls Sameer. Sameer then recalls signing papers written in Arabic and Hebrew without reading them. He was then taken out and made to sit in a corridor. It was about 2:00 or 3:00 pm. Sameer was untied and his blindfold was removed and he was given a meal. About an hour later a car arrived and he was driven to Qalqiliya. He was handed over to the Palestinian police and released. “I’m still afraid of soldiers and I can’t sleep at night. I’m anxious and still traumatized because of what happened. This was the first time I went through such a horrible experience which terrified me. I’m scared of the darkness. I keep thinking soldiers will come back and arrest me,” says Sameer.

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Case study: 19 Name: Date of Incident: Age: Location: Accusation:

Malek Z. 11 July 2011 15 Qalandiya refugee camp, occupied West Bank Throwing stones and starting a fire

On 11 July 2011, a 15-year-old boy from Qalandiya refugee camp, near Ramallah, is arrested by Israeli soldiers from the family home at 3:00 am. “At around 3:00 am on 11 July, I was sleeping when I woke up to noise outside my room,” recalls Malek. “I opened my eyes and saw soldiers and my father. I don’t know how they got into the house. There were so many of them. ‘Get dressed because you’re coming with us,’ one of them said to me in Arabic.” Malek reports that he quickly got dressed and was then led out of the house by some soldiers. “When they took me out, one of them tied my hands behind my back with two sets of plastic cords that were very tight. He also blindfolded me.” Malek was then led to a waiting military vehicle and pushed inside. He recalls what happened next: “[The] soldiers started punching me in the face and kicking me all over my body while shouting things in Hebrew. I didn’t understand what they were saying but I believe they were insulting me.” Malek reports that the vehicle travelled for about an hour until they arrived at a military camp. “They pulled me out and had me sit on the ground for like three hours.” Malek says he asked the soldiers for some water to drink but his requests were refused. After three hours, Malek was placed inside another military vehicle and transferred to a police station. On arrival at the police station, Malek says that he was again made to sit on the ground; this time for about an hour, after which he was placed in a cell. “At around 4:00 pm I was taken to an interrogation room where my blindfold and ties were removed,” he recalls. “I was seated in a chair in front of a desk. There was an interrogator wearing a cap worn by Orthodox Jews. He spoke fluent Arabic. He accused me of starting a fire near the settlement of Kochav Ya’akov and throwing stones, but I didn’t confess. ‘You better confess,’ he shouted. Then he printed a document in Hebrew and ordered me to sign it, but I refused, so he slapped me hard across the face while shouting. He stood me up and pushed me towards the wall and I slammed against it. I was so scared of him I immediately signed the papers. He didn’t explain what was written.” After the papers were signed, the interrogator handcuffed Malek’s hands in front of his body and about 30 minutes later he was put in another vehicle with an adult detainee. Malek and the other man were then driven a short distance and placed together in a single cell. They were not given anything to eat or drink. Shortly after midnight, Malek and the other man were placed in a vehicle and transferred to Ofer prison. On arrival outside the prison they were both placed in a small cage and left for around three hours. After

| 109 three hours, Malek was taken inside the prison and strip searched before being taken to a cell where other children were being detained. On 12 July 2011, Malek appeared for the first time before Ofer military court and on 25 July, he was transferred to Rimonim prison, inside Israel. The transfer of children out of the West Bank to prisons inside Israel contravenes Article 76 of the Fourth Geneva Convention.

Case study: 20 Name: Date of Incident: Age: Location: Accusation:

Abed D. 14 September 2011 15 Azzun village, occupied West Bank Throwing stones

On 14 September 2011, a 15-year-old boy from Azzun village is arrested by Israeli soldiers from the family home at 2:00 am, and accused of throwing stones. “At around 2:00 am, I was sleeping […] when I woke up to banging on the front door,” recalls 15-year-old Abed. His father opened the door and there were four Israeli soldiers waiting outside. The soldiers ordered the family outside and then checked everybody’s I.D. cards. “One of them asked me for my name and when I told him he said to my father that they wanted to take me with them,” recalls Abed. Abed was then taken out of the house by the soldiers. “They closed the door and did not allow anyone to come out. They tied my hands behind my back with one plastic cord and tightened it.” Abed reports that he was then asked some questions about the neighbours and was slapped “hard” across his face when he said he did not know anything. A short time later Abed reports being knocked to the ground. “While I was on the ground, one of the soldiers grabbed me hard by the neck and started pressing on it with one hand, while pressing down on my head with the other. My face was facing the ground and that hurt me very much,” says Abed. He was then led to a waiting military vehicle, blindfolded and pushed inside and on the floor. “There were soldiers inside the jeep and they kept me sitting on the floor.” During the trip to the interrogation centre, Abed reports that a soldier first placed his leg on him, and then sat on his back. “He was so heavy I started shouting because it was painful, but he put his hand on my mouth and started pressing to shut me up. ‘I’ll kill you if I ever hear your voice,’ he said.” Abed was taken to the settlement of Zufin where he was given a cursory medical check. After the check, Abed was made to sit outside for about an hour, still tied and blindfolded,

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before being transferred to the police station in Ari’el settlement. Along the way Abed reports that he asked a soldier to loosen his hand ties, but he refused. On arrival at Ari’el, Abed was taken for interrogation. “A man approached me and grabbed me hard by the neck. He spoke Arabic. ‘You’re going to interrogation now so you can either talk the easy way or the hard way.’ ‘I’ve got nothing to tell you,’ I said to him and be became very upset. He hit me hard on the leg and I fell.” Abed reports being left on the ground for about an hour, still tied and blindfolded, until a man came and took him to the interrogation room. Once inside the interrogation room Abed’s hand ties and blindfold were removed. He was accused of throwing stones and Molotov cocktails which he denied. “‘You better confess or I’ll break your head,’ said the interrogator raising his hand, but he did not do it,” reports Abed. “I was so scared of the interrogator I confessed to throwing stones once […] ‘You threw stones more than that,’” the interrogator shouted, and Abed says he then confessed to throwing stones four times because he was scared. Abed says the interrogation lasted about two hours during which time he was alone with the interrogator. Later that day, Abed was transferred to Megiddo prison inside Israel, in violation of Article 76 of the Fourth Geneva Convention that prohibits transferring detainees out of occupied territory. On 19 September 2011, Abed was charged in a military court with throwing four stones.

Case study: 21 Name: Date of Incident: Age: Location: Accusation:

Rashad S. 17 November 2011 13 Azzun village, occupied West Bank Throwing stones

On 17 November 2011, a 13-year-old boy from Azzun village is arrested by Israeli soldiers from the family home at 2:45 am, and accused of throwing stones. “At around 2:45 am, my mother woke me up and told me there were Israeli soldiers in the house,” recalls 13-year-old Rashad. “I was wearing my pyjamas. I got up and went out to the hall where I saw soldiers with my father and my two sisters.” “‘Are you Rashad?’ one of the soldiers asked me in Arabic. ‘Yes I am,’ I said. ‘You have 10 minutes to change your clothes and come with us or we’ll take you my force,’ he said. I went to my room and changed my clothes and came back to the soldiers.” Whilst Rashad was changing his father and uncle tried to convince the soldiers not to arrest him, but they refused. Rashad was then taken out of the house and made to walk about 500 metres in the rain. “My father and uncle followed us but the soldiers kept shouting at them and pointing their weapons at them and ordering them to go back,” recalls Rashad. “We kept walking until we reached two military jeeps and a troop carrier. They then tied my hands with one plastic cord and tightened it up. They also blindfolded me with a piece of cloth.” Rashad was then helped into one of the jeeps.

| 111 Rashad estimates that the jeep traveled for around an hour before it stopped and he was taken out of the vehicle. He was then given a cursory medical check whilst still tied. Rashad estimates that he remained at this site for about two hours before being placed back in the jeep for another hour. On arrival at a second location, Rashad was taken out of the jeep. “They kept me tied and blindfolded. My hands hurt because of the ties,” he recalls. Sometime later Rashad recalls being interrogated whilst still tied. “The interrogator accused me of throwing stones at a settler car and I strongly denied it. ‘You’re a liar,’ he said. ‘No I’m not. Check your sources,’ I said. ‘Every dog has his day,’ he said as he took me out of the room.” Rashad then sat in a corridor before being interrogated for a second time. “A man took me to another room and removed the blindfold,” recalls Rashad. “He was wearing a light blue uniform. ‘Did you throw stones at Israeli cars near your village?’ he asked in Arabic and I denied it […] A short time later the blindfold was removed and the ties were cut off. He took me to another room and took all my fingerprints. He also forced me to sign a paper written in Hebrew.” Rashad was then released into the custody of his father – it was 4:00 pm. Rashad was not provided with anything to eat or drink during his detention.

Case study: 22 Name: Date of Incident: Age: Location: Accusation:

Wadda’ B. 21 November 2011 16 Haris village, occupied West Bank Throwing Molotov cocktails

On 21 November 2011, a 16-year-old boy from Haris village is arrested by Israeli soldiers at 4:00 am, and held for 12 days in solitary confinement at Al Jalame interrogation centre, inside Israel. “At around 4:00 am, the Israeli army came to our house and took my father hostage until I turned myself in. I was not at home that night,” says 16-year-old Wadda’. “They took him to a place in the village and forced him to call me and tell me to turn myself in. He told me that they would not release him unless I turned myself in.” Wadda’ went to the designated area in the village and turned himself in to the soldiers as arranged. “I approached the soldiers and they searched me and one of them grabbed me and dragged me to a military vehicle where my father was standing […] Soldiers tied my hands behind my back with one plastic cord and tightened it so hard that I still feel pain in my right thumb which sometimes goes numb. I shouted because of the pain but they shouted back in Hebrew and I did not understand what they were saying. Then they blindfolded me,” says Wadda’. Wadda’ was then put in the back of a military vehicle where he remained for about four hours. At some point he was taken out of the vehicle and given a cursory medical check

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by a military doctor whilst still tied. He was then placed back in the military vehicle which parked outside Huwwara interrogation centre until around 3:00 pm. At around 3:00 pm, Wadda’ was transferred to another vehicle and taken to Al Jalame interrogation centre, inside Israel. During this entire time, Wadda’ was not given anything to eat or drink, and was not permitted to use the toilet. Wadda’ reports arriving at Al Jalame at around 7:00 pm and being strip searched on arrival. He was permitted to use the toilet for the first time since his arrest and was then taken for interrogation. “An intelligence officer was already in the interrogation room,” recalls Wadda’. “He told me his name but I forget it. There was a low metal chair tied to the floor in the middle of the room and he tied me to it. He gave me a piece of paper and ordered me to read it and sign it. He told me it contained my rights, but I did not read or sign it. The interrogator accused me of throwing Molotov cocktails, but I denied it, and he accused me of lying to him. ‘Let’s not waste each other’s time because eventually you’ll confess,’ he shouted. But I did not confess at all on day one. At around 9:00 pm he untied me and locked me in Cell No. 36.” Wadda’ describes Cell No. 36 as follows: “The cell was very small and had a toilet, a sink and two concrete chairs. The walls were rough and in the ceiling there were two yellow lights that hurt my eyes. It had no windows, just gaps to let the air in and out. The air inside the cell was very cold.” Wadda’ recalls that he was taken back to the interrogation room the following morning at 8:00 am. “The interrogator tied me to the same chair and questioned me until noon. He kept shouting to intimidate me and force me to confess. At around noon, I was taken back to the cell for a while to eat, before I was taken back to the interrogation room where I was questioned until around 5:00 pm. I was then given a half-an-hour break before being interrogated again until around 9:00 pm.” The following day Wadda’ was taken before a military court judge who extended his detention for eight days. Wadda’ reports being detained at Al Jalame for 15 days, of which 12 days were spent in solitary confinement. “I decided to confess,” says Wadda’, “because I could not take it anymore. I got fed up with the interrogation and detention.” On or about 4 December 2011, Wadda’ was transferred to Megiddo prison, inside Israel, where he is detained in violation of Article 76 of the Fourth Geneva Convention, which prohibits transfers out of occupied territory.

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Case study: 23 Name: Date of Incident: Age: Location: Accusation:

Mahmoud R. 1 January 2012 15 Azzun village, occupied West Bank Shooting, throwing stones and Molotov cocktails

On 1 January 2012, a 15-year-old boy from Azzun village is arrested by Israeli soldiers from his family home at 3:00 am and is held for six days in solitary confinement at the Al Jalame interrogation centre. “On 1 January 2012, at around 3:00 am, I was awake when I heard noises outside,” recalls Mahmoud. “I looked out the window and saw many military jeeps and soldiers walking towards the house. I realised they had come to arrest me because they had already arrested two of my friends.” Mahmoud started changing his clothes quickly, but before he had finished, “the soldiers broke down the door with hammers. They didn’t even knock,” he says. The soldiers stormed the house, and one of them grabbed Mahmoud by the arm and took him outside. “They tied my hands behind my back with a single plastic cord and tightened it up so hard I still have the marks around my wrists,” he reports. The soldiers then ordered Mahmoud’s brother, Ahmad, to come out of the house. Once he came out, “they started beating him very hard for no reason in front of my family, terrifying them.” After around two hours, Mahmoud was taken to a jeep and made to sit on the metal floor. Ahmad was left behind. “The jeep started travelling,” he recalls. “I was surrounded by soldiers who stepped on my head and kept shouting at me.” Mahmoud was taken first to the settlement of Zufin, and then to Huwwara interrogation and detention centre near Nablus. There, he was left waiting on the metal floor of the jeep for hours. “In the afternoon,” he continues, “members of the Nihshon unit came to take me away. They handcuffed me from the front, shackled my feet, and transferred me to the Al Jalame interrogation centre.” At Al Jalame, Mahmoud was allowed to use the toilet for the first time since he was arrested. Then, he was placed in solitary confinement. “I was strip searched and detained in cell 30. The cell was very small and had a mattress on the floor. The toilet had a horrible smell. The cell had no windows, except some gaps for ventilation. I was given food through a gap in the door.” Two days later, Mahmoud was taken for interrogation. He recalls: “The interrogator was called ‘Oz’ and spoke fluent Arabic. He made me sit on a chair and accused me of opening fire at soldiers and Israeli vehicles, as well as throwing Molotov cocktails and stones at Israeli cars travelling on the road near the village. I denied all that. ‘Denying it won’t do you any good because your friends have already confessed,’ Oz said, but I insisted on denying the accusations. The following day I was taken back to interrogation, and this time I decided to confess because I wanted to get out of that cell and end the solitary confinement, and because my friends had already confessed. I was

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interrogated several times and asked the same questions. They never explained to me my rights,” Mahmoud says. Mahmoud was held in solitary confinement at Al Jalame for six days. On 16 January, he was transferred to Megiddo prison inside Israel. The transfer of Mahmoud out of the West Bank to Al Jalame was in violation of Article 76 of the Fourth Geneva Convention, which prohibits transfers out of occupied territory.

Case study: 24 Name: Date of Incident: Age: Location: Accusation:

‘Ala D. 9 January 2012 17 Haris village, occupied West Bank Throwing stones

On 9 January 2012, a 17-year-old boy from Haris village is arrested by Israeli soldiers at 2:00 am and accused of throwing stones. “At around 2:00 am, I was sleeping when I woke up to a noise in my room,” says 17-year-old ‘Ala. “I opened my eyes and saw many soldiers surrounding me. Apparenlty they had broken down the door to our apartment. ‘Where’s ‘Ala’ they were shouting. I answered them while I was still getting out of bed. ‘Get up,’ one of them shouted and ordered me to lift my shirt to make sure I was not hiding anything. Then he pushed me hard against the wall while shouting at me and tied my hands behind my back with a single plastic cord and tightened it up so hard I shouted and asked him to loosen it a little, but he shouted back and ordered me to shut up. He even tightened it up harder.”

Photo credit: Sylvie le Clezio

‘Ala was then blindfolded and taken outside. He was not permitted to put on warm clothes and he recalls that it was cold outside. ‘Ala remained outside for about 30 minutes and was then questioned by a man in civilian clothes who introduced himself as “Hafer”. The man removed ‘Ala’s blindfold. “‘Why are you causing trouble?’ he asked. ‘I haven’t done anything,’ I said. ‘Liar. I’ve encountered many like you; say they didn’t do anything at first, then come clean during interrogation. So it’s better you confess.’ He shouted and ordered my father to approach him. He told my father that they would arrest me and release me if it turned out that I hadn’t done anything. But he did not tell my father where they would take me,” recalls ‘Ala.

| 115 ‘Ala was then placed on the metal floor of a military vehicle, tied and blindfolded, for about one hour. ‘Ala recalls that soldiers kept shouting at him until they arrived at an unknown location. ‘Ala was taken out of the vehicle and he was taken to see a doctor. His blindfold and ties were removed and he was asked some general health questions. ‘Ala asked the doctor for some water, but his request was refused. About 30 minutes later ‘Ala was re-tied and blindfolded and placed back in the vehicle, this time on a seat. The vehicle traveled for approximately three hours and stopped at a number of locations, before arriving at the settlement of Gush Etzion. ‘Ala was taken out of the vehicle and made to stand outside in the cold for about 30 minutes. ‘Ala was then placed in another vehicle and transferred to the settlement of Zufin, before being transferred to Megiddo prison, inside Israel. ‘Ala’s transfer into Israel was in violation of Article 76 of the Fourth Geneva Convention which prohibits such transfers. ‘Ala arrived at Megiddo prison at around 5:00 pm, having been tied and blindfolded for nearly 15 hours. ‘Ala was strip searched and says this made him feel humiliated. The next day, ‘Ala was transferred back into the West Bank to the Salem interrogation centre. He was interrogated by a man called “Hashem” and his hands and feet remained shackled throughout his questioning. ‘Ala reports being interrogated for about three hours and was accused of throwing stones, which he denies. ‘Ala reports that he first appeared before a military court accused of throwing stones on 15 January, and was remanded in custody.

Case study: 25 Name: Date of Incident: Age: Location: Accusation:

Khader A. 18 January 2012 16 Beit Ummar, occupied West Bank Throwing stones

On 18 January 2012, a 16-year-old boy from Beit Ummar is detained by Israeli soldiers at around 3:00 am before being released. “At around 2:55 am, I woke up to the sound of stun grenades and laser sights focused on my window,” recalls Khader. “I could hear soldiers shouting through loudspeakers: ‘It’s the IDF, get out.” Khader’s house is located in Beit Ummar, about 50 metres from the main road between Bethlehem and Hebron, used by the Israeli army and settlers. “I also heard a soldier calling us through a loudspeaker to come out or they would blow-up the house,” says Khader. Khader and his 18-year-old brother exited the house with their hands in the air. “We climbed down the stairs to the yard outside the house, and around eight soldiers surrounded us and others were surrounding the house. I saw around seven military jeeps.

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I was very scared. The officer ordered my brother to take off his clothes, and he did so, except for his underwear. They searched him for a couple of minutes and the officer then ordered him to put his clothes back on. He ordered him to put his hands on his head and step three metres back. Then two soldiers tied his hands and blindfolded him,” recalls Khader. “The officer then ordered me to take off my clothes, and I took them off except for my underwear. He then ordered me to kneel which I did for about 10 minutes. It was very cold that night and I was shaking.” “The officer asked me some general questions and whether I had thrown stones at soldiers or not, and those sorts of questions,” recalls Khader. “After that, he ordered me to put my clothes back on and a soldier tied my hands in the front and ordered me to walk with him to the jeeps. Before we reached the jeeps, the soldier stopped me, untied me, and ordered me to go home and not to look out of the window, saying that he would shoot me if I stood by the window. They arrested my brother and he is now detained in Etzion interrogation centre.” “I was very scared at the beginning, then I realised they had come to arrest my brother, not both of us. The worst part was the cold weather, even though we were only out of the house for a short time,” says Khader.

| 117

Qalandiya checkpoint : © Mariana Santarelli

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Annex 3

DCI Statistics (2008-2012)

| 119 A. Monthly detention figures - totals151 Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

Ave

2008

327

307

325

327

337

323

324

293

304

297

327

342

319

2009

389

423

420

391

346

355

342

339

326

325

306

305

355

2010

318

343

342

335

305

291

284

286

269

256

228

213

289

2011

222

221

226

220

211

209

202

180

164

150

161

135

192

2012

170

B. Monthly detention figures – young children (12-15 years)152 Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

Ave

2008

2009

2010

2011

2012

C. Monthly detention figures – girls in detention153 Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

Ave

2008

4.7

2009

3.8

2010

0.3

2011

0.2

2012

D. Monthly detention figures – administrative detention154 Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Nov

Dec

Ave

2008

2009

1.8

2010

1.6

2011

0.2

2012

E. Breakdown of DCI-Palestine cases by age group155 12-13 years

14-15 years

16-17 years

Total

2008

158

206

2009

123

192

2010

133

2011

111

Totals

182

429

642

Percent

28%

67%

100%

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F. Breakdown of DCI-Palestine cases – released on bail156 Released on bail

Total

Percentage

2008

2009

192

15%

2010

133

11%

2011

111

12%

Totals

436

13%

G. Breakdown of DCI-Palestine cases – completed cases157 Released without charge

Plea bargain

2008

2009 2010

Hearing

Total

Guilty

Acquitted

177

192

113

133

2011

104

111

Totals

394

436

Percent

90%

0.5%

1.2%

158

H. Breakdown of DCI-Palestine cases – charges159 #

Charges

2008

2009

2010

2011

Totals

Throwing stones

268

47%

Throwing Molotov cocktails

16%

Conspiracy and/or attempting to kill

10%

Membership of a banned organisation

Possession of explosives

Possession of a weapon

Assisting the enemy or fugitives

Entering Israel without a permit

Trading in weapons

Disturbing public order

Entering a closed military zone

Other

Military training

172

180

115

106

573

100%

Total

| 121 I. Breakdown of DCI-Palestine cases - sentences160 2008

2009

2010

2011

Total

Under 6 months

Sentence

110

285

50%

6-12 months

149

26%

1-3 years

17%

Over 3 years

172

180

115

106

573

100%

Total

161

J. Breakdown of DCI-Palestine cases – region162 2008

2009

2010

2011

Total

North – Jenin/Nablus

Region of West Bank

134

116

362

56%

Central - Ramallah

101

16%

South – Bethlehem/Hebron Total

179

28%

206

192

133

111

642

100%

Parents in Ofer military court: © Sylvie Le Clezio

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K. Long term trends – DCI-Palestine cases – 2004 to 2011163 Gender

2004

2005

2006

2007

2008

2009

2010

2011

Boys

99%

96%

99%

98%

100%

Girls

Age groups

2004

2005

2006

2007

2008

2009

2010

2011

12-13 years

12%

14-15 years

22%

24%

29%

47%

16-17 years

77%

64%

69%

51%

Released without charge

2004

2005

2006

2007

2008

2009

2010

2011

Released no charge

12%

Bail

2004

2005

2006

2007

2008

2009

2010

2011

Released on bail

15%

11%

12%

Plea bargain

2004

2005

2006

2007

2008

2009

2010

2011

Plea of guilty

80%

77%

85%

Full hearing - acquitted

2004

2005

2006

2007

2008

2009

2010

2011

Found not guilty

1.6%

1.5%

Full hearing – convicted

2004

2005

2006

2007

2008

2009

2010

2011

Found guilty

1.8%

Sentence

2004

2005

2006

2007

2008

2009

2010

2011

Under 6 months

42%

35%

28%

37%

41%

61%

51%

43%

6-12 months

10%

14%

16%

12%

30%

17%

29%

32%

1-3 years

29%

36%

48%

36%

14%

18%

17%

21%

Over 3 years

20%

15%

Charge 164

2004

2005

2006

2007

2008

2009

2010

2011

Throwing stones

31%

22%

64%

26%

27%

60%

52%

50%

Throwing Molotov cocktails

14%

10%

15%

17%

16%

18%

Conspiracy/attempt to kill

18%

21%

4%165

30%

24%

Membership of a banned org.

15%

10%

19%

Possession of explosives

12%

11%

10%

Possession of a weapon

14%

15%

11%

Region of the West Bank

2004

2005

2006

2007

2008

2009

2010

2011

North - Jenin/Nablus

59%

65%

60%

38%

55%

Central – Ramallah

15%

13%

15%

20%

17%

South – Bethlehem/Hebron

26%

22%

25%

41%

28%

| 123

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Annex 4

UN reports (2008–2012)

| 125 Date 2008

Agency

Brief description

UN Special Rapporteur (OPT)

Mission report –Following arrest, persons are frequently beaten and stripped in a humiliating manner. The interrogation of subjects is then carried out in a degrading and inhuman manner, sometimes amounting to torture. The treatment of children is equally disturbing.166

UN Committee against Torture

Concluding Observations - The Committee expressed ‘deep concern’ at reports that Palestinian children are detained and interrogated in the absence of a lawyer and family member and allegedly subjected to acts in breach of the Convention in order to obtain confessions. The Committee also recommended that Israel should, as a matter of priority, extend the requirement of video recording of interviews to detainees accused of security offences as a further means to prevent torture and ill-treatment.167

UN Committee on the Rights of the Child

Concluding Observations - The Committee expressed “grave concern” at reports that children detained in the military court system are subjected to abuse and are held in inhumane and degrading conditions.168

2009

2010

2011

Annual Report - The exercise of jurisdiction by a military court over civilians not performing military tasks is normally inconsistent with the fair, impartial and UN Special independent administration of justice. This should even more evidently apply Rapporteur on in the case of children. There appears to be a practice by which Palestinian dethe indetainees are being made to sign confessions written in Hebrew. It is reported that pendence of once these confessions are obtained, they constitute primary evidence against judges and Palestinians in the military courts. The Special Rapporteur expressed concern lawyers that the legal foundations and practices of the military justice system do not comply with international standards.169 UN Human Rights Committee

Concluding Observations - The Committee recommended that Israel refrain from holding criminal proceedings against children in military courts, ensure that children are only detained as a measure of last resort and for the shortest possible period of time, and guarantee that proceedings involving children are audiovisually recorded. Further, ensure that all reports of torture and ill-treatment are investigated promptly by an independent body.170

UN Special Rapporteur (OPT)

Mission Report - The Rapporteur is further dismayed at the continual arrests and detention of Palestinian children by Israeli authorities. Children were beaten or kicked at the time of arrest and put at the back of a military vehicle where they were subject to further physical and psychological abuse on the way to the interrogation and detention centre. Upon arrest, children and their families were seldom informed of the charges against them. Children were often subject to abuse during interrogation. The continued reports of inhumane and degrading treatment, including sexual assault, of children in detention is further deplorable.171

Annual Report - Includes allegations of torture and ill-treatment of Palestinian Un Special children following their arrest by Israeli forces in 20 and 2010. As of the date of Rapporteur on the Special Rapporteur’s report, the government of Israel has not responded. The Torture allegations submitted to the Special Rapporteur affect more than 100 children.172

UN Special Rapporteur (OPT)

Mission Report - Many of the arrests of Palestinian children arise out of allegations of stone-throwing aimed at settlers or Israeli security personnel in the West Bank. Those accused, unlike Israeli children in the West Bank, are subject to Israeli military law, which offers far fewer protections for minors than are present in Israeli criminal law. Most relevantly, in military law there is an absence of protective provisions regarding the presence of a parent during interrogation, the hours that the interrogation must be conducted or respect for the dignity of the child during the arrest process.173

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Annex 5

Governmental and NGO reports (2008–2012)

| 127 Date

Agency PCATI

PCATI

Family Members to Pressure Detainees Under GSS Interrogation - This report focuses on the actual or threatened ill-treatment of family members of a detainee during interrogation as a form of psychological pressure to induce a confession.175

DCI-Palestine

Palestinian Child Prisoners: The systematic and institutionalized ill-treatment and torture of Palestinian children by Israeli authorities - This report focuses on children in the military court system and the alleged widespread use of torture and ill-treatment within the system. The report includes 33 case studies derived from affidavits taken from children detained in 2008.176

PCATI

Shackling as a Form of Torture and Abuse - This report focuses on the use of shackling as a form of ill-treatment and torture and is based on 574 cases documented over the course of a 12 month period.177

Amnesty International

Submission to the Human Rights Committee - This report includes a section on the administrative detention of a 16-year-old boy.178

B’Tselem and Hamoked

Without Trial: Administrative Detention of Palestinians by Israel and the Internment of Unlawful Combatants Law - This report focuses on the administrative detention of Palestinians, held without charge or trial.179

PCATI

Accountability Denied: The Absence of Investigation and Punishment of Torture in Israel - This report focuses on the lack of accountability in Israel in regards to allegations of torture and ill-treatment.180

Yesh Din

IDF Investigations of IDF Offenses against Palestinians: figures for 2000-20 - This report focuses on accountability. Between 2000 and 20, some 1805 criminal investigations were opened by the Israeli Military Police Criminal Investigations Division (MPCID) into allegations that Israeli soldiers had committed criminal offences against Palestinian civilians and their property. In only 105 cases, (5.8%), did the MPCID find sufficient evidence to serve indictments on one or more defendants.181

World Organisation Against Torture

Letter to the Israeli Prime Minister - This letter raises serious concerns involving reports of torture and ill-treatment of children aged between 13 and 16 years.182

Adalah /PCATI/DCI

Letter to the Israeli Prime Minister - This letter raises Palestinian and Israeli NGO concerns regarding alleged torture and ill-treatment in the military court system, and calls for remedial action.183

B’Tselem and Hamoked

Kept in the Dark: Treatment of Palestinian Detainees in the Petah Tikva Interrogation Facility of the Israel Security Agency - This report (October 2010) focuses on allegations of torture and ill-treatment of 121 Palestinian detainees, including 18 children, at the Petah Tikva detention facility near Tel Aviv, in the first and last quarters of 20.184

US State Department

2010 Human Rights Report: Israel and the occupied territories.185

2008

2009

2010

Title and brief description No Defense: Soldier Violence against Palestinian Detainees – This report describes the ill-treatment of shackled Palestinian detainees by Israeli soldiers.174

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In their own Words: A report on the situation facing Palestinian children detained in the Israeli military court system (July 2011) - This report analysis the cases of 45 children prosecuted in Israeli military courts between 1 January and 30 June 2011.186

Physicians Coerced False Confessions: The Case of Palestinian Children (July 2011) -This refor Human port considers the psychological and social factors that affect children and adoRights-Israel lescents who are in custody and undergoing police interrogation.187 (PHR) B’Tselem

No Minor Matter: Violation of the Rights of Palestinian Minors Arrested by Israel on Suspicion of Stone Throwing - This report (August 2011) focuses on the violation of the rights of Palestinian children arrested and prosecuted in the Israeli military detention system.188

No Legal Frontiers

All Guilty! Observations in the Military Juvenile Court - This report (August (2011) presents the findings of observations in the military juvenile courts over a 12 month periods.189

Yesh Din

Alleged Investigation: The Failure of Investigations into Offenses Committed by IDF Soldiers Against Palestinians – This report considers issues of accountability.190

PCATI/PHR

Doctoring the Evidence, Abandoning the Victim: The involvement of medical professionals in torture and ill treatment in Israel – This report is based on over 100 complaints.191

DCI-Palestine

UN submission – The use of solitary confinement on Palestinian children held in Israeli detention.192

DCI-Palestine

In their own Words: A report on the situation facing Palestinian children detained in the Israeli military court system (January 2012) –This report analysis the cases of 36 children prosecuted in Israeli military courts between 1 July and 31 December 2011.193

ACRI

Case Briefing Document: “Minor A’ from Nabi Saleh (February 2012).194

2011

2012

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Annex 6

Sampling of media reports (20–2012)

| 131 Date

2009

2010

2011

2012

Agency

Article title

The Independent

“Bound, blindfolded and beaten – by Israeli troops”195

Time World

“Does Israel Mistreat Child Prisoners?”196

BBC

“Israeli troops ‘ill-treat kids’”197

Haaretz

“Over 100 Palestinian minors reported abuse in IDF, police custody in 20”198

Aljazeera

“Israel faces child abuse claims”199

Haaretz

“IDF mistakenly summons 7-year-old Palestinian boy for Shin Bet interrogation”200

Haaretz

“Twilight Zone / A night in Hebron”201

Haaretz

“Shin Bet turns to Arabic after inadvertently summoning 7-year-old Palestinian”202

Haaretz

“Eight Palestinian youths and the crime they didn’t commit”203

Haaretz

“An appalling army experience”204

Haaretz

“Palestinian minors held 3 weeks on suspicion of arson”205

Haaretz

“UN receives over 100 complaints of police, IDF abuse of West Bank teenagers this year”206

CNN

“Israel accused of mistreating kids”207

Politics.co.uk

“Time to get serious with Israel”208

Haaretz

“Another country”209

Haaretz

“Judge remands Palestinian teen despite suspicions that soldiers beat him”210

BBC

“B’tselem raps Israel for jailing Palestinian children”211

The Guardian

“Hundreds of Palestinian minors jailed for throwing stones, says report”212

The National

“Palestinian children endure systematic abuse from Israel’s military courts, say reports”213

Haaretz

“Officer who defended beating Palestinians to take over infantry”214

The Independent

“How Israel takes revenge on boys who throw stones”215

The Independent

“Military whistleblower tells of ‘indiscriminate’ Israeli attacks”216

The Guardian

“Palestinian children woken in night to be photographed by soldiers”217

Haaretz

“Following criticism, IDF raises age for Palestinians to be tried as minors to 18”218

Haaretz

“UN rights expert: Palestinian children subject to arrests, violence by Israel”219

The Guardian

“Israeli doctors ‘failing to report torture of Palestinian detainees”220

The Australian

“Stone cold justice”221

Haaretz

“Virtually all military court cases in the West Bank end in conviction”222

The Guardian

“The Palestinian children – alone and bewildered – in Israel’s Al Jalame jail”223

The New York Times

“Palestinian’s Trial Shines Light on Military Justice”224

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Endnotes 1

Israel ratified the UN Convention on the Rights of the Child and the Convention against Torture in 1991.

The EU provided funding for the project between 1 April 2009 to 31 March 2012.

DCI-Palestine, Voices from East Jerusalem: The situation facing Palestinian children (August 2011). Available at: http://www.dci-palestine.org/documents/new-dci-report-voices-east-jerusalem-situation-facing-palestinianchildren-2011

Training Manual on Human Rights Monitoring developed by the UN Office of the High Commissioner for Human Rights (OHCHR).

The minimum age of criminal responsibility in Israeli military courts is 12 years. However, children younger than 12 years are sometimes detained by the Israeli army and police and released within 12 hours.

UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Professor John Dugard, “Human Rights Situation in Palestine and Other Occupied Arab Territories” (21 January 2008, A/ HRC/7/17 – paragraph 45; and B’Tselem – Statistics on Palestinians in the custody of Israeli security forces (2008 to 2011).

Regulations concerning the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907 (The Hague Regulations (1907)) – Article 43; and the Fourth Geneva Convention – Articles 64 and 66.

UN Human Rights Committee, General Comment No. 32 – paragraph 22.

UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Professor Richard Falk, “Situation of human rights in the Palestinian territories occupied since 1967,” (30 August 2010), A/65/331 – paragraphs 1 to 7; Sharon Weill, “The judicial arm of the occupation: the Israeli military courts in the occupied territories,” International Review of the Red Cross, Volume 89, Number 866, (June 2007), pages 399-400; and Orna Ben-Naftali, Aeyal M. Gross and Karen Michaeli, “Illegal Occupation: Framing the Occupied Palestinian Territory,” (2006), Berkeley Journal of International Law, Vol. 23:3, page 551.

10 International Court of Justice (ICJ), advisory opinion (2004): Legal Consequences of the Construction of a Wall in the occupied Palestinian Territories (ICJ Wall opinion). 11 Approximately 20 percent of the population of Israel is made up of Palestinians, sometimes known as Arab Israelis. 12 At the time of publication, the principal places used for the temporary detention of Palestinians from the West Bank, are: Huwwara interrogation centre (West Bank); Salem interrogation centre (West Bank); Gush Etzion settlement (West Bank); Ari’el settlement (West Bank); Ofer prison (West Bank); Al Jalame interrogation centre (Israel); Petah Tikva interrogation centre (Israel); and Al Mascobiyya interrogation centre (Israel). 13 At the time of publication, the principal prisons used by the Israeli authorities to detain Palestinian children are: Ofer prison (West Bank); and Megiddo prison (Israel). Other prisons that have recently been used are: Rimonim prison (Israel); and Hasharon prison (Israel). 14 Article 76 of the Fourth Geneva Convention provides that: “Protected persons accused of offences shall be detained in the occupied country, and if convicted shall serve their sentences therein.” The applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory has been confirmed by the ICJ’s Wall opinion; various UN Security Council and General Assembly resolutions; and the International Committee of the Red Cross. Pursuant to Article 147 of the Fourth Geneva Convention, unlawfully transferring a protected person is a grave breach of the Convention and attracts personal criminal responsibility. Further, under Article 146, all parties to the Convention have a positive legal obligation to search out and prosecute those responsible for grave breaches. 15 Salem military court (near Jenin) and Ofer military court (near Ramallah).

| 133 16 According to the 2008 annual report of the military courts, there were 16 regular army judges, with an additional 233 reserve personnel enlisted in the unit. 17 Just as in civilian settings, legal interns (meaning law graduates doing their mandatory apprenticeships) practise law under the supervision of an attorney and after six months are allowed to appear in court. Many Israelis who want to go into law postpone their military service, go to law school, then serve in the military court system as part of their military service. Others do it in the reverse order and have just one year of internship. But in any case, some of those serving for the prosecution and appearing in court are not yet certified, but are interns. 18 NGOs such as DCI-Palestine, Addameer Prisoner Support and Human Rights Association and Nadi al-Asir (Palestinian Prisoners’ Club). 19 Yesh Din, “Backyard Proceedings: The Implementation of Due Process Rights in the Military Courts in the Occupied Territories,” (December 2007) – page 26. 20 The Hague Regulations of 1907 (Regulations concerning the Laws and Customs of War on Land) – Article 43; and the Fourth Geneva Convention (1949) – Articles 64 and 66. 21 Ibid. 22 Israeli Defense Forces Proclamation No. 2 – “Proclamation Regarding Law and Administration,” (7 June 1967). 23 The Israeli military order most relevant to this Report is Military Orders 1651. 24 Israel has consistently argued that the human rights treaties it has ratified do not apply to Palestinians living in the Occupied Palestinian Territory. Two arguments are usually presented to support this position. First, it is argued that the human rights conventions were only ever intended to apply vis-a-vis governments and their own citizens. Secondly, it is argued that in a conflict situation the appropriate law is humanitarian law, not human rights law. These arguments have found no international support and have been consistently rejected: See the ICJ’s Wall opinion; UN Committee on the Rights of the Child, Concluding Observations, Israel (March 2010) – CRC/OPAC/ISR/ CO/1 – Paragraph 4; and UN Human Rights Committee, Concluding Observations, Israel (July 2010). 25 CRC – Articles 3(1) and 37(b). 26 ICCPR – Article 14. 27 ICCPR – Article 2; and CRC – Article 2. 28 CAT – Articles 2 and 16; CRC – Article 37(a). 29 Military Order 1651 – Section 86: “Concerning the laws of evidence, the military court will act in accordance with the obligatory ruled in criminal matters in courts within the State of Israel.” The relevant Israeli domestic criminal legislation is: Evidence Ordinance [New Version], 1971; Criminal Procedure Ordinance (Testimony), 1927 Sections 1-3. Military Order 1651 – Section 88: “The military court is authorized to order, in any matters of trial procedure not determined under this order, trial procedures that appear to it most appropriate for ensuring a just trial.” This section is frequently used to import criminal procedure elements from Israeli civilian legislation, including: Criminal Procedure Law [Consolidated Version] 1982; Criminal Procedure Law (Powers of Enforcement – Arrest) 1996; and Criminal Procedure Law (Interrogation of Suspects) 2002. 30 Fourth Geneva Convention – Article 65: “The penal provisions enacted by the Occupying Power shall not come into force before they have been published and brought to the knowledge of the inhabitants in their own language.” 31 Military Order 1651 – Article G. As to criticisms, see: UN Committee against Torture, Concluding Observations (20), CAT/C/ISR/CO/4 – Paragraph 28. As to criticism for attempting to incorporate principles of juvenile justice into military courts see: UN Committee on the Rights of the Child, Concluding Observations (2010), CRC/C/OPAC/ISR/ CO/1 – Paragraph 33. 32 Military Order 1651 – Section 139. Adults and children can be tried together with the consent of the chief military prosecutor.

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33 Military Order 1651 – Section 148. Following conviction, a military juvenile judge can order an officer of the Social Welfare Affairs staff at the Civil Administration to prepare a social welfare report, also known as a pre-sentencing report. It is relevant to note that the Civil Administration is part of larger entity known as the Coordinator of Government Activities in the Territories (COGAT), which is a unit of the Israeli Defence Ministry, whose function is to assist in the administration of the occupation. 34 Military Order 1651 – Sections 143 and 149. 35 Military Order 1651 – Section 137. 36 Military Order 1651 – Section 138(A) and (B). 37 Interview conducted with DCI-Palestine lawyer, Iyad Misk, on 9 January 2012. See also: The Australian, “Stone Cold Justice” (26 November 2011) – Available at: http://www.dci-palestine.org/documents/australian-stone-cold-justice 38 B’Tselem, No Minor Matter: Violation of the Rights of Palestinian Minors Arrested by Israel on Suspicion of Stone Throwing (July 2011), pages 25 and 65. 39 No Legal Frontiers, All Guilty! Observations in the Military Juvenile Court (April 2010 – March 2011), page 7. Available at: http://nolegalfrontiers.org/en/reports/77-report-juvenile-court 40 Military Order 1676 amends, and is incorporated into, Military Order 1651. 41 Article 1 of the CRC provides that: “a child means every human being below the age of eighteen unless under the law applicable to the child, majority is attained earlier.” See also the Israeli civilian law: Youth (Trial, Punishment and Modes of Treatment) Law (1971) – Section 1. 42 The amendment is stated only to apply to Military Order 1651 - Article G – Adjudicating Juveniles – This article relates to the establishment and jurisdiction of the Military Juvenile Court. The amendment does not apply to Article J – the section dealing with sentencing. 43 Military Order 1651 – Section 136(a) - (as amended by Military Order 1676). 44 Military Order 1651 – Section 136(b) - (as amended by Military Order 1676). 45 Youth (Trial, Punishment and Modes of Treatment) Law (1971) – Section 9H. Under Israeli civilian law, a parent is allowed to be present at all times during police questioning of a child in circumstances where the child is not formally under arrest, but may not interfere with the interrogation process. An exception to this rule is permitted upon written authority from an authorised officer, and in cases in which the well-being of the child requires that the parent not be present. 46 Military Order 1651 – Section 136(c) - (as amended by Military Order 1676). 47 The minimum age of criminal responsibility in Israeli military courts is 12 years. However, children younger than 12 years are sometimes detained by the Israeli army and police and are generally released within 12 hours. 48 Military Order 1651 – Section 191. 49 Military Order 1651 – Section 136. 50 Military Order 1651 – Section 168(B). 51 Military Order 1676. 52 Military Order 1651 – Section 168(C). 53 Recent amendments relating to the age of majority are not specified to apply to Military Order 1651 – Article J – which is the article relating to sentencing. 54 Military Order 1651 – Section 212(2). 55 Military Order 1651 – Section 212(3).

| 135 56 Military Order 1651 – Section 215(D). 57 Military Order 1651 – Section 222(A) and (D). 58 Exact figures on the number of Palestinian children detained each year by Israeli authorities are not published by the Israel Prison Service (IPS). The estimate of 500-700 children is based on figures provided by the IPS of the number of children in prison facilities at the end of each month , and the best estimate of DCI-Palestine lawyers who appear weekly in the military courts and conduct regular prison visits. In January 2012, DCI-Palestine lowered its estimate from 700 children per year to reflect the reduction in the monthly detention figures issued by the IPS during the reporting period. 59 Youth Law – Section 9J. Confirmed by B’Tselem in February 2012. 60 B’Tselem, ‘No Minor Matter: Violation of the Rights of Palestinian Minors Arrested by Israel on Suspicion of Stone Throwing’ (July 2011), page 29. 61 Notification and reasons for arrest – Children should be given reasons, at the time of arrest, and parents or legal guardians, should be informed of the arrest within the shortest possible time thereafter, in a language understood by the child and the parents. See: ICCPR – Articles 9(1) and (2); and the Beijing Rules – Rule 10.1. 62 Haaretz, “Shin Bet turns to Arabic after inadvertently summoning 7-year-old Palestinian,” 25 July 2010. Available at: http://www.haaretz.com/print-edition/news/idf-mistakenly-summons-7-year-old-palestinian-boy-to-shin-betinterrogation-1.299266 63 Interview conducted by DCI-Palestine with lawyer Iyad Misk, on 29 February 2012. The Israeli NGO, Hamoked, also operates a service to locate detainees when families are unaware of their whereabouts. 64 The primary sources for this guarantee and safeguard are: ICCPR – Articles 9(1) and (2); and the Beijing Rules - Rule 10.1. 65 Military Order 1676. 66 United Nations Convention Against Torture – A Commentary, Nowak and McArthur, 2008 – Pages 62, 66, 542, 551, 557, 559 and 566 to 568. 67 International Criminal Tribunal for the Former Yugoslavia, Prosecutor v Brdjanin, Case No. IT-99-38-T, Trial Chamber, 1 September 2004 – Paragraphs 83 to 484. 68 The Guardian, ““Israeli doctors ‘failing to report torture of Palestinian detainees” - (3 November 2011) – Available at: http://www.guardian.co.uk/world/2011/nov/03/israeli-doctors-report-torture-palestinian 69 The primary sources for this norm are: The Beijing Rules – Rule 5.1 and commentary; and the UN Standard Minimum Rules for the Treatment of Prisoners (1955) – Rule 45(2). 70 At the time of publication, the places of detention most commonly used to interrogate Palestinian children from the West Bank are: Gush Etzion police station (West Bank settlement); Ari’el police station (West Bank settlement); Huwwara interrogation centre (West Bank military base); Salem interrogation centre (West Bank military base); Ofer prison (West Bank); Al Jalame interrogation centre (Israel); Petah Tikva interrogation centre (Israel); and Al Mascobiyya interrogation centre (Israel). 71 Authority for the proposition that lawyers and parents should be present during interrogations and proceedings should be audio-visually recorded can be found from the following sources: CRC – Article 40(2)(b)(ii) and (iv); UN Committee on the Rights of the Child, General Comment No. 10 – Paragraph 58; ICCPR – Article 14(3)(b); UN Human Rights Committee, General Comment No. 20 – Paragraph 11; UN Human Rights Committee, Concluding Observations, Israel (29 July 2010), ICCPR/C/ISR/CO/3 – Paragraph 22; CAT – Article 2; UN Committee against Torture, General Comment No. 2 – Paragraph 14; and the UN Committee against Torture, Concluding Observations, Israel (14 May 20), CAT/C/ISR/CO/4 – Paragraphs 15, 16, 27 and 28. 72 In the Israeli civilian legal system, interrogations are audio-visually recorded in all cases other than security offences where the maximum penalty is 10 years or more – Criminal Procedure (Suspects Interrogation) Law (2002) – Sections 4 and 17. There is no requirement to audio-visually record interrogations in security offences.

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73 Military Order 1676 – Article 136(c). 74 Military Order 1651 – Article 56(A). 75 Military Order 1651 – Article 33(D) (1). 76 See Military Order 1651 – Article 58(C) – The “Supervisor of Interrogation” may prevent a detainee meeting with a lawyer for a period of up to 15 days. Under Military Order 1651 – Section 58(D) – the “Permitting Authority” may extend the initial 15 day period by another 15 days, and the period may be further extended by 30 days by a judge and another 30 days by the “President of the Court” up to a total period of 90 days (Section 59). 77 Military Order 1676 – Section 136 a and b. 78 In a judgment of the President of the Military Court of Appeals, Colonel Aharon Mishnayot, the President suggested that the “spirit” of the Israeli civilian Youth Law applies to children in the military courts, including all its additional protections. This decision is interesting in that it appears to be uniformly ignored by all the judges of the military court on a daily basis: Mil. Ct. App. (Judea and Samaria) 2912/: “Although the provisions of Amendment No. 14 to the Youth Law do not apply in the Region, it is impossible to ignore their spirit or the principles underlying the protection of a minor’s rights, even if he is suspected of committing offenses, and dominant weight must be given to the supreme principal of the best interest of the minor, as stated in the proposed law. Ultimately, a minor is a minor is a minor, whether he lives in a place where Israeli law applies in its entirety, or in another place, where, although Israeli law does not apply in its entirety, it is subject to the significant influence of the Israeli legal system [...] Amendment No. 14 includes, as aforesaid, also restrictions on the interrogation of minors. These are restrictions that should be implemented, in principle, in every properly administered court, even where there is no explicit legislative requirement. I am referring primarily to the prohibition on interrogation late at night and the right of the minor to have a parent or other relative present during the interrogation, who can take action to realize the minor’s rights.” 79 DCI-Palestine, Voices from the Occupation, Yahia A. – Available at: http://www.dci-palestine.org/documents/voices-occupation-yahia-detention 80 PHR-Israel, Coerced False Confessions: The Case of Palestinian Children (July 2011) – Available at: http://www.phr. org.il/default.asp?PageID=116&ItemID=1323; The New York Times, Why do innocent people confess? David K. Shipler, 23 February 2012 – Available at: http://www.nytimes.com/2012/02/26/opinion/sunday/why-do-innocentpeople-confess.html?_r=1 81 The Guardian, The Palestinian children – alone and bewildered – in Israel’s Al Jalame jail, 22 January 2012 – Available at: http://www.guardian.co.uk/world/2012/jan/22/palestinian-children-detained-jail-israel 82 Al Jalame – 100 professionals speak out against the use of solitary confinement on children, 30 January 2012 – Available at: http://www.dci-palestine.org/sites/default/files/ejcf_letter-jan_30.pdf 83 Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, 5 August 2011, A/66/268. Available at: http://www.dci-palestine.org/sites/ default/files/sr_report_aug_2011_solitary_confinement.pdf 84 See also DCI-Palestine, Urgent Appeal (UA 1/12) – Solitary Confinement, 5 January 2012. Available at: http://www. dci-palestine.org/sites/default/files/ua_1-12_-_solitary_confinement.pdf ; and B’Tselem and Hamoked, Kept in Darkness: Treatment of Palestinian Detainees in the Petah Tikva Interrogation Facility of the Israel Security Agency (October 2010). Available at: http://www.btselem.org/publications/summaries/201010_kept_in_the_dark 85 Pursuant to Article 147 of the Fourth Geneva Convention, wilfully depriving a protected person of the rights of a fair and regular trial is a grave breach of the Convention and attracts personal criminal responsibility. Further, under Article 146, all parties to the Convention have a positive legal obligation to search out and prosecute those responsible for grave breaches. 86 Military Order 1685 will reduce the period of time within which a person, including a child, has to be brought before a military court judge following arrest from eight days down to four days. In contrast, Israeli children, including those living in the settlements, must be brought before a judge within 12 hours, for children under 14 years, and 24 hours, for children 14 years and above. This order is scheduled to come into effect on 1 August 2012. 87 This figure is based on cases in which DCI-Palestine provided legal assistance. The Israeli military authorities do not keep accurate data on the number of children released on bail: B’Tselem, No Minor Matter (July 2011) – Page 48. According to a sample of cases collected by one Israeli organisation, children are denied bail in 93 percent of cases: No Legal Frontiers, All Guilty! (2011) – Page 22.

| 137 88 B’Tselem, No Minor Matter (July 2011) – Page 54. 89 ACRI, Case Briefing Document: “Minor A’ from Nabi Saleh (2012) – Available at: http://www.acri.org.il/en/wp-content/uploads/2012/02/Minors.pdf 90 Haaretz (29 November 2011) – Available at: http://www.haaretz.com/print-edition/news/nearly-100-of-all-military-court-cases-in-west-bank-end-in-conviction-haaretz-learns-1.398369 91 Military Order 1651 – Articles 1 and 191. 92 Military Order 1651 – Articles 1, 136 and 168. 93 On 27 September 2011, General Avi Mizrahi, the Israeli military commander in the occupied West Bank, issued Military Order 1676 partially raising the age of majority in the military courts from 16 to 18 years. This amendment does not apply to the provisions relating to sentencing. 94 Military Order 1676 – Article 136b(c) – A child must be notified that he has the right to consult with a lawyer, but this right can be suspended for up to 90 days in “security” related offences - See Military Order 1651 – Article 58(C). 95 Military Order 1685 will reduce the time period during which a person has to be brought before a military court judge from eight to four days. The order will come into effect on 1 August 2012. 96 Military Order 1651 – Articles 58(C) and (D), 59(B) and (C). 97 Military Order 1651 – Articles 32(A), 37 and 38. 98 Military Order 1651 – Article 44(A). The two year period can be extended by a judge of the Military Court of Appeals. 99 Fourth Geneva Convention – Articles 42 and 78; and ICCPR – Article 4. 100 CRC – Article 37(b); and ICCPR – Article 9. 101 Military Order 1651 – Sections 273(A) and 285(A) (as amended by Military Order 1591). 102 Fourth Geneva Convention – Article 78. 103 UN Committee against Torture, Concluding Observations (Israel), 14 May 2009, paragraph 17 – CAT/C/ISR/CO/4. 104 UN Human Rights Committee, Concluding Observations (Israel), 29 July 2010, paragraph 7 – CCPR/C/ISR/CO/3. 105 Criminal Procedure (enforcement powers – Arrests) (conditions of detention) Regulations – 1997. 106 Education for Palestinian children up to grade 10 (16 years) is compulsory and the curriculum consists of 13 subjects: Religious education; Arabic; English; Maths, Science; Technology/computer; National education; Civic education; History; Geography: Health and environment or home economy; Art; and Physical education. Palestinian children who remain in school beyond grade 10 are divided into a scientific or art stream. Each stream consists of nine subjects which are studied for a further two years and culminate in the Tawjehe exam. 107 Mohammad Frehat and ors v Israeli Prison Service (1997) 400/97. 108 Megiddo prison. 109 Ofer, Salem, Al Jalame, Huwwara, Ma’ale Adumim, Etzion, Kiryat Arba, Al Mascobiyya, Pitah Tikva and Ari’el. 110 Note there are currently no Palestinian child female detainees in Israeli detention. 111 Criminal Procedure (Enforcement Powers – Arrests) Law (1996) – Section 9; Criminal Procedure (enforcement powers – Arrests) (conditions of detention) Regulations – 1997; and IPS Order No. 04.44.00 – Section 1. 112 Youth (Trial, Punishment and Modes of Treatment) (the Conditions of Minor›s detention in group home) Regulations 1976 – Section 9.

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113 On 13 July 2009, lawyers for DCI-Palestine collected an affidavit from a 13-year-old boy, N.M., who reported that on 2 June 2009 he was beaten by soldiers at Huwwara checkpoint causing his head to bleed. He was later taken to Huwwara Interrogation and Detention Centre and examined by a doctor: “A doctor came and asked me some questions. He filled out a questionnaire concerning my health. The doctor saw the marks on my body, especially the wound to my forehead which was bleeding at the time. I asked for his help but he refused to help me.” 114 Criminal Procedure (enforcement powers – Arrests) (conditions of detention) Regulations – 1997 – Regulation 16. On 9 September 2008, lawyers for DCI-Palestine collected an affidavit from a 14-year-old boy, F.D., who reports that he was beaten during his arrest and transfer. On arrival at Ofer prison, he was taken to the clinic: ‘I told the doctor that the soldier who had arrested me had beaten me on my hand. The doctor said “I had nothing to do with that.”’ The doctor then proceeded to fill out a questionnaire form. On 13 July 2009, lawyers for DCI-Palestine collected an affidavit from a 15-year-old boy, I.S., who reports that on 1 March 2009, he and other child detainees, were beaten by prison guards in Telmond Prison (Israel), during a prison disturbance. After he was beaten, I.S. recalls that his hands were then tied behind his back: ‘When he finished tying me, I wanted to go and sit with the others when a security officer approached me holding a big stick. He hit me hard on my head and I fell to the ground. I immediately stood up and wanted to rush and sit with the other three when the security guard put his leg in my way. I tripped and fell on the ground on my face. I severely wounded my forehead and started bleeding. While still bound they took me to the clinic because of the extreme pain in my head and dizziness. I felt I was about to faint. In the clinic I was not provided with anything but iodine ointment.’ 115 Fourth Geneva Convention – Article 76: “Protected person accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein.” 116 The East Jerusalem YMCA has a website at: http://www.ej-ymca.org/index.php?option=com_ content&view=article&id=68:east-jerusalem-ymca-rehabilitation-program&catid=31:general&Itemid=90 117 Psychoactive - http://www.psychoactive.org.il/?lat=en 118 PHR-Israel - http://www.phr.org.il/default.asp?PageID=116&ItemID=1323 119 Breaking the Silence - http://www.breakingthesilence.org.il/ 120 B’Tselem: Over 311,000 settlers are living in the West Bank and over 186,000 living in East Jerusalem. As to legality, see article 49 of the Fourth Geneva Convention and the ICJ advisory opinion on the legality of the Wall. 121 In practice, Israeli settler children are unlikely to be prosecuted at all for offences committed against Palestinians in the West Bank. See Yesh Din, Criminal Accountability for Israeli Civilians – Available at: http://www.yesh-din.org/ cat.asp?catid=3 122 Penal Law (1977) – Section 34F. 123 Military Order 1651 – Articles 1 and 191. 124 Youth (Trial, Punishment and Modes of Treatment) Law (1971) – Section 1. 125 Military Order 1651 – Articles 1, 136 and 168. 126 Youth (Trial, Punishment and Modes of Treatment) Law (1971) – Section 1. 127 On 27 September 2011, General Avi Mizrahi, the Israeli military commander in the occupied West Bank, issued Military Order 1676 raising the age of majority in the military courts from 16 to 18 years. 128 Youth (Trial, Punishment and Modes of Treatment) Law (1971) – Section 9H. A parent is allowed to be present at all times in circumstances where the child has not been formally arrested, but may not intervene in the interrogation process. An exception to this rule is permitted upon written authorisation of an authorised officer, and in cases in which the well-being of the child requires the parent not to be present. 129 Military Order 1676 – Article 136b(c) – A child must be notified that he has the right to consult with a lawyer, but this right can be suspended for up to 90 days in “security” related offences - See Military Order 1651 – Article 58(C). 130 In all cases other than security offences where the maximum penalty is 10 years or more – Criminal Procedure (Suspects Interrogation) Law (2002) – Sections 4 and 17. There is no requirement for the audio-visual recording of interrogations in security offences.

| 139 131 Amendment 14 to the Youth (Trial, Punishment and Modes of Treatment) Law (2008). Children aged between 12 and 13 must be brought before a judge within 12 hours, and children 14 years and over must be brought before a judge within 24 hours. 132 Military Order 1685 reduces the time period during which a person has to be brought before a military court judge from eight to four days. This provision comes into effect on 1 August 2012. 133 Criminal Procedures (Powers of Enforcement-Arrests) Law (1996) – Section 34. 134 Military Order 1651 – Articles 58(C) and (D), 59(B) and (C). 135 Youth (Trial, Punishment and Modes of Treatment) Law (1971) – Section 10K; and the Criminal Procedure (Enforcement Powers-Arrests) Law (1996) – Section 59. 136 Military Order 1651 – Articles 32(A), 37 and 38. 137 Youth (Trial, Punishment and Modes of Treatment) Law (1971) – Section 10L; and the Criminal Procedure (Enforcement Powers-Arrests) Law (1996) – Section 61 – 9 months for adults, with possible indefinite extensions. 138 Military Order 1651 – Article 44(A). The two year period can be extended by a judge of the Military Court of Appeals. 139 The Israel National Council for the Child, Annual Report (2009). This figure relates to 2008. 140 The Israel National Council for the Child, Annual Report (2009). This figure relates to 2008. 141 The Guardian (22 January 2012) – Available at: http://www.guardian.co.uk/world/2012/jan/22/palestinian-children-detained-jail-israel 142 B’Tselem and HaMoked, Absolute Prohibition: The Torture and Ill-Treatment of Palestinian Detainees, May 2007 Page 79. See also the joint report by Hamoked and B’Tselem, Supplemental Information for the Consideration of Israel submitted to the UN Committee Against Torture, April 20 - Pages 3 to 4. See also Haaretz, ‘Israel’s Justice Ministry to probe claims of Shin Bet torture and abuse’ (18 November 2010) - http://www.haaretz.com/print-edition/ news/israel-s-justice-ministry-to-probe-claims-of-shin-bet-torture-and-abuse-1.325282 143 Yesh Din, Alleged Investigation: The Failure of Investigations into Offenses Committed by IDF Soldiers Against Palestinians (August 2011). 144 Haaretz, ‘IDF commander involved in shooting bound Palestinian evades jail,’ (27 January 2011) – available at: http://www.haaretz.com/news/diplomacy-defense/idf-commander-involved-in-shooting-bound-palestinianevades-jail-term-1.339516 145 B’Tselem, No Minor Matter (July 2011) – Pages 39-42. 146 Yesh Din, Alleged Investigation: The Failure of Investigations into Offenses Committed by IDF Soldiers Against Palestinians (August 2011), page 101. See also Haaretz, ‘Officer who defended beating Palestinians to take over infantry’ (16 August 2011). Available at: http://www.haaretz.com/print-edition/news/officer-who-defended-beating-palestinians-to-take-over-infantry-1.378802 147 These recommendations have been endorsed by the UN Committee Against Torture, Concluding Observations, Israel, May 2009, CAT/C/ISR/CO/4 – paragraphs 16 and 27; and the UN Human Rights Committee, Concluding Observations, July 2010, CCPR/C/ISR/CO/3 – paragraph 22. On 15 June 2011, ACRI, Yesh Din and DCI-Palestine wrote to the Israeli Chief Military Advocate General with similar demands. At the time of publication no substantive response has been received. The letter is available on-line at: http://www.dci-palestine.org/documents/acri-dcipalestine-and-yesh-din-demand-equality-palestinian-children 148 Ibid. 149 Ibid. 150 UN Convention against Torture – Article 15.

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151 These figures are compiled by DCI-Palestine each month from sources including the Israeli Prison Service (IPS) and Israeli army temporary detention facilities. 152 Ibid. 153 Ibid. 154 Ibid. 155 These statistics are based on cases in which DCI-Palestine provided legal assistance. 156 Ibid. 157 Ibid. 158 In five of these cases, the prosecution and defence lawyer could not reach an agreement as to sentence, which was then determined by the judge. 159 These statistics are based on cases in which DCI-Palestine provided legal assistance. In most cases, children in the military courts are charged with a number of offences. DCI-Palestine’s statistics relating to charges are calculated by including only the most serious charge, in each individual case. So for example, if a child is charged with throwing stones and Molotov cocktails, the Molotov cocktail charge will be included in the statistics, not the charge of throwing stones. 160 These statistics are based on cases in which DCI-Palestine provided legal assistance. 161 172 cases were concluded by way of sentence. In 24 cases the child was released on bail and in 10 cases the child received an administrative detention order – therefore the total number of cases closed by DCI-Palesttine in 2008 was 206. 162 Ibid. 163 Ibid. 164 This list includes the top six charges only. 165 This figure only represents the charge of attempting to kill, not conspiracy. 166 Available at: http://ap.ohchr.org/documents/dpage_e.aspx?c=140 167 Available at: http://www2.ohchr.org/english/bodies/cat/cats42.htm 168 Available at: http://www2.ohchr.org/english/bodies/crc/docs/CRC-C-OPAC-ISR-CO-1.pdf 169 Available at: http://www.ohchr.org/EN/Issues/Judiciary/Pages/Annual.aspx 170 Available at: http://www2.ohchr.org/english/bodies/hrc/hrcs99.htm 171 Available at: http://ap.ohchr.org/documents/dpage_e.aspx?c=140 172 Available at: http://ap.ohchr.org/documents/dpage_e.aspx?m=103 173 DCI-Palestine - Available at: http://www.dci-palestine.org/sites/default/files/unsropt.pdf 174 PCATI – Available at: http://www.stoptorture.org.il/en/node/1136 175 PCATI - Available at: http://www.stoptorture.org.il/files/Fmily%20Matters%20full%20report%20eng.pdf 176 DCI-Palestine - Available at: http://www.dci-pal.org/english/publ/display.cfm?DocId=1166&CategoryId=8 177 PCATI - Available at: http://www.stoptorture.org.il/files/eng_report.pdf 178 Available at: http://www2.ohchr.org/english/bodies/hrc/hrcs99.htm

| 141 179 B’Tselem - Available at: http://www.btselem.org/Download/2010_Without_Trial_Eng.pdf 180 PCATI - Available at: http://www.stoptorture.org.il/files/Accountability_Denied_Eng.pdf 181 Yesh Din - Available at: http://www.yesh-din.org/userfiles/file/datasheets/Investigations%20and%20Indictments%20DataSheet%20200020%20ENG.pdf 182 DCI-Palestine - Available at: http://www.dci-pal.org/english/doc/related/OMCT_open_letter_to_Israeli_gvt_re_sexual_abuse_of_children.pdf 183 DCI-Palestine - Available at: http://www.dci-pal.org/English/doc/Press/ADP.pdf 184 B’Tselem - Available at: http://www.btselem.org/Download/201010_Kept_in_the_Dark_Eng.pdf 185 US State Department - http://www.state.gov/j/drl/rls/hrrpt/2010/nea/154463.htm 186 DCI-Palestine - Available at: http://www.dci-palestine.org/sites/default/files/un_sp_-_detention_-_west_bank_-_ july_2011.pdf 187 PHR-Israel – Available at: http://www.phr.org.il/default.asp?PageID=116&ItemID=1323 188 B’Tselem - Available at: http://www.btselem.org/sites/default/files/201107_no_minor_matter_eng.pdf 189 No Legal Frontiers - Available at: http://nolegalfrontiers.org/en 190 Yesh Din – Available at: http://www.yesh-din.org/infoitem.asp?infocatid=166 191 PCATI/PHR – Available at: http://www.stoptorture.org.il/files/Doctoring%20the%20Evidence%20Abandoning%20 the%20Victim_November2011_0.pdf 192 DCI - Available at: http://www.dci-palestine.org/sites/default/files/solitary_confinement_website_dec_2011.pdf 193 DCI-Palestine - Available at: http://www.dci-palestine.org/sites/default/files/un_sp_-_detention_-_west_bank_-_ jan_2012.pdf 194 ACRI – Available at: http://www.acri.org.il/en/wp-content/uploads/2012/02/Minors.pdf 195 The Independent (9 June 2009) – Available at: http://www.independent.co.uk/news/world/middle-east/boundblindfolded-and-beaten-ndash-by-israeli-troops-1700194.html 196 Time World (30 June 2009) – Available at: http://www.time.com/time/world/article/0,8599,1906664-1,00.html 197 BBC (6 August 2009) – Available at: http://news.bbc.co.uk/2/hi/middle_east/8186905.stm 198 Haaretz (28 May 2010) – Available at: http://www.haaretz.com/print-edition/news/over-100-palestinian-minorsreported-abuse-in-idf-police-custody-in-20-1.292679 199 Aljazeera (30 May 2010) – Available at: http://www.youtube.com/watch?v=gKuqGOiBQIE 200 Haaretz (1 July 2010) – Available at: http://www.haaretz.com/print-edition/news/idf-mistakenly-summons-7-yearold-palestinian-boy-to-shin-bet-interrogation-1.299266 201 Haaretz (1 July 2010) – Available at: http://www.haaretz.com/weekend/magazine/twilight-zone-a-night-in-hebron-1.299478 202 Haaretz (25 July 2010) – Available at: http://www.haaretz.com/print-edition/news/shin-bet-turns-to-arabic-afterinadvertently-summoning-7-year-old-palestinian-1.303848 203 Haaretz (8 August 2010) – Available at: http://www.haaretz.com/print-edition/features/amira-hass-eight-palestinian-youths-and-the-crime-they-didn-t-commit-1.306641 204 Haaretz (18 August 2010) – Available at: http://www.haaretz.com/print-edition/opinion/an-appalling-army-experience-1.308691

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205 Haaretz (18 August 2010) – Available at: http://www.haaretz.com/print-edition/news/palestinian-minors-held3-weeks-on-suspicion-of-arson-1.308657 206 Haaretz (20 August 2010) – Available at: http://www.haaretz.com/print-edition/news/un-receives-over-100-complaints-of-police-idf-abuse-of-west-bank-teenagers-this-year-1.3104 207 CNN (2010) – Available at: http://www.dci-palestine.org/content/videos 208 Politics.co.uk (10 December 2010) – Available at: http://www.politics.co.uk/comment-analysis/2010/12/10/comment-time-to-get-serious-with-israel 209 Haaretz (15 April 2011) – Available at: http://www.haaretz.com/weekend/magazine/another-country-1.356147 210 Haaretz (11 May 2011) – Available at: http://www.haaretz.com/print-edition/news/judge-remands-palestinianteen-despite-suspicions-that-soldiers-beat-him-1.3644 211 BBC (18 July 2011) – Available at: http://www.bbc.co.uk/news/world-middle-east-14189730 212 The Guardian (18 July 2011) – Available at: http://www.guardian.co.uk/world/2011/jul/18/israel-detained-835-palestinian-minors 213 The National (27 July 2011) – Available at: http://www.thenational.ae/news/world/middle-east/palestinian-children-endure-systematic-abuse-from-israels-military-courts-say-reports 214 Haaretz (16 August 2011) – Available at: http://www.haaretz.com/print-edition/news/officer-who-defended-beating-palestinians-to-take-over-infantry-1.378802 215 The Independent (26 August 2011) – Available at: http://www.independent.co.uk/news/world/middle-east/howisrael-takes-its-revenge-on-boys-who-throw-stones-2344037.html 216 The Independent (16 September 2011) - http://www.independent.co.uk/news/world/middle-east/militarywhistleblower-tells-of-indiscriminate-israeli-attacks-2355436.html 217 The Guardian (28 September 2011) - http://www.guardian.co.uk/world/view-from-jerusalem-with-harriet-sherwood/2011/sep/28/palestinian-territories-israel 218 Haaretz (5 October 2011) – Available at: http://www.haaretz.com/print-edition/news/following-criticism-idf-raises-age-for-palestinians-to-be-tried-as-minors-to-18-1.388197 219 Haaretz (20 October 2011) – Available at: http://www.haaretz.com/news/diplomacy-defense/un-rights-expertpalestinian-children-subject-to-arrests-violence-by-israel-1.391147 220 The Guardian (3 November 2011) – Available at: http://www.guardian.co.uk/world/2011/nov/03/israeli-doctorsreport-torture-palestinian 221 The Australian (26 November 2011) – Available at: http://www.dci-palestine.org/documents/australian-stonecold-justice 222 Haaretz (29 November 2011) – Available at: http://www.haaretz.com/print-edition/news/nearly-100-of-all-military-court-cases-in-west-bank-end-in-conviction-haaretz-learns-1.398369 223 The Guardian (22 January 2012) – Available at: http://www.guardian.co.uk/world/2012/jan/22/palestinian-children-detained-jail-israel 224 The New York Times (18 February 2012) – Available at: http://www.nytimes.com/2012/02/19/world/middleeast/ palestinians-trial-shines-light-on-justice-system.html?_r=3&pagewanted=1&hp

works to end torture through monitoring, legal procedures and solidarity campaigns. Addameer is surrounded by a group of grassroots supporters and volunteers, Addama’er, who share

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End torture and other forms of cruel, inhumane or degrading treatment or punishment and abolish the death penalty.

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Ramallah, Raidein Sq., Sebat Bldg., 1st Floor, Suite 2 Tel: +972 (0) 2 296 0446 Fax: +972 (0) 2 296 0447 Postal Address: P.O. Box 17338 Jerusalem info@addameer.ps www.addameer.org

COURAGEOUS VOICES, FRAGILE FREEDOMS Israel’s Arrest and Detention of Palestinian Human Rights Defenders against the Annexation Wall

December 2013

COURAGEOUS VOICES, FRAGILE FREEDOMS

COURAGEOUS VOICES, FRAGILE FREEDOMS Israel’s Arrest and Detention of Palestinian Human Rights Defenders against the Annexation Wall

Addameer Prisoner Support and Human Rights Association December 2013 Addameer Prisoner Support and Human Rights Association © 2013 Rafidein Sq., Sebat Bldg., 1st Floor, Ramallah Telephone: + 972 (0)2 296 04 46 / +972 (0)2 297 01 36 Fax: 972 (0)2 296 04 47 Email: info@addameer.ps Website: www.addameer.org This report will examine Israel’s increasing use of arrest and detention of Palestinian human rights activists taking part in protests and other peaceful acts of resistance against the illegal Annexation Wall and settlements in the West Bank. Although the popular resistance that arose in response to the continuing construction of the Annexation Wall has been facing acts of repression and violence from Israeli forces since regular demonstrations and international advocacy initiatives gained momentum in 2005, this report will show that beginning in 2009 there was a shift in tactics by the Israeli forces that should be viewed in the context of increasing recognition of the legitimacy of the actions by the Palestinian human rights activists. Now in 2013, over ten years since the original construction of the Annexation Wall began, Addameer’s findings in this report suggest that it is precisely because of this international recognition of, and support for, the actions of the Palestinian activists that Israel has responded with the increasing use of military regulations, which allows it to continue its campaign of repression behind the veneer of legal authorization. This report is part of Addameer’s ongoing eﬀorts to support Palestinian human rights defenders, whose imprisonment is a deliberate violation of their fundamental freedoms and special protections provided under international law.

TABLE OF CONTENTS INTRODUCTION ................................................................................................................... 4 Legal Framework ...........................................................................................................6 Methodology .................................................................................................................8 CHAPTER 1: THE WALL AND ITS AFTERMATH—A HISTORY OF PEACEFUL RESISTANCE AND VIOLENT REPRESSION ....................................................................12 1.1: Methods of Peaceful Resistance ...........................................................................14 1.1.1 Popular Resistance: Forming a Peaceful Social Movement against the Wall 14 1.1.2 Challenging the Construction through Legal Means.....................................15 1.1.3 International Advocacy .................................................................................19 Conclusion .............................................................................................................22 1.2: A Damning Record in IOF Repression of Human Rights Defenders....................... 23 1.2.1 Violence ....................................................................................................... 23 1.2.2 Movement Restrictions ................................................................................24 1.2.3 Night Raids....................................................................................................24 1.2.4 Arrests of Human Rights Defenders..............................................................26 1.3: Presumed Guilty—an Introduction to the Military Court System..........................31 1.3.1 Inflated Charges against Palestinians and Unverified Evidence ....................31 1.3.2 Plea Bargains ................................................................................................34 1.3.3 The Diﬃcult of Obtaining an Acquittal—even when there is no evidence against a human rights activist ..............................................................................36 CHAPTER 2: A SHIFT IN STRATEGY—MILITARY ORDER 101 AND THE INCREASING ARREST AND DETENTIN OF HUMAN RIGHTS DEFENDERS AND CHILDREN ...............38 2.1: Military Order 101—a Tool of Apartheid ...............................................................39 2.1.1 Overview of Military Order 101 ....................................................................39 2.1.2 Treatment of Israeli and International Activists............................................42 2.2: Human Rights Defenders on Trial—Case Studies of the Use of Military Order 101 .....46 2.2.1 Bil’in ..............................................................................................................47 2.2.2 Nabi Saleh .....................................................................................................53 2.2.3 Other Villages Targeted ................................................................................56 2.3: The Arrests of Children and Youth .........................................................................57 CHAPTER 3: CONCLUSIONS AND RECOMMENDATIONS ...........................................66 3.1: Conclusions ............................................................................................................66 3.2: Recommendations .................................................................................................68

COURAGEOUS VOICES, FRAGILE FREEDOMS

INTRODUCTION This report will examine the increasing use of arrest and detention by the Israeli Occupying Forces (IOF) of Palestinian human rights activists taking part in protests and other peaceful acts of resistance against the illegal Annexation Wall(1) and settlements in the West Bank since 2009. Although the popular resistance that arose in response to the continuing construction of the Annexation Wall has been facing acts of repression and often violence from Israeli forces since regular demonstrations and international advocacy initiatives gained momentum in 2005, this report will show that in 2009 there was a shift in tactics by the IOF that should be viewed in the context of increasing recognition of the legitimacy of the actions by the Palestinian human rights activists. In 2009, demands by Palestinian civil society to end the regime of occupation through actions such as Boycott, Divestment and Sanctions (BDS) and to take part in regular demonstrations and other acts of civil disobedience against the Wall and settlements were gaining considerable ground both internationally and locally. These acts of resistance will be examined further in Section 1 of this report. Also since 2009, a number of Palestinian activists have been recognized as human rights defenders by the United Nations and the European Union(2). The EU Guidelines on Human Rights Defenders, adopted in 2004, were built on the 1999 UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, most commonly referred to as the UN Declaration on Human Rights Defenders. The Declaration defines human rights defenders as individuals who play an important role in furthering the cause of human rights through activities

such as the documentation of violations, providing support and assistance to victims seeking remedies, combating cultures of impunity and mainstreaming human rights culture and information on an international and domestic level. The EU Guidelines calls on EU member states to take appropriate action in relation to violations against human rights defenders, including those that occur in third party states. This includes raising individual cases of concern in political dialogues between the EU and third party states, and facilitating the use of UN Special Procedures aimed at holding to account those responsible for violations against human rights defenders. Addameer’s findings in this report suggest that it is precisely because of this international recognition of, and support for, the actions of the Palestinian activists that Israel has responded with the increasing use of military regulations, which allows it to continue its campaign of repression behind the veneer of legal authorization. Since 2009, this has resulted in the arrest of at least four prominent human rights defenders on charges related to incitement, organizing illegal demonstrations, and other more excessive and unjustifiable charges aimed at criminalizing the legitimate activities of these activists. All four of these human rights defenders—two from the village of Bil’in and two from Nabi Saleh—have been convicted and sentenced to a year or more in prison as punishment for their acts of peaceful resistance. Other protest organizers have also been arrested but have either been released without charge or trial, had the charges against them eventually dropped, or have been acquitted of all charges. All these cases will be discussed more fully in the ensuing chapters.

(1) The Annexation Wall refers to the Wall in the West Bank being constructed by Israel. Other terminologies used for this Wall include Separation Barrier or Apartheid Wall. For the purposes of this report, the term ‘Annexation Wall’ or simply ‘the Wall’ will be used throughout. (2) For example, Mohammed Othman by the UN Special Rapporteur on Independence of Judges and lawyers (http://unispal.un.org/UNISPAL.NSF/0/57D00BE6597450FF8525774D 0064F621) and Abdallah Abu Rahma by the EU High Representative of Foreign Aﬀairs and Security Policy (http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/ foraﬀ/116232.pdf).

COURAGEOUS VOICES, FRAGILE FREEDOMS

Legal Framework Israel frequently argues that human rights law does not apply to its actions in the occupied territory.(3) However, this position enjoys almost no support among non-Israeli jurists or among other states.(4) Rather, the consensus is that international human rights law (IHRL) is applicable in conjunction with international humanitarian law (IHL), the laws that are applied in a situation of armed conflict or occupation. Declarations, reports and resolutions by various UN bodies, including the Security Council and the General Assembly, have all aﬃrmed that fundamental human rights, as accepted in international law and laid down in international instruments, can be invoked to both support and give full credence to instruments applicable to conditions of armed conflict(5). Equally, the International Court of Justice (ICJ) has repeatedly stated that an Occupying Power remains responsible for fulfilling its obligations stemming from human rights conventions in occupied territory(6). Finally, (3) For example, this claim was raised in a letter dated 3 September 2009 from

Col. Liron Liebman, head of the Israeli army’s International Law Department, to the attorney general. Israel also expresses this opinion in every report it submits to any of the UN committees responsible for the implementation of human rights conventions. For example, see: Implementation of the International Covenant on Economic, Social and Cultural Rights: Second Periodic Reports Submitted by States Parties under Articles 16 and 17 of the Covenant, Addendum: Israel, Economic and Social Council E/1990/6/Add.32 16 October 2001, paragraph 5; and Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Second Periodic Report, Addendum: Israel, Human Rights Committee CCPR/C/ISR/2001/2, 4 December 2001, paragraph 8. (4) This position has been roundly rejected by the UN Committee on Economic, Social and Cultural Rights: Concluding Observations of the Committee on Economic, Social and Cultural Rights - Israel. 23/05/2003, Economic and Social Council, E/C.12/1/Add.90, 23.5.03., paragraph 15 th

(5) For instance, see UNGA, Oﬃcial Records, 25 Session, Respect for Human Rights in Armed Conflict: Report of the Secretary General, 18 September 1970, UN Doc A/8052, Annex 1: ‘General Norms Concerning Respect for Human Rights in their Applicability to Armed Conflicts’; UN Human Rights Committee, General Comment 31 [80] Nature of the General Obligations Imposed on States Parties to the Covenant , CCPR/C/21/Rev.1/Add.13 (26/5/2004) (6) In particular, paragraphs 106-112, Legal Consequences of the Construction of a Wall in

the International Committee of the Red Cross (ICRC) has confirmed that the two branches of law are complementary. In this schema, human rights law applies in all situations, though on occasion it is overruled by concrete provisions of humanitarian law in situations of active combat. Accordingly, in the absence of any concrete provision in humanitarian law permitting infringement of the rights granted to civilians in accordance with human rights law, the latter must be observed.(7) If one considers the application of these two bodies of law in the case of Palestinians who protest against the Wall, settlements, and more generally the regime of occupation, human rights law—in particular the International Covenant on Civil and Political Rights—takes center stage. Freedom of assembly is enshrined in Article 21 of the International Covenant on Civil and Political Rights, which also permits the balancing of this liberty against other interests. The article states: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.(8)

Freedom of expression and freedom of assembly are not among absolute rights and therefore may be restricted under certain the Occupied Territory, Advisory Opinion 2004, ICJ Reports (9 July 2004) (7) C. Droege, “Elective Aﬃnities? Human Rights and Humanitarian Law,” Interna-

tional Review of the Red Cross 90, 871 (2008), pp. 501-548. (8) International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by Israel. Convention on the Rights of the Child (CRC), U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, ratified by Israel. Article 15 of the CRC provides similar protection with respect to the right of children to assemble.

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circumstances. Due to the importance of these freedoms, however, it may only be restricted (i.e. not derogated from) and only in exceptional cases. The Commentary on the UN Declaration on Human Rights Defenders also recognizes that the right to protest lies in the recognition of the set of rights and freedoms related to assembly, association, expression and opinion. Like these other rights, it can be restricted in the interests of national security and public order; however the Commentary recognizes that these restrictive measures—such as bans on demonstrations and arrest of protesters amounting to arbitrary detention – are often excessive and fail to comply with human rights law. It also notes that human rights defenders who attempt to challenge ‘security legislation’ through exercising their right to protest have faced harassment, intimidation, violence, arrest and arbitrary detention, and some have been killed(9).

Methodology This report includes documentary and primary research on the use of arrests by the IOF against protesters, conducted by staﬀ and volunteers from Addameer primarily from 2009 to 2011. The research also considered the use of arrests by the IOF since the demonstrations began in 2003. Addameer developed one questionnaire on individuals’ experience of violence, detention and court proceedings, and another for protest organizers to document detention trends. In 2009 Addameer researchers met with and interviewed 48 Palestinian ex-detainees and human rights activists from 16 villages near the Annexation Wall, in five West Bank districts, including: Aboud (Ramallah), Al-Khader (9) UN Special Rapporteur on the Situation of Human Rights Defenders, ‘Commentary to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms’, July 2011 at 70-74.

(Bethlehem), Al-Mydia (Ramallah), Artass (Bethlehem), Azzun (Qalqilya), Al-Ma’sara (Bethlehem), Beit Suriq (Ramallah), Biddu (Ramallah), Bil’in (Ramallah), Budrus (Ramallah), Idhna (Hebron), Jayyus (Qalqilya), Ni’lin (Ramallah), Ras-a-Tiya (Qalqilya), Toura (Jenin). Researchers also gathered what information they could on the numbers and background of those arrested in these villages. While some villages, such as Jayyus, Ni’lin, Bil’in, Budrus, Nabi Saleh and Al-Ma’sara, have been documenting arrests and human rights violations against protestors on a regular basis by compiling statistics and lists of detainees, others have not; the information gathered in these villages was often either incomplete or anecdotal. Through all the testimonies gathered, however, Addameer was able to gain insight into the extent to which arrests and detention had been used against the villages in question since demonstrations began in said villages. In 2011 Addameer also visited the village of Nabi Saleh outside Ramallah and interviewed three residents there, in recognition of the growing number of arrests targeting the relatively fledgling popular resistance, which had been established in 2010. Addameer also interviewed, discussed with or obtained written contributions from other stakeholders, including two Palestinian detainee rehabilitation projects, seven lawyers (both private and legal aid), five Israeli activists, seven foreign activists and two journalists. The report benefited from the advice and input of Addameer’s own lawyers and legal and advocacy teams, as well as from the valuable contributions of its interpreters. An Addameer researcher attended four diﬀerent demonstrations in two villages, Bil’in and Al-Ma’sara, to gain a better insight into the issues of concern and of the protests, connect with activists on the ground and discuss the use of detention candidly with community members. Addameer staﬀ and volunteers also attended military

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court proceedings at Ofer military base to observe the court cases of a 14-year-old boy who was arrested in a night raid in Bil’in, a 14-year-old boy arrested in a night raid in Nabi Saleh and a 44-year-old protest organizer, also from Nabi Saleh. The families of these defendants were also interviewed to discuss these experiences. Finally, in terms of literature, Addameer reviewed electronic media and reports on the topic of arrests and protests against the Wall, researched and verified trends collected through the interviews and consulted internal and external reports on the legal status of the actions undertaken by the IOF and the courts against the Palestinian people. Addameer’s secondary research benefited from the information published online by human rights activists, namely from the Popular Committees, and from Palestine solidarity organizations like Stop the Wall Campaign, and from a previous piece of collaborative research on the subject of Wallrelated arrests, Repression Allowed, Resistance Denied, written by Addameer and Stop the Wall Campaign, and published in July 2009. As there is no centralized legal aid referral mechanism in the occupied Palestinian territory (oPt), there are likely to be many additional cases of arrest and detention due to Wall-related activities that have not been covered in this report. Further, local Palestinian human rights organizations lack a coherent strategy in defining “Wall-related” arrests, and it has not always been clear whether arrests occurred during a demonstration, or whether they targeted a participant in the demonstration or simply a resident of the village. Despite these constraints, the testimonies gathered from diﬀerent sources testify to the extensive use of arrests and detention of human rights activists and villagers living near the Wall, and reveal a means through which the IOF attempt to repress the peaceful resistance movement.

resistance movement has attempted in recent years to mobilize both a local and international response to Israel’s continuing curtailment of the basic human rights of the Palestinian population. Section 1.1 of the chapter will highlight how actions such as weekly demonstrations against the Wall and settlements, legal challenges against the Annexation Wall and international advocacy such as the Boycott, Divestment and Sanctions campaign provide concrete examples of how Palestinians have been using legitimate methods of resistance to protect their human rights. Section 1.2 of this chapter will also examine the response to these actions from the IOF: increasing violence, night raids, restrictions on movement and arrests. Section 1.3 will give a brief overview of the military court system and how it is used to great eﬀect to ensure that any Palestinian arrested has little hope of being aﬀorded a fair trial. Chapter 2 of this report aims to highlight how Israel has in recent years taken on a new strategy in order to silence entire villages whose residents are active in demonstrations against the Wall and settlements. Section 2.1 will show how Israel is increasingly using its military regulations, particularly Military Order 101, to indict Palestinian human rights defenders. The trials of key protest organizers from the villages of Bil’in and Nabi Saleh will be highlighted in Section 2.2 of this chapter to demonstrate that the entire Israeli regime, including its military courts, appears to be working towards a common goal—to keep these activists in prison on trumped-up charges and longer sentences. Section 2.3 will touch on the increasing arrest of children and youth from the villages as a means of exerting pressure on the entire village and in order to use the children as incriminators for the protest organizers.

Chapter 1 of this report will analyze how the Palestinian popular 10

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Chapter 3 will summarize the findings of the report and posit conclusions and recommendations to the EU, UN and the wider international community.

CHAPTER 1: THE WALL AND ITS AFTERMATH - A HISTORY OF PEACEFUL RESISTANCE AND VIOLENT REPRESSION Palestinians in the occupied West Bank are geographically controlled and contained through a complex system of permits, checkpoints, security, checks and surveillance which exist to serve the infrastructure of the illegal Wall and settlements. Furthermore, the villages and communities near the Wall, which are predominantly located in “Area C”, as defined by the Oslo Agreements, are effectively under Israeli control and administration and therefore affected most by these restrictions. Palestinians are also subjected to different threats and conditions by the IOF who can, and do, arbitrarily arrest and detain them. Ever since construction of the Wall began in 2002, Palestinians living in the affected villages, along with international and Israeli activists, have sought to challenge this clear affront to their basic rights and freedoms. Strategies of resistance have also been a clear response to the findings of the 2004 ICJ Advisory Opinion on the Legal Consequences of Construction of a Wall in the Occupied Palestinian Territory. The Opinion both highlighted the illegality of building the Wall on Palestinian land inside the Green Line and the human rights violations against the Palestinian population that this entailed, and recommended that construction cease and parts of the Wall already built inside the Green Line be dismantled(10). (10) Conclusions of the Opinion are contained in paragraphs 143-163, Legal Consequences of the Construction of a Wall in the Occupied Territory, Advisory Opinion 2004, ICJ Reports (9 July 2004).

Israel’s rejection of the findings, and the insufficient response from UN member states to fulfill their own obligations in ensuring these recommendations were implemented, formed the basis of a longterm resistance strategy which recognized that it was in the hands of the Palestinians to attempt to dismantle the Wall, through both civil resistance and legal challenges. Palestinians in Wall-affected villages have adopted three key strategies to oppose the construction of the Wall and Israeli land annexation: first, Popular Committees against the Wall(11) formed to mobilize an international solidarity movement through peaceful resistance and weekly demonstrations, often involving children and youths; second, they sought to challenge the path of the Wall by filing petitions to the Israeli High Court; and third, human rights activists increased international advocacy efforts by participating in international speaking tours, utilizing UN instruments and institutions to submit complaints and testimonies—for instance, through the UN special procedures and the UN Fact Finding Mission on the Gaza Conflict and the International Fact Finding Mission on Israeli Settlements – and advocating the Boycott, Sanctions and Divestment Movement as one of the possible ways to achieve accountability. These strategies all demonstrate an important phase in Palestinian resistance, aimed at realizing the right to self-determination through peaceful and legal means, which has had the effect of increased repressive measures taken by the Israeli forces to further curtail this and other rights, as will be discussed further in the report. The following section will present a brief overview of these strategies.

(11) Also known as the Popular Resistance, or Popular Struggle Committees. This report will use ‘popular committees’ and ‘popular resistance’ interchangeably.

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1.1: METHODS OF PEACEFUL RESISTANCE 1.1.1 Popular Resistance: Forming a Peaceful Social Movement against the Wall The first demonstrations and protests against the Wall were spontaneous and started in 2002 from the moment Israel began its construction works in the northern West Bank. Since then, and in the wake of the 2004 ICJ Advisory Opinion, local residents have formed Popular Committees in villages across the West Bank, including Bil’in, Ni’lin, Al-Ma’sara, Al-Walaja and Nabi Saleh, and have taken on a campaign of mass popular resistance, engaging in weekly, and even daily, demonstrations protesting against the Wall and the broader illegal regime of settlement expansion. Through such resistance, Palestinians are defending their human rights, including the rights to self-determination, protection against invasion of privacy in the home and family, the right to work and to an adequate standard of living, heath and education, as well as the rights to freedom of movement, association, assembly and expression. As a strategy, Popular Committees have continuously adhered to principles of peaceful resistance, their members repeatedly expressing these principles during demonstrations and also at court hearings(12). Although protests and demonstrations sometimes involve stonethrowing by Palestinian youths at the Wall and other targets, the majority of the violence stemming from the demonstrations comes from increasingly harmful tactics utilized by Israeli forces against unarmed, peaceful protestors, as will be discussed further in Section 2. Indeed, the UN Special Rapporteur on the situation of Human Rights Defenders has recognized in the commentary to the UN Declaration on Human Rights Defenders that although the State has an obligation to act accordingly to situations of violence that (12) Adeeb Abu Rahma from Bil’in and Bassem Tamimi from Nabi Saleh have both used their military court hearings as a platform to re-aﬃrm their support for non-violent resistance. In both cases, they were unable to read out their full statement in court but they are available in the Military Judge’s protocol.

arise from protests and other forms of assembly, “it is frequently the excessive and disproportionate use of force by the police or army during peaceful demonstrations that has provoked violent reactions from an otherwise peaceful assembly, these reactions are in turn answered by more violence from the police or army and again led to deaths and severe injuries”(13). 1.1.2 Challenging the Construction through Legal Means Since the beginning of the construction of the Annexation Wall, neither the Palestinian Authority nor other Palestinian institutions have been able to develop a clear, joint strategy to challenge the legality of the Wall and its associated regime in Israeli courts. However, since 2003 dozens of petitions were submitted to the Israeli High Court of Justice against the Wall(14). These petitions were submitted either by human rights organizations such as, most notably, the Association for Civil Rights in Israel (ACRI) and the Jerusalem Legal Aid and Human Rights Center (JLAC), or local village councils themselves. While the initial petitions were filed by Palestinian residents against various sections of the Wall, the petitioners, supported by human rights organizations, subsequently started to challenge the legality of the entire project(15). (13) UN Special Rapporteur on the Situation of Human Rights Defenders, ‘Commentary to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms’, July 2011 at 25. (14) In an article published in the Al-Majdal Magazine, Usama Halabi argues that

as of 22 February 2007, there were at least 64 petitions submitted to the Israeli High Court challenging the legality and/or the route of the Wall. Of the 64 petitions, 47 were dismissed, six were settled between the parties and eight were still pending. Only three were reviewed in favor of the petitioners. Usama Halabi, The Israeli High Court Approves the Legality of the Wall and its associated regime, Al Majdal Magazine, available at: http://www.badil.org/en/al-majdal/item/444-the-israeli-high-courtapproves-the-legality-of-the-wall-and-itsassociated-regime. (15) Nasrat Dakwar, The Separation Wall International Law, Position Paper, 17 June 2008,

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Of the total number of petitions, exceeding 64, only three petitions were ruled in favor of the petitioners. The first such case concerned Beit Surik, a West Bank village located 12 km northwest of Jerusalem, where the local village council submitted a petition to the Israeli High Court against the government of Israel and the Israeli military commander in the West Bank. On 30 June 2004, in a move apparently aimed at pre-empting the ICJ Advisory Opinion that was released on 9 July, the High Court held in its decision Beit Surik Village Council v. the Government of Israel that the specific route of the Wall causes excessive harm to its residents, violates the principle of proportionality and is therefore illegal according to both international and Israeli standards. It further instructed the government of Israel to propose an alternative route for the Wall. However, the ruling failed to determine the illegality of the Wall itself. Instead, the judges claimed that due to its temporary nature the Wall is legal even if built inside the Green Line and its construction can be justified by security considerations and the principle of “military necessity”. Subsequently, a new route around Beit Surik and the surrounding villages was proposed, which the Cabinet of Ministers approved in February 2005. However, most of the amended route continued to run through the West Bank as opposed to following the Green Line. In 2004, the Association for Civil Rights in Israel submitted a petition to the Israeli High Court of Justice on behalf of six residents from two of the so-called Alfei Menashe enclaves, located to the south of the West Bank city of Qalqilya. The petitioners relied upon the arguments included in the ICJ Ruling on the Wall and the Beit Surik Ruling claiming that the path of the Wall is both illegal and does not satisfy the proportionality principle, causing great harm to Palestinian residents of the enclave. In its ruling, dated 15 September available at: http://www.acri.org.il/eng/story.aspx?id=496.

2005, the Israeli High Court ordered the state to “reconsider, within a reasonable timeframe, alternatives to the route of the Barrier at Alfei Menashe”(16) that would not encircle the villages. However, the ruling failed again to determine the illegality of the Wall itself. The third ruling related to the case of Bil’in village in Ramallah district and a 1.7 km section of the Wall, built on the village’s land. In its ruling of 4 September 2007, the Israeli High Court of Justice decided that the Wall built around Bil’in had to not only be re-routed, but to have some of its sections dismantled. The judges remained skeptical of the security arguments in this specific case and found that the route of the Wall had been designed in order to allow for the expansion of the Mod’in Illit settlement. They further held that, “In light of the provisional nature of the fence as a security measure, it is improper to plan the route according to considerations related to invalid building plans or to plans that are not expected to be implemented in the near future”. Most importantly, the judges ordered the state to examine an alternative route, which would cause less harm to Bil’in residents and would not be designed according to future development plans of “additional neighborhoods(17)”. In June 2011, almost four years on from the High Court ruling, the route of the Wall was moved westwards by the Israeli army, returning to the village 745 dunams(18) of farmland that had been confiscated by the original route of the Wall but still isolating 1,300 dunams of village land on the other side of the Wall, within the borders of Mod’in Illit settlement. (16) B’Tselem, The Judgment on the Fence Surrounding Alfei Menashe – HCJ 7957/04, available at: http://www.btselem.org/english/Special/20050916_Ruling_on_Alfei_Menashe_Enclave.asp. (17) High Court Accepts Petition Against Separation Barrier Built on Bil’in Village Land, 6 September 2007, available at: http://www.btselem.org/english/Separation_Barrier/20070906_Bilin_Ruling.asp. (18) One dunam is equivalent to approximately 1,000 square meters.

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A judgment by the Israeli High Court following a petition by the local village council concerned the re-commencement of construction of the Wall around the village of Al-Walaja, which straddles the Green Line and is located both within Bethlehem Governorate and the boundaries of Jerusalem. In August 2011, the Israeli High Court rejected all arguments put forward by the village council, including its claims that the route of the Wall would cut villagers oﬀ from hundreds of dunams of farmland, a cemetery and a water source. The High Court cited security considerations as a major factor in its decision. The decision followed the installation of two gates along the route of the Wall by the Israeli army, through which the villagers would be allowed to pass to access their land, and claims by Israel that the Wall would be re-routed northwards such that villagers would have access to the nearby spring. By the end of 2010, before the Court’s deliberations had been completed, a patrol road and a nine-meter-high concrete wall had already been erected in parts of the village. Upon its completion, the residents of Al-Walaja will be completely surrounded by the Wall and only able to access surrounding areas through a series of tunnels. The villagers continue to protest the Wall’s construction, its confiscation of Palestinian land and the impact it will have on sustaining their crops, given the well-known restricted permit system that operates at the gates through the Wall. As with the continuing protests in other villages aﬀected by the Wall, these actions regularly lead to arrests, beatings and other violent responses by the Israeli forces(19). Another petition currently underway concerns the village of Nabi Saleh, 20 km from Ramallah, which is under threat from the expansion of the nearby settlement of Halamish. Since 2008, settlers have been trying to appropriate the Al-Qaws spring and (19) For example, see http://english.pnn.ps/index.php?option=com_content&task =view&id=10649&Itemid=60.

start renovating the area around it, causing damage to trees and other property of the Palestinian residents of the village. In February 2010 the Al-Qaws spring was oﬃcially declared an archaeological site by the Israeli authorities and Palestinians were denied access to it. On 28 July 2011, Israeli human rights organization Yesh Din filed a petition to the High Court of Justice on behalf of landowners and representatives from Nabi Saleh and another village aﬀected by the confiscation of the spring, Deir Nidham, demanding that the structures and the facilities built on the site be demolished. According to Yesh Din in September 2012, ‘the court issued an interim order forbidding the settlement of Halamish to perform any construction around the spring’(20), although since then construction has continued.

1.1.3 International Advocacy In recent years the main thrust of international advocacy undertaken by the popular resistance and village committees has been promoting the Boycott, Divestment and Sanctions (BDS) Campaign. This followed an international call made by Palestinian civil society groups on 9 July 2005, one year after the ICJ Advisory Opinion, to resist the occupation by boycotting and divesting from Israel. The call was endorsed by Palestinian political parties, trade unions and non-governmental organizations, many of which are represented in the popular committees in the areas aﬀected by the Wall. As with initiatives taken by the popular committees to challenge the construction of the Wall through civil action and legal means, advocates of the BDS call have been subjected to arrest and movement restrictions, particularly at border crossings when traveling abroad to mobilize the international community behind the campaign. (20) Yesh Din http://www.yesh-din.org/infoitem.asp?infocatid=212

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Between 2008 and 2009, BDS actions by Palestinian activists as well as solidarity groups in Europe were followed by a number of divestments from companies implicated in Israel’s settlement construction and annexation polices(21). This included the Norwegian Pension Fund’s divestment from the Israeli security and defense firm Elbit Systems in September 2009, and a series of decisions in 2008/9 by several councils and transport companies in Europe and Australia to exclude from their contracts Veolia, a large French multinational company involved in constructing the light railway system and bus routes connecting illegal Israeli settlements to Jerusalem and parts of Israel. At the same time, the village council of Bil’in had launched its own international legal proceedings against two Canadian companies, Green Park International and Green Mount International. The case was heard before the Supreme Court of Quebec on 22, 23 and 25 June 2009. These companies were involved in the construction, marketing and selling of residential units in the illegal Jewish-Israeli settlement of Mod’in Illit, on Bil’in’s land.(22) The claim, filed by Mark Arnold, Bil’in’s lawyer in Canada, sought to demonstrate that “in so doing, the defendants are aiding, abetting, assisting and conspiring with Israel, the Occupying Power in the West Bank, in carrying out an illegal act.”(23) The main justification given behind this complaint was the insuﬃcient legal redress provided to Palestinians who petition the Israeli courts regarding Israel’s land confiscation policies. On 18 September 2009, the Quebec Superior Court Judge dismissed the civil action suit, and in August 2010 the Quebec Court of Appeal (21) See http://electronicintifada.net/content/divestment-campaign-gains-momentum-europe/8151. (22) “Bil’in village vs. Green Park”, Al Haq, http://www.alhaq.org/etemplate. php?id=440. (23) Ibid. Further information on the case is available at http://www.alhaq.org/pdfs/ From%20Palestinian%20Olive%20Groves%20to%20Canadian%20Courtrooms. pdf.

also dismissed the case on the grounds that “the authorities of another country [Israel] are in a better position to judge the claim.”(24) This case is worth noting as it highlights the multi-level nature of Bil’in’s peaceful resistance and helps to understand why the Israeli authorities are so keen to stifle it. Furthermore, the Bil’in resistance movement has gained important international notoriety and is regularly praised for its peaceful actions. A visit by the Elders(25) to Bil’in in August 2009 gave testimony to this, as have numbers of diplomatic and journalist delegations that made the trip to meet the village and its Popular Committee members. The oppression Bil’in faces is therefore more visible because of its successful media campaign, though other villages that have thus far garnered less international attention have used their own original and peaceful tactics. In this same period, a number of Palestinian activists began to engage with the UN system as a venue for obtaining international accountability through cooperating with the UN Fact Finding Mission on the Gaza Conflict concerning Israel’s violent response to demonstrations against the occupation, at that time specifically related to the protests against the 2008/2009 Israeli assault on Gaza that were taking place throughout the West Bank. Mohammed Srour from the Popular Resistance in Bil’in testified before the Mission in Geneva. In its final report to the Human Rights Council, the UN Fact Finding Mission on the Gaza Conflict noted that the UN Declaration on Human Rights Defenders is relevant in relation to Palestinian demonstrators who protested Israel’s assault on the Gaza Strip at (24) For further information see http://www.alhaq.org/etemplate.php?id=539. (25) The Elders describe themselves as “an independent group of eminent global leaders, brought together by Nelson Mandela, who oﬀer their collective influence and experience to support peace building, help address major causes of human suﬀering and promote the shared interests of humanity.” More information is available on the Elders’ website http:// www.theelders.org/.

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weekly demonstrations, which usually take place in the villages most aﬀected by the Annexation Wall, such as Ni’lin, Bil’in, Al-Ma’sara and Jayyus. The Mission noted in paragraph 1421 that Article 5 of the Declaration, “aﬃrms the right of everyone ‘to meet or assemble peacefully’ for the purpose of promoting and protecting human rights and fundamental freedoms” is particularly relevant.

Conclusion Recent years have witnessed a change in strategy among Palestinians seeking to resist Israel’s illegal policies and practices. The continuing construction of the Annexation Wall—in defiance of the International Court of Justice Advisory Opinion and international law—has forced Palestinians to identify new avenues to challenge the new ‘facts on the ground’ being created by Israel. At the same time, a sea change in public opinion towards Israel, especially in light of its military assaults on Gaza, has led to a growing international movement of human rights actors and activists who support the actions of the Palestinian popular resistance. Its successes can be witnessed not only in the achievements of the BDS campaign, but also in the growing number of international activists participating in the weekly demonstrations, and in recognition of some of the popular resistance activists as human rights defenders by international bodies. However, Israel’s response has been to escalate its campaign of arrest and detention of human rights defenders, along with other repressive and violent measures. It is often the very same Palestinian activists who take part in these new resistance strategies who become targets of these actions, as will be seen in the following section.

1.2: AN EVIDENT RECORD IN IOF REPRESSION OF HUMAN RIGHTS DEFENDERS 1.2.1 Violence Palestinians and other activists who support them in peaceful actions against the Wall regularly experience violence, physical pressure, harassment, curfews, blockades and shooting, leading to deaths or serious injury. The use of tear gas, rubber coated bullets and live ammunition—including, since 2009, the use of .22 caliber Ruger rifles and snipers – has resulted in the serious injury and at times death of several demonstrators(26). This includes four demonstrators from the village of Ni’lin, among whom were a 10 year old boy who was killed by live fire during a demonstration on 29 July 2008, and ‘Aqal Sarur who in 2009 was shot and killed by a .22 caliber bullet. Even those watching from the sidelines have been victims, including Jawaher Abu Rahmah, who on New Year’s Eve 2010 was observing a 1,000 person strong demonstration against the Wall in her village of Bil’in when a rain of tear gas choked her, eventually leading to her death from cardiac arrest. Her brother Bassem Abu Rahmah had been killed by a tear gas canister shot directly at him on 17 April 2009. In Nabi Saleh, Mustafa Tamimi was also killed in December 2011 when hit by a tear gas canister in his face shot at close range. The firing of teargas and sound bombs by the IOF has become a regular feature in the weekly demonstrations throughout the villages, often leading to hospitalization, particularly when demonstrators are hit by tear gas canisters or burned by sound bombs. Witnesses from the villages have also reported new forms of weaponry being used by the Israeli forces, such as skunk water and detonating devices.(27) (26) For a report of the violence and other forms of repression experienced by activists since the protests against the Wall started, please refer to Addameer and Stop the Wall’s joint report Repression Allowed, Resistance Denied, July 2009, available online at http://

addameer.info/wp-content/images/repression-allowed-resistance-denied-july_09.pdf. (27) For more information on the diﬀerent and new violent methods used against the vil-

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1.2.2 Movement Restrictions Confiscation or denial of permits to access land on the other side of the Wall, harassment at checkpoints and even inside homes, are also commonplace. Villages such as Azzoun Atme, which find themselves cut oﬀ from other villages because of the Wall or checkpoints, are particularly vulnerable to Israel’s control mechanisms. Israel’s harsh repression of peaceful forms of resistance and their tight control explain why human rights activism may be lower in these areas. Villages in Qalqiliya and Bethlehem are also hugely aﬀected by the ongoing construction of the Wall, isolation or fragmentation of their land and restrictions on crossing the Wall and accessing their crops. Any resistance in these areas has also been met with further forms of collective punishment from the IOF, ranging from added road closures to a denial of permits to access agricultural lands, to further destruction and confiscation of land and water resources. Israeli forces also regularly enforce closed military zones around the villages, particularly on Fridays when the demonstrations take place. The villages of Bil’in, Ni’lin and Nabi Saleh have all been subjected to this measure on a weekly basis, clearly due to the high number of protesters who descend on these villages each Friday.

1.2.3 Night Raids Night raids are used to target entire families, and as such often take place at their homes, involving destruction and confiscation of property as well as harassment and arrest of family members. For instance, the house of Abdallah Abu Rahma, a coordinator for the Popular Committee in Bil’in, was raided by Israeli forces on 16 September 2009, but he was not at home so escaped capture. The IOF then surrounded his brother, Khaled Abu Rahma’s, home and lagers, see Stop the Wall Campaign, People vs. Oppression, July 2010.

raided his house. According to a report of the event: The invading forces said that until they find Abdallah, the entire neighborhood was theirs. They searched every room and trashed one room downstairs next to the store. They stole Palestinian flags, banners and posters used during demonstrations, and then left the house.(28) Night raids are now occurring on a weekly basis in Nabi Saleh, a village of only 550 residents that is threatened with confiscation and appropriation of land to be used for the expansion of the nearby Halamish settlement. Typically, Israeli forces enter the village in the middle of the night, and force their way into the residents’ houses to conduct ‘mapping exercises’, in what many believe is a campaign to continue identifying new targets for arrest. These raids, in practice, involve a disproportionate use of force and intimidation, and cause excessive harm to unarmed civilians. They are also not justified in their objectives. Those arrested during the night raids are in the majority of cases accused of minor oﬀenses, such as participating in protests or throwing stones at the Wall, with sparse and questionable evidence, as can be seen in the following sections. Article 33 of the Fourth Geneva Convention prohibits reprisals against protected persons and their property.(29) Such arrests and use of force against entire families and their property constitute forms of collective punishment and consist of disproportionate and unwarranted harm. (28) For further information about this incident visit: http://www.bilin-ffj.org/index. php?option=com_content&task=view&id=190&Itemid=1. (29) Article 33, Part III, Convention IV relative to the Protection of Civilian Persons in Time of War, Geneva, 12th August 1949: http://www.icrc.org/IHL.nsf/WebART/380600038?OpenDocument.

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1.2.4 Arrests of Human Rights Defenders Arbitrary, or targeted, detention and arrests are regular and consistent facets of all these measures against the activists, and are also used against others attending the demonstrations, such as local cameramen and photographers. Leading Palestinian human rights activists, prominent figures, such as mayors and teachers, and members of the Popular Committees, who are instrumental in coordinating weekly protests and advocacy efforts including legal cases, are often personally targeted and arrested in an attempt to sideline them from organizing the protests, or to discredit them and their efforts. Youths and children as young as twelve are often the first victims of mass arrest campaigns, either during demonstrations, immediately after them or during night raids. Addameer has collected reports related to incidents as far back as 2004 that demonstrate how from very early on in the popular resistance struggle, protest leaders were being targeted through arrests and detention. Box 1 Between June and August 2009, Addameer carried out research in 16 villages affected by the path of the Wall Israel is constructing illegally in six different West Bank districts. The aim of the research was to document cases of arrest and detention of Palestinian, international and Israeli human rights defenders and demonstrators protesting the construction of the Wall. In these villages, Addameer documented at least 292 confirmed cases of Palestinian human rights defenders who were detained and arrested between 2003 and August 2009, including many children as young as twelve. Since then, the number has continued to increase. In 2010, at least 233

2004: A Year of Rising Activism and Arrests In Budrus, one of the first villages to organize regular demonstrations against the Wall, four members of the popular committee, including Nasser Morar and his brother Ayed, were arrested during night raids in 2004, and said this was because of their involvement in the protest. During the trial, Nasser recalled: “I stood up in court and admitted that I was in the protests and that it was my ‘right to resist’. This seemed to make the judge angry.” While his brother Ayed was released after 10 days, Nasser was jailed for 5 months for allegedly being involved in “dangerous protests”, and being a “threat to the Israeli state”. Protest organizers in other villages were subjected to similar treatment. Abu Munder, a leading activist in the anti-Wall movement in Biddu, was detained in 2004. Oﬃcers from the Israeli Security Agency, or “Shabak” threatened that they would make the whole village turn against him if he continued his activities. They said they would make villagers believe he was responsible for the killings carried out by the IOF. Abu Munder was brought from the military base in Qalandia to Nabi Yakub settlement, where an intelligence oﬃcer told him “Palestinians are like sleeping lions, you are too close. Therefore you are not allowed to protest.” The Shabak interrogated him for a total of 12 hours. He was given some water but no food, and said he was not physically harmed but subjected to very abusive language and threats. Amongst these, the Shabak threatened that he would be imprisoned for a long time if he did not stop his activism. They then finally let him go at 10pm at night. He was “thrown out” at Qalandia checkpoint, where he called his family. Subsequently, during that same year, when the village’s protests were most active, the IOF kept summoning him for interviews with the Shabak. When he would show up, the Shabak would photograph and videotape him and make general threats before sending him away.

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arrests of activists were documented, 114 of whom were arrested in only the space of three months, from April to July. By the end of 2011, Addameer had documented at least 295 arrests for that year, approximately 58 of whom were under the age of 18, and at least 6 of whom were as young as 14. Among these are prominent protest leaders, including Bassem and Naji Tamimi from Nabi Saleh, who were arrested in March 2011; Majde Mahmoud Za’aqiq from Beit Ummar, who was arrested on 20 August 2011; and Ashraf Abu Rahma from Bil’in, who was arrested in October 2011. All these leaders have since been charged and sentenced (see further details in the following section). From 2009, a number of arrests reported to Addameer related to activists who had been returning from overseas advocacy trips, often leading to a travel ban following their release from detention. On 20 July 2009, Mohammed Srour, member of the popular committee in Ni’lin, was arrested while trying to cross into the West Bank from Jordan at the Allenby Border Crossing. He was returning to the oPt after giving testimony in Geneva to the UN Fact Finding Mission on Gaza—which later published their findings in the Goldstone report—on the shooting of two young Palestinian men during a demonstration in Ni’lin on 28 December 2008. Srour was fortunate to be released without charge after posting bail a few days following his arrest. In his testimony before the UN, Srour anticipated that his presence in Geneva would place him at risk of arrest, stating, “I know full well that I will pay the price for this testimony when I return at Israeli crossing points in my journey of return after this hearing.” Indeed, as Srour was not arrested when leaving the oPt on his way to Geneva, it is diﬃcult to view the motivation behind Srour’s arrest as anything other than a politically-motivated reprisal against Srour’s activism and the UN Fact Finding Mission. Arrest and detention of UN witnesses penalizes Palestinians for cooperation with UN institutions and severely undermines the UN’s capacity to

fulfill its mandate in the occupied Palestinian territory. Indeed, using arrest as a punitive measure against an activist’s advocacy missions overseas was once again highlighted that same year in 2008, when Mohammed Othman, youth coordinator of the Palestinian campaign group Stop the Wall, was arrested on 22 September at the Allenby Border Crossing. He was returning from an advocacy trip to Norway aimed at mobilizing further international support for BDS, and his trip followed the Norwegian Government’s announcement that its Pension Fund had divested from Elbit Systems, an Israeli company that supplies surveillance systems for the Annexation Wall. Othman was interrogated for 61 days, subjected to sleep deprivation and other forms of ill-treatment, before being placed in administrative detention on 23 November. The use of administrative detention has been well-documented by Addameer as a form of arbitrary detention commonly used against Palestinians when there is insuﬃcient evidence with which to charge them(30). Othman remained in prison without charge or trial until his release on 13 January 2010. Similarly, Jamal Juma’, Coordinator of Stop the Wall Campaign and founder of several Palestinian civil society organizations, was arrested on 16 December 2009. He was held at Moskobbiyeh detention center in Jerusalem for 27 days, although his interrogation only lasted 8 days. He was released without charge on the same day as his colleague Mohammed Othman. Whilst the arrest and detention of protest leaders and other prominent activists against the Wall and settlements is not a new response from the Israeli forces to the popular resistance movement, the year 2009 signaled a shift in this practice, as not only were an increasing number targeted but also increasingly charged and put (30) For further information, see Addameer Prisoner Support and Human Rights Association, Administrative Detention in the Occupied Palestinian Territory, A Legal Analysis Report, July 2010 and Administrative Detention in the Occupied Palestinian Territory, Between Law and Practice, December 2010; both available at www.addameer.org.

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on trial. This shift should be seen in the context of the increasing successes of international advocacy strategies harnessed by the popular resistance and other human rights activists, as highlighted above. The Bil’in Popular Committee itself noted a sharp rise in arrest of protest leaders and organizers following its petition at the Quebec Supreme Court, recording 41 arrests between 24 June 2009 and 7 May 2010, 14 of these were children under the age of 18(31). At the same time, the popular resistance against the Wall and settlements had gained widespread international attention and support, particularly in Bil’in and Ni’lin, where international activists, politicians and human rights advocates were taking part in the weekly protests(32). What is particularly worrying, however, is Israel’s apparent eﬀort from 2009 onwards to criminalize the advocacy eﬀorts of these protest leaders through the sweeping use of Military Order 101, which will be discussed in chapter two. As a result, protest organizers in Bil’in and Nabi Saleh, among others, are the latest victims of Israel’s abusive military court system, which is designed to criminalize all forms of basic freedoms— including freedom of expression and assembly—and falls far short of international fair trial standards.

1.3: PRESUMED GUILTY—AN INTRODUCTION TO THE MILITARY COURT SYSTEM 1.3.1 Inflated Charges against Palestinians and Unverified Evidence “In court, a lawyer would argue that the content of the charge is questionable, while the prosecution would argue that each demonstration ends up in violence (they try to deny the right to protest in the first place, and assure that there is incitement to violence). Sometimes, there is no specific description for the accusation, this can simply involve a ‘threat to security‘, ‘sharing in terrorist activities’, or ‘inciting violence.’” Sahar Francis, Human Rights lawyer and Addameer Director, on the nature of the charges against Palestinians arrested near the Wall Charges against Palestinians are very often inflated and arbitrary. In the Israeli military courts, if a defendant is accused, for instance, of throwing a stone at a tank, or firing a gun a kilometer away from a soldier, he will be charged with “trying to kill.” It is up to the defendant to demonstrate that his act could not have harmed the soldier and therefore did not amount to “attempted murder.”(33) In cases of Palestinians arrested near the Wall, charges are regularly exaggerated and sometimes even fabricated. At the trial stage, the military courts take the charges against Palestinians at face value, ignoring any legal requirement to demonstrate guilt or to define exactly how the charge is proportionate to the act committed. This makes it much more likely for Palestinians to be sentenced, even though the threshold of evidence is very low. Lawyer Limor Goldstein gave the following example to illustrate this:

(31) As cited in http://www.bilin-village.org/english/activities-and-support/Support-Bilin-amidst-the-ongoing-Israeli-arrest-and-intimidation-campaign. (32) As cited in http://news.bbc.co.uk/2/hi/middle_east/7440743.stm.

(33) Addameer Prisoner Support and Human Rights Association, Defending Pales-

tinian Prisoners: A report on the status of defense lawyers in Israeli courts, April 2009 at 26.

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The evidence used against people is never verified, for instance, all the [Palestinians] who touched the microphone [at a protest in the village of Al-Ma’sara] were charged with incitement to violence—there was no mention of what they had said [and how this was incitement.] This is a very typical example.(34) Charges rely heavily, sometimes exclusively, on testimonies from the soldiers. An example is the case of Mohammed Nofal from Jayyus, a 16-year-old boy who was detained as part of a mass arrest campaign targeting youths from the village, which took place on 18 February 2009. Mohammed was accused of throwing a Molotov cocktail at the Wall. Whilst he admitted to the IOF that he did throw stones, he was nevertheless convicted of throwing the Molotov cocktail. “In court, an oﬃcer called Jalal Maliki and three other soldiers were witnesses against me, saying that I had thrown a Molotov cocktail against them and the Wall. I had never seen them before. I was not allowed to negotiate or present my case to the Judge. The Judge said I was convicted to three months’ imprisonment and had to pay 1,000 shekels. My lawyer [...] advised me that if I tried to have a dialogue with the judge, this could double the amount of time that I would be held for. The only evidence against me was the soldiers’ words—no pictures or evidence that the Molotov cocktail had been made—and the Hebrew paper they had forced me to sign. One of my friends […] wanted to testify in my favor, but he was not allowed. In the beginning, the judge wanted me to be jailed for 6 months. But thanks to my lawyer’s defense, this was reduced to 3 months. He could have asked the Judge for a postponement on the ruling, but said this could involve a longer sentence. The interpreter that was used asked me to say I was sorry and to promise the Judge I would never do this again and (34) Addameer phone interview with Limor Goldstein, Lawyer who represented Mohammed Brijiah and his brother Hassan from Al Ma’sara, Tuesday 30 June 2009.

that I would behave. The lawyer agreed that I had to say that. The court told me that I would be watched for 3 years and could not participate in demonstration.” Mohammed Nofal, 16-year-old from Jayyus Many soldiers also take photos of Palestinians during demonstrations and these photos are subsequently used in court. But often these photos simply show that an individual was at a demonstration; in other cases, they picture the individual walking in their village. In the village of Tura al-Gharbiye, where seven youths were arrested during a 20 January 2009 dawn raid, Ossaid, who at 12 was the youngest arrested that night, was shown pictures of himself by the soldiers as “proof” of him throwing stones at the Wall: I think I was chosen by chance, but on the other hand, they had my name, and they had six photos of me. But the pictures just show me walking the street in the village. I am not sure who comes in and takes pictures of us. They are mobile pictures. Maybe people from villages elsewhere who come in their cars. Maybe from other friends’ phones.(35)

(35) Addameer interview with Ossaid Jihad Jaber Qabaha.

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1.3.2 Plea Bargains “One cannot understand the importance of plea bargains—they are overwhelmingly used in courts. It is a unique thing, and I see their terrible effects. Those few cases that can follow up will do so. […] But there are so many people confessing so most of the cases end in plea bargains. Some youngsters start by saying they have not been somewhere. But they start to break down. They are getting punished before they are even convicted.”(36) Roni Hammermann, a volunteer with MachsomWatch Palestinians arrested are very likely to be sentenced and charged with at least one of the offenses brought against them, even when the evidence is scarce. Some Palestinians who are arrested may be released, or put in administrative detention without trial, but of those who are indicted, 99.7 percent will be convicted.(37) In 2010, out of a total of 8,516 indictments in the military courts, only 82 cases exhausted all legal proceedings, whilst the remainder was concluded through plea bargains. Twenty-five of these 82 were acquitted of all charges(38). Given the admission of confessions extracted from Palestinians under coercion, it is very difficult for a lawyer to prove their innocence, which is one main reason why the majority of cases end this way. The frequent use of coercive methods and torture to obtain confessions from detainees is contrary to international law, not least because torture is outlawed, but also because international law stipulates that those accused of a crime have protection against self-incrimination.(39) By routinely (36) Addameer interview with Roni Hammermann, MachsomWatch. (37) Israeli Military court 2010 annual report (in Hebrew – facts and figures extracted in English by Addameer). (38) Ibid. (39) Everyone has the right to silence: ICCPR, Art.14(3)(g). Article 14(3)(g) of the

ICCPR recognizes the right protecting against self-incrimination. The Article provides that the accused is “not to be compelled to testify against himself or to confess guilt.” In international conflicts, «no one shall be compelled to testify against

using compulsion to obtain confessions, the Israeli authorities violate this principle, and Palestinians are coerced into admitting to charges and are then sentenced accordingly. The military courts fail to address these practices, granting the interrogators near immunity and ensuring that the use of torture and ill-treatment continues. Moreover, many lawyers advise clients to accept a plea bargain rather than try to prove their innocence, as they will invariably be found guilty and will then find their sentence doubled. Khaled Quzmar, head of Defence for Children International-Palestine (DCIPalestine) Sections’s Legal department, stated the reasons for this, in his experience: One child faced charges of throwing stones, a Molotov cocktail, and being a member of a banned organization. From the documents I had available, I believed that the child was innocent, but there was “strong” [in military court terms] evidence against the child. The prosecution wanted to sentence him to 19 months. Because of the system, I tried to convince him and his family to enter into a plea bargain, and advised them of the risks of trying to pursue the case. They did not want to enter into a plea bargain and went to another lawyer to try and challenge the decision. They heard witnesses and interrogators. The court decided he was guilty anyhow. So the lawyer asked for the previous sentence of 19 months. But because they had challenged the initial decision, the judge said they would have to pay the price for this. At first, they got 27 months, and then the prosecution appealed and asked for a longer sentence. This then went up to 45 months.(40) The prevalence of plea bargains illustrates how military courts himself or to confess guilt». Article 75(4)(f) of Additional Protocol I. «No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused». Article 99 of the Third Geneva Convention. In non-international conflicts, «no one shall be compelled to testify against himself or to confess guilt». Article 6(2)(f) of Additional Protocol II. (40) Interview with Khaled Quzmar, DCI lawyer.

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lack the most fundamental fair trial guarantees and standards for detainee protection. The risks of challenging a sentence are further exacerbated by the demonstrated relentlessness of the prosecution to pursue cases and challenge acquittals, bail releases, or “light” sentences, despite not possessing the necessary evidence. The Military Judge regularly grants the prosecution more time to prepare its case, trump up charges or force the detainee to confess—also leaving the door open to put them in administrative detention.

1.3.3 The Difficulty of Obtaining an Acquittal—even when there is no evidence against a human rights activist To strengthen their case or extend the detention of an activist against the Wall, the prosecution appears to use all means at its disposal. The military prosecution may, for instance, “warm up” old charges. This happened with Mohammed Brijiah, a member of the popular committee in the village of Al-Ma’sara, whom the IOF had arrested in May 2009 while he was giving a speech to fellow protesters. His lawyer, Limor Goldstein, stated that the prosecution did everything it could to extend his detention, from randomly reintroducing old charges to delaying his trial hearing. Even while two judges ruled that he should be released, the prosecution managed to significantly extend his time in detention. Indeed, while the first judge ordered that five detainees from the village should be released, the prosecution appealed and all were kept in prison until the appeal was heard: Four of them were meant to be released after the Judges’ hearing, and yet they were kept in prison until the charges were heard. They [the prosecution] would file for indictment, and then postpone the

hearing. At the court of appeal, the judge refused to hear the case as he said it should go to the court of first instance/indictment. They had to ask for a review, as they did not want Mohammed being released. The Judge then decided they had to make a new request as they had used the wrong appeal procedures. The prosecution opened an old case against him, trying to extend his detention for as long as possible. They also tried to make out that a police administration error was actually an oﬀense on his part: Another ludicrous charge the prosecution made against Mohammed was to charge him for using a false Identification Document. The prosecution said that he gave his cousin’s ID to the police, when in fact he gave his own (his name is written down) but the police oﬃcer inserted the wrong ID number (as they have the same last name). The charges were ludicrous as it was very clear it was a police mistake, but they used this as a basis for extending the arrest. At the second court of appeal, we managed to get him released but there is an ongoing court case. He will be acquitted eventually.(41) Mohammed Brijiah had been arrested and harassed before because of his engagement in the anti-Wall demonstrations. His prominent role as public speaker at the demonstrations, as well as his political status indicated his influence. He had been arrested twice before, and harassed at his home: Three times during the night, they came and attacked my house, took out my brothers and nieces during the night, and my children, including my 1-year-old daughter. They made my family stand outside for 3-4 hours. They damaged the furniture, told me to get dressed and that they would take me to prison. I was arrested (41) Phone conversation with Limor Goldstein.

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twice in total (first in November 2007 and then in December 2008). They brought me to a court and then released me. […] I stayed one week, but the arrest was because of the demonstration. They told me not to participate in the demonstration. […] The accusation was that I beat a soldier, but the video clearly shows that I did nothing like this.(42)

that are active in the popular resistance, as has been demonstrated in the previous section.

The charges against protesters, who are exercising their right to selfdetermination and right to freedom of expression and assembly, are not just inflated, but are sometimes fabricated and utilized to prevent an activist from participating in, and in these cases, from leading the demonstrations. The adaptability and creativity that the villages’ popular committees have shown, in appointing new actors to lead the protests, as well as in the parallel campaigns they are running, demonstrates that this policy’s objective has failed. That is not to deny, however, the unnecessary harm caused to those detained and their families.

A closer examination of Military Order 101 shows that it represents one crucial tool in Israel’s wider apartheid regime imposed on the Palestinian people. As already described, Palestinians in the West Bank are subjected to numerous military regulations that restrict their movement and prohibit them from using particular roads or accessing certain areas, including their own farmland. The Wall itself is widely believed to represent a symbol of apartheid, due to the impact its construction has in terms of increasing territorial fragmentation and creating Bantustan-type ghettoes, which completely cut Palestinian villages oﬀ from their livelihoods and their neighbors, as well as basic services such as education and healthcare. The repression and discrimination against one racial or ethnic group that is inherent in the act of apartheid can be witnessed also with the increasing use of military regulations, including Military Order 101, against the Palestinian people.

CHAPTER 2: A SHIFT IN STRATEGY—MILITARY ORDER 101 AND THE INCREASING ARREST AND DETENTION OF HUMAN RIGHTS DEFENDERS AND CHILDREN This section will examine primarily Israel’s policy of arrest and detention of Palestinian activists against the Wall and its use of Military Order 101 to criminalize their actions, a policy that in recent years has increasingly led to activists being put on trial and sentenced. However, it is important to highlight that this has been one tool of repression of activists; ever since the popular resistance movement against the Wall and settlements began, Palestinians have been subjected to a number of measures aimed at stemming the protests, restricting movement, and collectively punishing villages (42) Addameer interview with Mohammed Brijiah.

2.1: MILITARY ORDER 101—A TOOL OF APARTHEID 2.1.1 Overview of Military Order 101

Since the Israeli occupation of Palestinian territory in 1967, an estimated 800,000 Palestinians have been detained under Israeli military orders, which constitutes approximately 20 percent of the total Palestinian population in the oPt, and as much as 40 percent of the total male Palestinian population.(43) Today, more than 1,650 wide-ranging military orders govern the West Bank that, along with the military courts that enforce them, criminalize political activities (43) John Dugard, Human Rights Situation in Palestine and Other Occupied Arab Territories: Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian territories occupied since 1967, A/HRC/7/17, 21 January 2008.

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that form the very foundation of Palestinian civil society. Military Proclamation 2 of 1967 vests all legislative, executive and judicial authority for the West Bank to the military commander, who as such has full oversight of Military Order 1651, a consolidated version of a number of historical orders, essentially forming the penal code for security oﬀenses in the West Bank. The legality of demonstrations in the West Bank are regulated by the “Order Regarding Prohibition of Incitement and Hostile Propaganda Actions” (Order 101) from 1967. This order imposes extreme restrictions on the right of Palestinians to organize or attend demonstrations. The order prohibits any assembly, vigil, procession, or publication relating to “a political matter or one liable to be interpreted as political” yet does not define such content. This leaves an unjustifiably broad scope for interpretation that is clearly not compatible with freedom of expression. According to the order, any assembly, vigil or procession of ten or more persons requires a permit from the commander of the military forces in the area, if the gathering is intended for the purpose of “a political matter or one liable to be interpreted as political, or to discuss such a matter,” or “for a political goal or for a matter liable to be interpreted as political.” Crucially, these provisions apply to any gathering—both in the public realm and in the private realm, including in a person’s home. The military commander may in fact order the closure of any place where a public gathering is taking place(44). This clause renders the order simultaneously draconian and absurd. It eﬀectively conceptualizes all Palestinian gatherings as criminal; under this order a family may not express private views in their own home if they number ten people.

(44) B’Tselem, The Right to Demonstrate in the Occupied Territories, July 2010, at 8-9.

Worryingly, the order also permits the military commander to delegate his or her powers under the order to any member of the security forces. In this way any soldier serving in the oPt may be empowered to prohibit gatherings and publications and to close public places for such periods as he or she establishes. Granting such sweeping powers to juniors shows gross disrespect for the rights of Palestinians, and for the protection of their freedoms, particularly freedom of assembly and expression(45). Under the category of “Incitement,” the order prohibits any person from attempting “to influence public opinion in the Area in a manner liable to impair public well-being or the public order.” The order also prohibits the intention to do so, or to facilitate the execution of such an action. The order further prohibits any activity in public that shows identification with, or support for, “hostile organizations or unlawful associations”, as these are defined in military law. Typically, human rights defenders detained by Israel have been charged with incitement(46), throwing stones(47), and participating in demonstrations without a permit(48). The practical eﬀect of the military orders and charges brought before the military courts is intimidation of Palestinian residents in the oPt against the enjoyment of fundamental human rights, in particular to (45) Ibid. (46) Article 7(A) of Military Order 101 defines the oﬀense of incitement as “an

attempt, whether verbally or otherwise, to influence public opinion… in a way that may disturb the public peace or public order”. The maximum penalty for incitement is ten years. (47) Article A 212 (a) (1-3) Military Order 1651. The maximum sentence for this oﬀense is ten years if thrown at a person or property, and twenty years if thrown at a moving vehicle. (48) Article 3 of Military Order 101. Organization and involvement in gatherings of ten or more people – whether violent or not – is considered an oﬀense under military law, the maximum sentence for which is 10 years.

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freedom of expression and peaceful assembly. The constant threat engendered by the Israeli military justice system is reinforced by its sweeping regulations and restrictions, which are utilized by Israeli forces and continue even after human rights defenders are released from Israeli detention.

2.1.2 Treatment of Israeli and International Activists In theory, anyone arrested in the occupied Palestinian territory can be arrested and tried under Israeli military orders. Under the military orders, individuals can be held for the purposes of interrogation without charge for periods of up to 90 days on the authority of a military court judge.(49) However, Israeli and international activists who attend the demonstrations against the Wall, and who often participate in such actions, are rarely, if ever, charged under military orders. Although such activists are frequently arrested alongside their Palestinian counterparts, they receive fundamentally diﬀerent treatment almost immediately thereafter. Israeli and international activists tend to be arrested on similar grounds as Palestinian protestors, with charges that can range from “breaching an order against entering a closed military zone, (49) Prior to August 2012, according to Israeli military regulations, a person arrested in the Occupied Palestinian Territory could be held for up to 8 days before being brought before a judge, and a further 180 days (90 days by judicial order and another 90 days by request from the Chief Area Legal Advisor and order from the military appeals court judge) before being charged. As of August 2012, Military Order 1685, the 16th amendment to Military Order 1651, states that Palestinian detainees must be brought before a judge within four days of their arrest, which can be extended in certain circumstances, and that Palestinians can be held without charge for interrogation periods for a total of 90 days

to rioting, to obstructing a public worker or a police officer, or to carrying out an assault on a police officer”, or even “throwing stones.”(50) However, unlike Palestinians, it is common for Israeli and international protestors to be released within a few hours of their arrest; they may or may not face charges within the following weeks or months. They may have to pay a fine or money for bail, which can range from 1,000 to 10,000 shekels, provided that they agree not to return to the West Bank for a certain amount of time. This period of time can range from a few weeks to a few months, but rarely exceeds one month.(51) The travel ban period is often left at the discretion of the judge. Israeli citizens in particular will often only be given a warning, or on rare occasions, be charged in the Israeli civil courts with being in a military zone, an offense that is usually punishable by fine or suspended sentence for a first offense. In the rare cases where they are detained for longer periods, Israeli and international activists can be held in custody for only a maximum of 24 hours under Israeli domestic law before being brought before a judge.(52) Palestinians subject to military orders, by contrast, can be held for up to four days(53) before being brought before a judge; (50) Their arrest can often also be very arbitrary, and the reasons they are given for them are also contentious. From the testimonies we received from Palestinians, Israelis and internationals, the latter two – as well as members of the popular committees – are never involved in stone throwing, yet this charge is often meted out at them after their arrest. More recently, protesters have been able to disprove these charges by bringing video evidence to trials, if and when they take place. The targeting of those with photo or video cameras, as well as the press, who are then told they were arrested for being in a closed military zone, seems to be used as a means of preventing them from accessing the protests themselves, and therefore preventing them from acting as a witness. (51) The longest period Addameer is aware of is 6 months. (52) Addameer Prisoner Support and Human Rights Assocation, Defending Palestinian Prisoners: A report on the status of defense lawyers in Israeli courts, April 2008. (53) Between April and June 2002, during Israel’s mass arrest campaign in the oPt, this period of time was increased by the Israeli Miltary Order1500 to 18 days.

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during this period, they will likely not even be informed of the reason for their detention. Jonathan Pollak, an Israeli activist and spokesperson for the Popular Struggle Co-ordination Committee, describes the arrest procedures as follows: I have been arrested dozens of times—I’ve lost count now. As an Israeli, the consequences are much less severe than for a Palestinian. In theory, I could also be prosecuted under military law, but in practice, I am always brought under the Israeli criminal system, whereas Palestinians who are arrested are always tried under the military courts. After arrest, I have always been brought under a magistrate court in 24 hours—as per the legal requirements. Palestinians, on the other hand, can be held for eight days without trial and then will be brought in front of a judge.(54) The IOF also appear reluctant to press charges against nonPalestinians, given that the latter can access much higher standards of justice through the civil courts. The civil system upholds that the onus to prove guilt lies with the prosecution and not the defense, and they must respect fair trial procedures, at least in contrast to the military system.(55) This will invariably cost the IOF more resources (54) Addameer interview with Jonathan Pollak, June 14, 2009. Since the date of this interview, Jonathan Pollak was convicted in the Israeli civil courts of illegal assembly in connection with his participation in a mass bike ride against the siege on Gaza in January 2008. He was sentenced to three months imprisonment, beginning 31 January 2011. However he was released on 25 February. Since this interview the period of time that a Palestinian can be held before being brought before a judge has been reduced from eight days to four days. (55) A recent report by the human rights organization Adalah, entitled Prohibited Protest, documents and analyzes the manner in which the Israeli law enforcement agencies responded to protests, within Israel, against the military invasion of Gaza in December 2008 and January 2009. The report evidences how the courts colluded with the police, the State Prosecutor’s Oﬃce, the Shabak and other institutions to detain protesters and thus suppress demonstrations against the military operations, thus also violating demonstrators’ rights. The full report in Hebrew and an executive summary in English are available on

and time. According to Neta Golan, an Israeli activist living in the West Bank: In a civil court, where Israelis are tried, they have to prove guilt. They bring in witnesses, commanders, and police officers... I had a court case going on for 4 or 5 years! I was only convicted in November 2006. They really didn’t want to pursue the case, and they kept trying to offer me alternatives if I just admitted I was guilty. This is the only time that charges were pressed against me, and they really didn’t want to have to do it. It takes a lot of resources and time.(56) To date, there have been no reported cases of an Israeli or international activist against the Wall and settlements serving more than a week in prison,(57) or being placed in administrative detention. Addameer finds that Israeli authorities choose not to prosecute non-Palestinians in the military court system under an awareness that its procedures would not bear up to close international scrutiny. Too much attention to these courts’ military procedures would only reduce the IOF’s power to arrest and detain West Bank Palestinians, given the protections foreigners and Israelis possess because of their extra-territoriality and respective governments. Offenses under Military Order 101 can carry a maximum sentence of 10 years in prison. By way of comparison: the penalty for a prohibited Adalah’s website http://www.adalah.org/eng/. (56) Addameer interview with International Solidarity Movement (ISM) activist and advisor Neta Golan, 28 June 2009. In the case above, Neta Golan was eventually convicted of a minor offense relating to the disruption of public order, and was made to see a probation officer for a period. (57) Eran Nissim served six days at Abu Kabir detention facility. Kobi Snitz, an activist with Anarchists Against the Wall, was sentenced to 20 days in prison in September 2009 but this was after he tried to prevent a Palestinian home from being demolished by the Israeli army in 2004, and was not connected with the Wall.

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gathering in Israeli law is one year’s imprisonment, without a fine.(58) Although Palestinians have in the past been accused of offenses such as those listed under Military Order 101, for instance during the First Intifada, from the Oslo Accords until 2009/10 there were very few such cases(59). An attempt to renew the use of Military Order 101 at the beginning of 2009, with the indictment of Ahmad Hassan Khalil ‘Awad from Budrus, who at the time was in administrative detention and accused of organizing illegal demonstrations in his village, was dropped due to lack of sufficient evidence(60). However, this was not to be the only attempt in the coming months and years to use Military Order 101 to indict protest organizers, and later efforts by Israeli Occupying Forces would prove increasingly and worryingly successful.

2.2: HUMAN RIGHTS DEFENDERS ON TRIAL—CASE STUDIES OF THE USE OF MILITARY ORDER 101 The following provides examples of how the military court system has increasingly been used by the Israeli forces in their eﬀorts to dismantle the popular resistance and ensure its leaders remain out of action. At the same time, the arrest and detention of children from the villages active against the Wall and settlements has increased, and as shall be demonstrated below, this is also part and parcel of this strategy to target human rights defenders in those villages. Whilst children may not be sentenced to long terms of imprisonment, the use of abusive interrogation methods and coerced confessions is a key tactic in allowing the Israeli forces to pursue the protest organizers. Furthermore, the targeting of those taking part in protests does not end with arrest and trial, with examples given below demonstrating how suspended sentences, (58) See http://www.btselem.org/demonstrations/military_order_101 (59) B’tselem, The Right to Demonstrate in the Occupied Territories, July 2010, at 2 (60) Ibid.

restrictions on movement and inflated bail charges are also used to stem the activities of the popular resistance. It is clear from the examples given above that the Israeli forces have been attempting to prosecute Palestinian activists for years, on trumped-up charges ranging from throwing stones to incitement and organizing illegal demonstrations. However, as recent cases in Bil’in and Nabi Saleh show, the IOF is successful in its eﬀorts, as protest organizers are being systematically targeted and facing longer prison sentences, owed largely to a biased and politicized military court system which falls well below fair trial standards. The imprisonment of protest organizers has provoked wider international condemnation, with EU oﬃcials recognizing Abdallah Abu Rahma and Bassem Tamimi as human rights defenders and demanding their release(61). The villages of Bil’in and Nabi Saleh, where these human rights defenders are from respectively, provide concrete examples of this systematic policy, and thus will be highlighted below.

2.2.1 Bil’in The fact is that the Apartheid Wall and the settlements built on Palestinian land are illegal under international law, in the case of our village even the biased Israeli court declared the route illegal, yet Israel is prosecuting us as criminals because we struggle non-violently for our freedom, Abdullah Abu Rahma, (61) Statement by the Spokesperson for the High Representative of the Union for Foreign Aﬀairs and Security Policy on the conviction of human rights defender Abdallah Abu Rahma, 24 August 2010; available at: http://www.consilium.europa.eu/uedocs/cms_ data/docs/pressdata/EN/foraﬀ/116232.pdf; Statement by the Permanent Representative of Hungary on behalf of the European Union to the 17th Session of the United Nations Human Rights Council, 30 May to 17 June 2011, in which the EU expressed its concern over the ongoing detention of human rights defender Bassem Tamimi. Available at: http://

www.eeas.europa.eu/delegations/westbank/documents/news/20110614_hrc17eu_statementitem7_en.pdf.

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Coordinator of the Popular Committee against the Wall (62). As mentioned in Chapter 1 of this report, in addition to launching weekly demonstrations, involving Israeli and international as well as Palestinian activists, the popular resistance of Bil’in was also engaged in boycott campaigns and legal challenges against the construction of the Wall. There was a lull in the arrest of protesters between 2007 and June 2009. However, arrests started to increase again in June 2009, at the same time as a major court case, Bil’in vs. Green Park, was getting underway in Canada, as discussed in more detail in Section 1 of the previous Chapter. Twelve youths were arrested in a series of night raids from the 23 June to the 7 July, of which nine were under 18 years of age.(62) Following these arrests, at least three prominent human rights defenders from Bil’in—Adeeb Abu Rahma, Mohammed Khatib and Abdallah Abu Rahma—were arrested. Although this was not the first time for some of them to be detained, the charges brought against them signaled a shift in tactics, in which Israeli military regulations were pitted against the lawful and peaceful activities of the protest organizers, often leading to conviction and imprisonment.

(62) Names and details are available online at http://www.bilin-village.org/english/ activities-and-support/Support-Bilin-amidst-the-ongoing-Israeli-arrest-and-intimidation-campaign.

Adeeb Abu Rahma (courtesy of +972mag)

Adeeb Abu Rahma, a prominent member of the Bil’in Popular Committee, was the first Palestinian to be sentenced on charges of incitement in accordance with Military Order 101. He was arrested on 10 July 2009 and charged with incitement, activity against public order and being present in a closed military zone. Further arrests of protest organizers in the village shortly followed, and should be seen in the context of Bil’in’s activism and legal challenges against the Wall at the time. Not long after his return from testifying in a Canadian court following the petition made by Bil’in Village Council against the Canadian corporation Green Park International, Mohammed Khatib, co-coordinator of the Popular Struggle Co-ordination Committee, was arrested on the night of 3 August 2009, along with three youths and two American and Israeli

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activists. Like Adeeb Abu Rahma, Mohammed Khatib was charged with incitement and calling on the youth to throw stones. He was also charged with throwing stones, and the prosecution presented a photo to support this allegation. However, this charge was proved false and later dropped, when his lawyer demonstrated that on the day the photo was supposedly shot, Mohammed had been in Canada, testifying in Court for the case Bil’in Village Council vs. Green Park International. The charges against all three activists were based on the forced confessions of minors who had been arrested in the night raids conducted between 23 June and 7 July 2009. Whilst Adeeb was sentenced to one year in prison on 30 June 2010—a sentence that was subsequently extended following an appeal by the Prosecution—Mohammed Khatib was acquitted of all remaining charges in January 2011. Nevertheless, in August 2010, Khatib was prevented from traveling to Spain for some speaking engagements when he tried to cross the border at Allenby. He was told by Israeli authorities at the crossing that he was not able to travel further due to “security reasons”. Adeeb was finally released on 12 December 2010 after serving an 18-month sentence.

Abdallah Abu Rahma, courtesy of frontlinedefenders.org Abdallah Abu Rahma, Head of the Bil’in Popular Committee, was arrested from his home at 2:00 am on 10 December 2009 following weeks of harassment by the Israeli forces in which his home was raided and his family held in one room, and surveillance points and checkpoints were set up around the village. Abdallah was charged with incitement, throwing stones(63), possession of arms(64) and organizing and participating in demonstrations without a permit. (63) The military prosecution alleged that between the “second half of 2008” and his arrest, Abdallah threw stones in the direction of a person or property with the intention of harming persons or property. (64) Article 53(A)(2) of Military Order 378, which now appears in Article E, 230 (A)

in Military Order 1651. The definition of “arms” includes a firearm, ammunition, grenade, or any object that might cause death or disability and any piece or part of those mentioned. “Arms” therefore include objects such as metal pipes or the lens of a pair of binoculars that could potentially be attached to a rifle. The burden of proof is on the accused to prove that the instrument could not cause death or disability. Whether the accused had any intention of causing such death of injury is irrelevant. The maximum sentence for possession of arms is life imprisonment.

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Under the charge of incitement, Abdallah was accused of “attempting to influence public opinion” between 2005 and 2009 through his membership in the Bil’in Popular Committee, his instrumental role in organizing and leading Friday demonstrations against the Wall and his distribution of Palestinian flags (an act considered a security oﬀense under military law). The charge sheet also listed allegations that he “incit[ed] the public to harm security personnel”, by telling demonstrators not to “allow them [Israeli soldiers] to shoot at you” and by directing demonstrators to throw stones “in the direction of security personnel” and cut the wires forming part of the Wall installed by security forces. Under the arms possession charge, Israeli authorities accused Abdallah of collecting empty M16 cartridges and empty sound bomb canisters and teargas grenades, which had been used by Israeli soldiers to disperse demonstrators, and exhibiting them in a Bil’in museum. On 18 January 2010, the Military Prosecution amended the indictment to an additional charge of organizing and participating in a procession without a permit, but in relation to alleged activities in Ni’lin, not in his home village of Bil’in.

term of his sentence pending a decision on the military prosecution’s appeal. The Military Court of Appeals heard the prosecution’s appeal on 8 December 2010 and on 11 January ruled to increase Abdallah’s sentence to 16 months’ imprisonment, in addition to a six-month suspended sentence for three years and a 5,000 shekel fine. Abdallah was finally released on 14 March 2011. In 2011, the IOF made clear that it has not ended its targeting of protest leaders, with the arrest of Ashraf Abu Rahma on 21 October. He was charged with stone-throwing and participating in illegal demonstrations, and sentenced to six months imprisonment. Ashraf is the brother of Bassem Abu Rahma, who was killed by a tear gas canister shot directly at him during a peaceful protest in April 2009, and the sister of Jawaher Abu Rahma, who died from tear gas inhalation following a demonstration on 31 December 2010. Ashraf was released on 15 April 2012.

2.2.2 Nabi Saleh On 21 July 2010, Abdallah’s first trial reached conclusion. He was then convicted of two charges of conducting “activities against the public order” and “obstructing a soldier in the line of duty”, both related to his legitimate activity of organizing and participating in popular activities against the Wall. On 24 August 2010, Abdallah was convicted of incitement and organizing illegal demonstrations after an eight month long military trial, during which he was kept behind bars. He was acquitted of the stone-throwing charge and armspossession charge. On 11 October 2010, Abdallah was sentenced to 12 months imprisonment. He was expected to be released on 18 November; however, the military prosecution appealed against his release, demanding a harsher sentence. On 22 November, Israel’s Military Court of Appeal extended his detention period past the

The IOF’s policy of arrest and detention of key human rights activists is also currently being played out in the village of Nabi Saleh, whose popular resistance movement has only been active in regular demonstrations since January 2010. As of December 2011, at least 80 residents of Nabi Saleh had already been arrested by the IOF. Of those arrested, 30 were children under the age of 18, including 9 under the age of 16, and 6 were women. This includes the arrest of the 14-yearold boy, Islam Dar Ayyoub, and Nariman Tamimi, the wife of one of Nabi Saleh’s protest organizers, Bassem Tamimi. In addition to targeting leaders and making arrests during the weekly demonstrations, the IOF has also begun to take pictures of all the residents of the village during night raids of their homes, in what many believe is a campaign to continue identifying new targets for arrest.

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Bassem Tamimi, courtesy of Tamimi Press

Bassem Tamimi, Coordinator of the Nabi Saleh Popular Resistance, was arrested on 24 March 2011 at 12:00 pm from his home in Nabi Saleh. Bassem’s arrest came three weeks after the 6 March arrest of his cousin, Naji Tamimi, another leader of Nabi Saleh’s popular resistance. Naji has since been sentenced to one year imprisonment, a two year suspended sentence and a fine of 10,000 shekels ($2,914) after agreeing to a plea bargain that convicted him of incitement and support of a hostile organization, in reference to the Prosecution’s claim that he organized violent demonstrations and instructed youths to throw stones, amounting to a disturbance of the public order. The same night that Naji was arrested, soldiers had come searching for Bassem in his home and destroyed much of its contents when they did not find him there. Bassem has since been charged with incitement, organizing unauthorized marches, solicitation to throw stones, failure to report for questioning, and an excessive obstruction of justice charge for allegedly advising youth on how to act when under Israeli police interrogation. A military judge further ordered Bassem to be kept in remand until the end of legal proceedings, and a motion by his lawyer to have him released whilst the trial was ongoing was rejected by the Court on 11 October 2011. The indictments against Bassem and Naji are largely based on coerced confessions of two minors, aged 14 and 15. The two youths were arrested in the middle of the night at gunpoint, beaten by soldiers, and denied legal rights during interrogation. In the case of the 14-year-old(65), his statement, which incriminated Bassem and Naji, was presented to him written in Hebrew, forcing him to sign a piece

of paper he could not read nor understand. Bassem was released on bail on 24 April after over 13 months detention. On 20 May, he was acquitted of one central charge against him, incitement, but convicted of organizing and participating in illegal marches and soliciting stone-throwing. On 29 May, he was sentenced to 13 months imprisonment, which was already served. Upon receiving his sentence, Bassem reportedly said, “The military court, being an instrument of occupation, sent a clear message today that Palestinian political prisoners are better oﬀ confessing to what they have not done than go to trial. I was acquitted of the bulk of the indictment against me, but served more time than my friend who chose to plead guilty to all the charges in a plea-bargain. Had I confessed to what I was not convicted of, I could have returned to my family earlier.” Bassem also received a 17-month suspended sentence, designed to further repress any political activity. Bassem’s wife Nariman Tamimi, along with two of her cousins Manal and Maha, were arrested on 22 January 2010, not long after the demonstrations against the Wall began in Nabi Saleh, when Manal refused the orders of the Israeli forces to take her children back into their tear gas-filled house. Soldiers ripped oﬀ their headscarves and beat them, and Manal and Nariman were denied food, water or sleep for over 30 hours whilst they were held in detention. Manal and Nariman were held for 9 days before being released on bail. The charges against Manal and Nariman changed four times during their trial, but they were ultimately convicted of “obstructing a soldier from fulfilling his duties”. They were then sentenced to three and two months probation respectively with a three-year suspended sentence, prohibited from participating in demonstrations, and fined 5,000 shekels each. 2.2.3 Other Villages Targeted

(65) Islam Dar Ayyoub, whose case is highlighted in the following section.

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Although Bil’in and Nabi Saleh provide clear and recent examples of what appears to be a new policy by the IOF to detain protest organizers according to Military Order 101, most members of the popular resistance in other villages have had similar experiences of repression in terms of arrest, detention and movement restrictions, as well as regular use of non-lethal weaponry in weekly demonstrations. In January 2010, thirteen members of the Ni’lin Popular Resistance were arrested and charged with organizing and participating in unauthorized demonstrations, incitement and stone-throwing(66). Among them was 20-year-old Ibrahim Srour, who was imprisoned for nearly two years and whose release on 2 October 2011 was dependent on the payment of a 12,000 shekel ($3,250) fine. Others included Ibrahim Amireh, Hassan Mousa and Zaydoun Srour, who were each sentenced to almost a year in prison and a 9,000 shekel ($2,330) fine. In 2011 and the beginning of 2012, other villages continued to be targeted. Alongside Nabi Saleh, the village of Beit Ummar near Hebron witnessed some of the highest number of detentions of activists in 2011, with at least 55 recorded arrests during night raids or following demonstrations(67). This includes the arrest of protest organizer Majde Za’aqiq on 20 August following a peaceful march to the settlement of Karmi Tsur. Seven participants were arrested, some of them international and Israeli solidarity activists, but only Majde remained in detention. He was charged with stone-throwing and held for four months, in addition to a 5,500 shekel ($1,500) bail charge. Kufr Qaddum, a small Palestinian village near the illegal Israeli (66) B’tselem notes that the charges were vague and included a series of alternative options i.e. ‘Organized a procession, assembly or vigil without a permit or urged or incited or encouraged the holding thereof or in any matter took part therein (emphasis added by B’tselem); B’tselem, The Right to Demonstrate in the Occupied Territories, July 2010, at 9. (67) Addameer documentation of arrests of human rights activists, 2011.

settlement of Kdumim in the northern West Bank, on 12 July 2012 marked the second anniversary of the village’s first weekly demonstration protesting the settlement expansion and theft of their land by Israel. Violent incidents show an increasing crackdown on the village’s peaceful resistance activities by the IOF. On 5 April 2012, 20 protesters were arrested during a night raid on the village. Around 12 houses were targeted, and those arrested ranged in ages 16-38.(68) Two weeks prior, on 16 March, Israeli soldiers released an attack dog on Ahmad Shtawi, an unarmed Palestinian protester in the village. He was subsequently arrested, although he was bleeding and in need of medical attention. When a member of the village’s Popular Committee tried to convince the commanding oﬃcer to release the wounded man, he was thrown to the ground, peppersprayed and arrested.(69)

2.3: THE ARRESTS OF CHILDREN AND YOUTH “Israeli children will go to Europe and picnic for their summer holidays. Palestinian children will go to jail.” Said Yaqin Toura from Biddu Children aged 12 and above are amongst the main targets for the Israeli forces when it comes to arrests, and recently this trend has increased in villages that are active in demonstrations against the Wall and settlements. Military Order 1651 establishes the criminal age of responsibility for Palestinians as 12. Since the Second Intifada began in September 2000, at least 8,000 children have been arrested(70), and there are currently about 238 Palestinian children (68) As cited in http://popularstruggle.org/content/israeli-soldiers-pillage-homeand-arrest-20-pre-dawn-raid-kufer-qaddoum, accessed on 27 September 2012. (69) As cited in http://popularstruggle.org/content/arrest-protester-bitten-armydog-extended-military-court, accessed on 27 September 2012. (70) Defence for Children International, Palestine Section: Bound, Blindfolded and Convicted: Children held in military detention, May 2012; http://www.dci-palestine.org/sites/

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held in Israeli Prisons.(71) Children living in villages near the Wall, or in communities living near the settlements, are most vulnerable to this practice; they are easy targets for the Israeli Occupying Forces to exert pressure on the entire village and, in recent incidents, to force them to incriminate other children or protest leaders taking part in the weekly demonstrations. Although minors are not typically regarded by the international community as human rights defenders, in the oPt they often represent the highest numbers regularly participating in demonstrations. Children may be arrested for a variety of reasons, but the most common charge against them is of stone throwing(72), and the majority of arrests occur either near the Wall or near the settlements.(73) On 27 September 2011, the Israeli military commander of the West Bank issued Military Order 1676 to raise the age of majority of Palestinian children in the military court system from 16 to 18. Although this amendment brings the treatment of Palestinian child detainees on some equal footing with that of Israeli child detainees subject to the Israeli Youth Law, it still leaves room for continuing discrimination and denial of basic legal standards pertaining to the protection of juvenile detainees. Palestinian minors over the age of 16 can still be held in detention with adults, a provision that does not exist in Israeli criminal law. Furthermore, while Israeli children have the right to have a parent present during interrogation, and the interrogators must ensure there is an audio or a video recording of the interrogation, such safeguards are not provided to Palestinian child detainees. Although Military Order 1676 includes a requirement to immediately notify the child’s parents upon his or her arrest and interrogation, it also gives the interrogators default/files/report_0.pdf. (71) Addameer, June 2013; http://www.addameer.org/etemplate.php?id=618. (72) DCI, June 2009; http://www.dci-pal.org/english/publ/research/CPReport.pdf (73) Ibid.

many loopholes to avoid this requirement.(74) Furthermore, the amendment requires interrogators to inform minors of their right to an attorney, but states that they will only notify an attorney “whose particulars were provided by the minor.” Whilst the number of child detainees appeared to be falling in 2011 compared with previous years, disturbingly, the number of young children between the ages of 12 and 15 in detention appears to be increasing(75), with fifteen year olds reportedly making up the highest percentage of minors tried at Ofer military court(76). Troublingly, the number of child detainees was back on the rise in 2012. Evidence suggests that the purpose of their arrest and detention is threefold. First, targeting the youngest and most vulnerable is intended to exert pressure on their family and the entire community to put an end to all social mobilization. Second, Israeli Security Agency officers often arrest children for recruitment purposes. Addameer has collected testimonies suggesting that children from Wall-affected communities are routinely asked to (74) Article 136 (B) (a) of the amendment states: an officer can decide to bring a minor for interrogation without informing his/her relatives, if: he believes it would threaten the mental or physical wellbeing of the minor or any other person; doing so would affect the interrogation procedures – for instance if the parents/relatives are also suspected of the same act for which the minor has been arrested; the minor is suspected of a security offense and thus represents a threat to security. Article 136 (B) (b) states: If 8 hours has passed since the officer’s interrogation order without the presence of the parents/relatives at the interrogation, then the parents/relatives should be informed immediately, provided the minor has given the parents’/relatives’ details. Article 136 (B) (c) states: If the reasons for not informing the parents/relatives no longer exists, then they should be informed immediately unless in accordance with Articles 54 and 55 of 1651. (75) http://www.dci-palestine.org/sites/default/files/detention_bulletin_jul_2011.pdf. (76) No Legal Frontiers, All Guilty! Observations in the Military Juvenile Court 2010-11, July 2011.

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become informants and provide information on both prominent figures involved in advocacy efforts and other children participating in demonstrations. Lastly, arrest is also used as a strategy to deter children from participating in demonstrations and from throwing stones at the Wall or other targets. However, while stone-throwing is the most common charge used against them, children are regularly arrested indiscriminately and remanded in detention with little or no evidence, with the military court often relying only on soldiers’ testimonies to convict. The Israeli organization No Legal Frontiers found that between April 2010 and March 2011, of the 71 cases involving minors that it observed at Ofer military court, 100% of cases resulted in a conviction; most of the offenses related to throwing of stones or Molotov cocktails, despite the fact that in most cases it was found that nothing was actually thrown, or otherwise they did not hit a target or cause any damage(77). During the process of arrest and detention, children are subjected to harsh interrogation techniques and treatment, which at times has amounted to torture(78), and are routinely coerced into signing confessions and revealing names of participants at the protests as well as other minors from their village. Of concern for the purposes of this report is the arrest of minors who are subjected to lengthy interrogation, where they are denied basic legal safeguards afforded to juvenile detainees in both the Israeli Youth Law and UN Minimum Rules for the Administration of Juvenile Justice, leading to a forced confession, which at times has incriminated protest leaders in their village. In some cases, the confessions of minors form the key evidence against these protest leaders, as exemplified in the trials of Bassem and Naji Tamimi (77) No Legal Frontiers, All Guilty! Observations in the Military Juvenile Court 2010-11, July 2011. (78) For further details regarding torture and ill treatment of child detainees, refer to DCI Palestine Section, Palestinian Child Prisoners: The systematic and institutionalised ill treatment and torture of Palestinian children by Israeli authorities (December 2008).

from Nabi Saleh, whose indictments were based on the forced confessions of two minors from that village, Islam Dar Ayyoub and Mo’atasem Tamimi(79) —14 and 15 years old respectively at the time of arrest. Both were denied access to a family member during lengthy interrogations that took place after they had been arrested in the middle of the night and were tired and disorientated. After Naji Tamimi was sentenced (see previous section with case study on Nabi Saleh), the trial of Bassem Tamimi was rife with setbacks, mostly due to the Prosecution’s failure to bring forward adequate witnesses. When it is not relying on the forced confessions of minors, the Prosecution often brings forward local military commanders as witnesses, despite the fact that on most occasions they were not present at the scene of where the alleged oﬀense took place. Both Islam and Mo’atasem did eventually appear as witnesses in Bassem’s trial, on the 28 and 29 November respectively. Both boys claimed their statements were given under extreme pressure from their interrogators (see box on Islam Dar Ayyoub below), with Mo’atasem claiming he was beaten up and told to incriminate Bassem. During the next hearing on 14 December, the lead interrogator of Islam and Mo’atasem admitted that child rights are regularly infringed upon during interrogation. In a hearing on 8 January 2012, one of the interrogators claims his intimidation was meant as only a “joke”.(80) Furthermore, the Prosecution often fails to enforce subpoenas for witnesses who are minors, and given that the evidence called for relates to the minors’ forced confessions, it is no surprise that the minors themselves would be reluctant to appear in Court. The prosecution of Abdallah Abu Rahma, the Coordinator of the Popular Committee in Bil’in, relied heavily on evidence from minors (79) Mo’atasem was sentenced to six months in prison following his arrest. (80) MachsomWatch, record of court hearing at Ofer on 8 January 2012, available at: http://www.machsomwatch.org/en/ofer_sun_8112_morning, accessed on 27 September 2012.

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extracted during interrogation. The apparent refusal of one such minor, Khalil Yasin, to appear in Court to testify on more than one occasion during Abdallah’s trial lead to the Prosecutor stating during that trial that they would have to use force to bring him into custody(81). Khalil, 16 years old, was arrested on 26 June 2009 during a series of night raids by Israeli forces, which the Bil’in popular committee attributed to the public attention being given to the case against Green Park International being heard in the Canadian courts at the time. He was released and arrested again on 29 December. The statements that resulted from these arrests and interrogations incriminated protest leaders Adeeb Abu Rahma and Abdallah Abu Rahma. Khalil did testify in the case of Adeeb Abu Rahma, and was eventually brought to court for Abdallah’s trial, at which point he retracted his previous statements and claimed they had been given under pressure during his interrogation, when he was denied access to food or water and had been interrogated without the presence of a family member(82).

THE ARREST AND DETENTION OF ISLAM DAR AYYOUB

Islam Dar Ayyoub was arrested in the early hours of 23 January 2011, when the Israeli forces entered his house at 2 a.m., asking for him. He had already been arrested earlier that month and held for several hours at Halamish settlement before being released. The family’s house had also been targeted twice that month for ‘mapping’ by the Israeli forces: an operation in which soldiers enter the house in the middle of the night, wake up its inhabitants and take photographs and ID numbers of all the men and children living there. On this occasion, Islam had thought the army had come to arrest his older brother, Omar, but instead the Israeli army forced Islam onto the ground and applied plastic handcuﬀs, without giving an explanation for his arrest. When his family tried to stop the soldiers, they were all beaten. Islam was blindfolded and taken by military jeep to Halamish settlement. He was without shoes and thrown to the ground and left there for several hours, all the time not knowing where he was. At approximately 9.30am he was driven to the police station at Ma’ale Adumim settlement for interrogation, but was not informed of where he was being taken.

(81) MachsomWatch, record of court hearing at Ofer on 14 April 2010, available at: http://www.machsomwatch.org/en/ofer_wed_14410_morning, accessed on 23 November 2011. (82) MachsomWatch, record of court hearing at Ofer on 21 April 2010, available at: http://www.machsomwatch.org/en/taxonomy/term/363?page=7, accessed on 23 November 2011.

Whilst under interrogation at the police station Islam was threatened with electric shock treatment or attacks by dogs. Video footage of his interrogation shows Islam tired and being threatened and shouted at by three oﬃcers, leading him to break down in tears at one point. His lawyer appeared at the police station but the Head of Interrogation of Judea and Samaria gave the order not to give him access as, according to him, Islam was beginning to admit to accusations and incriminate others, and the lawyer’s presence may ‘compromise the interrogation’. During his interrogation Islam was not informed of his right to remain silent or of his right to seek legal counsel. It was only after approximately five hours of interrogation that he was allowed to see his lawyer who was waiting outside. By this time, he had already signed a statement in Hebrew on the understanding that if he did so his family would come and collect him and take him home. The statement, which he did not understand, incriminated Bassem and Naji Tamimi, two of the key protest

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organizers from Nabi Saleh. After signing the statement iron handcuﬀs were applied to him and he was taken by military car to Ofer detention center. After spending 3 days at Ofer, Islam was brought before a Military Judge. He was charged with stone-throwing. Islam then spent three months in detention at Rimonim before being released and placed under house arrest at his home in Nabi Saleh on a 5,000 shekel bail and a 5,000 shekel third party guarantee (equivalent to almost $3,000). For the first few months under house arrest, he was not allowed to go to school or leave the house, but any further restrictions such as reporting periodically to the police or being available for phone calls from them were successfully challenged by Islam’s lawyer. He was eventually permitted to attend school in September. In the trial-within-a-trial procedure, Islam’s lawyer challenged the admissibility of the evidence against Islam on the grounds of not being granted access to a lawyer or family member for 5 hours, during which time he was subjected to ill treatment. At Ofer Court on 16 May, expert opinions were submitted by former Special Rapporteur on Torture, Manfred Nowak related to the treatment of child detainees in accordance with the UN Convention on Torture, and by a child psychologist who detailed the eﬀect of detention on minors. However, these were rejected by the Military Judge in concurrence with objections made by the Prosecution on the grounds that experts must appear in court in person to testify. As a result, both experts agreed to testify before the end of Islam’s trial. On 4 July, the child psychologist’s expert opinion was heard by the court, during which time the military judge also asked the psychologist to comment on the video recording of Islam’s interrogation. Islam’s lawyer also appeared as a witness, having passed his legal duties in Court to another lawyer, and testified about the denial of access to his client for 5 hours and the condition he found Islam in when they finally met. On 9 January 2012, the military judge denied the motion to rule his confession inadmissible, commenting that though he agreed his rights were violated, he did not believe the infringement on Islam’s rights would endanger his right to a fair trial. Islam remained under house arrest for many months during his trial. He has also appeared in court as a witness in the trial of Bassem Tamimi. On 28 November 2011, he was on the witness stand for almost five hours, during which he recanted the statement he signed when he was interrogated, saying he was forced to give the confession under extreme pressure. On the same day, the Military Prosecutor also used the protocol from Islam’s own ongoing trial, despite not having shared this with the Defense beforehand. As of September 2012, Islam’s trial continues. However, recent trial proceedings show a lack of interest by the prosecution to continue with his case, further revealing that the primary objective was to use Islam and other minors to incriminate the protest leaders and an intent to disregard them now that Naji and Bassem’s trials have been resolved.

Whilst youths are amongst the staunchest and most proactive demonstrators, they may be perceived by the IOF as more coercible or easier to intimidate. Indeed this assumption has borne some fruit in the IOF’s pursuit of the protest organizers from the villages where youths are most commonly targeted. Children have had less experience dealing with interrogators and therefore may find it harder to discern whether threats made by ISA interrogators will be carried out, or to know their basic right to remain silent—a right which is provided for in the UN Minimum Rules for the Administration of Juvenile Justice. In the first 2 months [of the demonstrations against the Wall], they targeted the leaders, they would attack their homes and arrest them. Then they realized that the leaders were not afraid, that they knew their rights. So they went after children and others, who did not know their rights in the same way. They would ask them to become informants. The youths they arrest are mostly between the ages of 16 to 22, and are all male.(83) Abdullah Abu Rahma, Bil’in Popular Committee Furthermore, unlike the Israeli Youth Law that applies to child detainees in Israel, Palestinian children are not granted the right to have a parent in the room during their interrogation, nor to have the proceedings recorded on video camera(84). Given that there are villagers who are coerced into providing information on others, or who unknowingly confide in detainee collaborators, children are targeted to provide information on other (83) Addameer interview with Bil’in popular committee member Abdullah Abu Rahma, June 10, 2009. (84) The Israeli Youth Law 2008 reflects the provisions of the International Convention on the Rights of the Child and Israel’s own Basic Law, and is aimed at providing added safeguards to minors suspected of an oﬀense, taking into account their underdeveloped capacities and the overriding principle of protecting the welfare of the child.

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children as well as on leaders. Whether these children or adults are actually involved in prohibited activities (as defined by military order) or not, is a separate matter. Many may get onto a “wanted list” simply by having their name mentioned by another detainee. Whilst the mass arrest of children by Israeli forces could be considered a strategy of deterrence—to set an example and stop other children from engaging in stone-throwing or demonstrations—testimonies collected by Addameer suggest that the opposite is true. The arrest of children, and indeed their parents, confirms to them that there are few avenues for resistance to the Occupation, and little hope of justice once they are arrested. This serves to harden children and minors on their release, making them more determined to continue in their resistance.

CHAPTER 3: CONCLUSIONS AND RECOMMENDATIONS 3.1 CONCLUSIONS International law is clear and unequivocal on the importance of due process and fair trials. The International Court of Justice (ICJ) ruling found the Wall and ‘its associated regime’ to be illegal under international law, and the military court system is a key element sustaining this illegal regime. Military courts, which international law considers acceptable only as a ‘temporary’ judicial resort where absolutely necessary, has become a permanent facet of the Israeli occupation, and clearly serves the strategic interests of what is widely believed to be an apartheid regime. By law, Palestinians have a legitimate right to self-determination and the right to exercise their civil, political and cultural rights. The military courts consistently fail to challenge the military’s indiscriminate and punitive arrests of Palestinian protesters against the Wall. On the contrary, it provides

the occupying army with a façade of “legal” legitimacy, while denying Palestinians’ a fair and impartial trial, and expanding the types of charges that can be considered as criminal. International law requires military courts in occupied territories to operate in a “non-political” manner.(85) Yet they enforce the military orders that govern the West Bank, criminalizing political activities that form the very foundation of Palestinian civil society in clear violation of international law. In reaction to this, the Popular Committees, supported by activists and human rights groups, are finding innovative ways of proving their innocence in court, to the extent that, in some rare cases, Judges have ruled that their cases should have never been brought to trial at all.(86) Yet the ongoing trials of leading Palestinian human rights defenders, and their bail conditions, prevent or seriously reduce their ability to carry on with their human rights activities. Other activists, and notably children and youths in the villages near the Wall, are punished indiscriminately for their participation in the protests and at times forced to incriminate others during lengthy interrogation sessions that lack any legal safeguards. It is testament to the increasing recognition of the Popular Committees and their peaceful actions aimed at ending the construction of the Wall and the wider regime of occupation that Israel now appears to be responding with increasingly draconian measures, particularly the use of Military Order 101. Although this order was used against Palestinians during the First Intifada, a new policy aimed at imprisoning members of the Popular Committees appears to have emerged since 2009, a landmark year for the Palestinian popular (85) GCIV Art 66. (86) In the case of Ayed Morar, the judge ruled that he should not have been brought to court and that he had a right to protest.

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resistance against the Wall and settlements in terms of advocacy successes and increased international recognition. This recognition was cemented by the acknowledgement of both the EU and UN that some of those Palestinians arrested in accordance with Military Order 101 were human rights defenders and thus subject to added protection and safeguards. The protection of human rights defenders is not only a moral obligation, but has been recognized by the United Nations as a social, individual and collective right and responsibility. It has also been an important element of the European Union’s human rights external policy for many years, and it is essential that their rights be upheld and respected, and that Israel be condemned for its actions, and pressured to renounce its repression of human rights activists. Israel’s long and sustained breaches of international humanitarian and human rights law must not be allowed to build up further, and there must be action from the international community. They must be addressed as a matter of urgency, along with the severe consequences they have had for the Palestinian communities aﬀected.

3.2 RECOMMENDATIONS

criminalization of activities that go beyond the limited scope of permitted changes to the penal laws of the occupied territory provided for in Article 64 of said Convention.

To the United Nations: 2. In accordance with the UN Declaration on Human Rights Defenders, UN member states continuously monitor violations against human rights defenders, from abuses happening on the ground to arrest and trial. 3. The UN Special Rapporteur on Human Rights Defenders continuously monitor arrests and detention of Palestinian human rights defenders through field visits and submissions from human rights NGOs working in the field, and make recommendations to Israel in relation to its actions towards human rights defenders. 4. The UN Special Rapporteur on Human Rights Defenders follows up on previous visits made to Israel and the oPt and on comments and recommendations given with regards to violations against Palestinian human rights defenders

In light of the findings and conclusions of this report, Addameer would like to make the following recommendations.

5. The UN Treaty Bodies continue to monitor Israeli violations with respect to the denial of basic fair trial standards of Palestinian detainees, including human rights defenders.

To State Parties to the 4th Geneva Convention:

6. UN Treaty Bodies continue to remind Israel of the applicability of the International Covenant of Civil and Political Rights and other UN treaties to the oPt, and Israel’s obligation as an Occupying Power to aﬀord basic fair trial standards to Palestinians.

1. Convene all State Parties to discuss all violations of the Fourth Geneva Convention arising from Israel’s prolonged occupation. In particular, put pressure on Israel as an Occupying Power to reverse Military Order 101 due to its 68

COURAGEOUS VOICES, FRAGILE FREEDOMS

7. UN Treaty Bodies remind Israel as a State Party to the International Covenant of Civil and Political Rights that the use of forced confessions as evidence against Palestinian defendants constitutes a violation of Article 14 (3) (g) of the International Covenant of Civil and Political Rights and should therefore stop immediately.

To the European Union: 8. In accordance with the UN Declaration on Human Rights Defenders and EU Guidelines for Human Rights Defenders, oﬀer greater protection to human rights defenders and demand that Israel stops the use of the disproportionate use of force and other repressive measures against them, including restrictions on freedom of movement. 9. EU representatives continue to attend the military court hearings of Palestinian human rights defenders, and extend their monitoring to Palestinian minors tried in the military courts.

12. EU should raise violations against human rights defenders as a major concern in its negotiations with Israel, particularly through the EU-Israel Association Agreement that is based on mutual respect for human rights and democratic principles. 13. Recognize Israeli and international activists traveling to the West Bank to monitor repression of Palestinians as human rights defenders and push Israel to guarantee them all due protection, including freedom of movement allowing them to enter Israel and the oPt.

To human rights and Palestine solidarity activists and the wider international community: 14. Lobby European Parliamentarians and Government oﬃcials to ensure the EU respects and implements the EU Guidelines on Human Rights Defenders in relation to Palestinian activists, and takes up the recommendations listed above. 15. Attend court hearings of Palestinians tried in the Israeli military courts, including human rights defenders, and document and publicize the proceedings.

10. The EU adopt a local strategy concerning human rights defenders, which sets out clearly whom is protected under this strategy and provides for a comprehensive and coordinated response to violations. 11. EU representatives regularly visit and consult with human rights defenders, in Missions and also at the HRDs’ places of work, in line with part 10 of EU Guidelines. An EU liaison oﬃcer should be appointed for this purpose.

works to end torture through monitoring, legal procedures and solidarity campaigns. Addameer is surrounded by a group of grassroots supporters and volunteers, Addama’er, who share

Network against Torture.

Addameer strives to: •

End torture and other forms of cruel, inhumane or degrading treatment or punishment and abolish the death penalty.

• •

their behalf.

• • •

Raise awareness of human rights and rule of law issues in the local community. -

sion.

•

Addameer’s programs: •

•

prisoners. •

Ramallah, Raidein Sq., Sebat Bldg., 1st Floor, Suite 2 Tel: +972 (0) 2 296 0446 Fax: +972 (0) 2 296 0447 Postal Address: P.O. Box 17338 Jerusalem info@addameer.ps www.addameer.org

Transitional Justice and Reconciliation: Theory and Practice Martina Fischer

1. Introduction 2. Transitional Justice: The Emergence of a Paradigm 2.1 Focus on Accountability: International Criminal Justice and Truth Commissions 2.2 The Call for a Holistic Interpretation: Focusing on Different Levels and Dimensions and Addressing Gender Justice 2.3 Research Gaps and Open Questions 3. Reconciliation and Conflict Transformation 3.1 Reconciliation and Conflict Transformation as Multi-Level Processes 3.2 Selective Remembrance, Denial and Victimisation as Obstacles for Conflict Transformation 3.3 Research Gaps and Open Questions 4. Next Steps for Research and Practice: Studying the Interplay of Different Actors and Levels 5. References

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1. Introduction In the past two decades, scholars and practitioners have focused increasing attention on the question of how countries and societies can come to terms with a history of violence and war, oppression and human rights violations. The concept of transitional justice (TJ) has come to play a prominent role in academic debates on democratisation, nation-building and state reconstruction,1 and has gained widespread support from international organisations. Judicial proceedings and prosecution of individuals suspected to have committed gross violations of human rights, truth commissions designed to establish a record of wrongdoing, reparations to the victims and vetting or dismissals of persons from certain positions have become “central ingredients in the ‘menu’ of reforms recommended by international organisations, donor agencies and outside experts for societies in transition from war or authoritarianism” (Thoms et al. 2008, 9).2 The concept of reconciliation has gained similar popularity. In the past decade “reconciliation” has become one of the four main categories of initiatives that receive donors’ support, along with political development, socio-economic assistance and security (Smith 2004). Many researchers and practitioners see reconciliation as a necessary requirement for lasting peace, assuming that once a top-down political settlement has been reached, a bottom-up process should take place, in which unresolved issues of the conflict will be handled in order to prevent questioning of the settlement and a return to violence. In this context, coming to terms with the past is considered a precondition for building peace and future relationships. This chapter reviews the debates on transitional justice and reconciliation in order to assess the practical approaches that stem from these concepts in terms of their relevance for conflict transformation and peacebuilding.3 The next section reflects the state of research on international criminal justice and truth commissions and highlights the strengths and limits of these approaches. Section 3 reveals that the debates on transitional justice and reconciliation, although they overlap, are not identical, and outlines the need to see reconciliation as a multi-level process alongside conflict transformation. The discourses on all these concepts are marked by significant research gaps and many open questions, which are summarised at the end of both sections. The fourth and final section spells out diverse challenges for research and practice. These include a need to focus on the interaction of different actors, levels and mechanisms and to listen to the voices of affected populations.

1 The United States Institute of Peace (Kritz 1995, 2009), the International Center for Transitional Justice, the South African Centre for the Study of Violence and Reconciliation, Swisspeace and the Center for Justice and Reconciliation in The Hague have conducted research and extensively published on TJ issues. The International Peace Research Institute in Oslo and the University of Wisconsin-Madison have set up TJ databases. 2 The UN Office for the Coordination of Humanitarian Affairs has compiled profiles of transitional justice measures in more than 40 countries and the United Nations High Commission for Human Rights has published a series of Rule of Law Tools for Post-Conflict States in 2006, online at www.irinnews.org/InDepthMain. aspx?InDepthId=7&ReportId=62746 and www.ohchr.org/EN/PublicationsResources/Pages/SpecialIssues.aspx. 3 I thank Ljubinka Petrovic-Ziemer and Beatrix Austin for comments on previous drafts and Amy Hunter for language editing.

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2. Transitional Justice: The Emergence of a Paradigm The concept of transitional justice stems from the international human rights movement. At first, it referred to the judicial process of addressing human rights violations committed by dictatorial or repressive regimes in the course of democratic transition. Later on, the term also came to be used for processing war crimes and massive human rights abuses committed in violent conflicts (Kritz 1995; Minow 1998, 2002; Teitel 2000). The concept has increasingly gained in importance, and has been widely discussed by peacebuilding agencies engaged in war-torn societies during the past two decades.4 Along the way, it has gradually extended its meaning.5 Today it covers the establishment of tribunals, truth commissions, lustration of state administrations, settlement on reparations, and also political and societal initiatives devoted to fact-finding, reconciliation and cultures of remembrance.

For a long time, the TJ literature has principally been the province of legal scholars, human rights activists and individuals who have served as judges, prosecutors or policy-makers in official capacities. Most attention has been given to the moral-philosophical and jurisprudential apects, and in particular to the institutional design and implementation of tribunals. International law experts have extensively published on the development, capacities and legal procedures of international, hybrid or domestic courts dealing with gross human rights violations. Many studies focus on the international courts that have been established to prosecute war crimes, such as the Tribunals for the former Yugoslavia, Rwanda, Sierra Leone and Lebanon, including the International Criminal Court (ICC). As the International Criminal Tribunal for the former Yugoslavia (ICTY) represents the first court implemented under the auspices of the UN, much research has been focused on its relevance for international law and legal procedures.6 Many authors consider the ICTY to be an innovative tool in the context of civilising international relations. Analysis of its impact on the societies in question is not so abundant and very few empirical studies exist on these issues (Meernik 2005; Nettelfield 2006; Orentlicher 2008). The question of whether the ICTY has contributed to the “restoration of peace and reconciliation”, as was stated in UN Resolution 1534 and promoted by high-ranking representatives of the Tribunal,7 is still the subject of controversy 4 For an overview of the state of research see van der Merwe et al. 2009; Thoms et al. 2008; Backer 2009. 5 For discussions of the paradigm from a historical perspective see Roht-Arriaza/Mairezcurrena 2006; Elster 2004; Fletcher et al. 2009. 6 For an overview see Bassiouni/Manikas 1996; Clark/Sann 2002; Olusanya 2005; Schabas 2006. 7 See, for instance, the statements by former ICTY president Antonio Cassese at www.icty.org/sid/3, and by its current president, Patrick Robinson, at www.icty.org/sid/142.

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2.1 Focus on Accountability: International Criminal Justice and Truth Commissions

Martina Fischer

(Meernik 2003; Mertus 2004; Hazan 2006). This example illustrates both the variety of opinions on the potential and limits of prosecution by international criminal courts and the difficulty of assessing the impact of tribunals on war-torn societies (see Box 1). Box 1 Ambivalent Assessments – The International Criminal Tribunal for the former Yugoslavia (ICTY) The ICTY, established in The Hague in 1993, has taken the lead in prosecuting war crimes and crimes against humanity and in documenting facts surrounding the recent wars in the Western Balkans. It has indicted 161 persons for serious violations of international humanitarian law committed in the territory of former Yugoslavia: 83 cases (117 accusations) have been concluded. To date, proceedings are ongoing against 44 accused and two suspects are still at large. Several cases have been referred to war crimes chambers at domestic courts (mostly to Bosnia-Herzegovina), and the ICTY and international donors have also set up capacity-building programmes for domestic judiciaries in the countries of former Yugoslavia.8 In order to establish closer cooperation with the societies in the region, the ICTY has set up regional offices in Sarajevo, Belgrade and Zagreb. However, the legitimacy of the Hague Tribunal is seen as controversial in the region itself. In particular, parts of the population in Serbia and the Bosnian Republika Srpska have regarded the ICTY from its outset as being biased – a kind of “justice of the victors” (although there is no evidence to support this view, as Meernik 2003 concludes), or at least as a distant mechanism imposed from the outside (Arzt 2006; Spoerri/Freyberg-Inan 2008; McMahon/ Forsythe 2008). There are controversial assessments of the reasons for the lack of acceptance and legitimacy granted to the ICTY. Distorted media reporting was an important factor for this dynamic (Sajkas 2007; Allcock 2009). However, other problems seem to be related to the Tribunal’s own procedures, a lack of clarity regarding its purposes and the issue of communication between the ICTY and its local publics (Hodzic 2007; Mertus 2007). Trials and public declarations were published exclusively in English during the first years of the ICTY’s existence. It was also argued that the ICTY lacked credibility, as NATO forces had not managed to detain some of the most high-profile accused (Kerr 2005, 325). The Hague Tribunal has been accused by human rights and women’s organisations of focusing too strongly or exclusively on the perpetrators and protecting their personal rights, thereby neglecting the needs of the victims. The lack of formal procedural law for victims and groups of victims came in for heavy criticism, as did the fact that those affected could only be heard as witnesses. The main problem highlighted was the use of Anglo-American legal traditions, such as the practice of crossexamination (Franke 2006, 818). There has also been criticism that the work of the Hague Tribunal is not complemented by mechanisms that would provide compensation for the victims. This deficit was 8 A Section for War Crimes of the Court of Bosnia-Herzegovina was inaugurated in 2005 as a permanent state-level organ. In Croatia, War Crimes Chambers were formed in 2003, within the County Courts in Zagreb, Osijek, Rijeka and Split. In Serbia, a specialised War Crimes Chamber of the Belgrade District Court and a War Crimes Prosecutor’s Office were established in 2003. Some studies illustrate the courts’ procedures (Freeman 2004a, 2004b), but the scope of their effectiveness has not been extensively investigated.

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raised in October 2009 by the president of the ICTY, Patrick Robinson, who suggested establishing a “claims commission”, through which victims would be able to lodge compensation claims.9 Scholars’ assessments of the Hague Tribunal’s impact on the respective societies are equally ambivalent. It has been argued that the Tribunal is an important motor for public discussions in the Western Balkans. Nevertheless, there are also clear indicators that it has fuelled nationalist discourses about the war (Allcock 2009, 367) and hostilities in local communities. James Meernik has analysed the dynamics of conflict and cooperation among the principal ethnic groups in Bosnia-Herzegovina based on aggregated, statistical data from 1996-2003 and found little evidence to support the notion that the ICTY was having a positive impact on societal peace in Bosnia: “In fact, in more instances the effect was the opposite of that intended […]. More often than not, ethnic groups responded with increased hostility towards one another after an arrest or judgement” (Meernik 2005, 287). At the same time, it is also widely acknowledged that the ICTY

Some scholars argue that the idea that the ICTY would contribute to reconciliation between former warring groups has proved unrealistic, and that expanding expectations beyond its legal mandate might “undermine the important contributions that international trials can make to post-conflict societies” (Fletcher/Weinstein 2004, 30). Moreover, it has become obvious that a final and comprehensive assessment can only be determined in the long run. As Pierre Hazan has outlined, the Nuremberg trials after World War II were regarded as victors’ justice by part of the German population, and did not have an immediate effect in terms of initiating debates in the 1950s. But their archives became an important point of reference for the following generations 25 years later, and thus contributed to informing German society once initiatives for facing the past had begun to develop on a larger scale (Hazan 2007, 11). A relevant part of the TJ literature has centred on the dichotomy of peace vs. justice and truth vs. justice (Thoms et al. 2008, 18-19; Biggar 2001). In the peace vs. justice debate, advocates of the legalist approach have emphasised criminal justice as a means to deter future human rights violations and to support peacebuilding. Another argument is that criminal justice will stigmatise the elites who perpetuate conflict, and help separate individual from collective guilt, breaking the cycle of violence (Minow 1998; Bell 2000). Sceptics doubt that criminal justice can achieve all of this. Some have criticised international criminal justice in particular and argued for domestic prosecutions based on the conviction that justice should follow rather than precede the consolidation of peace.10 In earlier debates bargains and amnesties, rather than prosecutions, were often seen as the best ways to achieve peace because of the need to contain ‘spoilers’ in many post-conflict regions. Since then, most advocates of transitional justice have come to reject the idea of impunity and emphasise that amnesties, if applied at all, should be introduced as partial and conditional (Hayner 2009).

9 See www.icty.org/sid/10244. 10 For a critical discussion of the adverse consequences of putting “justice” before “peace” with special reference to the war in Bosnia-Herzegovina, see Anonymous 1996; for further discussions of this dichotomy see Biggar 2001.

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has helped to set up important archives of facts about the massacres and atrocities.

Martina Fischer

The truth vs. justice debate has balanced the merits of trials against other accountability mechanisms. The 1990s in particular were marked by this dichotomy, due to the almost simultaneous creation of the South African Truth and Reconciliation Commission (TRC) and the ICTY, which became emblematic of this discussion (Hazan 2006, 20). Truth commissions have been promoted as alternatives to prosecutions and as important mechanisms for counteracting cultures of denial. It has been argued that public and official exposure of truth provides redress for victims and may contribute to individual and social healing and reconciliation (Hayner 1994, 2001). Divided societies in particular need truth-seeking and truth-telling mechanisms. Given that nationalist myth-making, based on historical distortion, has fuelled both interstate and intrastate wars, efforts to prevent the instrumentalisation of facts and history are needed to prevent a return to violent conflict (Mendeloff 2004, 356-357). Especially after violent conflicts between ethnic and religious groups, who remain living next to each other while maintaining their distinct identities, extremists are eager to tie responsibility for past crimes and human rights violations to their ethnic or religious adversaries. In order to counteract such tendencies, a truth commission is considered as a means “to engage and confront all of society in a painful national dialogue, with serious soul-searching, and attempt to look at the ills within society that make abuses possible”; furthermore “civil society produces a sense of public ownership in this process, so that this dialogue actually leads to something. Otherwise, a country has merely a nice history lesson, destined for the bookshelf” (Kritz 2009, 18). An important policy recommendation stems from these reflections, arguing that truth and reconciliation commissions should be established “only where […] a robust civil society remains intact. Where such conditions do not exist, the commission’s mandate should be narrowly focused on documenting the truth along the lines of some earlier commissions rather than on the broader reconciliation goals established more recently. In a context that lacks a civil society altogether, a more top-down approach may be appropriate” (ibid.). However, research on truth commissions has also revealed enormous shortcomings and it has become clear that – apart from a strong civil society – there is a need for reliable alliance partners in parliaments, governments and administrations who are willing to engage in institutional reforms and establish the rule of law. In the 1990s, overly high expectations were raised regarding the potential that truth com missions may have. Having seen the early truth commissions in Latin America as major advances in terms of accountability, the human rights community has meanwhile come to view these instruments much more sceptically. An important aspect of this disillusionment was the “enormous chasm” between the commissions’ mandates to develop detailed recommendations on societal reforms and the non-implementation of these proposals by the governments that received them. It has therefore been recommended that international donors might think about strategies of tying aid to the implementation of truth commission recommendations (Kritz 2009, 17; Laplante 2008). Clear warnings have also been expressed that establishing truth commissions has become an almost routine and standard practice without analysing the context. It seems that many countries in transition decide to have truth commissions without any clear understanding of what such endeavours are about, and these policy decisions are “usually based not on research but on instinct” (Kritz 2009, 17). Disillusionment about truth commissions has contributed to broadening 410

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the discourse and to overcoming the fixation on dichotomies between “truth vs. justice” or “justice vs. peace” [see also Michelle Parlevliet in this volume].

As the discourse has moved on, many more authors agree that societies recovering from oppression or violent conflict need both legal and restorative approaches, addressing different levels and dimensions of truth and justice. Alexander Boraine (former member of the South African TRC and founder of the International Center for Transitional Justice, ICTJ) has made an important contribution to this discussion by suggesting that retributive justice should be complemented with restorative justice. He strongly advocates a holistic interpretation based on five key pillars, including accountability, truth recovery, reparations, institutional reform and reconciliation (Boraine 2006, 19-25). Accountability derives from the fact that no society can claim to be free or democratic without strict adherence to the rule of law; there are mass atrocities and crimes that have been so devastating that civilisation cannot tolerate their being ignored. Yet in cases of large-scale human rights violations such as in the former Yugoslavia, Rwanda or Sierra Leone, it is impossible to prosecute everyone. Given the limits to the law and prosecution, and although criminal justice is important, additional activities are needed that focus on documenting the truth about the past. Within truth recovery, four different notions are covered: objective or forensic truth (evidence and facts about human rights violations and missing persons), narrative truth (storytelling by victims and perpetrators and communicating personal truths and multi-layered experiences to a wider public), social or dialogical truth (truth of experience that is established by interaction, discussion and debate) and healing or restorative truth (documentation of facts and acknowledgement to give dignity to the victims and survivors). Reparations play an important role, as they belong to the few efforts undertaken directly on behalf of the victims. Nevertheless, reparations need to be closely connected to other processes aiming at documenting and acknowledging truth; otherwise they could be interpreted as being insincere.11 Institutional reforms form a prerequisite for truth and reconciliation. There has been criticism that in many cases truth commissions have chosen to focus almost entirely on individual hearings. Instead, Boraine argues, they need to focus on institutional settings in order to call to account those institutions directly responsible for the breakdown of a state, repression or human rights violations. Reconciliation must be accompanied by acknowledgement of the past, the acceptance of responsibility and steps towards (re-)building trust. It is a long-term process and identifying suitable starting points depends on the specific situation in a society. Although the concept is ambivalent (and regarded with scepticism, due to its Christian connotation), Boraine sees a need to achieve “at least a measure of reconciliation” in a deeply divided society by creating a 11 The issue of reparations has been explored in detail by de Greiff 2006 and Magarell et al. 2007.

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2.2 The Call for a Holistic Interpretation: Focusing on Different Levels and Dimensions and Addressing Gender Justice

Martina Fischer

“common memory that can be acknowledged by those who created and implemented an unjust system, those who fought against it, and the many more who were in the middle and claimed not to know what was happening in their country” (Boraine 2006, 22). Combining retributive and restorative elements sounds convincing, however, developing a holistic approach requires us furthermore to apply a “gender lens”. The ICTJ has, therefore, added gender justice to its agenda, alongside criminal prosecutions, truth commissions, reparations programmes, security system reform and memorialisation efforts. Given the experience of the systematic rape of women as part of warfare in the Balkans and other regions, researchers and women’s rights activists have documented gender-specific violence and pushed forward the debate on gender-specific war crimes (Allen 1996; Kohn 1995; Korac 1994; Stiglmayer 1992). Researchers, human rights and peace activists have argued that a better understanding of gender, culture and power structures is needed to appropriately analyse the causes, dynamics and consequences of conflict and violence (Jalusic 2004; Slapsak 2000, 2004; Zarkov 1995; Djuric-Kuzmanovic et al. 2008; see also Cilja Harders in this volume). Feminist research has also increasingly focused on transitional justice (Pankhurst 2008) and revealed that, as a consequence of campaigns to end impunity for violence against women, legal standards have been modified. Gender-based violence in armed conflict has been recognised as a war crime in international law12 and prosecutions have been secured. Furthermore, courtroom procedures have been reformed in order to ensure that victims of sexual violence are not re-traumatised by adversarial legal processes. The ICTY, for instance, has introduced changes to the procedures of investigation and to the rules regarding evidence, limiting the extent to which consent can be presented as a defence for sexual assault and prohibiting the use of evidence of a victim’s past sexual conduct (Bell/O’Rourke 2007, 27). Following criticism of gaps in ICTY practice, women’s organisations’ appeals to respect the rights, needs and inclusion of victims were taken into account when the International Tribunal for Lebanon and the International Criminal Court were set up, and these courts have introduced procedural law for victims.13 There is now also greater representation of women on the staff of the international tribunals. However, in feminist debates several scholars have questioned whether punative justice in the form of tribunals is an appropriate means of dealing with gender-based violence at all, due to the negative experiences of adversarial processes (Mertus 2004; Campbell 2004; O’Connell 2005). The feminist discourse has argued that truth commissions offer space “to move beyond the rather masculine discourse of crime and punishment towards a notion of repairing relationships” (Bell/O’Rourke 2007, 40). Truth commmissions might also be a better alternative to trials as they give space to individual narratives, can address needs for public acknowledgement and seem to be more accessible to women due to the greater flexibility of their processes (Ni Aolain/Turner 2007). 12 The tribunals for Yugoslavia, Rwanda and Sierra Leone have recognised sexual violence as grave breach of the Geneva Convention and a crime against humanity; the Rome Statute of the ICC has recognised rape, sexual slavery, enforced prostitution, pregnancy and sterilisation as crimes against humanity and as war crimes. 13 See Women’s Initiative for Gender Justice: Gender Integration in the Statute of the ICC, online at: www.iccwomen. org/publications/resources/docs/Gender_Integration_in_the_Rome_Statute.doc; Women’s Initiative for Gender Justice, Gender Report Card 2008 of the International Criminal Court, The Hague 2008.

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Some commissions, indeed, have also responded to the need to find appropriate ways of addressing gender-based violence. In Haiti, Sierra Leone and East Timor, gender or sexual violence was explicitly incorporated into the mandates; other commissions have held gender hearings (South Africa) or established gender units (Peru). However, it has also been argued that placing emphasis on post-conflict restoration or calls for reconciliation without challenging uneven gender power relations can contribute to women losing equality gains that they made through the war and subordinating them in unjust relationships. Christine Bell and Catherine O’Rourke have therefore suggested analysing the gender implications of TJ mechanisms and discussing these in terms of their value for a larger political project of securing substantial material gains for women in transitional processes (2007, 44). The International Center for Transitional Justice (ICTJ) calls for increased consultation of women in the design of TJ mechanisms, in order to make sure that these mechanisms strengthen women in independent roles and to enable them to participate in the political transformation process. It makes a strong case for structuring post-war societal programmes, especially programmes of compensation, in a gender-sensitive way.14 The British NGO International Alert has also adopted the term gender justice in its “Women Building Peace” campaign, begun in 2004.15 Some international peace and human rights organisations insist that development cooperation measures must recognise gender justice as being an integral part of social justice (Barth et al. 2004). They argue that reconstruction programmes should be geared more towards the specific needs of women, and that demobilisation and reintegration initiatives for former combatants require particular attention to gender perspectives. Measures must be implemented together with local communities, including women, to avoid injustices and prevent those guilty of war crimes from going unpunished or otherwise benefiting from the situation (Farr 2003). For this not only runs counter to the principle of justice, but is also making processes of reconciliation more difficult.

In the past decade a huge number of studies have been published on transitional justice. David Backer (2009) has reviewed 58 cross-national comparative studies dealing with mechanisms applied in Latin America, Europe, Africa and Asia. The research methods range from discourse analysis, case studies, interviews and legal studies to large-scale statistical analysis. Many of these focus on legal mechanisms, their implementation and compliance with international law and human rights. A great deal of analysis is focused on the underlying policy-making process, regime stability or democratisation. Only a few studies are devoted to examining the nature of micro-level engagement in TJ and of societal responses. It seems that the preoccupation with institutional design and system-level effects has resulted in “too little concern for assessing the 14 See www.genderjustice.org. 15 According to International Alert, gender justice means “the protection and promotion of civil, political, economic and social rights on the basis of gender equality. It necessitates taking a gender perspective on the rights themselves, as well as the assessment of access and obstacles to the enjoyment of these rights for both women, men, girls and boys and adopting gender-sensitive strategies for promoting and protecting them” (Spees 2004, 9).

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extent to which these processes affect people” (Backer 2009, 66). Very few authors have dealt with cultural phenomena such as social discourses and national narratives. To date, the knowledge on how different models of transitional justice influence the attitudes and behaviour of individuals and communities is based primarily on “assumptions and anecdotal evidence”, which leads to “an excess of written material that is subjective and ideological”, as authors advocate particular policies “without ever justifying their stances based on sound empirical findings” (ibid., 67). In the academic literature, as well as in legal practice, it is widely assumed that TJ mecha nisms contribute to post-war peacebuilding and democratisation. However, given the lack of long-term analysis or systematic empirical research, in fact there is not much knowledge concerning the effects of tribunals and trials on the respective societies. There is not much evidence either on what impact truth commissions actually have on victims, perpetrators and society as a whole. Having reviewed comparative studies that were conducted in more than 100 countries, Oskar Thoms, James Ron and Roland Paris (2008) conclude that there is still little empirical basis for reaching strong conclusions about the systematic effects of TJ mechanisms, either positive or negative. Few rigourous cross-national analyses have been completed to date, and most of them mention the difficulty of reaching any strong conclusions due to the limitations of existing data. Thus, there is “insufficient evidence to support proponents’ claims that TJ contributes to reconciliation or psychological healing, fosters respect for human rights and the rule of law, or helps establish conditions for a peaceful and democratically governed country” (Thoms et al. 2008, 4); but, as the research team admits, there is also no evidence to support sceptics’ claims that TJ undermines progress towards these goals. A review of the existing studies also reveals a lack of convincing criteria and of knowledge about preconditions for the failure or success of accountability mechanisms. Case studies indicate that in settings where civil society is strong and where governments respond to the contributions made by CSOs, greater movement towards peace and stabilisation can be expected (Backer 2003, 311); and it has also been demonstrated that CSOs have the power to support institutional reforms and the improvement of legal mechanisms (see section 2.2). However, the question remains whether CSOs can effectively push for institutionalised forms of transitional justice while decision-makers in parliaments, governments and administrations are adverse to accountability and sustain cultures of denial. Another open question is how truth recovery relates to legal mechanisms, prosecution, compensation, institutional reforms and initiatives for reconciliation. Although scholars and activists seem to agree that societies recovering from violent conflict need mechanisms that aim at both, i.e. truth and justice, and that reconciliation should be achieved, it is still unclear how to get from retributive to restorative approaches. It also remains unclear how they should be sequenced or balanced.

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3. Reconciliation and Conflict Transformation It has become apparent from the discussion above that the debates on transitional justice and reconciliation show certain overlaps. However, they are not identical, as will be demonstrated in this section.

Together with transitional justice, the concept of reconciliation has gained importance among those who engage in post-war regeneration. Peace activists in particular see reconciliation as a necessary requirement for lasting peace. The concept is also extensively discussed in the academic literature on peacebuilding and conflict transformation. It has been argued that reconciliation needs both the orchestration of top-down and bottom-up processes (Bar-On 2007, 81), and although the process may begin either with the leaders or at the grass-roots, to be effective it must always proceed in both dimensions simultaneously (Bar-Tal/Bennink 2004, 27). Civil society actors have a special role to play in this regard (Assefa 2005; Kritz 2009; Kriesberg 2007). Most authors agree that reconciliation describes a process rather than an end state or out come, aiming at building relationships between individuals, groups and societies. Reconciliation has also been defined as a process “through which a society moves from a divided past to a shared future”; looking at the past in a way that allows people to see it in terms of “shared suffering and collective responsibility” may help to restore confidence (Bloomfield et al. 2003, 12-21). The need for reconciliation is emphasised in particular for societies that have gone through a process of ethnopolitical conflict, as these are marked by a loss of trust, intergenerational transmission of trauma and grievances, negative interdependence (as the assertion of each group’s identity is seen as requiring the negation of the other group’s identity) and polarisation. Given that antagonists live in close proximity, not addressing these legacies means risking that they will form the causes of new spirals of violence. Reconciliation is regarded as being necessary to prevent the desire for revenge. The concept has also been discussed in the context of acknowledgement, contrition, mercy and forgiveness. The Truth and Reconciliation Commission of South Africa (1998) and some scholars have placed great emphasis on this nexus (Lederach 1995, 20; Rigby 2001, 2002). Others have argued that reconciliation processes will not necessarily lead to forgiveness, as this is considered to be a power held only by those victimised and cannot be claimed by others (Minow 1998, 17). Linking both concepts puts any reconciliation process in danger of failing: “the right not to reconcile is a key issue in understanding some of the resistance victims feel to reconciliation, and one often forgotten by international actors as they blithely design post-conflict reconciliation 415

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3.1 Reconciliation and Conflict Transformation as Multi-Level Processes

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processes in the abstract” (Bloomfield 2006, 24). Some hence argue for more modest approaches such as “coexistence” (Bar-Tal 2004) or “social reconstruction” (Stover/Weinstein 2004, 13-15). Others have warned against overemphasising the “religious emotive concept” inherent in the term reconciliation and suggested focusing instead on trust-building on different levels of society (see Box 2). Box 2 Reconciliation – A Christian Notion or a Step Towards Conflict Transformation? The Israeli psychologist Dan Bar-On (2007, 67) has argued that the religious concept inherent to reconciliation in its Christian origin differs from approaches offered by Judaism and Islam. According to Judaism, only the perpetrators themselves can approach the victims, take official responsibility for what they have done and apologise or ask for forgiveness; after the victim accepts this plea, reconciliation can take place. The Islamic tradition and practices are closer to the Jewish concept than they are to the Christian tradition. Furthermore, Bar-On has suggested bringing the “religious, somewhat idealized, discourse down to earth” (ibid.), undertaking empirical verification and conceptualising the issue in the context of conflict transformation. For this purpose, it is worth looking at related concepts such as “dialogue” and “working through”, which have been tested empirically in communication and psychological studies. Bar-On pointed out that reconciliatory processes have a psycho-social component as well as a legal one, as within a reconciliatory process several issues have to be addressed simultaneously: specifically, the unresolved issues regarding perpetrators and victims. Storytelling may take an important role in this, but must be accompanied by punishment of the perpetrators, compensation of victims, formal agreements between the parties and economic and educational initiatives to change the status quo in asymmetric contexts (ibid., 72, with reference to Maoz 2004). He also warned against having overly high expectations: “The concept of reconciliation suggests that the enemies of yesterday will give up and let go of their hatred, animosity or wish for revenge, as well as their identity that had been constructed around the conflict. One expects that a new identity construction will develop together with a new relationship between former enemies that will address the roots of the conflict, not only its unfortunate outcomes. But how can we create such a deep process of change in people who have been committed to the conflict, in some places for generations, in others for a substantial part of their lives? Are these expectations realistic or is it wishful thinking and talking that has little substance in intractable conflicts?” (ibid., 67) He makes a strong point that in societies affected by ethnopolitical violence, healing and relation ship-building need to take place both on the interpersonal and on the intergroup level, as violent conflicts “destroy the confidence in a social contract that a society achieved earlier on […]. In Bosnia, this meant that even within the same families […] family bonds were destroyed due to the conflict […]. Therefore, the process of reconciliation has to address and try to rebuild trust and confidence” (ibid., 71).

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Like Bar-On, Louis Kriesberg emphasises the need to overcome power asymmetries. Apart from this he also sees a need to address imbalances in suffering: often both sides have suffered injuries at the hand of the other, although not in equal measure, and reconciliatory actions often are ineffective because they fail to reflect the given symmetries and asymmetries (2007, 254). Moreover, reconciliation can only take place if it entails significant complementary reciprocation. If members of one side assert truths that are ignored or denigrated by the other, their assertion is hardly a mark of reconciliation, as the truths need to be shared or at least acknowledged to indicate some degree of reconciliation on that dimension. Expressions of regret or apology and acts of contrition must be recognised and in a sense accepted by the other side, if reconciliation is to progress. Similarly, terms that only one side deems just and the other regards as unjust do not indicate a significant level of reconciliation. Kriesberg therefore identifies four dimensions of reconciliation as being essential for conflict transformation and peacebuilding in post-war societies: shared truth, justice, regard and security (2007, 252-256 and 2004; see also Louis Kriesberg in this volume). Truth is important as societies divided after mass crime tend to deny what members of the other side have experienced and thus need to openly recognise that they have different views of reality. At a higher level, they might develop a shared truth, supported by official investigations, judicial proceedings and literary and mass media reporting in order to acknowledge abuses. Justice is needed as those who have suffered oppression or atrocities seek redress, which may take the form of restitution or compensation, but also punishment of those who committed injustices; justice may furthermore be exhibited in politics that offer protection against future harm and discrimination. Expression of regard by members of each community towards the other entails recognising the humanity of the others and their human rights. Security, in the sense of personal or collective safety and well-being, is a constitutive part of reconciliation. Security exists as the adversaries feel a minimum of trust and “have reason to believe they can look forward to living together without one side threatening the other” (Kriesberg 2007, 253). All these different dimensions of reconciliation, according to Kriesberg, cannot be fully realised simultaneously, but are often contradictory at a given time: while leaders, small groups or even general practice demonstrate steps of reconciliation, many other people on one or both sides may remain un-reconciled, and some of the latter may passively resist the new relationship or even seek to subvert it. Still others may reject this and try to continue the fight or undermine the implemen tation of peace agreements. Conflict transformation theory has outlined that overcoming ethnopolitical conflicts in particular requires more than the reframing of positions. It is necessary to alter the various manifestations of conflict by addressing the root causes, and to focus on structural, behavioural and attitudinal aspects. According to Johan Galtung (1996, 70-126) it is necessary to transform the relationships, interests, discourses and the very constitution of society. Hugh Miall (2004, 75-77) believes that the meaning of a conflict depends largely on the context from which it arises, and that the attitudes the parties have towards one another are shaped by previous relationships: their behaviour is based on their memory of what has happened in the past and expectations of what may happen in the future. The context includes the divided society with 417

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its culture, governance arrangements, institutions, social roles, norms, the rules and codes in place and the society’s own path of development. In conflicts involving ethnicity, minorities or challenges to state structures, the very existence of the state is at issue. In addition to this, most conflicts are influenced by wider economic and political developments on the regional and international level. Relationships involve “the whole fabric of interaction” (Miall 2004, 76) within the divided society as well as beyond, i.e. with other societies. Poor relationships between groups are all too often a trigger for conflict, and remain a critical hindrance to peacebuilding efforts in post-war settings. Memories are part of each party’s socially constructed understanding of the situation, shaped by culture and learning, discourse and belief. The way groups remember and construct their past is often central to the mobilisation for conflict, and, thus, a crucial matter to address in reconciliation and cultural traditions work. In many societies affected by ethnopolitical violence, relationships and memories are also marked by selective remembrance, which – together with denial and the tendency to remain locked in a notion of victimhood (Enns 2007) – may form a serious obstacle to conflict transformation.

3.2 Selective Remembrance, Denial and Victimisation as Obstacles for Conflict Transformation The term “victimisation” is used when the role of victim – the victim of war, violence, abuse or discrimination – is ascribed to individuals or groups by dominant societal discourses, groups or institutions. Attributing this role externally, or adopting it as part of one’s self-image, can even turn the experience of being a victim into one of collective and mythologised victimhood. The term evolved in social sciences and psychology and has also been used in research on dealing with the Holocaust, describing the self-attribution by perpetrators who cast themselves as victims as a way of denying or relativising crimes. Victimisation can be found in many societies that have been through violent conflict, on all sides, as it affects those who have suffered as well as those who have committed violence. It is often combined with cultures of denial and selective remembrance. Victimisation seems to play a particular role in ethnopolitical settings. The complexity of this phenomenon can be illustrated once more by experiences from the Western Balkans, where societies face strong cultures of silencing, denial and discourses marked by diverse notions of victimhood (see Box 3). Box 3 Selective Remembrance and Victimisation: Experiences from the Western Balkans Although moderate politicians from Bosnia-Herzegovina, Serbia, Croatia and Montenegro have made official apologies for war crimes and human rights violations committed during the wars of the 1990s, these views are still not widely shared and remain highly contested. They continue to come up against discourses marked by deception or distortion of facts and historical myths. The politics of remembrance in the region of the former Yugoslavia has mainly been focused on the

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selective commemoration of war victims, each generally characterising their own ‘constituency’ as the victims. Bosnia-Herzegovina in particular is marked by such polarisations, mixed with greatly differing interpretations of the past that constantly fuel disputes and (frozen) conflicts. Civil society too is marked by these frictions. The Centre for Nonviolent Action – based in Belgrade and Sarajevo and engaged in crossborder initiatives for conflict transformation [see also Nenad Vukosavljevic in this volume] – has observed various notions of victimhood that shape political and social life in this region: “One of the big obstacles in building sustainable peace in the societies of former Yugoslavia is the overall victimisation of these societies. The victimisation is multiple and it exists on three different levels: people feel like victims of ‘the others’ whom they were once in war against, (the others are often blamed not only for the war, but for all the consequences of the war, too: difficult economic situation, many refugees and displaced persons, ruined economy, increased crime and violence rates, etc.). Then, there is the feeling of being a victim, of helplessness and dependence on ‘one’s own’ politicians (one can often hear the following ‘What can we do about it, we know who’s deciding our fate’) and also on world powers (‘We are just guinea pigs in their experiments’). [The] role of the victim is one of the most comfortable ones, because it frees us from any kind of responsibility whatsoever: for our own destiny (because all of the levels stated above affect us), but also for the society we live in, too (because ‘we know who’s deciding our fate’). […] There will be no substantial change in this region as long as we stay buried in the role of the victim.”

In order to overcome victimisation, war-torn societies need multi-level approaches aiming at questioning and reshaping discourses on the political and societal level, and in particular in the fields of media and education. Change depends on long-term processes that combine factual truth, narrative and dialogical truth in order to overcome polarised, one-sided and selective views on the past. As in any particular instance of a violent conflict, there will be a number of stakeholders, all with their own experiences and perspectives. Many versions of the “truth” and contrasting interpretations of history are likely to be expressed. Memory politics, e.g. commemo ration efforts or initiatives for schoolbook revision, face the question: which particular version should be taken as the “official” truth? And another question arises: does the search for a generally agreed and acceptable version of history actually lead to reconciliation? Several authors doubt this (Brouneus 2008; Gibson 2006), or see no evidence to either confirm or deny this relationship (Alidu et al. 2009). Selective memory can obviously not be challenged by a simple call for a “shared truth” in a situation where many different truths exist. In certain contexts and stages of war-torn societies it may be more important to make people accept the existence of these contrasting truths and to develop empathy and understand the other’s views. This approach can be illustrated by a school book initiative in Israel/Palestine (see Box 4 overleaf).

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Source: Centre for Nonviolent Action 2007. For an overview on victimisation in the countries of former Yugoslavia see Nikolic-Ristanovic 2008; Popovic 2003; Zizek 1991.

Martina Fischer

Box 4 Learning Each Other’s Historical Narrative – An Israeli/Palestinian Initiative The Peace Research Institute in the Middle-East (PRIME) has created an unusual textbook for schools, titled “Learning each other’s historical narrative”, which describes Palestinian and Israeli 20th century history from the opposing perspectives of both conflict parties. One column gives an Israeli view of events, with a Palestinian version alongside it. The major incidents covered include the Balfour Declaration of 1917, which promised the Jewish people a state of their own; the events leading to Israel’s independence in 1948 and the first intifada (the Palestinian uprising against Israeli occupation). The same facts are viewed in very different ways. 1948, for example, is remembered by Israelis as marking the foundation of Israel and the war of independence, whereas for Palestinians it is the year of the catastrophe (“al-Naqbah”) and expulsion from their homeland. The project was inspired by PRIME’s two directors, the Israeli psychologist Dan Bar-On (1938-2008) and the Palestinian academic Sami Adwan. While reviewing Palestinian and Israeli history textbooks they had observed that the experiences and suffering of the respective other sides were never mentioned. While the Holocaust receives no mention in Palestinian textbooks, Israeli teaching materials ignore the traumatic expulsion of the Palestinian people. The respective history and culture are not covered. Maps used in schools omit towns and villages belonging to the other side. History lessons are often one-sided and basically serve to justify each side’s own actions, while obscuring the image of the other side. Dan Bar-On, Sami Adwan and their team came to the conclusion that overcoming hatred is something that must begin in the mind and that the foundations for reaching understanding should be built in schools. They did not set out to try to change the respective narratives, nor were they trying to establish one single, joint interpretation of events. Quite simply, the aim of the booklet is to enable Israeli and Palestinian schoolchildren to understand each other’s points of view. PRIME’s book was developed by six Jewish and six Palestinian history teachers, working together with academic experts. Written in Hebrew and Arabic, it is aimed mainly at secondary school pupils. A number of teachers are now using this material at selected schools in Israel and the West Bank. As yet the book has not been accepted as part of any official curriculum, but the respective ministries have approved its use in optional extra-curricular classes. Source: The booklet can be downloaded at www.vispo.com/PRIME/leohn1.pdf.

3.3 Research Gaps and Open Questions A lot of research has been conducted on the question of how former war enemies may reconcile after war, in particular with respect to World Wars I and II, and also with respect to the question of how victims and perpetrators could come to terms with the past after the experience of the Holocaust (Bar-On 1999). But to date, not much research has been conducted on the precon 420

ditions and obstacles of reconciliation in deeply divided societies after civil war or ethnoplitical violence, where the identification of victims and perpetrators is ambivalent and responsibility remains contested. Questions that arise from such settings are: who is expected to reconcile with whom? Is it a process among victims and perpetrators, individuals and/or collectives? What exactly are the specifics and differences of reconciliation processes on an interpersonal or intergroup level, and how do they relate to a broader national or international political level? Research on reconciliation processes has raised dilemmas about inclusion and exclusion of stakeholders. It seems that on the one hand, reconciliation initiatives need all stakeholders to be involved in order to avoid being ‘spoiled’ by actors that feel excluded (for instance non-state armed groups), on the other hand many scholars and activists from the human rights movement doubt that war criminals should be involved. The question remains whether there are any limits to be set to the principle of inclusivity. According to the literature, reconciliation needs to be based on justice in terms of accountability and compensation, and also on different notions of truth, acknowledgement and recognition. On the one hand most scholars would agree that after armed conflict and gross human rights violations, initiatives aiming at forensic or factual truth (finding of missing persons, sustained knowledge of numbers of victims of atrocities – including the context and circum stances in which these were committed – and knowledge of the wider political context and circumstances) are necessary to counteract the relativisation of responsibility and the construction of historical myths. On the other hand, scholars have warned that establishing painful truths in divided societies may also generate resentment, or provide new grievances and conflict (Gibson 2006). Again, a question remains: what kind of truth is needed at which stage of post-war development? Another open question is how factual truth relates to narrative and dialogical truth, and what restorative truth could look like. We still do not know much about how and when societies get ready to establish a broader discourse that leads to a necessary degree of consent on facts and their interpretation. How collectives come to establish dialogical truth in a way that supports healing and contributes to the broader project of conflict transformation has yet to be extensively explored. It is still an open question how deeply divided societies can manage to create a common memory that can be acknowledged by those who created war or unjust systems, those who opposed and those who were bystanders. Moreover, the question of what reconciliation processes could look like in societies marked by huge power asymmetries has not been substantially investigated. The same applies for the question of how reconciliation can proceed in situations where conflicts are frozen, where the political status is unclear or entire state structures contested by relevant parts of a population (as is the case, for instance, in Bosnia-Herzegovina 15 years after the Dayton Accords). Furthermore, the question remains how much and what kind of security is needed to start a reconciliation process (this question is currently being debated controversially with respect to the prospects of an “Action Plan for Peace, Reconciliation and Justice” to be implemented in Afghanistan). Finally, there are many open questions with respect to the scope and outreach of the different actors involved. On the one hand, scholars insist that reconciliation after mass crimes in many 421

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cases needs support by international actors, as they can make suggestions that members of antagonistic sides can listen to and consider seriously, and help ensure that agreements will be implemented (Kriesberg 2007, 254). On the other hand it is argued that there is a primary need to foster capacities of groups within the society in conflict and some suggest building on the people and cultural resources within a given setting, instead of seeing primarily the setting and the people in it as the ‘problem’ and the outsider as the ‘answer’ (Lederach 1995). It is widely agreed that insiders and outsiders have complementary roles to play, but it is not so clear how effective partnerships are to be shaped and how synergies might develop. The literature finally also reveals a lack of expertise on the phenomenon of victimisation. So far it has mainly been analysed by experts in criminal science and psychology. But how notions of victimhood impact on entire societies in post-war settings, what the underlying dynamics are, and how to address victimisation in a constructive way, has not been investigated extensively. Another open question is how discourses on victimhood are influenced by accountability mechanisms and how they are affected by interventions from external actors. There have been indicators that under certain conditions, legal prosecution itself may exacerbate conflicting discourses about who is the victim and who is the perpetrator (Debiel et al. 2010, 100). There is a particular lack of knowledge on how notions of victimhood are connected with individual or collective identities in ethnopolitically divided contexts. Investigation of these aspects would probably need multi-disciplinary approaches, combining social-psychology, social science, pedagogical science and anthropology.

4. Next Steps for Research and Practice: Studying the Interplay of Different Actors and Levels There is consent among scholars and practitioners that societies that have gone through violent conflict need to deal with the legacies of the past in order to prevent a relapse into violence or repression. At the same time it has become clear that mechanisms aiming at accountability do not automatically pave the road to reconciliation, conflict transformation and a stable peace. Doubts have also been raised with respect to the idea of reconciliation, and warnings expressed against unrealistic expectations and emotive interpretations. According to the current state of debate, post-war societies need a combination of approaches aiming at legal justice/account ability, truth recovery (in its manifold forensic, narrative, dialogical and restorative aspects), compensation for victims, institutional reform, which includes fostering the rule of law and security, and restoration of trust in order to support relationship-building and healing. Activities need to be undertaken from various levels (bottom-up and top-down) and have to address 422

structural, behavioural and attitudinal aspects as well as the context, memory and relationships. Furthermore, asymmetries in power structures, gender relations and gender-specific experiences of violence need to be considered. However, given the poor empirical basis, the effects of TJ mechanisms are still hard to predict. One policy recommendation that results from this is that they should be applied with caution, and proponents should move from “faith-based” to “factbased” discussions of the issue, to more sustained comparative analysis and, above all, to more interdisciplinary and “mixed methods research” (Thoms et al. 2008, 5-6). Analysis, first of all, needs a sustained focus on the underlying causes of conflict, so that trials and truth commissions “do not become a fetish but an invitation for on-going attention to address societal fissures” (Fletcher et al. 2009, 220). More research is also needed on the societal impacts of accountability mechanisms. It has been said that substantial assessments can only be made over the long term, at four different stages: 1) the phase of violence or oppression, 2) the first five years after the conflict, where warlords may still hold strong power over media and political networks, 3) 5-20 years after the conflict, the period of social and political reconstruction and 4) the long-term phase after 20 years, which is marked by new political and societal generations (Hazan 2007). It is, therefore, important to repeatedly analyse TJ mechanisms with respect to their outcome, context and legitimacy, in order to develop realistic expectations towards their potential and limits. Furthermore, policies need to be based on sound knowledge of the interdependence of different mechanisms, levels and actors. This refers, first of all, to the interaction of state institutions and CSOs and in particular to the question of how top-down policies and bottom-up initiatives relate to each other and can be better connected. Secondly, it refers to the cooperation between local and international actors. It has been illustrated that joint activities by international governmental organisations and NGOs together with local actors offer important potential for processes of dealing with the past. However, external activities can also produce unintended side-effects, end up in failure or hamper processes of reconciliation. There is always a danger that external actors do not fully understand what has happened to the people in a locality where mass crimes have occurred, and might introduce inappropriate concepts (Kriesberg 2007, 244). All too often internal and external actors on the various tracks are at cross purposes due to a “clash between paradigms” (Kriesberg 2004, 83). Hence it is crucial to analyse how activities on different tracks relate to each other, and to be aware that actions on one track can sometimes wreck efforts on another. Another challenge, closely related to this issue, is to reflect constantly on the non-simultaneous nature of reconciliation. Therefore, special attention should be paid to the sequencing and timing of mechanisms. Research needs to be practice-orientated and should generate policy recommendations. At the same time it must not aim to design blueprints in order to satisfy “policymakers’ search for a ‘winning formula’ for broad application” (Thoms et al. 2008, 17). Templatisation should be avoided, since what is helpful in one context may be irrelevant or even harmful in another. Researchers unanimously agree that processes of facing the past cannot simply be transferred from one historical or regional situation to another but must develop out of specific contexts and in accordance with given cultures and societal dynamics. However, case studies – based on 423

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qualitative and multi-disciplinary approaches – can provide important insights by helping to systematise the complex demands and can help to prevent peacebuilders from rushing headlong into action based on unrealistic expectations. In order to achieve more reliable results, research has to involve, as much as possible, partners and actors from the countries in question. It has been recommended that views of the affected populations have to play a major role in decisions on how societies should deal with the past and that there is a need to listen to the people (Thoms et al. 2008, 7). Action research can prepare the ground for this.16 Moreover, it offers strong potential for analysis on the effects of transitional justice and reconciliation, as it allows for monitoring ongoing processes on the micro-level of society. Apart from increasing knowledge, it may enhance self-reflection among peace and human rights activists, motivating them to ask themselves whether their activities are rooted in broader society, and to take a systemic view in order to achieve integration with other actors who have different theories of action.17 Action research can contribute to making core assumptions explicit and evaluate to what extent they are consistent with theory and evidence. Engaging local partners in analysis is crucial, for a simple reason: although external initiatives can support and provide positive framework conditions for reconciliation and conflict transfor mation, these processes have to be agreed and shaped by the stakeholders themselves. Ultimately, it is they who will decide how to come to terms with the past and build relationships for the future.

5. References Abu-Nimer, Mohammed (ed.) 2001. Reconciliation, Justice and Coexistence. Theory and Practice. Lanham, MD: Lexington Books. Alidu, Seidu, David Webb and Gavin F. Fairbairn 2009. “Truths” and “Re-imaging” in the Reconciliation Process, in: Peace Review 21, 2, 136-143. Allcock, John B. 2009. The International Criminal Tribunal for the Former Yugoslavia, in: Charles Ingrao and Thomas A. Emmert (eds.). Confronting the Yugoslav Controversies. A Scholars’ Initia tive. West Lafayette, IN: Purdue University Press, 347-389. Allen, Beverly 1996. Rape Warfare. The Hidden Genocide in Bosnia-Herzegovina and Croatia. Minneapolis: University of Minnesota Press. Anonymous 1996. Human Rights in Peace Negotiations, in: Human Rights Quarterly 18, 2, 249-258.

16 For overviews see Newman 2000; Ross 2000; Reason/Bradbury 2006. See also www.aepro.org, the website of the Action Evaluation Research Institute. 17 Strategies of peacebuilding actors are often driven by many alternative norms, concepts and assumptions. Each organisation develops a set of assumptions on how peace and social change comes about. Theories of action rarely contradict each other directly, but often emphasise quite different processes and sequences of activities (Ross 2000, 2). Practice is grounded in beliefs about the nature of social and psychological reality that often are not explicitly stated [see also Reina C. Neufeldt in this volume].

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Arzt, Donna E. 2006. Views on the Ground. The Local Perception of International Criminal Tribunals in the Former Yugoslavia and Sierra Leone, in: Annals, American Academy of Political and Social Science, 603, 226-239. Assefa, Hizkias 2005. Reconciliation. Challenges, Responses and the Role of Civil Society, in: Paul van Tongeren et al. (eds.). People Building Peace 2, Successful Stories of Civil Society. London: Lynne Rienner, 637-645. Aucoin, Louis and Eileen Babbitt 2006. Transitional Justice. Assessment Survey of Conditions in the Former Yugoslavia. Belgrade: UN Development Programme. Backer, David 2009. Cross-National Comparative Analysis, in: Hugo van der Merwe, Victoria Baxter and Audrey R. Chapman (eds.). Assessing the Impact of Transitional Justice. Challenges for Empirical Research. Washington DC: USIP, 23-89. Backer, David 2003. Civil Society and Transitional Justice. Possibilities, Patterns and Prospects, in: Journal of Human Rights 2, 3, 297-313. Bar-On, Dan 2007. Reconciliation Revisited for More Conceptual and Empirical Clarity, in: Janja Bec-Neumann (ed.). Darkness at Noon. War Crimes, Genocide and Memories. Sarajevo: Centre for Interdisciplinary Postgraduate Studies, 62-84. Bar-On, Dan 1999. The Indescribable and the Undiscussable. Reconstructing Human Discourse after Trauma. Budapest: Central European University Press. Bar-Tal, Daniel 2004. Nature, Rationale, and Effectiveness of Education for Coexistence, in: Journal of Social Issues 60, 2, 253-271. Bar-Tal, Daniel and Gemma H. Bennink 2004. The Nature of Reconciliation as an Outcome and a Process, in: Yaacov Bar-Siman-Tov (ed.). From Conflict Resolution to Reconciliation. Oxford: Oxford University Press, 11-38. Barth, Elise Fredrikke, Karen Hostens and Inger Skjelsbæk 2004. Gender Aspects of Conflict Inter ventions: Intended and Unintended Consequences. Report to the Ministry of Foreign Affairs, Oslo. Bassiouni, M. Cherif and P. Manikas 1996. The Law of the International Criminal Tribunal for the Former Yugoslavia. New York: Transnational Publishers Inc. Bell, Christine 2000. Peace Agreements and Human Rights. Oxford: Oxford University Press. Bell, Christine and Catherine O’Rourke 2007. Does Feminism Need a Theory of Transitional Justice?, in: International Journal of Transitional Justice 1, 1, 23-44. Biggar, Nigel (ed.) 2001. Burying the Past. Making Peace and Doing Justice after Civil Conflict. Washington DC: Georgetown University Press. Bloomfield, David 2006. On Good Terms. Clarifying Reconciliation. Berghof Report No 14. Berlin: Berghof Research Center. Available at www.berghof-conflictresearch.org. Bloomfield, David, Teresa Barnes and Luc Huyse 2003. Reconciliation after Violent Conflict. A Handbook. Stockholm: International IDEA. Boraine, Alexander 2006. Transitional Justice. A Holistic Interpretation, in: Journal of International Affairs 60, 1, 17-27. Brouneus, Karen 2008. Truth-Telling as Talking Cure? Insecurity and Retraumatization in the Rwandan Gacaca Courts, in: Security Dialogue 39, 1, 55-76.

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Campbell, Kirsten 2004. The Trauma of Justice. Sexual Violence, Crimes against Humanity and the Inter national Criminal Tribunal for the Former Yugoslavia, in: Social and Legal Studies 13, 3, 329-350. Centre for Nonviolent Action 2007. Challenges for Sustainable Peacebuilding, in: Martina Fischer (ed.). Peacebuilding and Civil Society in Bosnia-Herzegovina – Ten Years After Dayton. 2nd edition. Münster: Lit-Verlag, 438-440. Clark, Roger S. and Madeleine Sann (eds.) 2002. The Prosecution of International Crimes. A Critical Study of the International Tribunal for the Former Yugoslavia. New Brunswick, NJ / London: Transaction Publishers. Debiel, Tobias, Daniel Lambach, Nicolas Schwank and Julia Viebach 2010. Gewaltkonflikte und Friedensstabilisierung, in: Stiftung Entwicklung und Frieden/Institut für Entwicklung und Frieden (eds.). Globale Trends 2010. Frankfurt a.M.: Fischer, 81-104. de Greiff, Pablo (ed.) 2006. The Handbook of Reparations. Oxford: Oxford University Press. Djuric-Kuzmanovic, Tanja, Rada Drezgic and Dubravka Zarkov 2008. Gendered War, Gendered Peace. Violent Conflicts in the Balkans and Their Consequences, in: Donna Pankhurst (ed.). Gendered Peace. Women’s Struggles for Post-War Justice and Reconciliation. New York/London: Rout ledge, 265-291. Elster, Jon 2004. Closing the Books. Transitional Justice in Historical Perspective. Cambridge/New York: Cambridge University Press. Enns, Diane 2007. Identity and Victimhood: Questions for Conflict Management Practice. Berghof Occasional Paper No 28. Berlin: Berghof Research Center. Farr, Vanessa 2003. The Importance of a Gender Perspective to Successful Disarmament, Demobi lization and Reintegration Processes, in: Disarmament Forum, 4/2003, 25-36. Fletcher, Laurel E. and Harvey M. Weinstein 2004. A World unto Itself? The Application of Inter national Justice in Former Yugoslavia, in: Eric Stover and Harvey M. Weinstein (eds.). My Neigh bour, My Enemy. Justice and Community in the Aftermath of Mass Atrocity. Cambridge, UK: Cambridge University Press, 29-48. Fletcher, Laurel E., Harvey M. Weinstein and Jamie Rowen. 2009. Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective, in: Human Rights Quarterly 31, 1, 163-220. Franke, Katherine M. 2006. Gendered Subjects of Transitional Justice, in: Columbia Journal of Gender and Law 15, 3, 813-828. Freeman 2004a. Bosnia and Herzegovina: Selected Developments in Transitional Justice. ICTJ Case Studies Series. New York: International Center for Transitional Justice. Freeman, Mark 2004b. Serbia and Montenegro. Selected Developments in Transitional Justice. ICTJ Case Studies Series. New York: International Center for Transitional Justice. Galtung, Johan 1996. Peace by Peaceful Means. London: Sage. Gibson, James L. 2006. Overcoming Apartheid: Can Truth Reconcile a Divided Nation? New York: Russell Sage Foundation Publications. Hayner, Priscilla 2009. Negotiating Justice: Guidance for Mediators. Geneva: Humanitarian Dia logue Centre. Available at www.hdcentre.org/files/negotiating%20justice%20report.pdf. Hayner, Priscilla 2001. Unspeakable Truths. Confronting State Terror and Atrocity. New York/ London: Routledge. 426

Hayner, Priscilla 1994. Fifteen Truth Commissions – 1974-1994: A Comparative Study, in: Human Rights Quarterly 16, 4, 597-655. Hazan, Pierre 2007. Das neue Mantra der Gerechtigkeit. Vom beschränkten Erfolg international verordneter Vergangenheitsbewältigung, in: Der Überblick 43, 1-2, 10-22. Hazan, Pierre 2006. Measuring the Impact of Punishment and Forgiveness. A Framework for Evaluating Transitional Justice, in: International Review of the Red Cross 88, 861, 19-47. Hodzic, Refik 2007. Bosnia and Herzegovina – Legitimacy in Transition. Paper presented at the conference Building a Future on Peace and Justice, Nuremberg, 25-27 June 2007. Available at www.peace-justice-conference.info/download/Hodzic_Expert%20Paper.pdf. Jalusic, Vlasta 2004. Gender and Victimization of the Nation as Pre- and Post-War Identity Discourse, in: Ruth Seifert (ed.). Gender, Identität und kriegerischer Konflikt. Das Beispiel des ehemaligen Jugoslawien. Münster: Lit-Verlag, 40-67. Kerr, Rachel 2005. The Road from Dayton to Brussels? The ICTY and the Politics of War Crimes in Bosnia, in: European Security 14, 3, 319-337. Kohn, Elizabeth 1995. Rape as a Weapon for War. Women’s Human Rights during the Dissolution of Yugoslavia, in: Golden Gate University Law Review 25, 1, 199-221. Korac, Maja 1994. Representation of Mass Rape in Ethnic Conflicts in What Was Yugoslavia, in: Sociologija 6, 4, 495-514. Kriesberg, Louis 2007. External Contributions to Post-Mass-Crime Rehabilitation, in: Beatrice Pouligny, Simon Chesterman and Albrecht Schnabel (eds.). After Mass Crime. Rebuilding States and Communities. New York: United Nations University, 243-271. Kriesberg, Louis 2004. From Conflict Resolution to Reconciliation, in: Yaacov Bar-Siman-Tov (ed.). From Conflict Resolution to Reconciliation. Oxford: Oxford University Press, 81-110. Kritz, Neil J. 2009. Policy Implications of Empirical Research on Transitional Justice, in: Hugo van der Merwe, Victoria Baxter and Audrey R. Chapman (eds.). Assessing the Impact of Transitional Justice. Challenges for Empirical Research. Washington DC: USIP, 13-22. Kritz, Neil J. (ed.) 1995. Transitional Justice. How Emerging Democracies Reckon with Former Regimes. 3 volumes. Washington DC: USIP. Laplante, Lisa J. 2008. Transitional Justice and Peace Building: Diagnosing and Addressing Socioeconomic Roots of Violence through a Human Rights Framework, in: International Journal of Transitional Justice 2, 3, 331-355. Lederach, John Paul 1995. Preparing for Peace. Conflict Transformation Across Cultures. Syracuse, NY: Syracuse University Press. Magarrell, Lisa, Ruben Carranza, Cristian Correa and Virginie Ladisch 2007. Reparations in Theory and Practice. New York: International Center for Transitional Justice. Available at www.ictj.org/ static/Reparations/0710.Reparations.pdf. Maoz, Ifat 2004. Coexistence is in the Eye of the Beholder. Evaluating Intergroup Encounter Interventions between Jews and Arabs in Israel, in: Journal of Social Issues 60, 2, 403-418. McMahon, Patrice C. and David P. Forsythe 2008. The ICTY’s Impact on Serbia. Judicial Romanticism Meets Network Politics, in: Human Rights Quarterly 30, 2, 412-435.

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Useful Links International Center for Transitional Justice, New York: www.ictj.org South African Centre for the Study of Violence and Reconciliation: www.csvr.org.za Center for Justice and Reconciliation, The Hague: www.cjr.nl United States Institute for Peace, Washington: www.usip.org/issue-areas/transitional-justice University of Wisconsin-Madison: http://sites.google.com/site/transitionaljusticedatabase/ Center for Conflict Studies, University of Marburg: www.uni-marburg.de/konfliktforschung/ startseite-englisch?set_language=en Working Group on Peace and Development (FRIENT), Bonn: www.frient.de/en/ Peace Research Institute Oslo: www.prio.no/Search?q=transitional+justice Swisspeace, Berne: www.swisspeace.ch/typo3/en/peacebuilding-activities/koff/topics/dealing-withthe-past/index.html [All weblinks accessed 6 August 2010.]

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Citation: In B. Austin, M. Fischer, H.J. Giessmann (eds.) 2011. Advancing Conflict Transformation. The Berghof Handbook II. Opladen/Framington Hills: Barbara Budrich Publishers. Online at www.berghof-handbook.net.

The Spirituality of Transformative Justice and Democracy Bishop Kevin Dowling, CSsR (2013) Co-President of Pax Christi International

In January 2002, I sat at a simple shrine under a tree on a hot day. The shrine marked the scene of a shocking atrocity. This was in the compound of Holy Cross Parish, Kauda, in the Nuba Mountains, one of the most remote and underdeveloped areas in Africa. In its single-minded commitment to terrorise and subjugate the people in the Southern areas of Sudan, the Bashir regime in Khartoum embarked on an infamous bombing campaign. Antonov transport planes flew low over villages and crude barrels of explosive and shrapnel were rolled down the ramp at the back of the plane onto the villages and people below. One morning, an Antonov flew low over the Holy Cross Parish compound. The Catholic school teachers and children were having classes under the trees to shelter from the hot sun. Three bombs were dropped. One hit the ground next to a tree where a teacher was conducting her class – 14 children and the teacher were killed. The coalition of Christian Churches under the Sudan Ecumenical Forum and peace activists began a campaign. We meticulously documented such atrocities, doublechecked, and then engaged in advocacy with the important Governments involved in the Comprehensive Peace Agreement process which had not yet been concluded at Naivasha in Kenya. This advocacy and pressure led to the cessation of the bombing campaign. Sadly, after the Comprehensive Peace Agreement was signed, and after South Sudan obtained its independence, the Bashir regime has during the past year again begun its appalling bombing campaign against the same targets in the Nuba Mountains and with even greater ferocity – reckoning, probably, that the Western Governments with so much else to attend to will not return to pressurising the Bashir regime as they did in the past. This has led to dreadful suffering, internal displacement and thousands of people hiding in caves in the mountains. Security for them is non-existent, and “security” takes on another meaning in that starvation and disease become the marks of a total lack of food security for these people. The situation is indeed desperate. A few months ago, on November 30, 2012 there was a report which quoted Bishop Macram Max Gassis of El Obeid Diocese, in whose territory falls the Nuba Mountains in South Kordofan State of Sudan. “The bombings are carried out on a daily basis... The first victims of this war are civilians, especially women, children and the elderly,” said the Bishop. “Recently the church of Heban was bombed, which thankfully reported limited damage. In the month of November, Khartoum launched 330 bombs, which caused 36 deaths, mostly women and children, and 22 injuries. 30 homes and crops were destroyed.” “No humanitarian organization is present in the Nuba Mountains and the Church is the only presence of hope for these people, with our sisters and four doctors and surgeons (2 Americans, a German and an English doctor). The only medical facility in

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the area is the hospital which I founded, with a capacity of 80 patients and now has over 500.” “Many priests walk the paths that lead from the Nuba Mountains to our structure in South Sudan in Yida in Unity State, to get supplies and medicines. The journey takes 16 hours and under the threat of Sudanese bombers. I was abroad and asked the international community to implore the regime in Khartoum to stop the bombing on civilians, and to allow food and medicine to be brought to the exhausted people,” concluded Bishop Gassis (CISA). That story highlights just how very difficult it is for the Church in partnership with affected communities to mount and sustain successful international advocacy campaigns for peace, justice and transformation - with and on behalf of the victims of wars, violence, atrocities, and human rights abuses in all their forms – including rape as a weapon of war. The history and context here in Eastern Europe has its own particular circumstances and challenges which participants from this region know very personally. Someone like me depends completely on people like you to try to understand a little of your history and how the aftermath of atrocities, wars and all forms of violence in this area need to be addressed. All I can do is share my own story and journey with you in the hope that it can support us in our calling and mission for peace through justice. But all of us engaged in working for sustainable peace, justice and transformation can take our inspiration from a spirituality and an analysis of the meaning of justice which can be relevant and helpful no matter what our context and challenges might be. It means that we respond to our situation empowered by the Spirit of God, and a spirituality and relationship with the Lord of justice and peace, which then enables us to discern the principles and values which can and should guide our decisions and responses. The title of the talk I was given is “The Spirituality of Transformative Justice and Democracy”. I will try to reflect a little on the issue of justice in post-conflict situations like wars, or in situations where all kinds of atrocities and appalling human rights abuses are occurring. What kind of justice do such situations demand, what kind of justice do the victims cry out for. For example, on my visits to Croatia and meeting the activists engaged with Recom in the quest for a Truth Commission to respond to the Balkan conflict, what struck me so forcefully was my meetings with the mothers, fathers, brothers and sisters of the disappeared… people who had “disappeared” during the wars and violence, whose bodies had never been found, the existence of mass graves which had never been uncovered. I remember the Pax Christi meeting in Vukovar where we visited the site of the dreadful atrocity where people were taken from the hospital in Vukovar, put into a warehouse, and then taken to a field where they were shot. There were around 160 people. But when the mass grave was uncovered, only around 100 bodies were there. Where are the other bodies? The relatives of the disappeared want to know; they want to find out the truth of what had happened to their loved ones – as happened in my own country South Africa where people sought the truth of what had happened to family members 2|Page

during apartheid atrocities; these relatives are still suffering the trauma of loss years after the end of the wars. Recovering the truth was/is the very first step towards achieving justice for these victims……but how long will this still take is the question? In post-conflict situations after the end of a war, and in all efforts to work for peace in situations of violence, what has become central to discussions over the past years has been a reflection on all the issues which make up what is termed “transitional justice”. Transitional Justice places the emphasis or focus on the centrality of justice as the cornerstone of the both the process and the outcomes a time of transition from conflict and violence. One objective is to create and nurture an environment where the past evils and atrocities can never be repeated, and the ways to achieve this. But, Transitional Justice also speaks to the possibilities of justice for the victims, accountability for the perpetrators and the past beneficiaries of injustices, and a process leading to reconciliation, if possible, and a minimally decent society. Catholic Social Teaching principles can bring a distinctive value to the broader conversation around Transitional Justice. For example, the principle of “the preferential option for the poor” challenges nations and the communities in a society to understand and implement the process of justice primarily from the point of view of the experience of the victims. It calls for a reading of the history, the story of what happened from the bottom up, from the reality as the victims experienced it. It also calls for an empowerment of the victims to have their own stories recorded, in this way affirming their human dignity and worth. What is even more important, the preferential option for the poor calls for the victims to be enabled to explore their own energy and wisdom, so that they become the agents of transformation, i.e. how they can be involved in the processes which seek justice, healing, reconciliation if possible, the restoration of their dignity, and a better future for all citizens. And then, what about the perpetrators of the atrocities? What justice do the victims want for them? Do they want punishment? The international community, in response to such terrible atrocities, genocides and so forth, and in an effort to put an end to a culture of impunity and to establish the rule of law throughout the world, established the International Tribunals to try war criminals and those responsible for genocides and gross human rights violations. If found guilty the perpetrators are punished with lengthy spells in prison. So, for example, the trial of Ratko Mladic, the Serbian army commander in The Hague. However, there is some controversy around the International Tribunals. Some of the African Governments, for example, have stated that there is an imbalance in the prosecutions of Africans when this is compared to people from the West, especially when countries like the USA will not permit any of its citizens to be brought before the ICC. The process at these International Tribunals is based on the notion of “retributive justice”. Retributive justice has a primary focus: retribution against the perpetrators, punishing the perpetrators for the crimes committed, and that this will hopefully stop others from doing similar things. But the question is: is retributive justice the best means of transforming the situation after terrible suffering? Does punishing the perpetrators necessarily restore a society and its wounds? Is punishment the only or 3|Page

best way to lay the foundations for reconciling the groups involved in a conflict or war and creating conditions for sustainable peace? It seems to me that it needs something more and different. So, increasingly the discussion around justice is focussed on restorative justice as distinct from retributive justice. Restorative justice holds together a three-fold commitment: firstly, to affirm and restore the dignity of those whose human rights have been violated; secondly, to hold perpetrators accountable, emphasising the harm they have done to other individual human beings and communities, and the need for restitution; and, thirdly, to create conditions in which human rights will be respected in the future. Commenting on the South African Truth and Reconciliation Commission, Archbishop Desmond Tutu reflected that restorative justice ‘is concerned not so much with punishment as with correcting imbalances, restoring broken relationships with healing, harmony and reconciliation.’1 This is close to the Biblical understanding of justice. Reconciliation? This is a very complex question indeed because violence and atrocities, and gross human rights violations severely hurt people. Relationships between people and between communities will have been damaged or even destroyed – firstly between individuals, then at the village or community level, and at national level or between states. Unless great efforts are made to bring about holistic healing many underlying factors could result in serious problems in the future as broken societies and people whose dignity has not been restored may develop different forms of dysfunctional behaviour – and violence could break out again. And all processes of healing and reconciliation must incorporate rich cultural dimensions present in affected communities around the world. Indeed, these cultural dimensions are a very important dimension of restorative justice. After war and conflict, it is so important that NGOs, civic organizations and the Churches be involved in a continuous process of healing and ongoing conflict resolution in affected communities, and with individual victims. The victims cannot just be forgotten and expected to get on with life. And, just as important, there cannot be real reconciliation unless this incorporates comprehensive social reform and economic development for the victims, the poor and marginalized – to offer restitution and reparations for the victims. This puts the focus on another aspect of justice. Catholic Social Teaching would add to the Biblical understanding of justice the notion of distributive justice, the sharing of the goods of creation. Gaudium et Spes talks about ‘paying attention to the universal destination of earthly goods. The right of having a share of earthly goods sufficient for oneself and one’s family belongs to everyone. The fathers and doctors of the church held this opinion, teaching that everyone is obliged to come to the relief of the poor, and to do so not merely out of their superfluous goods.’2 It is very important to ensure that the justice process does not merely discover truth, nor only give affirmation and healing to the victims – vitally important as these are. In line with the “option for the poor”, justice must ensure that the poor/victims benefit directly from the resources of the earth or nation, especially those who were deprived of such rights and benefits by war, conflict or authoritarian rule – so that 1 TRC Final Report.1 Chapter 1 #36 2 Guadium et Spes #69.

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they can live a life of dignity and a minimum level of decency. The question of economic development after war and conflict is crucial, therefore. All these aspects of “justice” which I have briefly reflected on – all these aspects of “justice” form part of our understanding of “transformative justice” which is in the title of my talk. Transformative justice requires the recovery of truth, reflection on retributive justice versus restorative justice, healing as the first step in the journey towards reconciliation, distributive justice which will focus on the needs of the victims through restitution and reparation, and economic development which transforms their living standards so that they can live with at least minimal decency. And another goal, part of the title of my talk, is to promote and sustain “democracy” – democracy as part of transformative justice. Obviously, there is no single allembracing definition or understanding of democracy, and cultures around the world influence this understanding. But, a basic dimension which is central to any understanding of democracy is participation of citizens in all aspects of governance in the country, election of their own representatives, and the right and ability of holding their representatives accountable for meeting the fundamental human rights and needs of citizens and communities. The Spirituality of transformative justice and democracy If all of us coming from Eastern Europe, Russia etc., and all of us as members of the Pax Christi family, if we as peace and justice activists, are to engage with our affected communities and victims of war, atrocities, and gross human rights violations – so that transformative justice does not remain a distant dream, but becomes even gradually a reality which flows into a participative democracy which ensure the rights and well-being of all citizens……..if we as peace activists are to engage in this great venture, and even more if we are to keep our spirits alive and hope-filled in the face of so many challenges and obstacles……..then, quite clearly, we will need to act out of a spirituality which empowers us, sustains us, and enables us to keep moving forward. I would like to share with you a personal reflection which has helped me in my own journey. I suggest that our spirituality is quite simply the spirituality of the prophets – from the Old Testament to John the Baptist who prepared the way for the greatest prophet Jesus. You may move or respond to your situation from another starting point in your own spirituality and journey. I am simply trying to share my starting point in my spirituality. So, let us look at the call of the prophet Jeremiah. “A word of Yahweh came to me, ‘Before I formed you in the womb I knew you; before you were born I set you apart, and appointed you as prophet to the nations!’ I said, ‘Ah, Lord Yahweh! I do not know how to speak; I am a child!’ But Yahweh replied, ‘Do not say: ‘I am a child. Go now to all those to whom I send you; and say what I command you. Do not be afraid of them, for I am with you to protect you – it is Yahweh who speaks!’

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Then Yahweh stretched out his hands and touched my mouth and said to me, ‘Now I have put my words into your mouth. See! Today I give you authority over nations and kingdoms To uproot and pull down, to destroy and overthrow, to build and to plant.’” (Jeremiah 1: 4-10) All the prophets were called by God – none of them wanted this, or chose this. Jeremiah, for example, tried to get away from the call of God by trying to convince God that he was just a child, not able to speak therefore, which is the role of a prophet. But God did not accept this. Jeremiah and the other prophets….they were lifted out of their ordinary existence by God to take on a new mission which they knew all too well would bring them challenges, suffering, and perhaps even death. To be called by God as a prophet has nothing to do with foretelling the future; it is a call to announce the Reign of God in the present context of the people and their communities, and what the Reign of God means of even demands for people, communities, and the whole of creation. The prophet always and at all times lives in the actual conditions of his people; he/she is one with his people, and experiences every day the reality of their life. The prophet, living in the midst of his people, is called by God to interpret the actual situation of his people in the light of God’s Word and vision for all people. So the prophet is called to listen for the voice of God in the actual situation of the people, especially in the context of suffering and injustice, what we call today “reading the signs of the times”. The prophet then applies the Word of God to the actual context of the people with all its demands and challenges. So, for us, we can look at the prophet, among other examples, as one model of our calling in the search for peace through justice – like the prophets, we always remain one with the people to whom we are sent by God; we grow in the culture, the wisdom and spirituality of our people, we have shared their dreams and hopes, the struggles and sufferings of our people, and we have shared in the human weaknesses of our people and communities. This means that, just like the prophet, we are the ones who can/must hold our people before God in intercession and prayer, and then we can try to bring our God and God’s word to the people and their situation in the quest for peace through justice and non-violence. If this is to happen, then the prophet – like us – needs to live in a strong personal relationship with God. Prophetic figures like Jeremiah, Moses, Hosea, Mary, and even Jesus experienced a call to a particular mission in some kind of a “religious” experience of encounter with the God who called. From then onwards, the prophet needed to live in this personal relationship with God, who kept on forming them spiritually for their mission of bringing God into an encounter with the people and their historical context. Through this personal relationship with God, the prophet is able to discern God’s will in the developing situation, and to enable God’s will to be done. This is beautifully captured in the classic text from Luke 4: 16-21, where Jesus recognises that the words of Isaiah the prophet exactly encapsulate his own understanding of his mission in the midst of the people in their situation of oppression and injustice. So our task is to be a witness to God present in the real world of people’s lives; we witness to God’s presence through our word and the different ways we engage with our 6|Page

communities in their actual struggles and in working with them so that their hopes and dreams are gradually realised. One important dimension of our spirituality in action is that we consciously promote and develop participation – we invite our people to participate in reflecting on their situation and on discerning together what is the way forward, which are aspects of working for democracy in society. So we consciously invite our people, our partners, to take responsibility for their responses to the actual situation – we do not prescribe to them what they should or should not do. But, what is the objective, the goal of our spirituality, our relationship with Jesus, and the actions and responses we make in our actual situation? This, it seems to me, is to reveal our God to our people in their situation as a God of compassion and justice, a God of justice and compassion, that God’s desire for our people is that they should experience justice in their situation and become people of compassion and nonviolence. We can return to the call and mission of Jeremiah. God reveals to him what his mission is among his people and in the society: “See! Today I give you authority over nations and kingdom… To uproot and pull down, to destroy and overthrow, to build and to plant.’” Jeremiah is called to uproot and pull down to destroy and overthrow… strong words, but essentially this means that all injustice, oppression, abuses among the people and society must be “destroyed and overthrown” – we work to overcome all this evil. And in the place of injustice and oppression, the task is “to build and to plant”… to “build” the Reign of God which will be experienced in justice, peace, nonviolence, respect for the dignity of every person… to build, yes, and to plant… to “plant” the seed in the heart of every person and every community which will bring hope where there is despair, courage and strength to work together for a better future in situations where there seems to be so little to inspire and give courage and hope. But, as with all the prophets, the justice that God desires is to be proclaimed with great courage, but is to be worked for through compassion – in other words, no vendettas or revenge, rather a conscious commitment to non-violence. We have the wonderful example of all this in the story of the woman taken in adultery in John 8. Here we see Jesus as the perfect example of non-violence. He is eminently qualified to condemn her, but he very simply refuses to do so. So, in doing so, he absolutely questions all power and domination, all efforts to condemn people and to punish them, all retribution as the way to solve our human problems. For Jesus – and therefore for us his disciples – there can be no decision to use coercion, domination, and power to achieve objectives – rather compassion, sensitivity, and opening doors for vulnerable people to begin again, and to walk towards what is truly life-giving. That is our role, and that requires that we live and express the same spirituality as Jesus. Our spirituality in view of promoting transformative justice and democracy is directed towards helping our people to recognise that we are called to promote justice which is, in fact, God’s passion, and that justice is all about working to develop right and just relationships between people, and between people and all of creation. And right and just relationships require that we recognise and accept that we are all sinners, but that God is a God of infinite compassion whose vision of justice excludes everything which is contrary to compassion – that is, violence, 7|Page

domination, oppression, cruelty, vengeance, and all the rest. Instead, we are called in our spirituality and relationship with Jesus to recognise and promote his vision of justice, viz. the peaceful resolution and reconciliation of divisions and differences, non-violence in every situation which provokes and hurts, forgiveness even when it is so hard to offer, inclusiveness of everyone, especially the marginalised and excluded in Church and society, promoting the fundamental equality of every human being, and especially those who are regarded as not worthy of equal treatment, and ensuring the integrity of creation and our planet. When Jesus spoke about the kingdom, and what it means, he completely destroyed any concept of a kingdom of violence, power and oppression. His kingdom, what we might prefer to call the “Reign of God”, is all about love, compassion and justice in relationships with each other and with all creation, a kingdom where God is all in all. This is the spirituality and vision to which we are called today and every day in our lives and ministries in the cause of peace in our world. And our spirituality also needs to be based on this awareness: all the prophets, and Jesus himself, did not succeed in their mission, in the way that we humans define success. They failed in the face of evil, injustice, force and power; and they suffered the consequences. But that was not the end of the story – Jesus is the risen Lord, and has handed on to us the power of the Spirit, and the call to trust in Him and in his presence and action through us to transform this world into the dream of God – a dream of sharing, of peace, of making the love of God take life in love of the neighbour. I conclude with the words of Mahatma Ghandi and Archbishop Oscar Romero: Mahatma Gandhi said: “Whenever you are in doubt, or when the self becomes too much for you, apply the following test. Recall the face of the poorest and weakest person whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him/her. Will this person gain anything by it? Will it restore them to control over their own life and destiny? In other words will it lead to swaraj [freedom] for the hungry and spiritually starving millions? Then you will find your doubts and your self melt away.” And Romero: “God’s reign is already present on our earth in mystery. When the Lord comes, it will be brought to perfection. That is the hope that inspires Christians. We know that every effort to better society, especially when injustice and sin are so ingrained, is an effort that God blesses, that God wants, that God demands of us.” (March 24, 1980). To that I say: Amen!

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Come & See A Call from Palestinian Christians

A Journey for Peace with Justice Guidelines for Christians Contemplating a Pilgrimage to the Holy Land 2

Come & See

Come & See A Call from Palestinian Christians

A Call from Palestinian Christians

Introduction These guidelines were developed in 2010 at a consultative meeting in Geneva to promote justice tourism for pilgrims to PalestineIsrael. Representing 14 countries, a group of 27 theologians, Palestinian Christian activists and professionals in the tourism industry called on Christian pilgrims to live their faith as they visit the Holy Land, going beyond homage of ancient sites to show concern for the Palestinian people living there whose lives are severely constricted by the Israeli occupation of their lands. The meeting was organized by Alternative Tourism Group (ATG) in cooperation with the Ecumenical Coalition on Tourism (ECOT), Kairos Palestine and the World Council of Churches (WCC) through its initiative the Palestine-Israel Ecumenical Forum (PIEF). ATG is a Palestinian NGO specializing in tours and pilgrimages that incorporate critical examinations of the Holy Land’s history, culture and politics.

Come & See

Affirming our Common Humanity: A Pilgrimage of Transformation The decision to visit the Holy Land is the first step in an amazing journey. Whether this will be your first pilgrimage to the Holy Land or you have visited many times before, we ask you to consider how Christians might best reflect the teachings of Jesus Christ when they are in the land where He walked. This journey will reveal —in contrast to daily headlines that make us feel helpless and inured to suffering and violence— that there is hope for bringing the fruits of peace to all. What is yet needed is the momentum and commitment of people of faith and courage. This pilgrimage of transformation will show us how each of us can be a peacemaker in our own small or large ways.

“If you want peace work for justice” Pope Paul VI

“If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality” Archbishop Desmond Tutu

These guidelines has been written for visionary pilgrims and visitors seeking an authentic, face-to-face human encounters in the Holy Land, who wish to connect with the Palestinian Christians -- the “Living Stones” who share their faith. It contains tools including Biblical reflection (page 10) and a Code of Conduct for Tourists in the Holy Land (page 16) to help plan and prepare—practically and spiritually-- a Pilgrimage of Transformation. Additional detailed planning and education resources are listed on pages 18-22. Today you are invited to a journey of truth and transformation that will reveal the love of God to you through the eyes of the Palestinian people who, despite having suffered decades of occupation and dispossession-- maintain their dignity, faith, and capacity for hope.

A Call from Palestinian Christians

The Kairos Call from Palestinian Christians: In a Land Holy to Three Faiths, Occupation is a Sin Kairos (

): an ancient Greek word meaning the right or opportune moment

In December 2009, Palestinian Christian leaders launched the Kairos document, a statement that shares their daily realities of life under occupation and calls on Christian sisters and brothers and churches worldwide to be witnesses to these realities, to be in solidarity, and to take action. The following are excerpts. Today we have reached a dead end in the tragedy of the Palestinian people. The decisionmakers content themselves with managing the crisis rather than committing themselves to the serious task of finding a way to resolve it…It is a policy in which human beings are destroyed, and this must be of concern to the Church… These days, everyone is speaking about peace in the Middle East and the peace process. So far, however, these are simply words; the reality is one of Israeli occupation of Palestinian territories, deprivation of our freedom and all that results from this situation…

“They say: ‘Peace, peace’ when there is no peace” (Jer. 6:14).

We believe that our land has a universal mission. In this universality, the meaning of the promises, of the land, of the election, of the people of God open up to include all of humanity, starting from all the peoples of this land... It was the initiation of the fulfillment of the Kingdom of God on earth.

“The earth is the Lord’s and

God sent the patriarchs, the prophets and the all that is in it, the world, and apostles to this land so that they might carry forth a universal mission to the world. Today those who live in it we constitute three religions in this land, (Ps. 24:1). Judaism, Christianity and Islam…It is the duty of those of us who live here, to respect the will of God for this land. It is our duty to liberate it from the evil of injustice and war. It is God’s land and therefore it must be a land of reconciliation, peace and love...

”

Our appeal is to reach a common vision, built on equality and sharing, not on superiority, negation of the other or aggression, using the pretext of fear and security.

Come & See

We say that love is possible and mutual trust is possible. Thus, peace is possible and definitive reconciliation also. Thus, justice and security will be attained for all. In order to understand our reality, we say to the Churches: Come and see. We will fulfill our role to make known to you the truth of our reality, receiving you as pilgrims coming to us to pray, carrying a message of peace, love and reconciliation. You will know the facts and the people of this land, Palestinians and Israelis alike. At the same time we call on you to say a word of truth and to take a position of truth with regard to Israel’s occupation of Palestinian land. The entire document along with other resources can be found on the Kairos Palestine website: www.kairospalestine.ps

A Call from Palestinian Christians

Justice Tourism and the Palestinian Tourist Sector Transformational pilgrims to Palestine are also justice tourists, seeking to understand and make a positive difference in the lives of people whose lands they visit. Meeting Palestinians who are living under occupation is an act of solidarity that brings hope to the people and contributes to their economic development. Like the rest of the Palestinian economy, tourism faces unique difficulties caused by the Occupation. Israel controls all entrances into Palestine and, favoring its own tourist industry, Israel severely restricts business in Palestine. However, while more tourists still visit only Israel, the number of visitors to Palestine has been increasing annually. The Palestinian community has developed compelling and unique tour itineraries and programmes for visitors and pilgrims. The Code of Conduct for tourists to Palestine provides information, guidelines, and protocols for visitors while publications such as the excellent Palestine and Palestinians Guidebook are tremendously informative resources for trip planning. Justice tourism to Palestine has as its ultimate goal: “promoting peace with justice for the people in the Holy Land.” Engaging churches, social movements and faith-based organizations to promote Pilgrimages for Transformation, it is hoped that pilgrims will be inspired by and will work for justice-based peace and reconciliation for the Palestinians and Israelis.

Come & See

“Justice tourism, one of the most effective means of promoting understanding, mutual education, economic exchange and environmental protection, has a central role to play in these efforts…tourists with a commitment to social justice – justice tourists - have the opportunity, not only to make positive contributions to the communities they visit, but to become holders of the knowledge that will one day lead to equality, democracy, and

”

human rights for all. Rami Kassis Alternative Tourism Group

Affirming the Love of God for All

We know that certain theologians in the West try to attach a biblical and theological legitimacy to the infringement of our rights. Thus, the promises, according to their interpretation, have become a menace to our very existence. The “good news” in the Gospel itself has become “ a harbinger of death” for us. We call on these theologians to deepen their reflection of the Word of God and to rectify their interpretations so that they might see in the Word of God a source of life for all peoples. [2.3.3]

“My people are destroyed for lack of knowledge…” Hosea 4:6a (RSV)

“...It is a call to repentance, to revisit fundamentalist theological positions that support certain unjust political options with regard to the Palestinian people. It is a call to stand alongside the oppressed and preserve the word of God as good news for all...God is not the ally of one against the other, nor the opponent of one in the face of the other. God is the Lord of all and loves all,

Our connectedness to this land is a natural right. It is not an ideological or a theological question only. It is a matter of life and death. There are those who do not agree with us, even defining us as enemies only because we declare that we want to live as free people in our land. We suffer from the occupation of our land because we are Palestinians. And as Christian Palestinians we suffer from the wrong interpretation of some theologians. Faced with this, our task is to safeguard the demanding justice from all Word of God as a source of life and not of death, so that “the good news” remains what it is, “good news for us and for all. In face of those who use the Bible to threaten our existence as Christian and Muslim Palestinians, we renew our faith in God because we know that the word of God cannot be the source of our destruction. [2.3.4] from Kairos Palestine, an appeal from Palestinian Christians

...”

Beyond the rhetoric and the media spin is a reality of suffering that has been denied for decades. Churches have done a grave disservice to their flocks by ignoring the plight of millions of dispossessed Palestinians. As Christians living in the Holy Land, we have faith

A Call from Palestinian Christians

that when our fellow Christians from around the world gain access to a more comprehensive picture of our reality, they will no longer be able to ignore our cry for peace with justice. In many countries today, the Israeli occupation of Palestinian lands and the oppression this brings to their daily lives is not well understood and is often obscured in the media and by powerful interests. While some are misled and disempowered to speak or act, many Christians and other people of conscience feel disturbed by a one-sided narrative that justifies the ongoing occupation and its gross human rights violations. With this background, some come to the Holy Land as spectators, touring holy sites as they would museums, not caring or realizing that for Palestinian Christians these are living places of worship. Reflecting the pious practices of the Pharisees, they search for a personal blessing, seeking to renew an egocentric, individualistic faith. What they choose to see and do only reinforces their prejudices, preconceived notions, and limited understanding of a complex situation. Yet true faith requires more from a Christian than purveying stereotypes and untruths and supporting injustice. The genuine Christian pilgrim seeks the living Christ in the now, in solidarity with the oppressed, the poor, and the imprisoned. They look for truth and seek justice, supporting and blessing both Palestinian and Israeli peacemakers.

Come & See

Spiritual Elements of an Authentic Pilgrimage A true Christian pilgrimage to Palestine is an invitation to “come and see”: a journey to find new and deeper truths about ourselves and the meaning of our Christian faith and be transformed so that we may test and approve what is the will of God – what is good and well-pleasing and perfect.” (Romans 12: 2).

“ Justice denied anywhere

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diminishes justice everywhere Martin Luther King Jr.

We embark on a purposeful and respectful journey with the Palestinian Christians through their land and history, taking sufficient time to listen, reflect, and pray with them. Hearing their stories may challenge us to unlearn much of what we “know” and “understand” about Palestine and to relearn through experiencing the realities of Palestinian life and their struggle for justice. Christian pilgrimage must comfort the afflicted and afflict the comfortable. Based on the relationships we build with Palestinian Christians on our pilgrimage, we can seek truth and paths to peace and reconciliation by: 1. Listening to the Biblical reflections of local Christians, the descendants of the first Christians, whose experiences have given them a deep and personal understanding of the Scriptures that forms the basis of Palestinian Christian theology. 2. Making connections between our lifestyles and the national policies of our countries and the injustices Palestinians live with each and every day. As these connections become clear, accept the responsibility to respond by working for a transformation in our own lives and home communities. 3. Experiencing the diverse environment of Palestine by accompanying Christian Palestinians on visits to their Muslim brothers and sisters to share and learn from each other. 4. Offering a voice of comfort to the Palestinian people as we hear about their daily humiliation, anger, frustrations, and struggles. 5. Committing to stand with Palestinians in their struggle for dignity and freedom.

A Call from Palestinian Christians

Come & See

Biblical Insights for a Pilgrimage of Transformation Too often, we can be like the dead Lazarus, wrapped in cloth, unaware of the world around us, and the people in it. Jesus calls us to come out, to come back to life, to make the difference we are meant to make in the world. As St Paul says in 2. Cor, 5:17: “Therefore, if anyone is in Christ, he is a new creation; the old has gone, the new has come!” The story of Lazarus reminds us that for God nothing is impossible —even death is not an obstacle— and that we must not accept the premise that a just peace in Palestine-Israel is beyond reach. The Bible itself is an inspiration to see our entire lives as a pilgrimage and to live like a pilgrim every day. The whole Bible is about God’s determination to bring his creation back to a new relation with the divine, to “…a better country, that is, a heavenly one.” (Hebrews 11: 16) In Hebrews 13 we also learn about “...brotherly love and hospitality to strangers, for thereby some have entertained angels unawares.” What should be even more important to Christians than the holy sites are the communion of living saints at the pilgrimage places. Journeying to a place of divine blessing, presence, and power should be done in the context of human living. Because we are all members of Christ’s body, we cannot be witnesses to other Christians’ lives without caring about their expressions of faith, their traditions, their joys and struggles.

“Jesus looked up to heaven and prayed to his Father, closing with these words: “Lazarus, come out!” When Lazarus came out of the tomb, Jesus told the people to remove his

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grave clothes. John 11:43-44

“He has told you, O mortal, what is good and what does the Lord require of you but to do justice, and to love kindness, and to walk humbly

”

with your God? Micah 6:8

“Rejoice with those who rejoice; mourn with those who

”

mourn

Roman 12: 15

A Call from Palestinian Christians

God intervenes in human history whenever life is threatened, abused and destroyed– for the slain Abel, Uriah, Naboth, the slaves in Egypt, the poor and the widows. God revives the dry bones that “come to life, stand on their feet and become a great army” (Ezekiel 37:10). The reign of God is present wherever life is set free, the blind see, the lame walk and the good news of liberation is announced. God sends the prophets to liberate people from oppression and speak words of judgment. God is on an eternal pilgrimage into our here and now for the sake of justice and love. God’s incarnation in Christ is God’s way of entering into the moral struggles of the world and showing us how to live a truly human life. Jesus identifies himself with all those unjustly treated in order to expose injustice. (See the Parable of the Last Judgment, Matt.25: 25-35)

“The Spirit of the Lord is upon me, because he has anointed me to preach good news to the poor. He has sent me to proclaim release to the captives and recovering of sight to the blind, to set at liberty those who are oppressed, to proclaim the acceptable

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year of the Lord. Luke 4:18ff (RSV)

“If you love God, you would love the people of God, the people that God created. Many of us Christians love the church - our buildings, monuments, traditions, relics, liturgies, and symbols. In the name of God, we love what we have created but fail to love what God has created – the human being and the rest

”

of creation.

Deenabandhu Manchala World Council of Churches

Come & See

A Call from Palestinian Christians

Connecting with Palestinian Christians For decades, millions of Christian have journeyed to the Holy Land and returned home without even realizing that their pilgrimage was missing something very important: face-to-face human encounters with those who share their faith. Palestinian Christians’ continuous presence for more than 2,000 years in the land of Christ’s life, death, and resurrection gives them a unique connection to Christianity and its traditions. They also share, along with the rest of the Arab world, a culture of hospitality renowned for its warmth and generosity. In addition, Palestinian Christians have vast experience welcoming pilgrims to their land, continuing a tradition their ancestors began centuries ago. As hosts, the Palestinian Christians are able to show visitors holy sites rarely seen by ordinary tourists and can illuminate these sites with a faith that is physically linked to these places. For Palestinian Christians, the holy sites are not mere tourist destinations —they are often their own local churches— places that have meaning in their every day worship. The people in these communities -- the “Living Stones” -- are the keepers of sacred tradition in the Holy Land and protectors of the places that mark events in the life of Christ and the prophets.

Come & See

“Come to him, a living stone, rejected by men but approved, nonetheless, and precious in God’s eyes. You too are living stones, build as an edifice of spirit, into a holy priesthood, offering spiritual sacrifices acceptable to God through Jesus

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Christ.

1 Peter 2:4-5

“Palestinian hospitality is a long lasting tradition dating back to the times of Jesus Christ some

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2000 years ago. Father Richard Potts, editor of The Liguorian. www.TravelPalestine.ps

Who Are the Palestinian Christians ? No one knows exactly the numbers of Palestinian Christians since the great majority of them live in the Diaspora and there is no proper census to know their numbers. Their estimated number, living in Palestine, Israel and the Diaspora, is estimated between 800,000 to one million. They are an integral part of the indigenous Palestinian population and their mother tongue is Arabic. Their history is linked with the early church established in Jerusalem some 2000 years back and their presence never been disconnected in this land. At present, around 50,000 Christians live in the West Bank, including East Jerusalem and Gaza Strip and make up about 1.2 percent of the total population. In Israel their number is estimated at around 160,000 people. Despite this small percentage, the Christians in Palestine lead a very dynamic community and very active in the field of social services and education. Approximately 45% from the NGOs in Palestine are run by churches or church-related organizations. The majority of Palestinian Christians living abroad are found in USA, South America, Australia, Canada and Europe. This situation is due to the expulsion of around 750,000 Palestinians, including 150,000 Christians, who became refugees in the year 1948, the year of Nakba (Arabic for “catastrophe”). The dispersal of Palestinians since 1948 has spared no one family or group including Palestinian Christians. Palestinian Christians in East Jerusalem, the West Bank and the Gaza Strip belong to the four Christian families: Oriental Orthodox Churches, Eastern Orthodox (Caledonian) Churches, Catholic Churches, and Evangelical Churches. In addition to 13 officially recognized denominations, there are some smaller ones, mainly evangelicals. Palestinian Christians live almost in every governorate in the West Bank and Gaza Strip, although the majority of them live around the holy sites in Bethlehem and Jerusalem. There are approximately ten town and village councils headed by Christian mayors in addition to a number of legislators and ministers in the Palestinian authority.

A Call from Palestinian Christians

Meeting the People of Palestine: Suggestions for meaningful face-to-face encounters with “the living stones.” 1.

Visit Palestinian churches, attend their services, and worship with them. Stay and talk. More than a dozen denominations -- representing all four Christian families -exist in Palestine, so it will not be hard to find your church.

Choose to tour with a Palestinian tour group and/or guide (see Resources, page 19) for all or at least some of the time. Israeli tour companies are permitted to come into the West Bank, but tourists have found that Israeli tour guides have a very different interpretation of the Palestinian reality, and will discourage tourist from having contact with any “Arabs.”

While Israeli tour companies regularly bring their tourists to Bethlehem to visit the Church of Nativity, rarely do their busses spend more than an hour there and no money is circulated into the local economy. You can support the Palestinian economy by enjoying the town of Bethlehem and beyond -- eating in restaurants, visiting shops and staying in hotels.

Visit Palestinian social, cultural, educational or theological centers.

5. Make contact with one of the numerous Palestinian civil society groups and organizations who focus on women’s issues, children, human rights, or people with disabilities. Ask if you may visit their programs. 6.

Arrange to stay with or visit a Palestinian family. Local tourist companies are happy to match you with a host family whether that is for just one meal or for several days as an overnight guest.

7. Obtain a Palestinian guidebook such as Palestine and Palestinians to give you more ideas and guide you through the country (see Resources, page 19). 8. Explore the country on foot. A journey on the “road less traveled” is an opportunity for encounters with nature, landscape, and culture that would otherwise be inaccessible by vehicle.

Come & See

A Code of Conduct for Travelers to the Holy Land This code was developed with input from Palestinian and international organizations in order to present a unified message about responsible tourism in the region. Below are excerpts that we belief are most important for Christians to incorporate into their pilgrimages.

Preparation

To prepare your trip to Palestine, we encourage you to consider including the following in your preparation: 1. Choose an inclusive and balanced itinerary that allows you to visit and stay in different places. 2. Educate yourself by reading guidebooks, travel accounts and articles about current news and events. [See Resources, page 19-23] 3. Establish contact with Palestinians to get up-to-date information about the current situation, safety, local history, culture and customs. 4. Approach travelling with a desire to learn rather than just observe. Leave prejudices behind.

Your trip

Adopting a considerate attitude towards the people you encounter, the environment, and host communities when travelling in Palestine helps to make sure that your trip is beneficial both for you as a tourist and for the hosts.

5. Your attitude

• Respect and learn about the local culture. Although taking pictures is in general welcome, be aware of people›s sensitivity about being photographed: always ask first for their approval. • Observe local customs. Respect local dress codes and dress modestly. • Interact and spend time with local people. Be aware that your cultural values may differ from theirs. They may, for example, have different concepts of time, personal space, communication and society. Other values are not wrong or inferior, just diffeent.

6. Your behaviour:

• Be aware of shortsighted emotional reactions, such as giving money out of compassion. This can be offensive. A Call from Palestinian Christians

• Make sure that you encounter and engage with the local communities who are struggling for the respect of their dignity. • Support communities in a responsible way, without encouraging them to change their customs in order to adopt yours. • When visiting holy sites, allow members of the respective religious community to guide you.

7. Your use of natural resources:

• Co-operate with locals in conserving precious natural resources. Commit yourself to a moderate use when possible • Be open to experience local standards rather than expecting to find the same conditions as in your home town and/or country.

8. Support the local economy:

• Appreciate local expertise by paying adequately. • Buy local products. • Contribute to ensuring that tourism has a beneficial outcome for the local community.Use local transportation, guides, accommodation, restaurants and markets to benefit the local economy. • Consider giving tips where customary. 9. Remember that the people you encounter have lived under military occupation for many years. Be sensitive when discussing related topics and listen to their points of view. 10. Be inspired by the pilgrim›s journey: take your time to live and experience the daily life of the local people.

Returning home

When you return from Palestine do not hesitate to share your experiences with friends and relations. Your Palestinian hosts will be very happy to know that you keep them in your mind and that you tell their and your stories. In this way, you can strengthen the human side of tourism and enhance its benefits to communities and individuals.

11. Share your experience

• Think of creating links between your community and the community you visited. • Tell the stories of the people you met. • Discuss and debrief with other members of your group (if you travelled together with others). • Share with your family; inform your community; write articles.

Come & See

12. Stick to the commitments you made during your trip: • Remember the promises you made to the local people you met and honour them. • Keep the people in your thoughts, pray for them and act when your actions are needed. 13. Allow yourself to be enriched by learning experiences: • Question your stereotypes/generalisations, both the ones you had before the trip and the ones emerging from your experience abroad. • Address prejudices and injustice where you meet them.

14. Take action

• Learn about the involvement and responsibilities of your home country in the Middle East. Expose and confront them when they have been unfair. Address statements you do not agree with, such as inaccurate tourism brochures, stereotyped views of Palestine in conversation and inaccurate or biased media portrayals.

Excerpted from: A Code of Conduct for Tourism in the Holy Land: A Palestinian Inititive, printed by the Palestinian Initiative for Responsible Tourism (PIRT) in 2009. For the complete Code of Conduct or for more information about PIRT, please visit www.pirt.ps

A Call from Palestinian Christians

LEARNING ABOUT THE ISSUES SELECTED RESOURCES For additional resources, please visit www.pirt.ps to view our expanding list.

PALESTINIAN HUMAN RIGHTS ORGANIZATIONS: Al Haq

Independent Palestinian non-governmental human rights organization www.alhaq.org

Applied Research Institute of Jerusalem (ARIJ)

Promoting sustainable development in the occupied Palestinian territory http://www.arij.org

Badil

Resource Center for Palestinian Residency& Refugee Rights www.badil.org

Defence for Children International – Palestine Section

Promoting and protecting the rights of Palestinian children in accordance with the United Nations Convention on the Rights of the Child (UNCRC) www.dci-pal.org

International Center of Bethlehem

Lutheran-based, ecumenically-oriented institution empowering the local community www.annadwa.org/dar

International Middle East Media Center Independent media coverage of Israel-Palestine www.imemc.org

Joint Advocacy Initiative (JAI) of the East Jerusalem YMCA and YWCA of Palestine

Working for peace with justice in Palestine, based on humanitarian and Christian values. www.jai-pal.org

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Kairos Palestine

Christian Palestinians’ word to the world about what is happening in Palestine www.kairospalestine.ps

Palestine Center for Human Rights

NGO based in Gaza dedicated to protecting human rights www.pchrgaza.org

Palestinian Bible Society

Committed to making the Word of God available to Palestinians www.pbs-web.com

Sabeel

Palestinian Ecumenical Liberation Theology Center www.sabeel.org

ISRAELI HUMAN RIGHTS ORGANIZATIONS: Alternative Information Center

Promoting the human and national rights of the Palestinian people www.alternativenews.org

Breaking the Silence

Israeli soldiers document their time in the Occupied Palestinian Territories www.shovrimshtika.org/index_e.asp

B’tselem

The Israeli Information Center for Human Rights in the Occupied Territories www.btselem.org

Gisha

Legal Center for Freedom of Movement www.gisha.org

Israeli Committee Against House Demolitions

Non-violent, direct-action organization to resist Israeli demolition of Palestinian houses www.icahd.org

A Call from Palestinian Christians

Rabbis for Human Rights

Seeks to prevent human rights violations in Israel and in areas for which Israel has taken responsibility www.rhr.org.il

Who Profits?

Exposing the Israeli occupation industry www.whoprofits.org

Zochrot

Israeli citizens working to raise awareness of the Nakba www.nakbainhebrew.org/index.php?lang=english

INTERNATIONAL ORGANIZATIONS: Christian Peacemaker Teams (CPT)

Faith-based non-violent support in situations of lethal conflict www.cpt.org

The Ecumenical Accompaniment Programme in Palestine and Israel (EAPPI)

Accompaniment and advocacy efforts to end the occupation (An initiative of the World Council of Churches) www.eappi.org

International Solidarity Movement

Non-violent resistance though international solidarity www.palsolidarity.org

UN Office of the High Commissioner for Human Rights Reports on the Occupied Palestinian Territory http://www.ohchr.org/EN/countries/MENARegion/Pages/PSIndex.aspx

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BOOKS: Of the Middle East (2005) by Robert Fisk I am a Palestinian Christian (1995) by Mitri Raheb Palestine—Peace not Apartheid (2006) by Jimmy Carter Palestine in Pieces: Graphic perspectives on the Israeli Occupation (2009) by Kathleen & Bill Christison The Question of Palestine (1992) by Edward W. Said DOCUMENTARIES: Hope in a Slingshot (2008)

www.roninfilms.com.au/feature/1706.html

Occupation 101 (2006) www.occupation101.com

Slingshot Hip Hop (2008) www.slingshothiphop.com/dvd

With God on our Side (2010) www.withgodonourside.com

A Call from Palestinian Christians

PALESTINIAN PILGRIMAGE AND TOURIST RESOURCES: Alternative Tourism Group

Palestinian NGO specializing in justice tourism www.atg.ps

Travel Palestine

The Official Website for Tourism in Palestine www.travelpalestine.ps

Palestinian Initiative for Responsible Tourism

A network of organizations advocating responsible tourism in the Holy Land www.pirt.ps

Visit Palestine

«Your guide to Palestine» www.visitpalestine.ps

GUIDEBOOKS: Palestine and the Palestinians (Second edition 2008)

Published by and available from Alternative Tourism Group: www.atg.ps

Come & See

Issued by :

Alternative Tourism Group In cooperation with

Palestine-Israel Ecumenical Forum Ecumenical Coalition on Tourism (PIEF)

A Call from Palestinian Christians

Kairos Palestine