Second debate in UK parliament on children in military custody in 2016

On the last day before the summer recess, the House of Lords debated “the conditions in which Palestinian children are living and the impact on their health and wellbeing” including their treatment while held in military detention. This is the second time this year that the UK parliament has considered the treatment of Palestinian children living under military occupation following a debate held in the House of Commons on 6 January 2016.

The most recent debate was sponsored by Lord Norman Warner who visited the West Bank in April as part of a cross-party parliamentary delegation organised by CAABU and MAP. As part of the visit, the delegation went to Ofer military court near Jerusalem. The Israeli authorities established the military courts following the conclusion of the war in 1967 and during the intervening 50 years they have prosecuted many thousands of Palestinian men and women as well as children aged 12 and above.

The legal basis upon which Israel prosecutes Palestinians in military courts is not seriously in dispute. Under the laws of war, codified in part by the Fourth Geneva Convention (the Convention), the West Bank, East Jerusalem and Gaza are held in a state of military occupation. Under what is supposed to be a temporary state of affairs, the penal laws of the occupied territory may be suspended in limited circumstances and replaced with military law (Art. 64). Individuals who break the military law can be prosecuted in properly constituted military courts (Art. 66).

Not surprisingly perhaps, the military authorities acknowledge that this is the legal foundation for prosecuting Palestinian civilians in military courts. In a briefing paper prepared by the Military Courts Unit, the military acknowledges that the courts “were established in accordance with international law” and refers to Article 66 of the Convention in support of this contention. However, from a legal perspective, this reasoning begins to unravel when one considers that the civilian and military authorities regularly reject the application of the same Convention when it comes to settlement construction in the West Bank and East Jerusalem, prohibited under Articles 49 and 147, and confirmed on numerous occasions in legally binding UN Security Council resolutions.

Another issue raised during last Thursday’s debate highlights what is becoming a dangerous pattern of cherry-picking legal obligations with the effect of undermining the credibility of the rule of law. Article 76 of the Convention specifically prohibits the transfer of persons accused or convicted of offences from occupied territory. In the commentary to the Convention provided by the International Committee of the Red Cross (ICRC), it is clear that the prohibition against transferring detainees from occupied territory, for whatever reason, stems from the experiences of the Second World War when, as we all know, mass transfers in Europe were commonplace.

Determined to avoid repeating these experiences, the authors of the Convention voted unanimously in favour of prohibiting unlawful deportation or transfer, including the transfer of detainees, and designated the practice as a “grave breach” of the Convention requiring severe penal sanctions as a deterrent. These legal principles have been incorporated into UK domestic law and were recently re-affirmed by the UK Government in response to an inquiry by members of parliament. However in its response the Government did not indicate how it intended to ensure effective implementation beyond the stock response to such questions that: “we have raised with the Israeli authorities our longstanding concerns”.

Be this as it may the latest figures released by the Israeli Prison Service, a government instrumentality, indicate that 86 per cent of Palestinian adult detainees and 48 per cent of child detainees from the West Bank continue to be unlawfully transferred and detained in facilities located inside Israel. It bears remembering that this practice has been occurring for nearly 50 years and currently affects around 7,000 individuals each year. And to make matters worse, if that were possible, the military authorities have now informed UNICEF that they have no intention of changing the policy – in what can only be viewed as a rejection of the rule of law.

Indifference to this conspicuous example of cherry-picking binding legal obligations is the potential to destroy the credibility of the international legal order established after World War Two – a legal order, it’s worth noting, that was universally agreed to by all UN member states in the hope of saving “future generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind” as expressed in the preamble to the UN Charter. As this century progresses, we in the West may ourselves need to seek the protection to be found in these principles but, like an un-serviced fire extinguisher, might find that they have become worthless due to decades of neglect and short memories.

During last Thursday’s debate, Lord Oates also focused his attention on the detention of children and noted that: “Given the occupation, it is inevitable that young people come in conflict with the occupying forces”. His Lordship went on to note that: “In June 2012 the FCO funded a report into children in military custody, which found that Israel’s military detention system violated six articles under the UN Convention on the Rights of the Child and two articles under the Fourth Geneva Convention. In February 2013, […] a UNICEF report described the ill treatment of children in the military detention system as “widespread, systematic and institutionalised” [and] “A review of developments since the 2012 FCO report indicated that just one of the report’s 40 recommendations had been addressed four years later.”

A reoccurring theme throughout the debate raised by a number of Peers was the issue of incitement by the Palestinian Authority of its young people against Israel with the implication that this essentially is the underlying cause behind the perpetuation of the conflict and the detention of children. During his reply Lord Norman responded to this issue in the following terms:  “There has been talk in this debate about incitement by the Palestinians and the Palestinian Authority. I can think of no greater incitement than a 50-year military occupation in which you watch illegal settlers take over your land. That seems to me to be a very considerable incitement. If we do not deal with that issue, we will continue to have violence.” Lord Warner’s observation also appears to be supported by the evidence which indicates that children detained by the military authorities in the West Bank on average live within two kilometres of a settlement built in violation of international law.

As with most conflicts, there is no end of competing narratives or shortage of blame to go around for the failure to achieve peace. If there were no examples of incitement on either side this would, no doubt, be a first in the history of human conflict. However, those in a genuine search for peace who think that a satisfactory resolution can be found by abandoning the very principles established to resolve conflict are likely to be perpetually disappointed.

Gerard Horton is a lawyer and co-founder of Military Court Watch. Gerard has worked on the issue of children detained by the Israeli military and prosecuted in military courts for the past eight years prior to which he practised as a barrister at the Sydney Bar specialising in commercial and criminal cases.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.