“There is no justice under occupation,” Ahed Tamimi said after accepting an eight-month sentence, and hefty fine, for slapping an Israeli soldier. The 17-year-old has become a symbol for Palestinians and those around the world fighting the Israeli occupation of Palestine. According to Gaby Lasky, Ms. Tamimi’s lawyer, Israeli prosecutors indicted the teen on 12 separate charges, including assaulting an Israeli soldier, interfering with a soldier’s duties, incitement, and stone throwing. The venue, within which the charges were “adjudicated,” rather than excessiveness of the charges and length of incarceration, is arguably the most disconcerting aspect of the case. Too little attention has been focused on this disquieting reality of Israeli occupation – the prosecution of Palestinian children in military tribunals.
In the U.S., children are prosecuted in juvenile courts, where the system assumes a parens patriae role toward those accused of delinquency. The process tends to be more humane and outcomes less punitive and stigmatizing, with judges, prosecutors, and lawyers prioritizing rehabilitative possibilities over more consumptive alternatives, such as incarceration. The juvenile’s alleged conduct, as well as his needs, is viewed individually and situationally, with an effort to determine if family bonds and support structures, if any, offer restorative promise or are, perhaps, the root of the problem. But, in the occupied territories, Palestinian minors such as Tamimi are not considered potentially redeemable community treasures needing direction. They are agitators to be prosecuted – or more accurately, persecuted – in Israeli military courts. With a conviction rate of 99.7%, these military courts exist not to provide guidance or to impartially examine the credibility of the prosecution’s evidence, but to sanction Israeli occupation enforcement tactics.
Israelis view Palestinian juveniles accused of rock throwing, the most common “crime,” as antagonists of criminal syndicalism rather than children whose behavior should be viewed within the context of a violent occupation. Occupation is aggression and the Palestinians, whether peacefully protesting or throwing stones at heavily armed soldiers, have a right to resist. In fact, Israel as the occupying power and, therefore, the aggressor, has forfeited its right to claim to be acting in self-defense.[1] The Israeli occupation is particularly brutal. Routine bombings of the Gaza, economic strangulation, bulldozing of homes, confiscation of land and resources, murder of protesters, fishermen, and those wandering near the Gaza “security” fence, and nightly kidnapping of children are the undeniable realities of Palestinian life. It is a life of peril and hopelessness. Military courts, however, insist on viewing rock throwing in isolation, as if Israeli atrocities are being carried out on the unfortunate population of another planet. Context is not just ignored, it is forbidden.
Though Israelis incessantly trumpet their status as the only “democracy” in the Middle East, the nearly five million Palestinians of the West Bank and Gaza are afforded no right to vote, denied equal protection under the law, and deprived of the realistic means to defend themselves against criminal prosecutions. Forbidding Palestinians participatory roles as citizens leaves them not just vulnerable to the belligerence of the Israel Defense Forces (IDF), it denies them access to the institutional mechanisms, such as civil courts, that citizens rely upon for protection from overzealous government agencies. No such relief is available in Israel’s military courts. These courtrooms provide a veneer of process and superficial pledge of evenhandedness. But, in many ways, these courts represent perhaps the most appalling and corrosive aspects of the occupation. An Israeli soldier senselessly firing on a crowd of Palestinians may wound or kill a youth, but a soldier/magistrate – ostensibly a learned man – can, by refusing him justice, adjudicate away his very sense of self.
The Israeli relationship to the Palestinians in the Occupied Territories is totally different. They just don’t want them. They want them out, or at least in prison. And they’re acting that way. That’s a very striking difference, which means that the apartheid analogy, South African apartheid, to the Occupied Territories is just a gift to Israeli violence. It’s much worse than that. If you look inside Israel, there’s plenty of repression and discrimination.[2]
~Noam Chomsky
Since 2000, military courts have detained more than 12,000 Palestinians while their charges, if they are indeed ever charged, are adjudicated. Of the roughly 700 children prosecuted in these occupation tribunals each year, 66% reported being verbally abused, and a staggering 72% reported being physically assaulted, even beaten, while in custody. Some even admitted to being victims of sexual violence. Palestinians arrested and brought before military courts, can be held indefinitely in administrative detention, even if they have not yet been charged with a crime. For both adults and children administratively detained – imprisoned – by military tribunals, the unfairness of the process has led them to boycott these proceedings. So too have the lawyers. As Amjad al-Najjar, a lawyer representing Palestinian detainees confirmed to Al Jazeera, “We have agreed to adhere to the prisoners’ wishes and have a moral obligation to do so.”[3]
In determining whether or not to detain a Palestinian, military courts assess whether releasing the individual “poses a danger to the security of a person, the public or to national security.” To Israelis, however, every Palestinian is a menace or budding menace imperiling civilians and soldiers. For minors, even those only twelve-years-old, accused of throwing stones, military judges hold that the danger posed by these youths is self-evident. As military judge Lieut. Col. Yoram Haniel opined, “Even though the matter under consideration involves a single stone thrown by a person with a previously clean record, the incident indicates the danger he poses and the vital importance of holding him.”[4] He concluded that after balancing competing interests, the court was clearly obliged to remand the minor for detention for the duration of the proceedings “to safeguard the well-being of IDF soldiers and guarantee public order.”[5] In his pithy and astigmatic analysis, Haniel presumed the child guilty. Not surprisingly, he included no reference to the ominous threat posed by trigger-happy Israeli soldiers to the Palestinian civilian population. The IDF are presumed innocent.
According to the reports of international agencies, including UNICEF, Human Rights Watch, B’Tselem, Amnesty International and Defense for Children International – Palestine, three out of every four children arrested experience violence during arrest or interrogation. They are frequently arrested in night raids on their home; 85 percent of arrested Palestinian children were blindfolded and 95 percent were handcuffed.
~ French Intellectuals’ Statement on Palestinian Child Detainees[6]
More troubling still, upon arrest Palestinians, even minors, are not permitted to assert a right to silence, a long enshrined canon of American jurisprudence. Instead, they must submit to interrogations – lengthy and often abusive interrogations. For Palestinian children, no matter how young, these interrogations are conducted without the assistance or presence of lawyers or parents. By debarring parents, the Israelis secure unconstrained access to the isolated child while reinforcing to family their utter powerlessness to safeguard their most cherished and vulnerable members. Reminiscent of Stalin’s Soviet Union “conveyor” inquisitions[7], interrogations continue, sometimes for days, until the child admits his guilt and signs a confession – often in Hebrew, a language with which most Palestinian children are unfamiliar.[8] Once the child confesses, the ensuing courtroom proceedings are a charade, little more than a formal ratification of extracted admissions. Because military courts are unreceptive to claims that a confession was the result of isolation, coercion, or torture they display little enthusiasm for conducting inquiries into such allegations. The “world’s most moral army” is, after all, incapable of dishonorable enforcement of an illegitimate and illegal occupation. If a Palestinian child insists on challenging the voluntariness of a confession, he can do so at trial, where it will be assessed for the weight it is to be accorded, rather than its admissibility. Trials, however, are rarely fair and never speedy. Children, even those detained, may wait 18 months or even longer for trials to commence. Since pre-trial detention would likely exceed any sentence imposed for throwing stones, a guilty plea is often the only way to expedite the proceedings and shorten the period of incarceration.
Once sentenced, in violation of Articles 49 ¶1, 49 ¶6 and 76 of the Fourth Geneva Convention, nearly 60% of Palestinian children are relocated from occupied territory to prisons within Israel, effectively preventing them from seeing their families.[9] More disturbing, juveniles are not segregated from the adult prison populations, as penal systems in civilized countries do.[10] They are forced to live side by side with Israeli adult criminals.
After being arrested, Ahed was taken into a basement cell and interrogated without a parent or lawyer present. She and I were repeatedly moved from one prison to another, held with regular Israeli criminals, and subjected to sexist and degrading verbal harassment. The army knows how to place psychological pressure to break you. They deprived us of sleep and food, and I was forced to remain seated in a chair unable to move for long hours at a time.
~Nour Tamimi (cousin of Ahed Tamimi)
While Palestinian defendants may avail themselves of the services of an attorney, lawyers representing Palestinians before military courts are regarded as interlopers. Judges and prosecutors are active duty or reserve officers in the Israeli army. Service in the Israeli armed forces cultivates strong bonds between the enlisted and indivisible antipathy toward the occupied. Meddlesome attorneys have no business reproaching soldiers for the manner in which they run their occupation.
To adequately represent their clients, lawyers must meet extensively, and repeatedly, with them to gather facts and evidence, identify possible witnesses, and formulate a defense strategy. And, lawyers often must act quickly to interview and guarantee the future attendance of witnesses and secure evidentiary proofs before they are lost. More importantly, a client will accompany a lawyer to the scene of the alleged crime. From such an on site crime scene evaluation, a lawyer will better understand, for example, the obstructions and impediments to a soldier’s identification of the child as the stone thrower. No effective cross-examination of eyewitnesses is achievable without such logistical framework. For those representing Palestinians, the system offers more obstacles than accommodations. During interrogational phase, a Palestinian can be denied access to a lawyer for up to 60 days.[11] As Palestinian themselves, these lawyers must overcome, if they can, barriers to entry into Israel, within which their clients are frequently detained, since most of them lack entry permits.[12] Collecting the indispensible is so realistically impractical that it amounts to a denial of effective representation. Such systemic interference with the attorney/client relationship is virtually unheard of in the U.S.
In The Drone Eats With Me, A Gaza Diary, Atef Abu Saif narrates his daily struggles during 51 days of Israeli attacks in the summer of 2014. The Gaza is an isolated world of darkness, bombings, screams, and whirring drones. There is no haven, no place of security to which they can escape. The entire hunted population of the Gaza is trapped and defenseless, no more human to Israelis than the prey the obscenely wealthy stalk in enclosed parks. The violence inflicted on the children of the Gaza have left them emotionally scarred,[13] with reportedly 92% of those between the ages of 13 and 18 exhibiting PTSD symptoms.[14] For children and teenagers of the West Bank, life is a wearying grind for survival, daily humiliations, and endless harassment, with the IDF frequently firing tear gas and rubber coated bullets at them, often for reasons that defy any rational. Indeed, the IDF shot Ahed Tamimi’s fifteen-year-old cousin, Mohammed Tamimi, in the head at close range with a rubber-coated bullet not long before she slapped the soldier. Though the bullet shattered his skull, forcing surgeons to remove one third of his cranium, Israel claims Mohammed suffered the catastrophic injury falling from his bicycle.[15] Is it any wonder that the inner lives of young Palestinians teeter between hyper-vigilance and hopelessness, interrupted by outbursts of Israeli violence?[16]
Strong-arming Palestinian minors into confessions or plea deals is more than a denial of justice. It forces these youths to exonerate their tormentors, and acquiesce to their own victimhood. Not surprisingly, suicidal ideation and suicides among the Palestinian young are rising.[17] Most Palestinian children, however, will not go quietly. Ahed Tamimi certainly won’t. And, if I were a Palestinian youth, I would be standing with her, gripping a stone – but, only if I couldn’t find something more lethal.
[1] See, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Summary of the Advisory Opinion, 2004 I.C.J. 1, 12 (9 July 2004) (though Article 51 of UN Charter recognizes existence of inherent right of self-defense in case of armed attack by another State, because alleged threat originates within territory occupied by Israel no claim of self-defense available to Israel), http://www.icj-cij.org/files/case-related/131/1677.pdf.
[2] Noam Chomsky, Democracy Now! (8 August 2014), https://www.democracynow.org/2014/8/8/noam_chomsky_what_israel_is_doing.
[3] Farrah Najjar, Prisoners Held Without Charge Boycott Israeli Courts, Al Jazeera (14 February 2018), https://www.aljazeera.com/news/2018/02/prisoners-held-charge-boycott-israeli-courts-180214160954608.html.
[4] Naama Baumgarten-Sharon and Yael Stein, Presumed Guilty: Remand in Custody by Military Courts in the West Bank, B’Tselem, 37 (June 2015), https://www.btselem.org/download/201506_presumed_guilty_eng.pdf.
[5] Id.
[6] French Intellectuals’ Statement on Palestinian Detainees, Le Monde (23 January 2018)
[7] Aleksandr Solzhenitsyn, The Gulag Archipelago 39-65 (Edward E. Ericson, Jr.) (2007) (lengthy, coercive interrogations and the forced signing of false confessions); Helen Womack, ‘Kidnapping and Torture’ Provoke Fear of Stalinism, The Times (25 October 2012), https://www.thetimes.co.uk/article/kidnapping-and-torture-provoke-fear-of-stalinism-6q60rmw09r3.
[8] Azadeh Shahshahan, Stop the Imprisonment of Palestinian Children, The Nation (17 April 2017), https://www.thenation.com/article/stop-the-imprisonment-of-palestinian-children/
[9] Without Trial, Administrative Detention of Palestinians by Israel and the Internment of Unlawful Combatants Law, B’Tselem, 23 (October 2009), https://www.btselem.org/download/200910_without_trial_eng.pdf.
[10] Defense for Children International, Palestine. Juvenile Justice, http://www.dci-palestine.org/issues_juvenile_justice.
[11] Addameer Prisoner Support and Human Rights Association, Palestinian Political Prisoners in Israeli Prisons, Addameer 6 (January 2014), http://www.addameer.org/files/Palestinian%20Political%20Prisoners%20in%20Israeli%20Prisons%20(General%20Briefing%20January%202014).pdf.
[12] Limor Yehuda, et. al., One Rule, Two Legal Systems: Israel’s Regime of Laws in the West Bank 55-56 (October 2014), https://www.acri.org.il/en/wp-content/uploads/2015/02/Two-Systems-of-Law-English-FINAL.pdf.
[13] Sophia Keckskes, Enduring Disorder: PTSD in Gazan Children, Yale Global Health Review (3 October 2015) (more than half of Gaza youths ages 15-18 experience PTSD) (citing, Thabet, Abdelaziz, Omar EL-Buhaisi, and Panos Vostanis, “Trauma, PTSD, Anxiety and Coping Strategies among Palestinians Adolescents Exposed to War in Gaza,” 25 The Arab Journal of Psychiatry 71-81 (2014)), https://yaleglobalhealthreview.com/2015/10/03/enduring-disorder-ptsd-in-gazan-children/.
[14] Creede Newton, Palestinian Children Live in Trauma Without End, Al Jazeera (6 December 2015), https://www.aljazeera.com/news/2015/11/children-live-trauma-151130111404089.html.
[15] Loveday Morris, How a Palestinian Teen’s Rubber-Bullet Injury to the Brain Turned to a Biking Accident Overnight, Washington Post (27 February 2018), https://www.washingtonpost.com/news/worldviews/wp/2018/02/27/how-a-palestinian-teens-rubber-bullet-injury-to-the-brain-turned-to-a-biking-accident-overnight/?utm_term=.287350f10037.
[16] Id.
[17] Taha Itani, et. al., Suicidal Ideation and Planning Among Palestinian Middle School Students Living in Gaza Strip, West Bank, and United Nations Relief and Works Agency (UNRWA) Camps, 4 International Journal of Pediatrics and Adolescent Medicine, Issue 2, 54-60 (June 2017), https://www.sciencedirect.com/science/article/pii/S2352646716300758.
