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Political solution or not, the bottom line is equal rights for all

The military law applied to Palestinians must provide rights and protections no less favorable than those afforded to Israeli citizens living in the settlements.

By Gerard Horton

Illustrative photo: An activist puts a Palestinan flag on the Separation Wall facing the Modi’in Illit settlement (Photo: Anne Paq/ Activestills.org)

Last month, Israeli housing minister Uri Ariel announced the approval of 1,200 more houses for settlers in East Jerusalem and the West Bank, adding to the 520,000 already living there, including Mr. Ariel himself. Only time will tell, but this announcement, like the many that proceeded, may one day prove to contain a fatal sting in the tail for the idea of Israel as a democratic state with a Jewish majority. For there is one inescapable feature of Israel’s settlement activity that will have far reaching consequences based on a simple legal principle: no state is permitted to discriminate between those over whom it exercises penal jurisdiction based on race or national identity.

This point was recently highlighted in a report submitted to the UN by Military Court Watch. The report notes that in most conflict situations, the question of unlawful discrimination does not arise. The issue did not arise in Afghanistan or Iraq for the simple reason that U.S. civilians never relocated and settled in those regions. However, once civilian settlement does take place, whether it’s viewed as legal or not, the principle of non-discrimination will inevitably arise.

Click for +972’s special coverage: Children Under Occupation

So what does discrimination look like in the West Bank? Well, take the example of a Palestinian child who throws a stone at a child from a settlement, or visa versa. Under the principle of non-discrimination, both children should be dealt with equally under the law. This does not mean that Israel must apply its civilian law to Palestinians, as this would be viewed as annexation, but the military law applied to Palestinians must provide rights and protections no less favorable than those afforded to Israeli citizens living in the settlements. However, the current reality in the West Bank is that Palestinian children accused of throwing stones are prosecuted in military courts, whereas their Israeli counterparts living in the settlement next door, are dealt with in Israel’s civilian juvenile justice system.

Israeli forces arrest a Palestinian youth in the village of al Walaja (Ryan Rodrick Beiler/Activestills.org)

Not surprisingly, the civilian system has far greater rights and protections than its military counterpart, as the examples below illustrate:

• Settler children cannot be interrogated at night, whereas a Palestinian child can be;
• Settler children can consult with a lawyer prior to questioning, whereas a Palestinian child rarely does;
• Settler children are accompanied by a parent when questioned, a Palestinian child is not;
• Settler children see a judge within 12-24 hours following arrest, whereas Palestinian children must wait at least twice as long;
• Settler children can not be imprisoned if under 14, whereas a 12-year-old Palestinian child can be; and
• If convicted Israeli children stand a 6.5 percent chance of imprisonment, whereas 90 percent of Palestinian children are incarcerated.

In addition to these examples, recent reports by UNICEF and the U.S. State Department indicate that Palestinian children are subjected to high levels of abuse in the military system. So serious is the problem, that following a review of over 400 cases, UNICEF concluded: “the ill-treatment of children who come in contact with the military detention system appears to be widespread, systematic and institutionalized throughout the process.” UNICEF has called for immediate reform. Thankfully, Israeli children face few of these problems in the civilian juvenile system.

While many Palestinians and Israelis have little faith in the current peace talks, even U.S. officials are now openly suggesting that this may be the last chance to salvage a viable two-state solution. If these talks do not succeed, and given the Israeli housing minister’s recent announcement, the prospects are not encouraging, then there is likely to be a seismic shift in the discourse towards equal rights for all between the Jordan River and the Mediterranean; half of the inhabitants will have been left without any viable alternative, and will no longer tolerate their children being treated as second class individuals.

Gerard Horton is a lawyer and co-founder of Military Court Watch. Gerard has worked on the issue of children prosecuted in the Israeli military courts for the past six years and is the author of a number of leading reports on the subject.

Hope ends here: The children’s court at Ofer Military Prison
Detained: Testimonies from Palestinian children imprisoned by Israel 

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    1. Allan Farber

      I agree with the equality principle but the facts are wrong. There have been many incidents of settler children arrested, held with cause or charge, without accompaniment by parent etc. Settlers are treated as fourth class citizens. Settlers had/have a building freeze. Arabs build wherever they want. Where is the justice in that?

      Reply to Comment
      • myron

        Palestinians in Area C do not build anywhere they want. Some villages have had building freezes for decades created a quiet transfer. (For example my Palestinian neighbors in Gush Etzion)
        Palestinians in Area B and C who do build need permits..there are limits. Of course to our eyes as israelis, when driving by a village with a few new multistory homes it looks like “they do what they want”..while our new settlements just look like “natural growth”

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    2. “the last chance to salvage a viable two-state solution”, really? Where would that be, then? I mean the Palestinian part. I think the last chance was on june 10, 1967.
      You can’t go back to any borders, since there are none, and there never were any. Living together as rational humans beings isn’t on anyone’s agenda it seems.

      Reply to Comment
    3. I think equal treatment, or rather less disparate treatment, awaits the evolution of businesses in the WB, Palestinian employment then providing economic and indirect social links for civil resistance. Ultimately, the settlers’ presence will induce such business, but their simple presence as rationale for equal treatment will go nowhere. Nor is there evidence that the High Court will interfere substantially in IDF jurisdiction, with the important exception of the J and S introduced police district, where civil law applies under the largess of the IDF. So, if the Court there does intervene, I suspect the IDF will segregate Palestinians away from the police, into IDF hands only. That will work as a delaying measure, but civil resistance upon evolved economic ties seems to be what history says is necessary.

      Reply to Comment
    4. Aaron Gross

      You didn’t say anything at all about derogation. Can’t most or all of those rights be derogated from in a state of exception, i.e., for security reasons? It’s another question whether Israel’s security claims are valid, but I thought that most if not all of these rights were derogable, and that Israel does claim a derogation.

      Reply to Comment
      • A right is rather meaningless if the State does not want to challenge it at sometime or another. You will always get your exception, not as applied, but as generic category; which is what you have. However, if you want to adjudicate Israel’s claim as applied, that would be interesting. In a given instance should a 12 year old be imprisoned as an exception to the law. Interesting jurisprudence awaits.

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