Palestinian children: Soldiers, criminals or what?

What you should know about Palestinian juvenile offenders

The law, international and domestic, apparently only recognises two groups who may be imprisoned, soldiers and criminals. Is Ahed Tamimi a child soldier?  Is she a political prisoner?  Is she a juvenile delinquent?  Is she Joan of Arc?

More than a million have signed the Avaaz petition calling for the immediate release of Ahed Tamimi and all Palestinian children ‘wrongly held’ in military prisons.  This post will not link to this and drive it higher in the search engines but it does raise issues that should be addressed.

States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.

Article 38/2 UN Convention on the Rights of the Child 1989

16, 17 or 18? Does it matter?

Tamimi supporters push the lower age because it increases sympathy.  Her father can wring some tears about ‘his little girl’.

No prizes for counting the number of times the accusation child murderers is raised although for the record Ahed Tamimi is very much alive and smiling.  Could you imagine what would have happened if she had assaulted an adult Arab male?  If a female or a child laid hands on him the affront to his honour would have compelled him to backhand her into next week.

However there is a practical aspect to the age dispute.  The age of criminal responsibility† in Israel is eleven.  What varies is the punishment if an offender above that age is convicted.  A sixteen year old Tamimi might not be imprisoned, at all, or be placed in a juvenile facility.  An eighteen year old could face adult prison.




The ‘right’ to resist occupation

I have lost count of how often someone has claimed that international law allows Palestinians to ‘resist occupation’ by any means.  Therefore Israel has no right to arrest Tamimi or anyone.

So apparently there are no rules to limit Palestinian violence.

They couldn’t be more wrong about powers of arrest.  Just ask the Red Cross.  The Fourth Geneva Convention specifies that a civilian may only be interned or placed in assigned residence if

“the security of the Detaining Power makes it absolutely necessary” (Article 42)

or, in occupied territory, for

“imperative reasons of security” (Article 78).

In addition to incitement, the charges against Ahed Tamimi include two counts of aggravated assault of a soldier, two counts of stone-throwing, two counts of threatening a soldier and four counts of obstructing a soldier in execution of his duty.  No doubt Tamimi’s lawyers will argue that slapping, biting and interfering with a soldier in performance of his duties is a small potatoes security threat.

Would someone explain to me why someone who violently resists occupation isn’t reclassified as a combatant and therefore loses all protection as a civilian?

Juvenile justice in the territories

Minors who are residents of Jerusalem – East and West, and regardless of their colour, race, or religion – are subject to Israeli civilian criminal law and procedures.  The same applies, since September 2005, to Palestinians from Gaza.

Israel Haters make the propaganda point that military courts are used in the territories as if that automatically implies injustice.  However according to Articles 64 and 66 of the Fourth Geneva Convention, use of non-political, military courts are required in occupied territories.

In July 2009 special military courts were established for juveniles.  The rules of evidence applied are the same rules of evidence applied in the Israeli civilian courts.  Military judges are certified as juvenile military judges only after attending a specifically designed and designated course.  After their first certification, the juvenile military judges undergo periodic additional training and review.

Tu quoque

There’s a logical fantasy which goes by the fancy Latin name Tu quoque (“you too”). The argument states that a certain position is false or wrong or should be disregarded because its proponent fails to act consistently in with that position.

The justice or injustice of Israel’s treatment of juveniles in the territories isn’t proved by showing, as so often, that the Palestinians are worse. However the hypocrisy of those protesting Ahed Tamimi as a human rights issue while ignoring how child offenders are treated in the Palestinian Authority certainly is proven.

Children in the Palestinian Authority juvenile justice system by Jessica Purkiss should be read by anyone even pretending neutrality. It is made more credible by its publication by the strongly anti Israel NGO, Defense for Children International – Palestine.

As Guardian journalist Michael White tweeted, on an unrelated controversy, “we all cherry pick our outrage sometimes”. When it comes to Palestinian children it is most of the time.

† Defendants falling within the definition of an “infant” are excluded from criminal liability for their actions, if at the relevant time, they had not reached an age of criminal responsibility. After reaching the initial age, there may be levels of responsibility dictated by age and the type of offence committed.
For comparison. In America, at the state level, 33 states set no minimum age of criminal responsibility. For federal crimes, the minimum age of criminal responsibility is 11. In the United Kingdom it is 8-10. The age of criminal responsibility in Australia is 10 with a rebuttable presumption of incapacity of committing crime, under 14.

Extra credit

First posted at 5 Minutes for Israel

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