The (IOF) is setting up a separate military court for West Bank youths, Haaretz has learned. Until now, adults and minors were judged by the same legal authorities.
The change was ordered by GOC Central Command Maj. Gen. Gadi Shamni on July 29. The order calls for a "first-instance military court for youth, presided over by a single juvenile-court judge or by a panel led by a juvenile-court judge."
The president of the military appeals court will "appoint military judges trained to serve as juvenile-court judges," and will set them limited terms.
The order requests the juvenile court sessions be "as separate as possible" from regular court sessions, and allows the youth court to demand a Civil Administration welfare report on the defendant's family "if the court believes this necessary to determine the minor's verdict."
Khaled Kuzmar, legal advisor to the Palestinian branch of Defense for Children International (DCI), told Haaretz, "The new order is a clear, if belated, confession to a systemic flaw," but that "a thorough examination of the order suggests that the changes are not fundamental. It allows significant space for the military prosecution to intervene."
He added, "The root of the problem is not the minors' criminality, but the occupation under which they live."
What is a minor?
The order does not alter the definition of a Palestinian minor, said Kuzmar. While the minimal age for criminal liability is 12 for both Israelis and Palestinians, under the Israeli justice system, a person is a minor until age 18, but under the military justice system for Palestinians, a person is a minor only until 16.
Military order 132 on "judging juvenile delinquents" lists three categories for minors: A "child" is under 12, a "youth" is between the ages of 12 and 14, and "young adults" are between ages 14 and 16.
According to military law, the is no statute of limitations on offenses by Palestinians, even if the suspect committed the offense when he or she was a minor. Kuzmar said he once represented a 17-year-old who was tried for throwing a Molotov cocktail when he was younger than 12.
While the new order ostensibly sets a two-year statute of limitations for offenses committed by minors, it also allows the military prosecutor to overrule this: "A man should not be tried for an offense committed when he was a minor if two years have elapsed, unless the main military prosecutor agrees to the trial," it states.
Kuzmar, who has been defending minors in Israeli military courts for 11 years, said that in his experience, the military prosecution, as the prosecuting branch of an occupying power, does not pass on opportunities to try Palestinians.
The order also does not change how the court hands down sentences, which are set based on the age of the person at the time of the trial, not at the time of the offense. Clause 132 states that "youths" between ages 12-14 at the time of their conviction can be sentenced to jail terms of no more than six months, while "young adults" can be sentenced to up to a year.
However, the same clause makes an exception for "offenses punishable by more than five years imprisonment." Kuzmar says this covers a wide arrange of offenses, including stone-throwing (10 to 20 years) and membership in a prohibited organization (10 years).
The 2007 "Backyard Trials" report on military courts by the Yesh Din legal assistance group states that extensive inspections of such courts have shown that "in most sessions documented, neither the prosecutors nor the judges seem to have had any particular consideration for the age of the defendants."
The UN Convention on the Rights of the Child calls upon its signatories, including Israel, to set 18 years as the minimum age for adult criminal responsibility. The Yesh Din report found that order 132 sets the bar at 18 only when determining financial penalties or conditions for bail. Parents or legal guardians are required to pay the fines or bail for suspects under age 18.
By Amira Hass, Haaretz