by Smadar Ben-Natan*

The Israeli public was outraged in December when a video of Ahed Tamimi, a 16-year-old Palestinian girl from Nebi Salah in the occupied West Bank, went viral. The video documents her and her cousin, Nour Tamimi, slapping and kicking Israeli soldiers out of their house. The soldiers’ justified restraint towards young unarmed girls was nonetheless portrayed in Israeli media as impotence, an insult to masculinity and national dignity. Little was said about the fact that shortly before that, Ahed’s 15-year-old cousin, Mohammed Tamimi, was shot in the face by an Israeli soldier, and while the Israeli soldiers positioned themselves in front of Ahed’s house he was fighting for his life. The revenge of the military was not served cold: Ahed, Nour, and Ahed’s mother Nariman, a longtime activist who filmed the incident and posted it on Facebook, were promptly arrested in the middle of the night. This is a routine procedure for the arrests of Palestinian minors, who are often brutally pulled from their beds in their pajamas.

Ahed and Nariman are still detained by the so-called “world’s most moral army.” Ahed is facing charges of assault, while Nariman is charged with incitement (for posting the video), and they will both stand trial in an Israeli military court, where detention pending trial is the default, even for minors. The arrests are being protested by a widespread #freeahedtamimi campaign. In the media and public opinion, young Ahed has already won the battle, but she is paying a dire price, celebrating her 17th birthday on January 31 in prison.

Ahed’s arrest comes as no surprise to many who know the Israeli mechanisms of arrest and prosecution of minors in the West Bank. For over 50 years, Israel has held Palestinians under military occupation. In the Israeli military courts, the army is the legislator, the prosecutor, and the judge. Palestinian minors are routinely and sometimes brutally arrested, isolated from parents and lawyers, interrogated in the middle of the night, pressured to confess and incriminate others, convicted in around 99% of cases, and sentenced to prison terms ranging from months to years.

In the United States, Congresswoman Betty McCollum, together with 19 other co-sponsors, has introduced the Promoting Human Rights by Ending Military Detention of Palestinian Children Act, HR 4391. The bill seeks to ensure that US military aid does not support these practices, which are subject to fierce human rights criticism by UNICEF, other dedicated NGOs, and foreign governments. The United States has also detained and violated the rights of children in Iraq, Afghanistan, and Guantanamo. However, the Israeli military detentions and courts, affecting thousands of minors as young as 12, are still full steam ahead.

Responding to growing criticism, the Israeli army established a Juvenile Military Court in 2009, promulgating it as yet additional proof of its high moral commitment. However, the changes that the military juvenile court introduces to the ordinary military procedure are so minor that it doesn’t resemble any decent juvenile justice system. The Juvenile Military Court’s jurisdiction is limited only to the trial phase. All detention and (extremely rare) bail issues are still in the hands of the adult military courts, where detention pending trial is the rule rather than the exception. Minors thus typically arrive to trial and sentencing by the juvenile court after they have already been detained as adults for the duration of their trial. Evidence is predominantly based on middle-of-the-night confessions and incriminatory statements by terrified teenagers who have just been pulled from their beds. There are no alternatives to imprisonment, which is the default punishment. The Juvenile Military Court is thus undeserving of its deceptive title.

Israel defends its military courts by the claim that the Fourth Geneva Convention allows and even mandates military courts during belligerent occupation. Human rights advocacy accepts this claim and is thus trapped in a limbo, where only fair trial and due process are the focus of advocacy and challenge. It is time to change course: The Geneva conventions do not mandate military courts of occupation, but only allow for them. The convention never envisioned a 50-year-old occupation, and thus never intended to allow military courts that in fact replace ordinary civilian courts. The rule in human rights law is that civilians should not be subjected to military courts. At least since the Palestinian Authority had established its own legislative council and justice system in 1996, there is no justification or legal ground for the continued operation of the Israeli military courts. The Juvenile Military Court should be the first to vanish.

I propose to demand that Israel should completely renounce the prosecution of children and teenagers in military courts, abolishing the Juvenile Military Court altogether. Two alternatives are available: handing minors over to the Palestinian Authority, or, in cases that implicate the security of Israel, charging minors in Israeli civilian juvenile courts, where Israeli children, Palestinian children from East Jerusalem, as well as settlers’ children are charged. Obviously, under current circumstances, the power to decide which cases implicate Israeli security remains in Israeli hands, which use that discretion expansively to justify violence and violation of fair trial rights. But hopefully, such violations would diminish under a more inclusive juvenile justice system that is not set up only for Palestinians. Each of these alternatives is far better than the Juvenile Military Court. The oversight of civilian courts, I expect, would also reflect on detention and interrogation mechanisms. Ahed Tamimi would not have been detained beyond 24 hours by Israeli civilian juvenile courts, since in these courts, detention of minors is in fact the exception rather than the rule.

While the abolition of a court may sound unrealistic, Israel has actually already done something very similar in the past. I uncovered this untold piece of legal history in my research of Israeli military courts. From 1949 to 1966 Israel put its Palestinian citizens under a military regime and subjected them to military courts. Following the 1967 occupation, the Israeli military established another military court inside Israel. This court continued to prosecute Palestinian citizens of Israel and Palestinian residents of annexed East Jerusalem for over 33 years, until it was abolished in 2000. However, it had stopped prosecuting minors long before that, in 1978, after attorney Felicia Langer petitioned the Israeli Supreme Court, arguing that her Palestinian youth clients were entitled to due process in a civilian juvenile court. In its decision Abu Rob v. Damon Prison Warden, the Supreme Court ruled that every minor is entitled to stand trial in a civilian juvenile court. This long forgotten decision ended the sweeping prosecution of Palestinian minors in the Israeli internal military court. Minors were thus not subjected to a mock military juvenile court but actually drawn out of the jurisdiction of the military court. The US forces in Iraq also transferred minors arrested by them to face charges in the civilian Iraqi legal system. Finally, both the Israeli internal military court and the US military courts in Iraq were abolished.

With these historical precedents, there are even more reasons now to support HR 4391, Promoting Human Rights by Ending Military Detention of Palestinian Children Act, and to send a clear message to the government of Israel: Abolish the Juvenile Military Court and release Ahed and Nariman Tamimi.

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*Smadar Ben-Natan is currently a visiting scholar at UC Berkeley, Center for the Study of Law and Society, and a PhD candidate at Tel-Aviv University. Her research centers on national security prosecutions in military and civilian courts. She has been a practicing human rights and criminal defense lawyer in Israel for 18 years, representing many Palestinian prisoners.