Within international humanitarian law, articles 43 of the Hague Convention of 1907 and article 64 of the Fourth Geneva Convention of 1949 both impose an important duty on the occupant. The law not only stipulates that local (penal) laws in the occupied territory shall remain in force but also that measures taken by the occupant are in accordance with these laws. However, since 1967 the Israeli Military Authority has issued over 2500 Military Orders, which control and regulate daily life of Palestinians living in the West Bank and Gaza Strip, effectively transferring most power to the military authorities. These Military Orders adapt the legal code to the changing political situation and aim to serve the needs of Israeli policy towards the occupied territories. The military commander is the sole legislator.
Military Orders apply only to Palestinian residents of the West Bank and Gaza Strip, not to the illegal Israeli settlers living in these areas. They thus form a central pillar of the Apartheid-like system of discrimination in place in the Occupied Palestinian Territories. The intricate exactitude of many of the Orders indicates the pervasive system of control practiced by Israel against Palestinians living in the West Bank and Gaza Strip. Military Order #101 for example, allows for a maximum 10 years imprisonment for participating in a gathering of more than 10 people that Israel deems political, publishing political material against the Israeli occupation or even raising the Palestinian flag. It should be noted that these Military Orders apply even to those Palestinians living in cities and towns of the West Bank and Gaza Strip that came under full Palestinian Authority control following the signing of the Oslo Accords in 1993.
Since the signing of the Oslo Accords, there has been virtually no change in the functioning of the military courts that operate in the occupied territories. The military courts were established in 1967, and are mainly regulated by Military Order #378 of 1970, which regulates the rights of the detained, the definition of security offenses, and rules for the operation of the military courts. In practice, the military courts make a mockery of justice. Trial proceedings and sentencing are determined far more by the current political situation than they are by the skills of a given attorney.
The Military Orders that govern the proceedings of the Military Court are not laws, though they function as such and are intended to give a legal veneer over the institutionalized system of discrimination. Rather, they are ‘policy‘ orders, the implementation of which depends on the prevailing political environment. In the majority of cases the hidden hand of the Israeli General Security Services (GSS or Shabak) can be felt in the decisions of the court. The GSS is a quasi- state body that is not under the authority of any government ministry but reports directly to the Israeli Prime Minister. Thus decisions made by the judge may be determined by the GSS before the trial itself. During a recent parole hearing at Megiddo Prison the judge dismissed three out of four cases for a reduction in sentence with reference to a “secret“ decision - ie. the GSS had instructed him not to release the children. The personal political opinions of judges that hear cases in the Military Court also affect the decisions they make and it is clear from DCI/PS‘ experience that many judges are themselves illegal Israeli settlers and hold a virulent hatred of Palestinians in the Occupied Palestinian Territories.
In 1999 Israel began reimplementing Military Order #132, which had been widely used during the first Intifada that began in 1987. This Order allows for the arrest and imprisonment of children between the ages of 12-14 years. In the year 2000, the number of children aged 13 or 14 who were arrested nearly doubled, representing approximately 22% of all cases followed by DCI/PS. The increase in arrests of children between the ages of 13 and 14 is directly linked to the reinstitution of Military Order #132.
In article 1, the UN Convention on the Rights of the Child defines a child as “every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.” While anyone under 18 years of age is the generally accepted definition of a child, article 1 provides State Parties room in setting the age of majority. Inside Israel proper, a minor is defined as someone who has not yet reached the age of 18. However, for residents of the Occupied Palestinian Territories, a person who has reached the age of 16 is an adult according to Israeli Military Order #132. The age at the time of pronouncing the sentence determines the punishment, and not the age at the time of committing the offense. Many minors spend a long period in detention and turn 16 before the date of trial. Thus Palestinian children can be sentenced as adults even if they were minors when they allegedly committed the offense.
Palestinian children face the Military Courts after a period of detention during which interrogators have applied various forms of psychological and physical torture, with the aim of extracting a confession from the child. The printed confession is written in Hebrew, a language that Palestinian children do not understand, casting serious doubt on the veracity of the confession. Such doubt is reinforced by the minute detail often included in confessions, such as the exact number of times the child threw stones (for instance 75, 100, 150...) as well as a complete list of each of the children who threw stones with him, sometimes including as many as 30 names. Though it may prove difficult for the Israeli attorney prosecuting the child to remember how many times he appeared in court in a given year, it is presumed that children have the capacity to recall events with precise exactitude-especially after they have been forcibly removed from their bed in the middle of the night, deprived of sleep, beaten, tied to a chair, soiled their pants, and spent time in isolation.
The sad reality is that the above mentioned scenarios constitute only a small portion of the ludicrous and confusing regulations that govern the ‘rule of law‘ in the West Bank and Gaza Strip.