Children, Military Courts and Occupation

The arrest, detention and impending trial of 17-year-old Ahed Tamimi, a Palestinian living in the occupied Palestinian Territories (OPT), has provoked substantial global commentary and attention. Amnesty International has identified the young woman, who was first arrested in December when she was 16 years old after slapping an Israeli soldier, as the subject of an urgent action. The UN Working Group on Arbitrary Detention has expressed profound concern about the legal basis for her detention, as well as the conditions of her confinement by the Israeli military. Tamimi is being held in Hasharon prison in Israel – located between Tulkarem in the West Bank and Netanya, a city in Israel – in violation of the Fourth Geneva Convention, which holds that the deportation of a protected person (here a minor female civilian) from occupied territory to the territory of the occupying power violates the Convention no matter what legal basis is provided for that move. The UN Special Procedures, a group of independent experts within the UN Human Rights system, were also deeply concerned that Tamimi “was arrested in the middle of the night by well-armed soldiers, and then questioned by Israeli security officials without a lawyer or family members present.”

Last week, the military judge overseeing her trial declared the trial would not be held in public, a move the court said was standard procedure in cases that involve minors. But Tamimi and her defense counsel both made clear that they wished all evidence and proceedings to take place in open court. The trial of this young woman has also drawn attention to the disparate treatment women accused of hitting/assaulting soldiers receive. An Orthodox Jewish female settler, also accused of slapping an Israeli soldier, was also questioned about her actions but then quickly set free.

Tamimi’s case raises numerous issues, but it ought to draw attention to the relevant international law standards on the trial of civilians by military courts. Military trial of protected persons in the OPT is a regular occurrence, and so while this trial is not per se unique, her status as a female minor has brought heightened attention to these regular (albeit highly problematic) practices of military trial. Bottom line: Trial is prohibited barring the most exceptional of circumstances. By extension, that bottom line prohibition is further hardened when the trial in question involves a child and carries particular weight, which I explore further below, when the child in question is a young woman.

Let me recap the relevant law international law. This includes the right of the accused to know the charges laid against her (ICCPR, Article 9), the right to promptness to trial and trial process itself (ICCPR, Article 9), the right not to be tried in absentia (ICCPR Article 14(3)(d)), the right to be heard by a competent, independent and impartial tribunal (ICCPR Article 14(3)(d)), the right to the presumption of innocence until proven guilty (UDHR, Article 11), protection against ex post facto laws (UDHR, Article 11), the right to be defended by counsel of choice, and for the costs of such defense to be provided if the accused has insufficient means (ICCPR, Article 11), the conditional right to release while awaiting trial (ICCPR, Article 9), the right against self-incrimination (ICCPR, Article 14), the right to examine prosecution witnesses and to obtain the evidence of witnesses in one’s defense (ICCPR, Art 14 (3)(e)), the right to appeal (ICCPR, Article 14(5), and the right not to be tried for the same offense (ICCPR, Article 17(7)).

In addition to the plethora of normative standards on fair trial, various regional courts, tribunals and other international bodies have opined on the legality of trial for civilians in military courts. The consensus on this issue is overwhelming. By way of illustration, in 1997, the United Nations Human Rights Committee issued General Comment 13 in which it set out the following views on the application of military justice to civilians:

The provisions of Article 14 [of the ICCPR] apply to all courts and tribunals within the scope of that Article whether ordinary or specialized. The Committee notes the existence, in many countries, of military and special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with the normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in Article 14.

Regional human rights’ courts have been equally trenchant in their opposition to the trial of civilians in military courts. For example, the Inter-American Court in the case of Durand and Ugarte v. Peru (2000) found that:

In a democratic Government of Laws the penal military jurisdiction shall have a restrictive and exceptional scope and shall lead to the protection of special juridical interests, related to the functions assigned by law to the military forces. Consequently, civilians must be excluded from the military jurisdiction scope and only the military shall be judged by commission of crime or offenses that by its own nature attempt against legally protected interests of military order.”

In addition, Tamimi’s case highlights the protection that rightly ought to be given to minors under international law. This is of particular relevance to Israel, which has ratified the UN Convention on the Rights of the Child. As Michael Lynk, United Nations Special Rapporteur on the situation of human rights in the Palestine Territory Occupied since 1967, notes:

…children are to be deprived of their liberty only as a last resort, and only for the shortest appropriate period of time … none of the facts of this case would appear to justify her ongoing detention prior to her trial, particularly given the concerns expressed by the Committee on the Rights of the Child about the use of pre-trial detention and detention on remand.

So, there is no doubt that this case has highlighted a range of issues related to civilian trial in military courts, the obligations to minors by occupying powers, and the disparate and facially discriminatory treatment being given to a Palestinian child in the context of a high-profile and controversial case. However, the case also brings into sharp focus the gendered dimensions of the law of occupation, an aspect that is rarely subject to significant scrutiny by scholars or policy makers. As I have observed at length elsewhere, a glaring limitation in addressing the experiences of women in situations of armed conflict is the absence of a sustained analysis of the structural limits and capture of the law of occupation. In almost all the major writing on the law of occupation, women and the relevance of gender analysis to understanding the limits of the law and the experience of living under occupation has been marginalized or entirely absent. The Tamimi case catapults gender to the forefront of any analysis of occupation as well as giving significant insights into the logic and practice of the occupying power. It is precisely because this case involves a young girl exercising autonomy and agency in unexpected ways that the occupation and its regulatory scope faces such exceptional scrutiny. Occupation law and practice has rarely formally acknowledged the experiences of women, all the more so in transformative half-century long occupations.

Reflecting on the core gender imperatives driving the law of occupation is to appreciate the centrality of territory and temporality in the construction of the legal rules. Thus, militaries (read traditionally men) who are aware of potentially losing power in the form of territorial control and political dominance to other men, are securing the external manifestations of that power (family, property, and preservation of communal identity) in a form that enables their safe return at an unspecified future point. Occupation law was historically a compact between male military elites, a quid pro quo on masculine influence and a set of trade-offs and benefits with a strong patriarchal underpinning. The rules of occupation law are structured to sustain the symbolic and practical value of various kinds of property and tangible interests (including women) notwithstanding a temporary loss of territorial control during military hostilities. As a result, women and girls were only marginally included in the regulatory framework of occupation, the costs of which I have documented here. But, transformative occupations, like that in place in the OPT, fray the masculine compact, and when women and girls come into view under occupation (as in the Tamimi case), they pose both existential and contemporary costs to the legality and legitimacy of actions taken by the occupying power. Tamimi’s case also exposes the gaps and silences surrounding the treatment of women, and their fundamental lack of recognition under occupation law. The lacunae translate into a lack of recognition, accountability, and enforcement for women and girls when their rights are violated. So, while much of the (important) commentary on this case is focused on the specifics of Tamimi’s legal rights, and the obligations of the occupying power, it also portends a deeper and much needed conversation about the gendered limits of the law of occupation, and the overwhelming need to augment and update the regulatory framework that shapes women’s experiences living under occupation.

Image: Palestinian Ahed Tamimi, 16, is brought to a courtroom inside Ofer military prison near Jerusalem, Dec. 28, 2017 (AP Photo/Mahmoud Illean)

 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism; This article is written in the author's personal and academic capacity; Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).