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Submission by Human Rights Watch to the Committee on the Rights of the Child on the State of Palestine

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Submission by Human Rights Watch to the Committee on the Rights of the Child on the State of Palestine Submission by Human Rights Watch to the Committee on the Rights of the Child on the State of Palestine 83rd pre-sessional working group, 2019 This submission focuses on the arbitrary arrest, detention, and abuse of children; personal status laws; child marriage; children born out of wedlock; and the protection of education during armed conflict. It relates to articles 7, 8, 9, 28, 37, 38, 39 and 40 of the Convention on the Rights of the Child. It proposes issues and questions that Committee members may wish to raise with the government. 1. Introduction Palestine acceded to the UN Convention on the Rights of the Child in April 2014 without reservations or declarations. The State of Palestine has ratified two of the Optional Protocols to the CRC (OP on Sale of Children and OP on Children in Armed Conflict), however they have not ratified that Optional Protocol on a communications procedure, which is an important accountability mechanism.1 We note that this is the Committee’s first review of the State of Palestine. With that in mind we urge the Committee to make clear that following ratification the CRC treaty applies throughout the territory of the State of Palestine. We also urge the Committee in its review to consider the current reality of governmental authority in this territory, including the Palestinian Authority (PA), Hamas in Gaza, and Israel as the occupying power, and apply the Convention in a way that maximizes its use to protect the rights of children throughout the territory of the State of Palestine. For the purposes of this submission in assessing the State of Palestine’s compliance with obligations under 1 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, adopted May 25, 2000, G.A. Resolution 54/263, Annex I, 54 U.N. GAOR Supp. (no.49) at 7, U.N. Doc. A/54/49, vol. III (2000), entered into force February 12, 2002. Palestine ratified on April 7, 2014. Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, adopted May 25, 2000, G.A. Resolution A/RES/54/263, entered into force on 18 January 2002. Palestine ratified on December 29, 2017. the Convention, we review the record of the PA in parts of the West Bank under its control and the de facto Hamas-led government in Gaza. In 1995, the Oslo Accords between Israel and the PA, divided the West Bank (excluding East Jerusalem) into three administrative areas – A, B, and C. The PA has civil and administrative control over Area A, and civil control over Area B. Israeli military retains exclusive control over Area C, constituting about 60 percent of the West Bank. Israel applies Israeli civil law in East Jerusalem, though it remains occupied territory under international law. In 2005, Israel unilaterally disengaged from the Gaza Strip. However, Israel still controls most of Gaza’s crossings, territorial waters, and airspace, the movement of people and goods, and the population registry, among other things, and, as such, still retains effective control over Gaza. We urge the Committee to carefully consider the severe impact of the ongoing Israeli occupation of Palestinian territory since 1967, including the illegal annexation of East Jerusalem and closure of the Gaza Strip since 2007. Systematic abuses associated with Israel’s 51-year occupation, fundamentally undermine the rights of Palestinian children in the West Bank and Gaza.2 Laws in the West Bank and the Gaza include a combination of unified laws promulgated by the Palestinian Legislative Council (PLC) and ratified by the president. If no unified law has been issued, existing Jordanian, Egyptian, and former British Mandate laws still apply. The Jordanian Penal Code No. (16) of 1960 (“1960 Penal Code”) and the Jordanian Personal Status Law (“JPSL”) No. (16) of 1976 are enforced in the West Bank, while the British Mandate Criminal Code Ordinance No. (74) of 1936 and the Egyptian Family Rights Law (“EFRL”) No. (303) of 1954 are enforced in Gaza. For Christians, there are a separate set of codified family laws as promulgated by the particular sect to which they belong. In addition, the Israeli army applies military law and local law that applied when it occupied the West Bank in 1967. Since the full PLC has not convened since 2006, the Palestinian president has issued presidential decrees in accordance with article 43 of the Basic Law until the PLC reconvenes and can review all such legislation. Some presidential decrees have included amendments to Gaza’s laws, but Hamas, as the de facto authority there, has not applied them and instead issued separate decrees. 2 Human Rights Watch, “Human Rights Watch Submission to the CEDAW Committee of Israel’s Periodic Report 68th Session,” October 2017, https://www.hrw.org/news/2017/10/10/human-rights-watch-submission-cedaw-committee-israels-periodic-report- 68th-session; UN Women, Technical Report, “International Accountability Mechanisms: Palestinian Women Living Under Occupation,” 2016, http://palestine.unwomen.org/en/digital-library/publications/2017/03/legal-accountability (accessed June 5, 2018). Mistreatment and Abuse of Children (articles 9, 37, and 40) Both the Palestinian Authority (PA) in the West Bank and Hamas authorities in Gaza routinely taunt, threaten, place in solitary confinement, beat, lash, and whip the feet of detainees, and torture them, as Human Rights Watch has documented.3 The most common tactic used by both authorities is positional abuse, or shabeh, which can amount to torture when it constitutes deliberate infliction of severe harm. While the PA and Hamas both deny using shabeh, scores of adult detainees as well as several children detainees told Human Rights Watch that officers placed them in painful stress positions for many hours at a time, using a mix of techniques that often left little or no trace on the body. In the West Bank, the Intelligence Services, Preventive Security, and Joint Security Committee often practice shabeh at their detention facilities in Jericho; in Gaza, the primary perpetrator is the Internal Security agency. In addition, Defense for Children International-Palestine documented 23 instances where PA forces used physical violence against children in the first half of 2018, from among 82 arrests of children during this period.4 According to DCI-P, the agencies that carried out these arrests included the Intelligence Services, among others. PA security forces operate in coordination with the Israeli army. Human Rights Watch’s research has found that many Palestinians in the West Bank have been detained at different times by both PA security forces and the Israeli army, often based on similar sets of allegations. The Israeli army also routinely violates the rights of children in the territory of the state of Palestine. As of January 31, 2019, Israel was detaining 209 Palestinian children from Gaza and the West Bank, including East Jerusalem, 46 of whom are under the age of 16, many of whom it charged with throwing stones, a crime that is punishable under Israeli military law by up to 20 years in prison. Israel denied Palestinian children arrested and detained in the West Bank legal protections granted to Israeli children, including settlers. Israeli military courts in the West Bank in 2015 denied bail in 72 percent of cases involving Palestinian children, 3 Human Rights Watch, Two Authorities, One Way, Zero Dissent: Arbitrary Arrest & Torture Under the Palestinian Authority & Hamas, October 23, 2018, https://www.hrw.org/report/2018/10/23/two-authorities- one-way-zero-dissent/arbitrary-arrest-and-torture-under 4 “Palestinian forces detained 22 children using improper procedures in first half of 2018,” DCI Palestine, November 14, 2018, https://www.dci- palestine.org/palestinian_forces_detained_22_children_using_improper_procedures_in_first_half_of_2018 whereas Israeli civil courts,5 with jurisdiction over Israeli children, including settlers, denied bail in only 17.9% of cases.6 A 2013 UNICEF report found that almost all Palestinian children plead guilty because they would otherwise be subjected to lengthy pretrial detention, and entering a guilty plea “is the quickest way to be released.”7 Palestinian children are not interviewed by a probation officer, who seeks alternatives to detention, as are Israeli children. Israeli law, which is applied to Israeli children, specifies a statute of limitations of one year for throwing objects toward a person or property, whereas it is two years under military law, as applied to Palestinian children. Palestinian children from the West Bank, not including East Jerusalem, are tried in Israeli juvenile military courts that, according to official figures obtained by the organization Military Court Watch, had a conviction rate of at least 95 percent in 2015, the last year for which data is available.8 Human Rights Watch research has found that Israeli security forces routinely interrogate children without a guardian or lawyer present, use unnecessary force against children during arrest, which often takes place in the middle of the night,9 and physically abuse them in custody.10 UNICEF in its 2013 report said that the "the ill- treatment of children who come in contact with the military detention system appears to be widespread, systematic and institutionalized throughout the process.”11 Criminal defense lawyers have told Human Rights Watch that such abuse remains endemic. These practices appear to violate some of the core principles of the convention that
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