Children Rights Violations in Accordance with Article 37 of the United Nations Convention on the Rights of the Child
By: Michaela Lavis
December 16, 2017
The United Nations (UN) Convention on the Rights of the Child (CRC) provides clear guidelines, which ensure all children, without discrimination receive their rights. This paper will discuss the occupied Palestinian territory (oPt) and the use of Military Law in relation to blatant children rights violations by the Israeli military. More specifically, this paper will explore Article 37 of the UN CRC, and consider it in regard to the Military Law to which the state of Israel subjects Palestinian children and youth. Article 37 states: children should not be subjected to inhumane or degrading treatment, and no child will be detained unless under exceptional circumstances, and if detained must be for the shortest amount of time possible (UN CRC, 1989). Further, clause 3 of Article 37 describes that any child, who has had their freedom taken, has the right to be treated with dignity (UN CRC, 1989). Further, the Article identifies the right to access legal support, and the right to challenge the legal precedence by which their arrest was made (UN CRC, 1989). Palestinian children and youth are not given these rights, and as such Israel is fundamentally violating human rights as in accordance with the UN CRC. Israel is the only state that systemically and automatically prosecutes children in military courts that lack basic standards of due process (Defense for Children International-Palestine, 2013).
One does not need to look far for statistics and documentation on the ill treatment of Palestinian children and youth related to Military Law. The Universal Periodic Review that the Defense for Children International-Palestine (DCIP) published in 2013 explains the current situation of Palestinian Children in the West Bank and East Jerusalem. DCIP provides legal services to Palestinian children in military courts, and provides research, monitoring, and reporting of the use of Military Law in oPt,
Each year 500-700 children from the occupied West Bank are subjected detention under Military Law. The Israeli military interrogates, inflicts torture, and other inhumane torture generally in the first 48 hours of an arrest (DCIP, 2013). As well, children and youth are denied family and legal support (DCIP, 2013). On average 94.2 percent of Palestinian children do not receive a lawyer during interrogation (DCIP, 2013). Children are also denied sustenance and physically assaulted during integration, and this is used as a means to coerce the young person into a confession (DCIP, 2013). Much of the time, the legal documentation that is provided to the child is in Hebrew, a language many Palestinian children do not understand (DCIP, 2013). Furthermore, 87 percent of the children are not informed of the reason for arrest (DCIP, 2013). These are all examples of blatant human rights violation as according to Article 37 of the UN CRC.
The development of children’s’ rights developed after the First World War, initially under the predecessor of the United Nations, the League of Nations’ Geneva Declaration of the Right of the Child (1924). This provided the base for the Declaration of the Rights of the Child (1959) and the Convention on the Rights of the Child (1989) Currently, only two countries have not ratified the UN CRC, and overwhelmingly we view children as rights-holders and active citizens (Doek, 2009). There is a universal understanding that adults have the duty to protect children from harms way (Collins, Gervais, 2016). This has led to international law to protect children from harms way. Yet, today we still have a situation where there are blatant children’s rights violations and there have not been any serious repercussions for the occupier Israel, and for the international community. Israel has argued that international law, (that they have ratified) does not apply to the oPt (Amnesty, 2014). However, the United Nations Human Rights Committee and the International Court of Justice on many occasions has explained that, the occupier shall uphold all rights (Amnesty, 2014).
The use of military rule in the oPt is anachronistic, Military Law does not belong to a day in age where it is considered acceptable to the international community (Kuttab, 2017b). Joronen (2016) explains military law is contradictory to the international rule of law that Israel has committed to following. Perhaps, if we can move past the ideology of Palestinian children being deemed threats to security, we can move past this ideology where in we discriminate against a population by using Military Law. By not affording Palestinian children the rights Israeli children enjoy through civilian law, you discriminate against a person based on their ethnicity (Joronen, 2016). Article 2 states that all children shall be afforded these rights (UN CRC, 1989). Further, one can come to understand the use of occupation as a weapon against humanity, through a historical lens.
In Pedagogy of the Oppressed (2000), the author discusses the struggle of being oppressed through to becoming liberated. One could hypothesize that through the Holocaust and the fight for liberation, Israel lost itself and its fight for liberation and became the oppressors of Palestine. The book states, “But almost always, during the initial stage of the struggle, the oppressed, instead of striving for liberation, tend themselves to become oppressors, or “sub-oppressors.”” (Freire, 2000, p. 45).
The Fourth Geneva Convention is the International Law for states in the situation of occupation. The Convention states that you have to take care of those that you are occupying. Further, Michael Lynk, the special rapporteur to the United Nations on the oPt and a law professor at University of Western Ontario, states in his report, the use of occupations are for the following purposes: (i) Firstly, to ensure the place of occupation is able to accomplish independency, and to (ii) “prevent the territory from becoming a fruit of conquest, and (iii) to safeguard the protected people under occupation” (2017, p. 8). The occupation in Palestine, does not use the occupation for those reasons.
All states that have signed the convention are responsible under the Convention to ensure the Convention is upheld, in all circumstances. Canada has signed the Fourth Geneva Convention and thus Canada risks being complicit in the war crimes against Palestine when it does not ensure the Convention is upheld in all circumstances. For example, the Canadian government allows charitable status for contributions to the Jewish National Fund (JNF). The JNF is a quasi-government organization in Israel, and its purpose is to claim land for the Jewish population (Levitan, 2013). In this way it supports colonization which is contrary to international law. Similarly Kuttab made this point about silence on the use of Military Law in the oPt when he met with the Canada Palestine Parliamentary Committee on December 4, 2017 to discuss Canada’s obligation under international law related to Article 1 of the Fourth Geneva Convention to ensure that they are not supporting Israel’s use of Military Law in regard to Palestinian children.
What holds the occupation and thus Military Law in place? How can a State inflict such obvious children’s rights violations on Palestinian children without major repercussions? The occupation has been going on for 50 years, and so the oPt and Israel lives in a situation where the exception has become the rule. More specifically, through the use of distorted images and the acceptance of a zionist narrative in media and within society, these violations have become normalized by the increasingly perceived presence of the threat of the “terrorist”. Fear mongering results in Military Law to justify the stripping away of rights outlined by the UN CRC.
Michael Lynk, the special United Nations Rapporteur regarding the situation of human rights in the Palestinian territories, has explained that the occupation for much of its fifty years has been breaking international law. More specifically, Lynk argues that such case when there is a military necessity, such that there are threats to security, our fundamental rights and protections shall still be upheld, so as to not disturb the “breadth, accessibility, and enjoyment of these fundamental rights by all peoples” (ICCPR, Article 4). This claim is synonymous with Article 4 of the International Covenant on Civil and Political Rights.
Youth Citizenship and Participation
Palestinian and Israeli citizenship is based on the location where you live, as such the law, which you are under is a product of your place of residency. As a result of creating the state of Israel, there are three main Palestinian populations, that have displaced Palestinian people.
Firstly, there are Palestinian people in the oPt, which includes Gaza, West Bank, and East Jerusalem. All citizens of oPt are under Military Law (DCIP, About Us). The Palestinian people who live in East Jerusalem are afforded the right to enter into Israel, and as a result they get Israeli education, which employs an Israeli narrative of colonization. One could possibly compare it to the cultural assimilation the Indigenous people of Canada were subjected to. In East Jerusalem children, youth, and adults are given a resident of Jerusalem card; they are not considered Israeli citizens.
The second group of Palestinian people, as per the 1947 Partition Plan and recognized by the 1967 Borders are the Arab-Israeli’s, who live in Israeli (Kuttab, 2017b). These Palestinian people make up 20 percent of Israeli population (Kuttab, 2017b). For almost two decades they lived under military law with this being revoked just prior to the 1967 Six-Day War (Kuttab, 2017b). This group of people are not under Military Law, however they still experience discrimination under other Articles of the UN CRC. More specifically, there are more than 50 laws that discriminate against anyone who is not Jewish and lives in the State of Israel (Nickles, 2015).
The last groups of people are the diaspora people. This population was made refugees in 1948 and 1967. Today it is estimated that over seven million, or one-third of the world’s refugees are Palestinians who have been denied right of return guaranteed by the United Nations General Assembly Resolution 194 (United Nations Relief and Works Agency for Palestine refugees in the Near East, 1948). Today, over five million remain in refugee camps and are under United Nations Relief and Works Agency for Palestine refugees (UNRWA) after almost seven decades. Those refugees who are living in the oPt are under Military Law, and treated in significantly inhumane ways, contrary to universal human rights and international law.
Despite the Palestinian people displaced and denied rights, living under decades of occupation, and under apartheid the Palestinian people have continued to hold on to their identity is significant ways. Smith (2010) identifies that children from Palestine “showed a unique awareness of the injustices that they are their families have experienced” (p. 105). Through the blatant discrimination that is an offence under the UN CRC Article 2, and Article 37 Palestinian people have continuously showed resistance to the occupation, mainly through the Boycott, Divestment, and Sanctions (BDS) movement, calls to churches, such as Kairos 2009, the 2015 International Criminal Court Submission (International Criminal Court, Preliminary examination), and other international campaigns, such as Amnesty International’s Occupation @ 50 years, DCIP’s No Way To Treat A Child. Perhaps most significant is the International Criminal Court Submission calls Israel for their War Crimes against Palestinian people.
In order to actualize my commitment to act and promote the realization of children’s’ rights in my professional CYC activities, I will continue to fight for solidarity through the BDS movement with a focus on the treatment of children. I am committed to promoting the No Way to Treat a Child campaign which has just been brought to Canada in the summer of 2017, and has already over 25 organizations supporting it and which has met with the Canada Parliamentary Committee to begin to look at legislation similar to that introduced in the US congress (House of Representatives 1439, 2017). I will continue to fight for Palestine to be granted the universal human rights and international law that other nations enjoy, but in particular in relation to calling the Canadian government to stand against the use of Military Law by Israel against children and youth. I will speak out against the rights denied by Article 37 of the UN CRC which, include but are not limited to:
- Minor under 18 should be subject to civilian law not military law
- Midnight arrests should not be conducted unless normal efforts to summon them to police headquarters have repeatedly failed and parents claim they are unsure of their child’s residence
- No interrogations without the presence of lawyer and/or one of the parents
- Age of responsibility should be lifted from 12 to 16 years of age and developmental norms should be taken into account. Social services report should be conducted.
- Bail should be given except in very special circumstances
To conclude, the use of Military Law is a form of discrimination against the Palestinian people. Under the UN CRC Israel has violated Article 2 and 37 by using physical violence against Palestinian children. Further, the use of Military Law against children, under the mask of Palestinian children being a threat to the security of Israel is not only inhumane, but breaks international law as per the Fourth Geneva Convention. Lastly, Canada is complicit in the crimes against Palestine in various ways such as the government providing tax breaks to charities that support the colonization of Palestine or supporting companies that are involved in the administration of Military Law against children. To actualize my plan for justice (not charity), I will continue to support the rights for all children, including Palestinian children; doing so by holding my own government accountable by advocating for civil society to understand the implications of human rights violations internationally.
Amnesty International. (2014). Trigger-Happy: Israel’s Use Of Excessive Force In The West Bank. Retrieved from https://www.amnesty.org/en/documents/MDE15/002/2014/en/
“No Way To Treat A Child About” Defense for Children International-Palestine. (2017). Retrieved from http://www.nwttac.canada.dci-palestine.org/about
Defense for Children International-Palestine.(2014). Palestinian Children in Israeli Military Custody Face Physical Violence. Retrieved from http://www.dcipalestine.org/palestinian_children_in_israeli_military_custody_face_physical_violence
Defense for Children International/Palestine Section. (2013). Universal Periodic Review-Israel: Situation of Palestinian Children in the West Bank, including East Jerusalem, and Gaza (Occupied Palestinian Territory). Retrieved from http://lib.ohchr.org/HRBodies/UPR/_layouts/15/WopiFrame.aspx?sourcedoc=/HRBodies/UPR/Documents/Session15/IL/Revision/DCI-Palestine_UPR17_ISR_E_Main.docx&action=default&DefaultItemOpen=1
Doek, J. E. (2009). The CRC 20 years: An overview of some of the major achievements and remaining challenges. Child Abuse & Neglect, 33(11), 771-782. doi:10.1016/j.chiabu.2009.08.006
Collins, T. M. and C. Gervais, “Children’s Rights: Their Role, Significance and Potential”, in Current Issues and Controversies in Human Rights, Gordon DiGiacomo (ed.) Toronto: University of Toronto Press, expected 2016 (copy-editing).
Freire, Paulo. (2000). Pedagogy of the oppressed. New York, NY: Continuum. (pp. 43-69).
House of Representatives 4391, Promoting Human Rights by Ending Israeli Military Detention of Palestinian Children Act, 115th Congress, Session 1, Authenticated U.S Government Information, 1-11 (2017)
Joronen, M. (2016). Politics of precarious childhood: Ill treatment of palestinian children under the israeli military order. Geopolitics, 21(1), 92-114. doi:10.1080/14650045.2015.1123251
Kuttab, J. (December 4, 2017a). Use of Military Law In Regard to Palestinian Children and Canada’s Responsibility Under Article 1 of the Fourth Geneva Convention. Lecture presented to the Canada Palestine Parliamentary Committee 180 Wellington St, Ottawa.
Kuttab, J. (December 8, 2017b). Is the World Becoming a Better Place? Lecture at Noor Cultural Centre, Toronto.
Levitan, T (2013). Expose The Jewish National Fund. Independent Jewish Voices. Website. Retrieved from http://ijvcanada.org/2013/expose-the-jewish-national-fund-jnf/
Lynk, M. (2017). Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967. Submitted to United Nations General Assembly. UN Doc. A/72/43106.
Nickles, R. (2015). The Adalah database of 50 discriminatory law in Israel. Mondoweiss. Retrieved from http://mondoweiss.net/2015/06/database-discriminatory-israel/
Preliminary examination Palestine. (n.d.). Retrieved December 17, 2017, from https://www.icc-cpi.int/palestine
“Resolution 194.” United Nations Relief and Works Agency, United Nations General Assembly, www.unrwa.org/content/resolution-194.
Smith, Anne B. (2010). “Children as Citizens and Partners in Strengthening Communities,” American Journal of Orthopsychiatry 80 (1), 103-108.
United Nations, Convention on the Rights of the Child, Adopted by UN General Assembly on 20 November 1989, UN Doc. A/RES/44/25, entered into force 2 September 1990 http://www2.ohchr.org/english/law/pdf/crc.pdf
United Nations, International Covenant on Civil and Political Rights, Adopted by UN General Assembly on 19 December 1966, UN Doc. Vol. 999,1-14668, entered into force 23 March 1976.
“Who We Are UNRWA.” United Nations Relief and Works Agency, United Nations, www.unrwa.org/who-we-are.