Juvenile justice in belligerent occupation regimes: comparing the coalition provisional authority administration in Iraq with the Israeli military government in the territories administered by Israel.

• Author: Khen, Hilly Moodrick-Even

1. INTRODUCTION

   Juvenile justice has become a theme of great interest, with the international community showing a growing concern with protecting the rights of children under international law (1)--in times of peace as well as in times of war. (2) This article examines the juvenile justice systems unique to occupation regimes, basing the analysis of this type of system on the case studies of the Israeli occupation in the administered territories and the former Coalition Provisional Authority Administration ("Coalition") in Iraq. (3) We maintain that the changing nature of occupation regimes has bearing on their juvenile justice systems, demanding more protections for the rights of children within these criminal structures. These protections can be awarded either through direct application of human rights law or by amending the specific laws that administer territories under occupation.

   In order to determine the most adequate set of international norms for securing the interests of juveniles within the juvenile justice systems in occupied territories, we need to assess the tenets and objectives of juvenile justice in general. This is the object of the second section of this paper, in which we discuss the major goals of juvenile justice both in comparative law and in international law. We address the current trends and characteristics of juvenile justice systems worldwide vis-a-vis the goals of the juvenile justice system as they are reflected in international law, most notably in the International Covenant on Civil and Political Rights ("ICCPR"), (4) the International Convention on the Rights of the Child ("CRC"), (5) and subsequent soft law instruments.

   As our interest is not simply in the juvenile justice systems that operate within independent states and regimes but more specifically in those that are implemented in occupied territories, we proceed, in the third section, to examine the history of the changes experienced by occupation regimes: from belligerent occupations to transformative occupations and from short-term to long-term ones. We then examine how these transformations affect the legal means for realizing the obligations of the occupying power under the Fourth Geneva Convention (1949) (6) and the Hague Convention and its annexed regulations (1907) ("Hague Regulations"), (7) primarily the duty to ensure the safety and the daily life routine of the occupied population.

   In the fourth section, we discuss the mutual application of international humanitarian law and international human rights law in occupied territories through the prism of the objectives of the juvenile justice system in general, and in occupied territories in particular.

   We first suggest that the longer an occupier rules in an occupied territory, the more likely that human rights law, rather than humanitarian law, will better serve the interest of the occupied population, as the latter has more limited tools for achieving this goal. Hence, in longer-term occupations, there is more room for the application of human rights law as an interpretative and complementary law. We then return to the conclusions of the second section with regard to the objectives of juvenile justice systems and claim that, given the nature of juvenile justice in general, and in occupied territories in particular, we must see a more extensive application of human rights law in occupation regimes. We substantiate our claims through the analysis of the case study of detention, prosecution, and adjudication of children in formerly occupied Iraq.

   In the fifth section, we turn to Israel, discussing the juvenile courts and the legislation of the juvenile justice system in the territories administered by the Israeli army. After addressing the legal views expressed by the Israeli government and the Israeli Supreme Court on the question of the applicability of human rights law in the administered territories, we address the recent developments in juvenile justice in these territories. We propose that the long-term nature of the Israeli occupation in the administered territories demands that Israel keep and strengthen the reform in the juvenile justice system in these territories in order to increase the application of human rights norms. However, in the specific case of Israel, international law is not automatically incorporated within the national legal system, and furthermore, Israel objects to the application of human rights treaties in the administered territories. These two facts lead us to conclude that the best way to apply human rights norms, found in both formal and soft law instruments, in the occupation regime in the administered territories is by incorporating them into the legislation of the military governance that regulates the administered territories.

2. The Objectives of Juvenile Justice Systems

   In order to determine the appropriate set of norms for governing juvenile justice systems in general and in occupied territories in particular, we must extrapolate a definition of such systems, clarifying their basic tenets and objectives. The Council of Europe defines a juvenile justice system as:

   [T]he formal component of a wider approach for tackling youth crime. In addition to the youth court, it encompasses official bodies or agencies such as the police, the prosecution service, the legal profession, the probation service and penal institutions. It works closely with related agencies such as health, education, social and welfare services and nongovernmental bodies, such as victim and witness support. (8) The Council states that the principal aims of a juvenile justice system are to "i. prevent offending and re-offending; ii. to (re)socialise and (re)integrate offenders; and iii. to address the needs and interests of victims." (9)

   Scholars identify three central principles in juvenile justice: "diminished responsibility, proportionality and room to reform." (10)

   Diminished responsibility refers to the question whether children are less culpable then adults for having offended. Children may lack sufficient cognitive abilities to realize what they are exactly doing and in particular what might be the consequences of their acts. Of course the older the juvenile the more he will be responsible for his acts, but even at age 14 and 16 he might be incapable of grasping the full meaning of his actions. Proportionality refers to the mitigation of punishment because of children's lack of development of social and cognitive capacities.... Room to reform indicates the importance of the kind of punishments that is meted out, considering what we want to achieve with punishment and what we would want to avoid. (11) According to this final principle, for example, preference should be given to penal interventions that promote rehabilitation and the growth of young people into responsible citizens. (12)

   The above basic principles of juvenile justice are the result of a long process of development of the concepts of juvenile justice in 20th-century Western thought. This ranged from the rhetoric of child protection and "meeting needs" of the 1970s, where justice for juveniles was considered best delivered through community-based interventions, to the series of diverse "justice-based" principles of the late 20th century, which were "more concerned with responding to the 'deed' of the offence rather than the 'need' of the offender." (13) These changes are reflected in the variety of policies in the juvenile justice systems implemented by Western states, which scholars divide into three clusters:

   The first cluster includes the English speaking countries, with the exception of Scotland but including the Netherlands. It is essentially "justice" oriented, characterized by a retributive, sometimes repressive, approach, placing a strong emphasis on the juvenile's accountability, "just desert" principles and parental responsibility for their child's behaviour.... .... The second cluster of countries mainly covering continental Europe is still very much "welfare" oriented.... A third cluster is formed by the Scandinavian countries and Scotland [that combines approaches from "just desert" and "welfare"]. (14) In the third cluster, the "just desert" philosophy gained an important role because of their relationships with Anglo-Saxon states. (15) In practice, these policies place more emphasis on the offence, on the responsibility of the juveniles for their actions, and on the proportionality principle. (16)

   In addition to state-policy rules, juvenile justice is also governed by international law. Three fundamental international conventions and several other non-obligatory instruments regulate juvenile justice systems under international law. The ICCPR guarantees general rights of suspects and accused, such as the rights to avoid arbitrary detention, (17) to be treated "with humanity and with respect for the inherent dignity of the human person," (18) and to "be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." (19) It also refers specifically to minors' rights by requiring states to provide every child "such measures of protection as are required by his status as a minor" (20) and demanding specifically that "[a]ccused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication." (21) In addition, the ICCPR outlaws capital punishment for those under the age of eighteen. (22) The European Convention for the Protection of Human Rights and Fundamental Freedoms (23) "provides for the due process of law, fairness in trial proceedings, a right to education, a right to privacy and declares that any deprivation of liberty (including curfews, electronic monitoring and community supervision) should not be arbitrary or consist of any degrading treatment." (24)

   Yet, the most comprehensive convention regarding juvenile justice is the CRC, which established a near global consensus that "[i]n...