Two children, one a Jewish settler living in the region he calls Judea and Samaria, the other a Palestinian living in the region he calls the West Bank, fueled by anger stoked by politics neither understand, in a situation well beyond the comprehension of the adolescent mind, pick up simple stones and throw them in rage. They have both committed a crime. (1) They have both defied the law. (2) Only the Palestinian will be punished.'
In the Occupied Territories, (4) there exists two groups of people, separate and unequal. (5) Jewish settlers, who hold Israeli citizenship, live side-by-side with Palestinians, who do not. (6) Living their daily lives in the political interim, Palestinians who reside in the areas under Israeli military command are stateless, leaderless, and, in many ways, second-class. (7) This inequality is even more apparent in the juvenile justice systems in place within the West Bank. (8)
While settlers, who are Israeli citizens, are guaranteed the rights and privileges of the Israeli civilian justice system, their Palestinian neighbors are subjected to military laws and court procedures. (9) The Israeli Defense Force's Central Command (Command), which acts as the interim government in the Occupied Territories, has established military courts that have jurisdiction to hear cases involving Palestinians in the majority of the Occupied Territories--including minors. (10) While Israeli law has established a non-punitive, rehabilitative, juvenile justice system by implementing limitations on police force and judicial discretion, the same cannot be said for the military legal system. (11) Palestinian minors are subject to a justice system that has minimal protections, is punitive in nature, and is an institutionalized symbol of their legal inequality with Israelis. (12)
This Article argues that the Israeli Supreme Court, acting in its capacity as the High Court of Justice, (13) misapplies the proportionality test (14) with regard to Command decisions. Furthermore, if the juvenile justice system procedures were challenged in court and the High Court of Justice applied a correct, objective proportionality test, the result would be the expansion of a uniform system of juvenile justice across Israel and the Occupied Territories. Part I provides background information regarding the principle of proportionality, the justice systems in place in Israel and the Occupied Territories, and the applicability of the principle of proportionality in deciding the legality of the current military juvenile justice system. Part II analyzes the principle of proportionality and its misapplication by the Israeli High Court of Justice while arguing that the doctrine is pertinent to this situation and should be implemented with regard to international and Israeli standards, which call for an objective judicial review. Part III argues that if the Israeli High Court of Justice hears a case on this issue it should utilize its power to find Command decisions illegal under international law and conclude that the proper application of the doctrine would result in a justice system in the Occupied Territories that closely resembles or is equal to the current Israeli juvenile justice system.
STONES, WALLS, AND JUVENILE JUSTICE
The Principle of Proportionality as Applied in Israel
In 2004, the Israeli Supreme Court, acting in its capacity as the High Court of Justice (HCJ), forced the rerouting of part of the controversial separation barrier in the case Beit Sourik Village Council v. Government of Israel. (15) In so doing, the HCJ invoked the international humanitarian law principle of proportionality, finding that the harm to the civilian population created by parts of the proposed path of the wall was disproportionate to the security benefit that the military stated it would produce. (16) With this decision, the HCJ distinguished its interpretation of international law from that of the International Court of Justice, who had earlier declared in an advisory opinion that the separation barrier was illegal. (17)
International humanitarian law recognizes the necessity of requiring that military actions remain within a framework of proportionality in order to best protect civilian populations during a time of war. (18) This principle of proportionality has been expanded to also cover military actions during the course of a belligerent occupation--as is the current state of the Occupied Palestinian Territories. (19) The First Additional Protocol to the Geneva Conventions of 12 August 1949 (Protocol I) succinctly enumerates the international law requirement for proportionality in stating that "an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" is to be considered indiscriminate, and thus, illegal. (20)
While Israel is not a party to Protocol I, the HCJ has accepted, as customary law, the proportionality requirement that it dictates. (21) The HCJ recognizes that international law requires that the Command adhere to the principle of proportionality and has adopted three secondary tests to determine whether military actions do so. (22) These secondary tests mandate, in theory, that (1) the actions or measures taken have to rationally lead to the actual realization of the objective, (2) the actions or measures taken by the military injure the civilian individual to the least extent possible, and (3) the expected harm to the civilian or the civilian population from those actions or measures remain proportional to their beneficial gain. (23)
The Juvenile Justice Systems in Israel and the Occupied Territories
While the separation barrier has caught worldwide attention, polarizing both sides of the political spectrum as well as international viewpoints regarding the Israeli-Palestinian conflict, numerous other issues affecting the Palestinian population have remained largely non-discussed on the world stage. While the wall is more well known, recent reports have started shifting international attention to the plight of Palestinian minors subjected to the military juvenile justice system in the Occupied Territories by focusing on the growing number of minors charged and sentenced for stone throwing, a commonplace crime committed throughout the region. (24) The legal system in place for the Palestinians differs from that of Israel and the Israeli settlers, as does the juvenile justice system to which Palestinian minors must navigate if arrested. (25)
Regarding international law, the sole controlling framework guiding juvenile justice systems is the Convention on the Rights of the Child (Convention), of which Israel is a signatory. (26) The Convention states as its main thesis that "[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." (27) The Convention further dictates specific prohibitions on punishing children in a cruel or harmful manner and requirements such as allowing children who are imprisoned to keep contact with their families. (28) The Convention also requires that all children be treated the same, without prejudice or discrimination, and recommends that children be legally defined as anyone under the age of eighteen. (29) Lastly, the Convention seeks to advance the greatest protections possible for children--advocating that if a country's own laws provide more extensive protections for children, those laws should be maintained. (30) Israel's domestic juvenile justice system does just that by providing safeguards that are not enumerated but seek to heighten the protection of the child. (31)
The basis for the major problems regarding the juvenile justice system in the Occupied Territories is that Palestinians live under constant martial law. (32) Under such a system, basic rights can be more easily and legally infringed, judicial recourses are limited, criminal procedure is less concerned with the rights of the accused, and sentencing is more punitive. (33) With concern to minors in the justice system, little is added in the way of protections above what martial law establishes for adults. (34)
Palestinian minors who are charged with criminal offenses are tried under the military law that applies in the Occupied Territories. (35) This military judicial system grants them very few of the rights that would otherwise be awarded to them given their age. (36) These special protections are especially extensive in the Israeli judicial system. (37) Commonplace protections, such as a minor's right to be separated from adults during and throughout the extent of their detention and imprisonment, are not maintained with frequency by the military courts. (38) Neither are the protections set out in the Military Command legislation that calls for other rights such as the right to consult with an attorney during the legal process. (39) Furthermore, "the military legislation dealing with minors does not conform to international and Israeli law, which acknowledge that the minor's age affects his criminal responsibility and the manner in which he experiences arrest, interrogation, and imprisonment, and which assume that these experiences might harm the minor's development." (40) Conversely, under Israeli and international law, accused minors in the criminal justice system are given special protections above those awarded to adults. (41) These include the requirement that parents must be given the right to be present during the extent of their child's custodial interrogation, and their arrest and imprisonment are to be viewed as a last resort. (42)
Bowing to pressure by legal organizations in Israel and international standards, the Military Command...