Dear Ms. Whitson,
Thank you for your letter of June 2, 2015.
Firstly, we would like to stress that all Israel Authorities, including those operating in Judea and Samaria (the West Bank), are fully aware of the sensitivities of law enforcement regarding minors. All the relevant authorities act in accordance with the law and standing operational instructions, whilst ensuring that the suspect is provided with all the necessary rights and safeguards.
When complaints are received, they are thoroughly investigated, and where they are substantiated, appropriate measures are taken, including, when relevant, criminal prosecution of the violators.
As regards informing a suspect of his rights, precedent handed down by the Supreme Court in Israel provides, that if proven that a suspect was interrogated without being properly informed of his rights, this could potentially lead to the inadmissibility of any statement or confession given by him. Taking into account the requirements of the law, and the potential results of a breach of the law, the Israeli Police Force is well versed regarding the necessary requirements. Furthermore, in 2014, the Justice Ministry approved the language of a new and revised version of the text informing a suspect of his rights, and the Israeli Police Force, both in Israel and in Judea and Samaria, are required to use this text.
As regards statements made by suspects who were interrogated in Arabic, but which were documented by the Israel Police in Hebrew, it is important to point out that in many cases, these statements are also audio or audio-visually recorded. The suspects themselves may not be aware of the recording, and thus when interviewed by yourselves may tell only a partial part of the picture. Such is the case in Judea and Samaria. At the very least, for the years 2013, 2014, and to date, no suspect has been indicted based solely on a confession given by him which was documented in Hebrew.
As regards the claim that suspects were interrogated without a lawyer or parent present. It should be stressed that whilst Israeli Law, including the law in Judea and Samaria, grants a suspect the right to consult with a lawyer, the law does not require that a suspect only be interrogated in the presence of a lawyer. Breach of the right to consult with a lawyer, as mentioned above, can also have most serious consequences. As regards the presence of parents during the interrogation of minors, the law provides that a minor suspect has the right to have his parent present, unless the minor is under arrest or suspected of committing a security offence. The law applicable in Israel is also applied, de facto, to law enforcement in Judea and Samaria.
Furthermore, it should be stressed, that for various reasons, both factual and legal, the Israeli authorities did not, and do not accept the findings of the report put out by UNICEF in March 2013.
Additionally, we would stress, that all judicial criminal proceedings carried out by the Israeli Courts, both domestic and military, meet all the relevant requirements and standards of developed criminal enforcement, including the standards set out in the conventions to which Israel is a party.
As regards Khaled al-Sheikh and Malak Ali yousef Khatib, the procedures described above were all adhered to. In both instances the minors were questioned whilst under arrest, on suspicion of committing security offences. Prior to their interrogation, both minors were informed of their rights. Their interrogations were audio recorded and were carried out in Arabic. In both instances, after submitting an indictment, the courts ordered their remand pending trial, and trial dates were set. Both defendants were represented by counsel of their choice. In both instances, the defendants chose, as part of a plea bargain, to confess, in court, in the presence of their counsel and their parents, to the offences contained in the amended indictment. In both cases, the Prosecution together with the defense counsel, and with the approval of the defendant's parents, asked the court to approve an agreed sentence which reflected the severity of the crimes for which they had been convicted whilst taking into account, as required by law, inter alia, the age of the defendants.
One can only assume that since the evidence contained in the investigative files contradicted - directly and actively - many of the claims made by the minors, their defense counsel chose positively to waive all claims of misconduct by the investigative authorities and to reach a plea bargain.
It should be stressed, that whilst the minors and their parents spoke extensively with the press regarding the claims of alleged ill treatment by IDF forces, no formal complaint was ever submitted. As previously mentioned, in the absence of a clear and formal complaint further action could not be taken.
Again, one would assume, that if the claims made by the minors were indeed factual, their defense counsel or their parents themselves, would have raised these claims in court. Needless to say, no such complaint was made. Furthermore, if the complaints were indeed genuine, one would assume that an official complaint would also have been submitted. Needless to say, no such complaint was submitted.
Lastly, we would point out, that in our opinion, one should be cautious from drawing broad scoping conclusions based only upon a mere handful of incidents.
In light of the above, hereinafter, we will address the specific questions raised.
1) The Israeli Youth Law is applied equally to any and all suspects arrested in Israel.
2) All relevant policemen and soldiers are given specific instruction regarding arrest procedures. Specific complaints regarding misconduct of policemen or soldiers are thoroughly investigated, and when found to be justified, appropriate criminal or disciplinary proceedings are conducted. It should be stressed, that in the absence of specific complaints, nothing can be done with anonymous alleged complaints included in reports such as yours or the report of UNICEF.
3) As required by law, except in specific circumstances provided for, minors are interrogated by specially and specifically trained Youth Interrogators who undergo all the relevant training.
4) In instances where the interrogation is carried out in Arabic, but documented in Hebrew, there is also, in many cases, as mentioned above, an audio or audio visual recording of the investigation. Statements are also re-translated and read, at the end of the interrogation to the suspect, and only thereafter are the suspects requested to sign them. A suspect may also refuse to sign the statement. The measures described are relevant both for Israel and Judea and Samaria. Specifically regarding Judea and Samaria, statistics gathered for the years 2013 – 2014 show the following:
- In 2013, 465 minors were indicted. All of the interrogations were in Arabic. Of them, 176 interrogations were documented in Arabic. 343 interrogations were audio or audio-visually recorded.
- In 2014, 440 minors were indicted. All of the interrogations were in Arabic. Of them, 138 interrogations were documented in Arabic. 312 interrogations were audio or audio-visually recorded.
5) The MAG does not have an ability to find an exact data regording the requested information. Nonetheless, any information concerning a minors complaint is checked and tested.
6) The law in Judea and Samaria requires that notification of the arrest of any person should be given promptly to a relative of the detainee, unless the detainee requested otherwise. The law also provides that it is the responsibility of the head of the detention center where the detainee is held to ensure that the detainee is aware of this right. Operational directives have been set in place to ensure that this requirement is fulfilled. Furthermore, the law requires that an Israeli Police investigator inform the parents of a minor of his intention to interrogate the minor. These efforts are documented in the body of the statement. In some instances, the family of a minor arrested is also provided with written notification of the arrest of the minor. The written notification, written also in Arabic, also provides the parents of the minor with the general nature of the suspicion for which the minor has been arrested, the location of the Police station to which the minor is to be taken and relevant contact numbers. The parents of the minors are required to sign the notification form. The signed copy then becomes part of the evidence gathered which is transferred, given sufficient evidence, to the Prosecution for Judea and Samaria.
7) As mentioned above, whilst the law provides that a minor suspect has the right to have his parent present during an interrogation, this right does not apply to minors interrogated whilst under arrest or, in certain circumstances, minors who are not under arrest but suspected of committing security offences. Similarly, whilst Israeli Law, and the law in Judea and Samaria, grant a suspect the right to consult with a lawyer, the law does not require that a suspect only be interrogated in the presence of a lawyer. Breach of the right to consult with a lawyer can also have most serious consequences, including the exclusion from evidence of any confession given.
8) + 9) In the military courts in Judea and Samaria the same rules of evidence apply as in the criminal courts in Israel. The evidentiary rules regarding minors or adults ensure the principle of conferring with an attorney as a basic right. Likewise, the law in Judea and Samaria grants special rights to the parent of a minor during interrogations. If these evidentiary rules, or other rules and laws regarding the rights of minors during interrogation are not followed and respected by the investigative body, the court has the authority to rule that any subsequent confession is inadmissible. It should be noted, that Israeli case law, applied in Israel and in Judea and Samaria, provides that a defendant cannot be convicted based upon a confession alone, but rather only when that confession is supported by corroboratory evidence. Likewise, the courts consider any breach of these rules at an early stake of the hearing, including during the investigation itself, and have ordered, on more than one occasion, the release of minors from jail due to breaches of this sort. The military courts have ruled that the existence of breaches of the rules safeguarding the right of minors, and adults, during investigation in general, and the statement of the defendant on particular. A number of examples:
- Three defendants, two of them minors, were charged with taking part in public disturbance during which stones were thrown at cars of Israeli civilians and military vehicles, and a soldier was violently attacked. The military appeals court released the minors on bail, for among other reasons, the minors weren't appraised of their rights against self incrimination, and they were denied access to a lawyer even though they had asked to meet with one (Cases 2431-2432-2433/11).
- The defendant, a minor, was accused of stone throwing and interfering with a soldier. Said defendant was released on bail, his age being major factor in the decision. The appeals court expressed its opinion that the interrogation of minors demands special care, and rules regarding the way such interrogations should be handled. The court, in its decision to release the defendant pointed out that he had been interrogated without conferring with this attorney, and without his parents being present (case 2912/09).
- A minor who was charged with throwing stones was released because he had been held in jail together with adults, contradicting the law which demands that minors and adults be held separately. (Case 1781/10).
- A minor who was charged with stone throwing and weapons possessions was acquitted after the Juvenile court found that there had been serious breaches during the interrogation, including the fact that the defendant was not being apprised correctly of his rights against self incrimination, discrepancies between the taped and written statement in the police, and the lack of corroborating evidence. The defendant was defendant was acquitted of all charges (Judean court 7728/14).
9) Despite contrary claims, the pilot program of issuing summons to some minors suspected of committing crimes in Judea and Samaria was never cancelled, but rather is on-going to this day.