The Military’s response to HaMoked’s petition: Night arrests will continue to be the first option for bringing Palestinian minors to interrogation; use of telephone summons will remain marginal
On November 22, 2020, HaMoked petitioned the High Court of Justice
(HCJ) to compel the Israeli security forces to cease the widespread practice of night arrests of Palestinian minors from the West Bank, and to rely on a summons via their parents as the first recourse when minors are wanted for interrogation. The petition was based on dozens of affidavits HaMoked collected in recent years from minors who had been arrested from their homes late at night. The affidavits indicate that night arrests are highly traumatic and accompanied by numerous violations of basic rights, yet are used by the military as the default for bringing in minors for interrogation, without giving the minors the opportunity to arrive voluntarily in response to a summons. This wrongful practice persists despite a pilot program for summoning minors, purportedly implemented since 2014, although the actual scope of its implementation remains unclear despite HaMoked’s repeated attempts to receive comprehensive data.
In its May 2, 2021 response to the petition, the state argued the petition should be “dismissed in the absence of justification for the court’s intervention… in the policy on the manner of carrying out the arrest of Palestinian minors…”. The state said there were no binding provisions in international law and the law applicable in the oPt regarding the timing and manner of arresting minors. The state argued that pre-planned night arrests were an operational necessity given the “high level of risk facing the security forces carrying out the arrests and the desire to minimize friction with the civilian population”. At the same time, the state claimed that “minors arrested in pre-planned nighttime arrest operations by the security forces in the Judea and Samaria Area [i.e. the West Bank], are only [those] about whom there is a reasonable suspicion that they are involved in serious offences…” – as defined by the military. The response contained various arguments and data purportedly supporting the claim that almost all Palestinian minors who have been arrested over the years were suspected of serious offences which justified, according to the military, their arrest from their homes at night.
The state did not reveal the military’s internal regulations regarding the detention of minors, but announced its willingness to present them to the court ex parte. The state revealed that under one such regulation, the detainee’s parents must be given a form in Arabic with details of the police station to which the minor is being taken and a contact telephone number to ascertain his whereabouts. Additional regulations mentioned prohibit ill treatment of detainees and obligate the provision of reasonable holding conditions, water, food and so on. The state went on to assert that “these regulations are meticulously enforced by the commanding ranks and periodically clarified to the forces… [and] any claim of violation of or deviation from the regulations is investigated and handled by the commanders and the IDF law enforcement entities”. HaMoked’s years of experience with this issue – documented in its recent report Under Cover of Darkness: Night Arrests of Palestinian Minors by Israeli Security Forces in the West Bank
– calls into question the claim of any, let alone meticulous, implementation of such regulations.
Additionally, the state announced that the pilot program for summoning minors had been concluded and that staff work is currently underway towards the formulation of an operational procedure that would define the circumstances and manner of summoning minors for interrogation – this most likely as a result of HaMoked’s petition. Based on the program, the military concluded that “a plan to summon minors may reduce, even if marginally
, the IDF’s operational entries into Palestinians cities and villages, with the attendant friction with the local population; and may also be beneficial for the minors’ rights in the criminal proceedings [emphasis added]”. The new procedure is expected to apply in “situations where the overall circumstances of the matter, including the threat to the security of the Area resulting from the minor’s activity, the needs of the interrogation and the operational risks involved in summoning for interrogation – allow an attempt to summon the minor to interrogation in lieu of their pre-planned arrest”. These conditions indicate that only a very small percentage of minors would benefit from such a procedure, with the vast majority continuing to be subjected to night arrests. The response contained partial data which supported HaMoked’s concerns that from the start, the pilot program was nothing but a negligible measure both in theory and in practice.
A court hearing has been scheduled for August 2, 2021.