Update: On 24 April 2016, D. was released from prison after the IPS Commissioner announced, in response to a request by the girl’s parents, that she had decided to reduce D.’s time in prison by two months. The Commissioner’s response was issued after the case was publicized and garnered criticism in Israel and abroad.
D. being released from prison at Jubara Checkpoint near Tulkarm. Photo by Oren Ziv, activestills.org
In the early morning of Tuesday, 9 Feb. 2016, D.W., a girl aged 12 years and two months, arrived at the entrance to the settlement of Carmei Tzur, carrying a knife concealed beneath her shirt. According to media reports, the guard at the entrance to the settlement ordered her to halt. A resident of the settlement who was passing by instructed her to lie on the ground, took the knife from her, and shackled her until soldiers came to the scene. The soldiers arrested her and transferred her for interrogation. A video clip filmed at the time of the incident shows the resident asking her whether she had come to kill Jews; D.W. replies In the affirmative.
In testimony given to B'Tselem field researcher Manal al-Jaabari, D.’s mother explained how she learned of the incident:
On Tuesday, 9 Feb. 2016, D. woke up just like on any other day. She made her bed, got coffee ready for her brothers, and put on her school uniform. She left home at about 7:40 A.M. and set off for school. I began to tidy the house and prepare lunch. At about 10:00 A.M. my brother Muhammad telephoned me. He was calling from work and asked me what was happening with my children. I said they were all where they were supposed to be. He did not say anything else and hung up. I wasn’t worried or concerned about this until my other brother Jamil arrived. This was about 10 minutes after Muhammad called me. He got out of his car and seemed pale and confused. I thought something bad had happened to my mother. I asked him whether he wanted to tell me something, and he said that D. had been arrested at the settlement of Carmei Tzur. Just then people arrived from the school she goes to, including her teacher. They asked me what had happened to D. and I replied that she had gone off to school in the morning. Her teacher said that she had not arrived that day. I was shocked and felt dizzy. I didn’t believe what they were telling me and what Jamil had told me just before. I felt as if I was dreaming. D. is a small girl and the settlement is a very long way from our home. How could a girl like that get all the way to a settlement in order to stab someone?
The teacher asked me to come with her to school because a Ministry of Education committee was waiting there for me. I went to the school with the teacher. One of the people from the Ministry of Education showed me a photograph of D. on his cell phone with her hands tied. Her face was blurred, and at first I said, “That isn’t my child.” Only when he showed me a photograph of her bag, I said that this was her bag. He showed me another photograph that showed her standing with her hands tied behind her back. I shouted, “That’s her!” I was stunned. I couldn’t come to terms with the situation and what had happened, and I left the school in a very bad state. I cried all the way home.
The day after her arrest, D. was taken to the juvenile military court at Ofer for a hearing in the police request to extend her detention by six days for the purpose of interrogation. The hearing took place before Judge Lieutenant Colonel Hanan Rubinstein. D. was represented by Attorneys Tareq Barghout and Hamza Abu Mizar, who were appointed for her by Defence for Children International – Palestine. During the hearing, the police interrogator stated: “I am aware that the suspect only reached the age of criminal liability a few months ago. However, in light of the gravity of the offenses of which she is suspected, I will ask the court to acquiesce to the request.”
The minutes of the hearing clarify details regarding D.’s interrogation: She was interrogated twice during the afternoon, the first time at 1:30 P.M. and the second at 4:16 P.M. According to the police interrogator, the interrogations were undertaken by a youth interrogator. On both occasions she was interrogated without the presence of her parents or an attorney on her behalf. In the hearing, the police interrogator claimed that “in security offenses, there is no obligation for a parent to be present during interrogation,” and that “this is the guideline received from the police commanders in the Hebron District.”
During the court hearing, it also emerged that the interrogation of D.’s parents was the principal investigative action the police sought to undertake. The interrogator admitted that on the evening before the hearing, it had already been decided that such an interrogation was necessary. Despite this, however, the investigators had not taken the trouble to telephone the parents (the interrogator claimed that the explanation for this could be found in the confidential report). As if this was not a simple investigative action the police is obliged to undertake, the interrogator added that “if counsel for the suspect undertakes to send both her parents to Hebron Police today or tomorrow to provide testimonies, this will alleviate the investigation and help its expedition.”
In his decision, Judge Lieutenant Colonel Hanan Rubinstein refused to attach any weight to the fact that D. was interrogated on her own, determining that this matter would be discussed at a later stage. He accepted the interrogator’s comments that he had told D. that she had the right to be represented by an attorney and that he had spoken on the phone to her father, who had told him that he did not have an attorney. The judge concluded:
Parental presence is indeed a minor’s right, but it should not be said that an investigator must wait endlessly for the parent to arrive; rather, a reasonable period of time should be waited for him to arrive. It is unclear from reading the statement itself whether or not it was also explained to her father that he has the right to come, but naturally counsel for the defense retains all his arguments when a judicial proceeding is held after indictment.
The judge focused mainly on the question whether the release of the minor girl would disrupt the investigation. He argued that only the investigation of the parents was “subject to disruption,” and this “should be undertaken today or tomorrow.” The judge added that “the case is actually fairly ready for the preparation of an indictment.” In his summary, he wrote: This case involves a young girl aged 12 years and two months. The court notes her fragility and the expression of fear on her face, but this is not sufficient to negate the danger she poses, since the case involves an extremely grave offense the minor attempted, prima facie, to commit, without fear. In order to balance the needs of the investigation with the fact that there is only one investigative action that requires her holding in detention, I establish that the extension of the minor’s detention shall be until tomorrow, 11 Feb. 2016, at 5:00 P.M.
D.’s parents were interrogated immediately after the hearing. In her testimony, D.’s mother described the events of the day in court and in their subsequent interrogation:
I saw D. sitting in the defendants’ cage. Her legs were shackled with metal cuffs and she seemed pale. I tried to talk to her. She gave short replies and I could see that she was distracted. She was wearing thin clothes even though it was cold. She seemed shocked. At first the prosecution talked about D. and said that she is accused of attempted murder and she poses a threat to the security of the State of Israel. The attorney said that D. was interrogated without the presence of her father or mother.
We left the court and went to the police station in Kiryat Arba. We got there at about 3:00 P.M. and waited outside for about an hour. Eventually a policeman opened the door. My husband and I went inside. We thought we were going to see D. and they would interrogate her again in our presence, but we were surprised to discover that her father was actually interrogated for about half an hour, and then I was interrogated for about half an hour – all this without bringing her. We were interrogated by an interrogator called Salomon. He asked me about D., how she behaved at home, and what motivated her to commit a stabbing attack. At the end he asked me what television programs she watches and whether she watches the Al-Aqsa channel.
He asked me: “Does D. have an old relative or neighbor?” I thought this was a strange question and asked him: “Why are you asking me that question?” He replied that during her interrogation, D. had told him that she dreams every night about an old woman who comes to her in her sleep and asks her to go to the settlement to kill settlers. I asked the interrogator if they were planning to interrogate D. again, this time in our presence. He said that she was in women’s prison at the moment and they were not planning to interrogate her again.
The next day, a further hearing was held to extend D.’s detention, this time before Judge Lieutenant Colonel Moshe Levy. The military prosecutor, Captain Michael Rabber, asked the judge to extend the girl’s detention by six additional days for the purpose of filing an indictment. Captain Rabber did not clarify why he required six days for this purpose. D.’s attorney attempted to persuade the judge to release D. to an alternative to detention, instead of imprisonment, but the prosecutor rejected this possibility and claimed that the alternative to detention proposed by counsel for the defense – a closed hostel in Bethlehem – would not “obviate the danger accruing from the defendant.”
Judge Lieutenant Colonel Levy also noted that “it pains the heart to see a young girl brought into the courtroom from the detention center. I believe that children of this age should be in alternative frameworks, and not together with detainees in prison.” However, he added, “it is impossible to ignore the danger presented even by this young girl, in the case of an extremely serious offense she attempted to commit with determination and without any fear.” The judge ruled that the director of the hostel should be questioned in order to ensure that the hostel could indeed “obviate the danger.”
The Plea Bargain
The same day, the military prosecution filed an indictment against D. on offenses of attempted premeditated manslaughter and possession of a knife. After the indictment, the judge ruled – contrary to the prosecution’s position and after the director of the hostel was questioned in court – that the minor should be transferred to the closed hostel in Bethlehem, on bail of NIS 8,000, and with a third party guarantee of NIS 25,000. The prosecution announced that it would appeal against the decision.
Pursuing an evidence trial would have taken many months, during which time D. would have remained in detention or in the closed hostel. In these circumstances, D. had no choice but to sign a plea bargain. On 18 Feb. 2016, the two sides informed the court that they had reached a plea bargain and that D. had confessed to the charges in the indictment. Military law restricts the length of imprisonment – actual or suspended – that can be imposed on a minor under the age of 14 to six months. Accordingly, the sides agreed that D. would be sentenced to 4.5 months imprisonment, a suspended sentence of one and a half months, and a fine of NIS 8,000 (or eight months’ imprisonment to be imposed on her parents). According to the prosecutor, “the grounds for the plea bargain are the defendant’s clean record, her admission of guilt, and saving judicial time. We also took into consideration the defendant’s very young age.”
The judge accepted the plea bargain and added:
This case undoubtedly involves a young girl; no person and no judge can remain indifferent when hearing the remarks in court and when hearing the comments of the minor girl D., made in a weak, low voice. I have also heard the comments of the representative of the welfare services in the Civil Administration, who spoke of the problems facing this minor girl, an attention and concentration deficit that was evidently not treated at school. I have also heard the minor girl herself speak of the subjects she studies in seventh grade at school, her personal and family circumstances, and imposing a sentence of actual imprisonment on a minor girl at such a young age is certainly far from easy.
On the other hand, we must look at the actions attributed to the minor girl in the indictment. Unfortunately, over recent months the State of Israel has become embroiled in a series of grave incidents in which many minors have not hesitated to arm themselves with knives, even when they know that they are liable to be setting out to their death. Such events regrettably also end in the death of those injured by the blade of the knife… With all the regret that comes from placing a minor girl behind bar and bolt, apart from the fact that the defense and the prosecution have reached agreements, and the court does not generally deviate from these agreements, I hope that the minor girl understands today that she was liable to cause the death of a person, and perhaps also lead to her own death.
Thus ended the legal proceeding. Nine days after she was arrested, D. – who only recently reached the age of criminal liability – was sent to prison for four and a half months, in a proceeding she underwent completely on her own, without the prosecution being required to present even a shred of evidence to prove her guilt.
Minors in the Legal Proceeding
It is no coincidence that different legal systems around the world have introduced special rules for minors intended to protect them in the framework of the criminal proceeding. Coping with interrogation, detention, and disconnection from the family and the familiar living environment are all much harder for minors than for adults, and have more significant ramifications for the rest of their life. With this in mind, international law has granted minors extensive protections in the criminal proceeding, including the guiding principle that the incarceration of minors will always be a last measure to be adopted only in the absence of any alternative. Similarly, Israeli law establishes that minors under the age of 14 are not to be imprisoned, and in all cases action should be taken to encourage their rehabilitation. Israeli law also provides substantive protection of the rights of minors throughout the proceeding, from their detention through interrogation and the trial and on to the sentence.
By contrast, the military law enforcement system is based on opposite principles. The incarceration of minors in prison is the principal method for handling minors suspected of violating military legislation, and the few rights they enjoy in accordance with military orders can be relatively easily revoked on the basis of the extensive exceptions clauses in the orders.
By way of example, and contrary to the claim by the police interrogator in the first hearing to extend D.’s detention, military law requires the authorities to notify parents immediately regarding the detention and interrogation of minors. However, the obligation to provide such notice is conditional on the minor providing contact details. Even then, the law merely requires “a reasonable effort in the circumstances of the matter.” If after such an effort the parents have not been located, the notification may be waived. The law does not specify what will be considered such a “reasonable effort.”
The military order also obliges the interrogator to inform the minor that he/she is entitled to consult with an attorney. However, the realization of this right requires the minor to provide the interrogator with the details of the representing attorney, despite the improbability that minors will be in possession of such details. In any case, even if notification is forwarded to an attorney, this does not postpone the interrogation.
In view of this reality, it is clear that from the outset D. had no chance of receiving a fair trial in the military judicial system. Her fate was sealed in advance – from her detention through the interrogation, the court hearings, and the signing of a plea bargain.
It is impossible to understand the attitude of all those involved in handling D.’s case – police officers, military prosecutors, and military judges – to the fact that such a young child was being sent to prison. Even if some of them occasionally chose to mention the difficulty involved in imprisoning such a young girl, they all ultimately focus on the offense of which she was suspected, rather than her age. The interrogator’s claim that he informed D. of her right to consult with an attorney, without helping her to secure an attorney; the prosecutor’s reference to D.’s “clean record,” referring to a girl who only reached the age of criminal liability less than three months ago; the extension of her detention for the purpose of actions that in no way required this detention – these are just a few examples showing that those responsible for processing D. acted in a manner that denuded her status as a minor of any content.
Above all, all those involved in the proceeding showed an appalling disregard for the significance of every hour spent in prison by a 12-year-old girl, alone, far from her family and her familiar surroundings, and held with other girls with whom she was unacquainted. This is apparent, for example, from the inexplicable ease with which the police interrogator asked the judge to approve six days’ detention for the purpose of D.’s interrogation. It only emerged during the hearing that the principle investigative action required was to interrogate her parents – something the investigators could have done the day before, had they bothered to talk to D.’s parents before the hearing. The justice approved an additional day for this simple and brief action, although in reality the interrogation of the parents ended on the afternoon of the same day. The next day, the prosecution requested a further six days’ detention in order to prepare the indictment, despite the fact that the day before the judge had noted that the case was “fairly ready” for the preparation of an indictment. The court ruled that the detention was to be extended by four days. Since this decision was granted on a Thursday, and D.’s detention was extended through Sunday, the judge may have taken the weekend into account in his decision, as is often the case in hearings on the extension of detention. However, in light of D.’s age, the judge should have acted differently.
D.’s case is an exception: the military prosecution very rarely files indictments against such young children. Precisely because it is unusual, however, this case exposes the inherently problematic character of the military court system. These courts claim to function as full-fledged courts, and the judges often compare their work to that of the courts that operate within the Green Line. However, the two legal systems differ substantively, are based on different values, and seek to protect distinct interests. The Israeli legal system is intended to protect the interests of the society from which the defendants come. By contrast, the military courts are intended to protect the interests of the occupation regime. The judges and prosecutors are always Israelis – mostly soldiers in uniform. Their function is to enforce the orders of the occupation regime against the Palestinian civilian population, which opposes the continuation of this regime.
As such, the military legal system plays a vital role in facilitating the continuation of the occupation. As this system’s response to D. clearly shows, ensuring justice and protecting the rights of defendants – even in the case of a girl aged 12 years and two months – are at best a secondary factor in the considerations applied by the military prosecution and the military judges.