Juvenile justice in the Palestinian territories between the law and reality
By the lawyer of the Justice for All project, Mohammed Al-Nashar:
There is no doubt that the phenomenon of juvenile delinquency is among the most serious social phenomena, given its effect on the future of the generations in particular and on the future of the state in general. In recent times the Palestinian territories have seen this phenomenon grow, its increase helped by social, economic, political and cultural circumstances alike, while the legal and the practical aspects are the most important in shedding light on the question of juveniles and the mechanisms required to protect them within society.
If we look at the legal aspect, we see that there is a multiplicity of laws concerning delinquent juveniles applied across the Palestinian territories: the law applied in the Gaza Strip dates from the time of the British Mandate authorities in 1937, while the law applied in the West Bank is the Jordanian juveniles law of 1954. The legal texts applied in those earlier laws are far removed from the modern criminal policy aimed at reforming the juvenile, which regards the juvenile as a victim rather than an offender and as deserving genuine care and protection.
These laws set out the conditions that must be met in juvenile care centres and by the staff working in them, but they do not provide for the swift determination of juvenile cases, nor do they provide for establishing courts, a prosecution or a police force dedicated to juveniles, so that a qualified body of judges, prosecutors and police is prepared to deal with juveniles in a way that befits and takes account of their ages and their circumstances, which differ from those of adult defendants. Nor do these laws contain detailed provisions on placing juveniles in dedicated places suited to their psychological, educational and social situation; they are content merely to separate them from adults.
On the situation of juveniles in practice within the Palestinian territories, we see that the number of institutions and reform places dedicated to them is six, four of them in the West Bank and two in the Gaza Strip, which is an indicator of a severe and clear shortage in the number of care homes for juveniles. There are also other problems plain to see, among them the division of juveniles inside a home: we find the offender and the victim in the same place, with no separation between them by reference to the offence committed, to age or to the psychological situation of each juvenile.
We find solutions to this on the basis that a delinquent juvenile is nothing but a victim of personal, economic and political factors that led them to commit an act contrary to the law, and that deterring a juvenile differs entirely from deterring an adult: the aim of deterring an adult is to achieve justice and the rule of law, whereas deterring a juvenile rests on rehabilitation and upbringing in order to treat and cut out the harm latent within the juvenile.
There must therefore be official and institutional attention to several preventive, procedural and executive strands in order to advance the juvenile. The preventive strand consists of studying the factors behind children's deviance and working to provide them with means of prevention within society and to root out those negative factors affecting behaviour. The procedural strand is concerned with establishing criminal procedures particular to juveniles that differ entirely from those for adults, in order to ensure a suitable environment for them during trials and that they are not influenced by adult defendants, and the number of social care centres dedicated to juveniles during their stay in a care home must be increased, with efforts intensified to advance these centres and improve the situation of juveniles. The executive strand is concerned with establishing particular methods for carrying out the measures and penalties prescribed for juveniles, which differ in their provisions from those for adults.
In summary, the reality of juvenile justice in the Palestinian territories is worn out and weak and is in the most urgent need of swift and pressing changes, among them moving quickly to approve the draft law on delinquent juveniles and treating a juvenile as a victim of circumstances they had no part in; the need to establish a police force, a prosecution and a judiciary specialising in determining juvenile cases; attention to the social investigation by child protection counsellors and activating the role of probation officers; in addition to refraining from referring cases to the prosecution competent to investigate, as is done with adults, and resorting to the means that would ensure a juvenile does not return to committing an act contrary to the law; and the need to increase the number of juvenile reform and rehabilitation homes so that each Palestinian governorate has its own care home, instead of the small and limited number in our local community, on the basis that a juvenile is nothing but a victim of political, economic and social circumstances, and that those concerned must care for them, rehabilitate them, correct their behaviour over a set period and reintegrate them into their community.
