To Throw a Stone in Palestine: The Principle of Proportionality and Children in the Israeli Military Justice System

Abstract

This Article is the first to argue the Israeli High Court of Justice (HCJ) misapplies the international humanitarian law principle of proportionality with regard to Israeli Defense Force Central Command decisions. Further, if the juvenile justice system procedures were challenged in court and the High Court of Justice applied a correct, objective proportionality test, this Article argues the result should be the expansion of a uniform system of juvenile justice across Israel and the Occupied Territories. The laws of war and belligerent occupation were established, in part, to protect civilians. They stand as a basic guarantee, to all of humanity, that certain rights will never be infringed — even in times of great conflict. When children are involved these rights are of even graver importance. While terrorism, violence, and warfare may cause unwanted military activity for ages to come, civilians must always be protected. All states in the modern, legally regulated world, have the responsibility to refrain from actions that disproportionately harm civilians — especially minors. While Israeli settlers in the Occupied Territories are guaranteed the rights and privileges of the Israeli civilian justice system, their Palestinian neighbors are subjected to military laws and court procedures — including Palestinian children. 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. Accordingly, this Article argues the HCJ has a duty, as the protector of democratic and humanitarian principles, to correctly apply the principle of proportionality, which would result in the current military juvenile justice system failing to meet that standard. As it stands, the HCJ grants nearly unchecked deference to the military regarding security concerns. Thus, the HCJ has stunted its own power to uproot and rectify injustices, making the proportionality standard all but moot in the Israeli justice system when national security is provided as a stated goal by the military for its actions. This Article shows that the HCJ has the authority to stop this disproportionate harm and in so doing, make a marked difference in the lives of Palestinian minors, and better align the Israeli state with international standards of law and children’s rights.