Juvenile Justice in Belligerent Occupation Regimes: Comparing the Coalition Provisional Authority Administration in Iraq with the Israeli Military Government in the Territories Administered by Israel

By Khen, Hilly Moodrick-Even | Denver Journal of International Law and Policy, Spring 2014 | Go to article overview

Juvenile Justice in Belligerent Occupation Regimes: Comparing the Coalition Provisional Authority Administration in Iraq with the Israeli Military Government in the Territories Administered by Israel


Khen, Hilly Moodrick-Even, Denver Journal of International Law and Policy


I. INTRODUCTION

Juvenile justice has become a theme of great interest, with the international community showing a growing concern with protecting the rights of children under international law (1)--in times of peace as well as in times of war. (2) This article examines the juvenile justice systems unique to occupation regimes, basing the analysis of this type of system on the case studies of the Israeli occupation in the administered territories and the former Coalition Provisional Authority Administration ("Coalition") in Iraq. (3) We maintain that the changing nature of occupation regimes has bearing on their juvenile justice systems, demanding more protections for the rights of children within these criminal structures. These protections can be awarded either through direct application of human rights law or by amending the specific laws that administer territories under occupation.

In order to determine the most adequate set of international norms for securing the interests of juveniles within the juvenile justice systems in occupied territories, we need to assess the tenets and objectives of juvenile justice in general. This is the object of the second section of this paper, in which we discuss the major goals of juvenile justice both in comparative law and in international law. We address the current trends and characteristics of juvenile justice systems worldwide vis-a-vis the goals of the juvenile justice system as they are reflected in international law, most notably in the International Covenant on Civil and Political Rights ("ICCPR"), (4) the International Convention on the Rights of the Child ("CRC"), (5) and subsequent soft law instruments.

As our interest is not simply in the juvenile justice systems that operate within independent states and regimes but more specifically in those that are implemented in occupied territories, we proceed, in the third section, to examine the history of the changes experienced by occupation regimes: from belligerent occupations to transformative occupations and from short-term to long-term ones. We then examine how these transformations affect the legal means for realizing the obligations of the occupying power under the Fourth Geneva Convention (1949) (6) and the Hague Convention and its annexed regulations (1907) ("Hague Regulations"), (7) primarily the duty to ensure the safety and the daily life routine of the occupied population.

In the fourth section, we discuss the mutual application of international humanitarian law and international human rights law in occupied territories through the prism of the objectives of the juvenile justice system in general, and in occupied territories in particular.

We first suggest that the longer an occupier rules in an occupied territory, the more likely that human rights law, rather than humanitarian law, will better serve the interest of the occupied population, as the latter has more limited tools for achieving this goal. Hence, in longer-term occupations, there is more room for the application of human rights law as an interpretative and complementary law. We then return to the conclusions of the second section with regard to the objectives of juvenile justice systems and claim that, given the nature of juvenile justice in general, and in occupied territories in particular, we must see a more extensive application of human rights law in occupation regimes. We substantiate our claims through the analysis of the case study of detention, prosecution, and adjudication of children in formerly occupied Iraq.

In the fifth section, we turn to Israel, discussing the juvenile courts and the legislation of the juvenile justice system in the territories administered by the Israeli army. After addressing the legal views expressed by the Israeli government and the Israeli Supreme Court on the question of the applicability of human rights law in the administered territories, we address the recent developments in juvenile justice in these territories. …

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