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International Handbook of Juvenile Justice pp 497–525Cite as

Palestine

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Abstract

The State of Palestine became party to the International Convention on the Rights of the Child of 20 November 1989 (CRC) on 2 April 2014. Less than 2 years later, on 4 February 2016, President Mahmoud Abbas enacted Decree-Law No. 4 Concerning Juvenile Protection (hereinafter “Juvenile Protection Law” or “the Law”), which set forth the rights of children in conflict with the law and reformed the entire child justice system. The Law incorporated the international standards relating to children as enshrined in the CRC and other soft law rules. The question remains: would the legal texts, as manifested by the accession to the Convention and by the aforesaid Law, be materialized at the institutional and practical levels?

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Notes

  1. 1.

    1577 United Nations Treaty Series (UNTS) 3, entered into force 2 September 1990.

  2. 2.

    Spokesperson for the UN High Commissioner for Human Rights, Press Briefing Notes on Palestine (Geneva, 2 May 2014).

  3. 3.

    Palestine Gazette, No. 118, 28 February 2016, p. 7.

  4. 4.

    The Law came into force, in accordance with its Article 68, on 29 March 2016.

  5. 5.

    This study relates to juvenile justice in the Palestinian Authority-controlled territory. It does not cover the violations of children’s rights by Israel. Nor does it discuss Palestinian children in East Jerusalem. See Defense for Children International, Palestinian Child Prisoners (Ramallah, 2008); and Rinad Abdallah, Rights of Jerusalem Children (Ramallah 2010).

  6. 6.

    These numbers are mainly taken from Ministry of Social Affairs in 2010.

  7. 7.

    Defense for Children International, Juvenile Police in Palestine between Practice and International Standards (Ramallah 2015), p. 61.

  8. 8.

    Taher Buomidra & Netham Assaf, eds., Arab Experience on Juvenile Justice (Amman 2007); Zeinab Aouin, Juvenile Justice: Comparative Study (Amman 2009).

  9. 9.

    There are, however, some initiatives to work on juvenile justice by UN agencies, NGOs, universities, and the Palestinian Authority. But none of these initiatives have been comprehensive. See Suheil Hasanein, Juvenile Justice in the West Bank and the Gaza Strip (Birzeit 2003); Abdelkarin Shami, “The Criminal Juvenile Justice in Palestine,” in Buomidra & Assaf, supra note 8, pp. 52–73.

  10. 10.

    Jordanian Official Gazette, No. 1182, 16 May 1954, p. 396. See infra note 16.

  11. 11.

    Jordanian Ministry of Social Development, Juvenile Law No. 24 of 1968 and its Amendments until 2007 (Amman 2008). See Mohammad Tarawneh, “Jordanian Experience on Juvenile Justice,” in Buomidra & Assaf, supra note 8, pp. 31–37; Christine Fadoul, “Juvenile Justice Reform Project in Jordan: Achievements and Challenges,” in ibid, pp. 38–51.

  12. 12.

    For recent developments in nine Arab countries, see Defense for Children International, Juvenile Police in Palestine … , supra note 7, pp. 18–25.

  13. 13.

    Mutaz Qafisheh, “Modern Legal Education in Palestine: The Clinical Programs of Hebron University,” in Mutaz Qafisheh & Stephen Rosenbaum, Experimental Legal Education in a Globalized World: The Middle East & Beyond (Newcastle 2016), pp. 198–235.

  14. 14.

    David Reifen, “The Implications of Laws and Procedures in the Juvenile Court in Israel,” 3 British Journal of Criminology 130 (1963); Leslie Sebba, “Legalism versus Welfarism in Israeli’s Juvenile Justice System,” 16 Israel Law Review 461 (1981).

  15. 15.

    Mutaz Qafisheh, “Legislative Drafting in Transitional States: The Case of Palestine,” 2 International Journal for Legislative Drafting and Law Reform (2014) 7, 26.

  16. 16.

    Jordan abolished the 1954 Law within 9 months (on 25 March 1968) after the occupation of the West Bank by Israel in June 1967; the Law remained applicable in the West Bank, but not in Jordan. Jordan has amended the 1968 Law a number of times. Jordan is in the process to further reforming its juvenile justice system. See Christine Fadoul, “Draft Law on Reformatory Juvenile Justice System in Jordan: Achievements and Challenges,” in Buomidra & Assaf, supra note 8, pp. 38–44.

  17. 17.

    Palestine Gazette, No. 667, Supplement 1, 18 February 1937, p. 187. As a background, see W. Fox, “Sentencing the Juvenile Offender,” 5 Western Law Review 109 (1966); D. Hodges, “Juvenile Offenders,” 13 British Journal of Criminology 191 (1973). Before this legislation, juvenile justice in Palestine, as in the rest of the Ottoman Empire, was regulated in accordance with the Ottoman Penal Code of 12 July 1858—Aref Ramadan, ed., Completion of Laws: Ottoman Laws Valid in Arab States Detached from the Ottoman Government (Beirut: Science Press, 1928), Vol. I, p. 2. Article 40 of this Code, which was amended on 4 June 1911 (ibid.), fixed the age of criminal responsibility at 13 years. It provided that no death sentence may be imposed on persons under 18. The article made a distinction between children between 13 and 15 years of age and those above 15 and under 18, providing reduced sentences for each category. It further recognized a number of alternatives to imprisonment, such as signing a commitment by child’s parents, fining, or rehabilitation. In certain aspects, these provisions had been more progressive than some rules that had been enacted in Palestine in subsequent periods.

  18. 18.

    Article 65 of the Juvenile Protection Law of 2016.

  19. 19.

    General Assembly Resolution 40/33, 29 November 1985.

  20. 20.

    General Assembly Resolution 45/112, 14 December 1990.

  21. 21.

    General Assembly Resolution 45/11, 14 December 1990.

  22. 22.

    F. Sloan, “The Binding Force of a ‘Recommendation’ of the General Assembly of the United Nations,” British Year Book of International Law 24 (1948); Yuen-il Liang, “The General Assembly and the Progressive Development and Codification of International Law,” 42 American Journal of International Law 66 (1948).

  23. 23.

    Palestine was recognized by the UN as a state in 2012. See Mutaz Qafisheh, Palestine Membership in the Unites Nations: Legal and Practical Implications (Newcastle 2013).

  24. 24.

    E.g. Defence for Children International, Independent Commission for Human Rights, and Al-Haq.

  25. 25.

    The present writer took part in this process through his previous capacity as Human Rights Officer at the UN Office of the High Commissioner for Human Rights in Ramallah, 2001–2003.

  26. 26.

    The Egyptians Child Law No. 12 of 1996 (comprehensively amended in 2008), in Buomidra & Assaf, supra note 8, p. 655; Tunisia Law No. 92 of 1995 on Child Protection, in ibid., p. 534.

  27. 27.

    Palestine Gazette, No. 52, 18 January 2005, p. 13.

  28. 28.

    Palestine Gazette, Special Edition, 19 March 2003, p. 5.

  29. 29.

    Article 3 of CRC; Article 2 of the Law.

  30. 30.

    Article 37(a) of CRC; Article 7(1) of the Law.

  31. 31.

    Article 37(a) of CRC; Article 7(2) of the Law (ban of capital punishment), and Article 46(1) (removing the possibility of imprisonment of the child and rather referring him to a care institution for 9 years if he commits an offence punishable by death, or for 7 years if he commits a crime whose punishment is life imprisonment).

  32. 32.

    Article 37(c) of CRC; Article 21(1) of the Law.

  33. 33.

    Article 37(c) of CRC; Article 4 of the Law. The latter article added that the child has the right, while under disciplinary measure that deprives him of liberty, to have periodical vacations to visit his family “unless the court decides otherwise based on the child’s best interest.”

  34. 34.

    Article 37(d) of CRC; Article 8 of the Law.

  35. 35.

    Article 37(d) of CRC; Article 10 of the Law. The latter article made it mandatory to have a lawyer for the child accused of committing felony or misdemeanor. In cases where the child has no lawyer, “the prosecution or the court, as the case might be, shall appoint a lawyer on its own expense.”

  36. 36.

    Article 37(d) of CRC; Articles 33 and 34 of the Law.

  37. 37.

    See section III later.

  38. 38.

    Article 64.

  39. 39.

    Article 28.

  40. 40.

    Article 36.

  41. 41.

    Article 20(1).

  42. 42.

    Article 37.

  43. 43.

    Article 20(2–3). See P. Voelcker, “Juvenile Courts: The Parents’ Point of View,” 1 British Journal of Criminology 154 (1961); Jeremy Prichard, “Parents of Young Offenders: Remodelling Restorative Justice,” 26 University of Tasmania Law Review 101 (2007).

  44. 44.

    Article 38. The referral in this case is carried out in accordance with the 2004 Child Law. Article 32 of this law reads as: “A child deprived of his natural family temporarily or permanently has the right to … a foster (alternative) family to look after him.” In 1963, regulations were enacted to organize the alternative family system. The system includes the Ministry of Social Development’s supervision over the alternative families, family’s characteristics, and allocation of financial compensation for this family payable by the juvenile’s family or by the Ministry (Substitute Families Regulations No. 70, 1963; Jordanian Official Gazette, No. 1704, 15 August 1963, p. 1053). In 2012, the alternative family system was included in Article 19(2/a(1)), of the Amended Child Law; it stated that the decision to allocate an alternative family should be held by a judge upon the request of a social protection officer.

  45. 45.

    Article 39. The Ministry of Labor established certain institutions to provide vocational training for adolescents. The Ministry of Social Development may refer children in conflict with the law to such training facilities. This is consistent with a number of provisions of the Law that provides the possibility of referring children to an institution that can rehabilitate children. Cf. H. Parker, “The Juvenile Employment Service,” 57 International Labour Review 15 (1948).

  46. 46.

    Article 40.

  47. 47.

    Article 41.

  48. 48.

    Article 42. See details on the child protection officers in section II.2 below.

  49. 49.

    Article 43. See details on the care institutions in section II.3 below.

  50. 50.

    Article 44.

  51. 51.

    Article 20(3).

  52. 52.

    Article 51. Children may benefit from conditional release regardless of the crime’s gravity. This option is not conditional to the good conduct of the child deprived of liberty, but it is understood by implication. Once the child is conditionally released, he would be referred to judicial control with the supervision of the child protection officer. It is not possible to bring the child back to complete his term in the care institution if the release has not achieved its objective, but he might be subjected to other disciplinary measures. However, the possibility of exercising the conditional release after passing one-third of the deprivation of liberty’s term means that the child might not be released before passing less than three years if he gets a 9-year term under Article 46(1.A). This is a step backward; Article 14(2) of the 1954 Law allows releasing the child after one year of “imprisonment.”

  53. 53.

    This service was inserted as a proviso at the end of Article 46(2): “in case of committing misdemeanor … the court may … decide that the juvenile undertakes a public community service according to applicable laws.” This is a positive development that did exist in previous laws in Palestine. It goes in line with best practices applied in developed countries. See, e.g., L. Walgrave & H. Geudens, “Restorative Proportionality of Community Service for Juveniles,” 4 European Journal of Crime, Criminal and Law and Criminal Justice 361 (1996). Community service, as an alternative to incarceration, has never been tested in Palestine. It could be applied, however, by its incorporation to regulations or instructions. It should be flexibly worded to allow courts to select various public locations for juveniles to spend time doing work for the community. The Minister may select a number of locations for such service. The service should not be designed to be a punishment but rather to help the child to develop a sense of responsibility toward the community. The service should meet a number of conditions, including not being humiliating, dangerous, tiring, affecting the health or education of the child. It should also be in line with the local and international labor standards. Such service, which should take in consideration the child’s age and abilities, might be required for a couple of hours per week. It could include watering plants in certain public gardens, clean part of classrooms, working in a public library, helping certain disabled people to cross the street or to ride the bus, or working with certain associations in administrative jobs such as photocopying or distributing publications. According to Articles 93–99 of the Palestinian Labor Law No. 7 of 30 April 2000 (Palestine Gazette, No. 39, 25 November 2001, p. 7), children should not work when they are under 15 years of age, should not be employed in dangerous jobs, or work overnight or in remote areas. See International Labor Organization, Convention No. 182 on the Worst Forms of Child Labor (1999), and Convention No. 138 on the Minimum Age for the Admission to Employment or Work (1973). The community service in the Lebanese law offers a model for the Palestinian legislator. See Articles 5(5) and Article 11 of the Lebanese Law relative to Juveniles in Conflict with the Law or those at Risk No. 422, 2 June 2002 (Buomidra & Assaf, supra note 8, p. 607).

  54. 54.

    Article 40(4) of the CRC stated: “A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.”

  55. 55.

    V. Kumar, “The Treatment of Juvenile Offenders in England,” 6 Criminal Law Quarterly 488 (1964), pp. 491–507; Larry Wilson, “Diversion: The Impact of Juvenile Justice,” 18 Canadian Journal of Criminology and Corrections 161 (1976); Mark Berlin & Herbert Allard, “Diversion of Children from the Juvenile Courts,” 3 Canadian Journal of Family Law 439 (1980); Gary Reker, James Cote, & Edward Peacock, “Juvenile Diversion: Conceptual Issues and Program Effectiveness,” 22 Canadian Journal of Criminology 36 (1980).

  56. 56.

    Article 16 of the 2001 Criminal Procedures Law states: “Settlements may be reached on contraventions and which are punishable only by a fine. The competent police officer is held … to propose a settlement to the accused in the contravention or to his attorney and to establish same in the minutes. The proposal for a settlement in a misdemeanor shall be made by the Public Prosecution.”

  57. 57.

    Bernd-Dieter Meier, “Restorative Justice: A New Paradigm in Criminal Law,” 6 European Journal of Crime, Criminal Law and Criminal Justice 125 (1998); Rick Sarre, “Restorative Justice: Translating the Theory into Practice,” 1 University of Notre Dame Australia Law Review 11 (1999); Jim Consedine, “The Third Millenium: Restorative Justice or More Crime and Prisons,” 11 Sri Lanka Journal of International Law 1 (1999); John Braithwaite, “Restorative Justice and Social Justice,” 63 Saskatchewan Law Review 185 (2000); Kent Roach, “Changing Punishment at the Turn of the Century: Restorative Justice on the Rise,” 42 Canadian Journal of Criminology 249 (2000); Samuel Damren, “Restorative Justice: Prison and the Native Sense of Justice,” 47 Journal of Legal Pluralism and Unofficial Law 83 (2002); Donald Schmid, “Restorative Justice: A New Paradigm for Criminal Justice Policy,” 34 Victoria University of Wellington Law Review 91 (2003); George Mousourakis, “Understanding and Implementing Restorative Justice,” 11 Tilburg Foreign Law Review 626 (2004); Katherine Doolin, “But What Does It Mean? Seeking Definitional Clarity in Restorative Justice,” 71 Journal of Criminal Law 427 (2007); Barbara Hudson, “Institutionalisation of Restorative Justice: Justice and the Ethics of Discourse,” 2007 Acta Juridica 56 (2007); Shawn Fields, “Private Crimes and Public Forgiveness: Towards a Refined Restorative Justice Amnesty Regime,” 5 International Journal of Civil Society Law 7 (2007); Frank Hill, “Restorative Justice: Sketching a New Legal Discourse,” 4 International Journal of Punishment and Sentencing 51 (2008).

  58. 58.

    Terre des homes-Lausanne, Thematic Policy on Juvenile Justice (Lausanne 2010); Terre des homes-Lausanne, Lima Declaration of Restorative Juvenile Justice, 7 November 2009.

  59. 59.

    Adam Crawford, “Situating Restorative Youth Justice in Crime Control and Prevention,” 2007 Acta Juridica 1 (2007); Robert Mackay, “Restorative Justice and Children’s Hearings: A Proposal,” 11 European Journal of Crime, Criminal Law and Criminal Justice 1 (2003).

  60. 60.

    UN Office for Drugs and Crime, Handbook on Restorative Justice Programmes (New York 2006).

  61. 61.

    Basic principles on the use of restorative justice programmes in criminal matters; UN Doc. E/2000/INF/2/Add.2 at 35 (2000).

  62. 62.

    Sharon Hayes & Hennessey Hayes, “Developing Ethical Identities in Young Offenders through Restorative Justice Practice in Australia,” 8 Queensland University of Teaching Law and Justice Journal 380 (2008).

  63. 63.

    Georgios Antonopoulos & John Winterdyk, “The British 1998 Crime and Disorder Act: A Restorative Response to Youth Offending,” 11 European Journal of Crime, Criminal Law and Criminal Justice 386 (2003).

  64. 64.

    Bruce Archibald & Jennifer Llewellyn, “The Challenges of Institutionalizing Comprehensive Restorative Justice: Theory and Practice in Nova Scotia,” 29 Dalhousie Law Journal 297 (2006).

  65. 65.

    Hannah Goodyer, “Rethinking Justice in New Zealand: A Critical Assessment of Restorative Justice,” 9 Canterbury Law Review 179 (2003).

  66. 66.

    Joanne Katz & Gene Bonham, Jr., “Restorative Justice in Canada and the United States: A Comparative Analysis,” 6 Journal of the Institute of Justice and International Studies 187 (2006).

  67. 67.

    Boyane Tshehla, “Restorative Justice Bug Bites the South African Criminal Justice System,” 17 South African Journal of Criminal Justice 1 (2004); Bruce Baker, “He Must Buy What He Stole and Then We Forgive: Restorative Justice in Rwanda and Sierra Leone,” 2007 Acta Juridica 171 (2007).

  68. 68.

    Mutaz Qafisheh, “Restorative Justice in Islamic Penal Law: A Contribution to the Global System,” 7 International Journal of Criminal Justice Sciences 487 (2012).

  69. 69.

    Mutaz Qafisheh, Restorative Justice in Palestine and in the Middle East (presentation delivered at a workshop organized by Terre des hommes-Lausanne in Bethlehem, Palestine, 5 April 2016).

  70. 70.

    Nadera Shalhoub & Mustafa Abdelbaqi, Tribal Justice and Its Effect on Formal Justice in Palestine (Birzeit 2003).

  71. 71.

    Defense for Children International, Juvenile Police in Palestine … , supra note 7, p. 61.

  72. 72.

    Lisa Traki et al., Informal Justice System and the Rule of Law and Dispute Settlement in Palestine: The National Report on the Results of the Field Research (Birzeit 2006).

  73. 73.

    Article 5.

  74. 74.

    Article 2 of the 1954 Juvenile Law; and Article 94 of the 1960 Penal Code as amended by Article 2 of Law No. 39 of 25 November 1963 (Jordanian Official Gazette, No. 1727, 16 December 1963, p. 1683). The Jordanian Penal Code No. 16 of 10 April 1960 is still applicable in the West Bank (Jordanian Official Gazette, No. 1487, 1 May 1960, p. 374). See Kamel Said, Interpretation of the Penal Coode (Amman 2009); Netham Majali, Interpretation of the Penal Coode: General Section (Amman 2010). Criminal responsibility in Gaza was determined by Article 9 of the 1936 Criminal Ordinance: “A person under the age of nine years is not criminally responsible for any act or omission. A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.” On the origin of the 1936 Ordinance, see Norman Bentwich, “The New Criminal Code for Palestine,” 20 Journal of Comparative Legislation and International Law 71 (1938). Fixing the age of criminal responsibility at 9 years has been unified between the West Bank and Gaza after the adoption of Child Law of 2004 (Article 67). The age was at last fixed at 12 by Article 24 of the Decree-Law No. 19 of 7 December 2012 Concerning the Amendment of the Palestinian Child Law No. 7 of 2004 (Palestine Gazette, No. 101, 20 August 2013, p. 6).

  75. 75.

    Article 9.

  76. 76.

    Article 59. Article 11(1) prohibits the reference in any scientific or professional diplomas that such documents were obtained from juvenile care institution.

  77. 77.

    Article 63. This is of course without prejudice to the possibility of filing civil claims before other courts according to the general civil obligations, including contacts and torts.

  78. 78.

    Article 14.

  79. 79.

    Article 11(2).

  80. 80.

    Article 12.

  81. 81.

    Article 13.

  82. 82.

    Articles 47–55.

  83. 83.

    Such concerns were expressed, for instance, at a workshop on the Juvenile Protection Law organized by the Independent Commission for Human Rights (Hebron, 28 April 2016). The workshop was attended by a juvenile judge, prosecutors, lawyers, academics, social protection offices, representatives of a number of international and local NGOs, ministries of health and education.

  84. 84.

    One study revealed that, from 1994 until 2002, out of 60 laws that were adopted by the Palestinian Authority, only 7 regulations were adopted. Maen Idies, Executive Regulations for the Laws (Ramallah 2002), p. 26. Even when enacted, regulations were often postponed to longer periods than those required by corresponding laws. Instances include Handicapped Law of 9 August 1999 (regulations passed on 12 April 2004), Traffic Law of 17 September 2000 (regulations adopted on 13 September 2005), and Arbitration Law of 5 April 2000 (regulations enacted on 12 April 2004). Qafisheh, “Legislative Drafting in Transitional States … ,” supra note 15, p. 32.

  85. 85.

    Article 4.

  86. 86.

    Article 8.

  87. 87.

    Article 37. This concern was expressed in a presentation by the Hebron Chief Prosecutor Ashraf Misheal, Commission for Human Rights workshop, supra note 83.

  88. 88.

    Article 38.

  89. 89.

    Article 41.

  90. 90.

    That might run counter to Article 40, paragraph 2(a.iv) of the CRC.

  91. 91.

    Mutaz Qafisheh, “Human Rights Gaps in the Palestinian Criminal System: A United Nations Role?,” 16 International Journal of Human Rights 358 (2012), pp. 361–363. In fact, the prohibition of torture in the Juvenile Protection Law is not new. The 2004 Palestinian Child Law provided in its Article 68 that “[n]o child shall be subjected to physical or moral torture … .” Yet the main problem, namely the absence of penalty against torture perpetrators, persists.

  92. 92.

    Spokesperson for the UN High Commissioner for Human Rights, supra note 2.

  93. 93.

    1465 UNTS 85; entry into force 26 June 1987.

  94. 94.

    Article 22.

  95. 95.

    Similar provision can be found in Article 32 of the Law.

  96. 96.

    Article 29(1).

  97. 97.

    Article 60.

  98. 98.

    Misheal, supra note 87.

  99. 99.

    In this connection, Juvenile Judge Mr. Mohammad Ajlouni said: “In average I oversee 25 felonies per day. After that, I am asked to hear juvenile cases. How can I understand the state of the juvenile and child’s best interest afterwards?!” (Commission for Human Rights workshop, supra note 83).

  100. 100.

    One lawyer from the International Legal Foundation, a New York-based criminal defense NGO with field offices in Palestine, explained that in Hebron district, as a case in point, there are 4 magistrate courts (in Hebron city, Halhul city/north, Yatta city/south, and Dura city/west). There is only one judge assigned to juvenile cases. If this judge has a case of one child at each of these four courts, the lawyer might wait for the entire day for one hearing only until the judge has the turn to come to the court in which the lawyer (and the child) will be waiting. The judge might not have the time to come to that particular court and that means the hearing will be postponed. Advocate Imad Salaymeh; Commission for Human Rights workshop, supra note 83.

  101. 101.

    Commission for Human Rights workshop, supra note 83.

  102. 102.

    Cf. Eleanor Glueck, “Predicting Juvenile Delinquency,” 2 British Journal of Delinquency 275 (1952); H. English, “Prevention of Juvenile Crime,” 4 British Journal of Criminology 68 (1964); Defense for Children International, Kids Behind Bars—A study on Children in Conflict with the Law: Towards Investing in Prevention, Stopping Incarceration and Meeting International Standards (Amsterdam 2003).

  103. 103.

    Najah Hilo & Amneh Abuein, “The Integration and Rehabilitation of Juveniles in the Palestinian Society,” in Buomidra & Assaf, supra note 8, pp. 74–125.

  104. 104.

    The name of the Ministry was previously “Ministry of Social Affairs.” It was changed on 15 March 2016 into “Ministry of Social Development” by Council of Ministers’ Decision No. 94 of 2016. By this change, the name of the Ministry in Palestine has become similar to that of Jordan. However, the Juvenile Protection Law of 2016 still uses the older name as it was drafted a few years ago. We prefer to use the new name (“Ministry of Social Development”) in this study.

  105. 105.

    This is unlike the case in certain countries in the Middle East, such as Egypt, where the juvenile justice system is scattered among four ministries: Ministry of Interior, Ministry of Justice, Ministry of Social Solidarity, and Ministry of Population and Family. See Terre des hommes-Lausanne, Assessment of Juvenile Justice System in Egypt, August 2010, pp. 34–37. See also Bishri Shorbaji, “Juvenile Justice in Egypt and its Reform Prospects,” in Buomidra & Assaf, supra note 8, pp. 126–141; Hani Hilal, “Juvenile Justice Situation in Egypt,” in ibid., pp. 142–159.

  106. 106.

    Jessie Clarey, “Juvenile Crime: Its Causes and Treatment,” 12 Police Journal 286 (1939); Victor Szyrynski, “Sociatric Psychotherapy in Juvenile Delinquency,” 6 Canadian Journal of Corrections 74 (1964); P. Stephenson, “Myths about Juvenile Delinquency,” 15 Canadian Journal of Criminology and Corrections 83 (1973); T. Campbell, “Punishment in Juvenile Justice,” 4 British Journal of Law and Society 77 (1977).

  107. 107.

    Although under the Ministry of Social Development’s mandate, the juvenile care institutions and the role of child protection officers are addressed in two separate sections later for the sake of clarity.

  108. 108.

    A similar role was given to the Ministry in the 1954 Jordanian Juvenile Law, e.g., Articles 23–25.

  109. 109.

    Article 66. In the same article, the power to enact regulations was given to the Council of Ministers, as indicated earlier. Even when the Council adopts regulations, normally the Ministry prepares the technical aspects of the draft.

  110. 110.

    Article 17.

  111. 111.

    Article 64.

  112. 112.

    Ministry of Social Affairs, Procedures of the Social Defense Department (Ramallah 2010).

  113. 113.

    The present writer worked in 2009 and 2010 with the Jordanian Social Defense Department of the Ministry of Social Affairs through his former position as the Regional Director of Penal Reform International for the Middle East and North Africa based in Amman, Jordan.

  114. 114.

    Article 28.

  115. 115.

    Kenneth Wollan, “Treatment of Juvenile Delinquents,” 14 Police Journal 305 (1941); Andre Dunant, Juveniles in Conflict with the Law: The Social Worker at All Stages of the Procedure (Geneva 2002).

  116. 116.

    Article 17.

  117. 117.

    Article 42.

  118. 118.

    The Amended Palestinian Child Law of 2012 touched upon probation by “placing the child under social control in his natural environment” (Article 19, paragraph 2.b(1)). But this provision is far from establishing probation as a system. Cf. Jennifer Babe & Rui Fernandes, “Juvenile Probation in Metropolitan Toronto: An Empirical Study,” 2 Canadian Journal of Family Law 161 (1979).

  119. 119.

    Article 64 of the 2016 Juvenile Protection Law.

  120. 120.

    N. Adler, “The Work of Juvenile Courts,” 7 Journal of Comparative Legislation and International Law 217 (1925), pp. 223–224.

  121. 121.

    Jacob Isaacs, “The Lawyer in the Juvenile Court,” 10 Criminal Law Quarterly 222 (1968); Greg Johnston, “The Function of Counsel in Juvenile Court,” 7 Osgoode Hall Law Journal 199 (1970); Roy St. George Stubbs, “The Role of the Lawyer in Juvenile Court,” 6 Manitoba Law Journal 65 (1975); Inez Dootjes, Patricia Erickson, & Richard Fox, “Defence Counsel in Juvenile Court: A Variety of Roles,” 14 Canadian Journal of Criminology and Corrections 132 (1972).

  122. 122.

    Article 18(2).

  123. 123.

    Article 20.

  124. 124.

    Article 30(3 and 6).

  125. 125.

    Letter dated 3 March 2010 from a judge in one West Bank magistrate court to one probation officer requesting information about the social and economic situation of one child in conflict with the law facing a trial on 20 April 2010 (in file with the writer).

  126. 126.

    Article 11(4) of the 1954 Law (this language does not exist in the 2016 Law, which might be considered is a step backward, unless it is detailed by a regulation or instructions). George Awad & Clive Chamberlain, “The Process of Psychiatric Work with the Juvenile Courts,” 1 Canadian Journal of Family Law 363 (1978).

  127. 127.

    A copy of this form in Arabic was handed to the writer by Ms. Khadra Hour, Probation Officer and Director of Social Care, Social Directorate, Yatta city, Hebron district, 18 August 2010, Hebron.

  128. 128.

    Meeting with Ms. Khadra Hour, ibid.

  129. 129.

    This is not surprising as courts in other countries often disregard the work of probation officers or social workers. This problem has been characterized as follows: “Psychiatrists have a right to complain that courts do not pay enough attention to their evaluation of the accused. Psychiatric testimony is sometimes ignored by the courts, and sometimes it is opposed by other psychiatric testimony so that the testimony of both sides is nullified.” Jonas Robitscher, “The Psychiatrist and the Juvenile Court,” 52 Women Lawyer Journal 147 (1966).

  130. 130.

    Article 25(3).

  131. 131.

    Article 48(2).

  132. 132.

    Second meeting with Ms. Khadra Al-Hour, 25 August 2010, Hebron.

  133. 133.

    Article 52.

  134. 134.

    Article 51.

  135. 135.

    Cf. Herschel Prins, “Psychiatric Services and the Magistrates’ and Juvenile Courts: An Analysis of the Views of Probation Officers and Magistrates,” 15 British Journal of Criminology 315 (1975).

  136. 136.

    Meeting with Ms. Khadra Hour, supra note 127. See the testimony of Ms. Anani, supra note 101.

  137. 137.

    Note made by a child officer at the Commission for Human Rights workshop, supra note 83.

  138. 138.

    Cf. Jack Stitt, “Correction Facilities for the Juvenile Offender: a Comparison of Ontario and the U.K.,” 2 Osgoode Hall Law Journal 356 (1963); John MacDonald, “Juvenile Training Schools and Juvenile Justice Policy in British Columbia,” 20 Canadian Journal of Criminology 418 (1978).

  139. 139.

    Amer Junaidi, The Most Significant Stipulations of the Law-Degree Concerning Juvenile Protection (Defense Children International, Hebron University Law School, 23 March 2016).

  140. 140.

    Cf. Jack Foster, “Juvenile Court Referrals to Voluntary Agencies,” 12 Canadian Journal of Corrections 129 (1970); Katherine Chiste, “Faith-Based Organizations and the Pursuit of Restorative Justice,” 32 Manitoba Law Journal 27 (2008).

  141. 141.

    Independent Commission for Human Rights, Crackdown on Charitable Associations During the State of Emergency (Special Report No. 55, Ramallah, 2007).

  142. 142.

    Based on Article 4 of the 1954 Jordanian Juvenile Law.

  143. 143.

    Cf. J. Kraus, “A Comparison of Corrective Effects of Probation and Detention on Male Juvenile Offenders,” 14 British Journal of Criminology 49 (1974); Michele Lioy, “Open Residences: An Alternative to Closed Correctional Institutions for Hard-Core Juvenile Delinquents,” 20 Canadian Journal of Criminology 409 (1978).

  144. 144.

    This institution used to host girls from both the West Bank and Gaza Strip before the closure of the Strip by Israel in 2000 upon the breakout of the intifada. Now all inmate girls are from the West Bank.

  145. 145.

    No statistics are available regarding girls in conflict with the law in Palestine. Cf. Mary Riege, “Parental Affection and Juvenile Delinquency in Girls,” 12 British Journal of Criminology 55 (1972); Nancy Dowd, “Boys, Masculinities and Juvenile Justice,” 8 Journal of Korean Law 115 (2009).

  146. 146.

    Defense for Children International, Juvenile Police in Palestine … , supra note 7, p. 36.

  147. 147.

    Ibid., p. 37.

  148. 148.

    Masaharu Yanagimoto, “The Juvenile Delinquent in Japan,” 13 British Journal of Criminology 170 (1973), p. 170.

  149. 149.

    William Kerr, “How the Police Can Prevent Juvenile Crime,” 10 Police Journal 306 (1937); Ralph S. Boot, “Police Interest in Juvenile Delinquency,” 6 Canadian Journal of Corrections 50 (1964); Joseph Simpson, “The Police and Juvenile Delinquency,” 8 British Journal of Criminology 119 (1968).

  150. 150.

    Palestine Gazette No. 38, 5 September 2001, p. 94.

  151. 151.

    Article 23(1).

  152. 152.

    Article 21(3).

  153. 153.

    Articles 29 to 38.

  154. 154.

    Defense for Children International, Juvenile Police in Palestine … , supra note 7, pp. 38–39.

  155. 155.

    Ibid., pp. 49 and 51.

  156. 156.

    Ibid., pp. 39–51.

  157. 157.

    Ibid., p. 45: “In Nablus children are detained with adults in the same rooms.”

  158. 158.

    Article 20(1).

  159. 159.

    Article 20(4).

  160. 160.

    Cf. J. Walker & A. Glasner, “The Process of Juvenile Detention: The Training School Act, the Child Welfare Act,” 3 Osgoode Hall Law Journal 343 (1965).

  161. 161.

    Defense for Children International, Incarceration Places for Children in Conflict with the Law in the West Bank between International Standards and Practice (Ramallah 2013).

  162. 162.

    Simha Landau, “Juveniles and the Police—Who is Charged Immediately and who is Referred to the Juvenile Bureau,” 21 British Journal of Criminology 27 (1981).

  163. 163.

    Terre des hommes-Lausanne, Assessment of the Juvenile Justice System in Jordan (Amman 2010).

  164. 164.

    Information in this section is mainly drawn from interviews by the writer with prosecutors, police officers, and experts, including a meeting with Palestinian Attorney General.

  165. 165.

    Article 20(1).

  166. 166.

    Mahmoud Shahin, Report on the Institution of the Palestinian Public Prosecution (Ramallah 1999).

  167. 167.

    The investigation process is addressed in Articles 55–63 of the Criminal Procedures Law.

  168. 168.

    Questioning is dealt with in Articles 94–105.

  169. 169.

    Meeting with Palestinian Attorney General, Dr. Ahmad Barak, in Ramallah on 12 May 2016.

  170. 170.

    Ahmad Barak, “Critical Study of Juvenile Justice in the Initial Investigation Phase according to Juvenile Rehabilitation Law No. 15 of 1954 in the Light of Contemporary Criminal Policy,” Justice and Law Review, No. 11 (Ramallah, April 2009), pp. 11–23.

  171. 171.

    Nader Said-Foqahha, A Study of Juvenile Justice in the Occupied Palestinian Territory (Ramallah 2010), p. 30.

  172. 172.

    Misheal, supra note 87.

  173. 173.

    Cf. Gwynn Davis, Jacky Boucherat, & David Watson, “Pre-Court Decision-Making in Juvenile Justice,” 29 British Journal of Criminology 219 (1989).

  174. 174.

    Article 17.

  175. 175.

    Article 19.

  176. 176.

    Criminal Procedures Law, Article 105.

  177. 177.

    Ibid., Article 107.

  178. 178.

    Ibid., Article 108.

  179. 179.

    Ibid., Article 120.

  180. 180.

    Misheal, supra note 87.

  181. 181.

    Meeting Attorney General, supra note 169.

  182. 182.

    Christian Herter, “Juvenile Courts Needed,” 39 Women Lawyers Journal 5 (1953); Graham Parker “Some Historical Observations on the Juvenile Court,” 9 Criminal Law Quarterly 467 (1967); Graham Parker, “The Juvenile Court Movement,” 26 University of Toronto Law Journal 140 (1976); Jean Trepanier and Francoise Tulkens, “Juvenile Justice in Belgium and Canada at the Beginning of the Century: Two Models or One,” 1 The International Journal of Children’s Rights 189 (1993); Lawrence Wilson, “Jurisdiction of the Juvenile Court,” 19 Criminal Law Quarterly 203 (1977).

  183. 183.

    Adler, supra note 120, p. 218.

  184. 184.

    Eileen Younghusband, “The Juvenile Court and the Child,” 7 British Journal Delinquency 181 (1957); John MacDonald, “Juvenile Court Jurisdiction,” 7 Criminal Law Quarterly 426 (1965).

  185. 185.

    Article 27.

  186. 186.

    Article 25(3). See earlier, section II.2.

  187. 187.

    Article 21(3).

  188. 188.

    Articles 8 and 30(1). Cf. Carol Van Nijnatten, “Behind Closed Doors: Juvenile Hearings in the Netherlands,” 3 International Journal of Law and the Family 177 (1989).

  189. 189.

    Articles 31 and 59.

  190. 190.

    Article 24–35.

  191. 191.

    Articles 36–46.

  192. 192.

    Article 47.

  193. 193.

    Article 51–55.

  194. 194.

    Article 8.

  195. 195.

    Dawoud Dirawi & Jihad Shomali, Juvenile Judiciary between Practice and Legislation (Ramallah 2004).

  196. 196.

    The High Judicial Council is the central body that administrates regular courts of various levels in Palestine. Headed by Chief Justice, the Council is independent of the Executive and the Legislator. See Judicial Authority Law No. 1 of 14 May 2002 (Palestine Gazette No. 40, 18 May 2002, p. 9).

  197. 197.

    Manuals can be prepared based on existing guides developed globally by actors such as UNICEF and United Nations Office on Drugs and Crime, taking into consideration the local law and practice.

  198. 198.

    Al-Hayat Al-Jadida, No. 7309, 24 March 2016, p. 1.

  199. 199.

    Mutaz Qafisheh, “Juvenile Justice System in Palestine: Current Situation and Reform Prospects,” 25 International Journal of Law, Policy and the Family 365 (2011).

  200. 200.

    Meeting with Attorney General, supra note 169.

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  1. College of Law and Political Science, Hebron University, Hebron, Palestine

    Mutaz M. Qafisheh Ph.D.

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  1. School of Criminology & Criminal Justice, Arizona State University, Phoenix, Arizona, USA

    Scott H Decker

  2. California State University, San Bernardino, California, USA

    Nerea Marteache

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Qafisheh, M.M. (2017). Palestine. In: Decker, S., Marteache, N. (eds) International Handbook of Juvenile Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-45090-2_23

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