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LEGISLATIVE FRAMEWORK FOR JUVENILE JUSTICE

The 2016 Juvenile Protection Law: Context

The current law in Palestine, due to the different political regimes that ruled the country since 1917, is mixed of various legal schools. While the Ottoman legislation was based on Islamic Law and Continental Law, law that was adopted by Britain in Palestine until May 1948 came as a reflection of the Common Law. The West Bank and Gaza were once again subjected to the continental-like legal system from 1948 and 1967 when the West Bank was annexed by Jordan; while Egypt administrated the Gaza and retained the British-enacted legislation and issued certain legislation. After its occupation of the West Bank and Gaza in June 1967, Israel did not extend its law to the occupied territory.[1] It ruled the territory largely by the pre-1967 law, proclaiming a series of military orders that amended or replaced existing legislation, mainly in the field of security. The Palestinian Authority, upon its establishment in 1994, retained the previous law, including juvenile justice, and simultaneously started a process of unifying the legislation of the West Bank with that of Gaza.[2]

Before the adoption of the Juvenile Protection Law in 2016, juvenile justice in Palestine had been regulated by two key instruments. In the West Bank, the applicable legislation was the Jordanian Juvenile Rehabilitation Law No. 16 of 29 April 1954;[3] while in Gaza the applicable law was a British-enacted legislation:

Juvenile Offenders Ordinance No. 2 of 18 February 1937.[4] As these two pieces of legislation are no longer applicable,[5] we will confine the analysis here to the new 2016 Juvenile Protection Law. This Law is revised here, in addition to the CRC, in the light of three United Nations (UN) instruments: (1) the 1985 Standard Minimum Rules for the Administration of Juvenile Justice, commonly known as “Beijing Rules”;[6] (2) the 1990 Guidelines for the Prevention of Juvenile Delinquency, or “Riyadh Guidelines”;[7] and (3) the 1990 Rules for the Protection of Juveniles Deprived of their Liberty.[8] Although international standards are UN recommendations, or “soft law,” some of their content is of customary nature, for instance, the prohibition of torture.[9] They could as such be extended to Palestine as a state, particularly since juvenile justice is primarily under the Palestinian Authority’s proper.[10]

Since 1999, there have been several attempts to develop a new juvenile justice law to meet the needs of the Palestinian society. The process has been led by civil society organizations,[11] UNCEF and the UN Office of the High Commissioner for Human Rights.[12] It was thought to include juvenile justice within the Child

Law, as the case of other Arab countries such as Egypt and Tunisia.[13] However, the drafting yielded the adoption of the Palestinian Child Law No. 7 of 15 August 2004,[14] which excluded children in conflict with the law to have a separate law on that theme. The process of developing a new juvenile law continued and produced a draft in 2006. The draft was far from being consistent with international standards. This led to the slow process in revising the draft. In June 2007, Hamas took over Gaza and Palestine was broken up into two parts: the West Bank led by Fatah, and Gaza by Hamas. Since then, the Palestinian Parliament has not been functioning. And no law has been passed.

In 2010, efforts to have new Palestinian juvenile law were revived. The Ministry of Social Development in Ramallah formed a National Steering Committee to work on a comprehensive policy to reform juvenile justice. The Steering Committee was divided into two task forces, one charged with developing a national plan on juvenile justice reform and the other was mandated to draft a juvenile justice law. As prospects for the Parliament to reconvene in the near future were minimal, it was envisaged that the new law would be submitted to the Palestinian President to enact it as Decree-Law, using the President legislative power vested in him in the absence of the Parliament under Article 43 of the 2003 Amended Palestinian Basic Law.[15] At last this idea has been materialized by the adoption of the 2016 Juvenile Protection Law.

This Law can be considered as a breakthrough in the field of human rights, in general, and the child rights and juvenile justice, in particular. It embodied the most advanced provisions relating to juvenile justice, often exceeding those rules of the CRC. We will here analyze the main positive points of the Law. We will, however, highlight some provisions that have been identified to be a subject of concern.

  • [1] David Reifen, “The Implications of Laws and Procedures in the Juvenile Court in Israel,” 3British Journal of Criminology 130 (1963); Leslie Sebba, “Legalism versus Welfarism in Israeli’sJuvenile Justice System,” 16 Israel Law Review 461 (1981).
  • [2] Mutaz Qafisheh, “Legislative Drafting in Transitional States: The Case of Palestine,” 2International Journal for Legislative Drafting and Law Reform (2014) 7, 26.
  • [3] Jordan abolished the 1954 Law within 9 months (on 25 March 1968) after the occupation of theWest Bank by Israel in June 1967; the Law remained applicable in the West Bank, but not inJordan. Jordan has amended the 1968 Law a number of times. Jordan is in the process to furtherreforming its juvenile justice system. See Christine Fadoul, “Draft Law on Reformatory JuvenileJustice System in Jordan: Achievements and Challenges,” in Buomidra & Assaf, supra note 8,pp. 38-44.
  • [4] 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, “JuvenileOffenders,” 13 British Journal of Criminology 191 (1973). Before this legislation, juvenile justice inPalestine, as in the rest of the Ottoman Empire, was regulated in accordance with the OttomanPenal Code of 12 July 1858—Aref Ramadan, ed., Completion of Laws: Ottoman Laws Valid inArab 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. Thearticle made a distinction between children between 13 and 15 years of age and those above 15 andunder 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. Incertain aspects, these provisions had been more progressive than some rules that had been enactedin Palestine in subsequent periods.
  • [5] Article 65 of the Juvenile Protection Law of 2016.
  • [6] General Assembly Resolution 40/33, 29 November 1985.
  • [7] General Assembly Resolution 45/112, 14 December 1990.
  • [8] General Assembly Resolution 45/11, 14 December 1990.
  • [9] F. Sloan, “The Binding Force of a ‘Recommendation’ of the General Assembly of the UnitedNations,” British Year Book of International Law 24 (1948); Yuen-il Liang, “The General Assemblyand the Progressive Development and Codification of International Law,” 42 American Journal ofInternational Law 66 (1948).
  • [10] Palestine was recognized by the UN as a state in 2012. See Mutaz Qafisheh, Palestine Membershipin the Unites Nations: Legal and Practical Implications (Newcastle 2013).
  • [11] E.g. Defence for Children International, Independent Commission for Human Rights, and Al-Haq.
  • [12] The present writer took part in this process through his previous capacity as Human RightsOfficer at the UN Office of the High Commissioner for Human Rights in Ramallah, 2001-2003.
  • [13] 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.
  • [14] Palestine Gazette, No. 52, 18 January 2005, p. 13.
  • [15] Palestine Gazette, Special Edition, 19 March 2003, p. 5.
 
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