In Landmark Ruling, Israel's Top Court Says State Cannot Hold Bodies of Palestinian Terrorists

PM Benjamin Netanyahu blasted the court, charging that Israel 'shouldn't give Hamas free gifts'; Justice minister, joined by leading legislators, vows the the gov't 'won't return bodies of terrorists'

Palestinian mourners carry the body of Hamas militant Muhammed Al-Safadi, who was killed in an Israeli missile strike, during his funeral on December 9, 2017.
Khalil Hamra/AP

Israel's High Court of Justice ruled on Thursday that the state cannot hold the bodies of terrorists for negotiations with the Palestinians because there is no specific and explicit law that allows it to do so.

The court gave the state six months to legislate on the topic, and determined that if a law will not be legislated by that time, bodies of terrorists will be returned to their families.

Judges noted that if Israel is interested in holding on to the bodies, it is possible to act through legislation to create a law that would meet the legal standards that are set both by Israeli and international law.

"From the basic right for human dignity stem the rights of the dead and his/her family to bring the dead to proper burial," the judges said in their ruling.

Prime Minister Benjamin Netanyahu lashed out at the court on Thursday evening, taking to Twitter to deride the ruling as a "very problematic decision of the High Court of Justice."

"We shouldn't give Hamas free gifts," the prime minister warned. He wrote that he plans to "gather cabinet ministers and the legal adviser to the government on Sunday for a special discussion in order to find practical and legal solutions, to continue applying pressure on Hamas." 

The ruling was made after a petition was filed to the court by families of terrorists against a cabinet decision made earlier this year not to return the bodies of Hamas terrorists killed while carrying out terror attacks. Instead, the government had decided at the time that terrorists who die while executing attacks will be buried at a burial site that has been established for this purpose.

By making this decision, the government tried to apply pressure on families of terrorists and thereby stress Hamas into returning the bodies of IDF soldiers who are considered to be held by the group in the Gaza Strip.

The government made its decision based on security assessments that said the move could help hasten the process of returning civilians and the bodies of Israeli soldiers held in the Strip, as well as promote a negotiation on the subject in the future.

Following that policy, four terrorists were buried at a cemetery for enemy combatants. Two more corpses are held by the Israel Police, and burial warrants for them have yet to be released.

The families of the terrorists claimed that the police's withholding of the bodies from them hurts their constitutional rights, serves as collective punishment and contradicts international law.

It has also been claimed that in cases such as the one of the two terrorists' bodies being held by the police, the law has to be explicit and give the government the authority to do so — while in its current form, it does not.

Defense Minister Avigdor Lieberman made an instruction following the ruling to act without delay for the legislation of a law to would enable Israel to hold terrorists' bodies for negotiations over the return of Israeli soldiers missing in action and abducted civilians. 

Following the court's ruling, Justice Minister Ayelet Shaked and Education Minister Naftali Bennett released a joint statement blasting the High Court's decision. "The High Court was wrong in its ruling that prohibits the State of Israel to hold the bodies of terrorists. We are in a war against murderous terror organizations, and we can't fight them with our hands tied," the two ministers charged.

The two said that they decided to act rapidly to push a legislation that will bypass the High Court's ruling. "Therefore, we will immediately lead the legislation of a law that will enable the holding of bodies, and we will make sure that bodies of terrorists will not be returned to their families without the release of our sons Hadar Goldin, Oron Shaul and the civilians being held by Hamas," they stated.

Shaked announced that she will release an amendment to a law that will allow the holding of terrorists' corpses for negotiations. "The government of Israel will not return bodies of terrorists as long as the bodies of our soldiers are at the hands of the enemy." 

Knesset Speaker Yuli Edelstein also responded to the groundbreaking ruling, saying that "as Knesset speaker I think the time has come for all the Zionist parties in the opposition and the coalition whose children serve in the IDF to unite and lead legislation that would allow the holding of the bodies of terrorists for negotiations and demand the return of missing Israelis and those held captive."  

Edelstein guaranteed that he will "do everything for the legislation to pass quickly and enable the IDF to operate in the uneasy conditions it operates in today."

Other ministers echoed their statement, with Transportation Minister Yisrael Katz saying that "this is a significant subject that requires instant legislation. We owe it to the families of the deceased and to the soldiers of the IDF."

Tourism Minister Yariv Levin charged that "terror received again today a prize by the hands of the judges of the High Court, who in their ruling gravely hurt the ability to bring back homes the boys being held by Hamas. The legislation expresses once more a distorted value system."

The opposition, too, voiced its support of a potential law that would reverse the court's ruling. MK Itzik Shmuli (Zionist Union) told Haaretz that he would act to convince his fellow faction members to support a new draft for the law, should the security establishment approve it.

"The High Court's ruling is important because it does not block but rather enables a legal solution [to the issue of] holding terrorists' bodies in certain conditions, so that the uncompromising battle against despicable terror organizations correlate with the preservation of the rule of the law. We have a moral obligation to bring the boys home and we ought to support the law as long as its wording is precise," Shmuli said.