Israel Can Hold Bodies of Terrorists, High Court Rules, Reversing Landmark Decision

Court backtracks on ruling that holding bodies is a ‘violation of human rights,’ permitting Israel to exercise such practice for negotiation tactics

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Palestinian mourners carry the body of a terrorist after being released by Israel in the West Bank village of Bani Na'im, December 17, 2016.
Palestinian mourners carry the body of a terrorist after being released by Israel in the West Bank village of Bani Na'im, December 17, 2016. Credit: MUSSA ISSA QAWASMA/Reuters

Israel’s High Court of Justice ruled on Monday that Israel is permitted to hold on to bodies of terrorists for the purpose of negotiating with terror organizations, reversing a 2017 ruling.

The decision was made by an expanded panel of seven judges, in a 4-3 vote. In favor were Supreme Court President Esther Hayut and Justices Neal Hendel, Isaac Amit and Noam Sohlberg. Opposing the decision were justices Uzi Vogelman, Daphne Barak-Erez and George Karra, who framed different minority opinions.

In 2017, the cabinet decided that the state could hold on to the bodies of terrorists who had committed “particularly egregious” acts of terror.

Six families of terrorists appealed to the High Court of Justice and a panel of three judges determined that holding on to bodies was illegal, in a “violation of human rights as well as the rights of the deceased and his family.” The 2017 majority, led by now-retired Justice Yoram Danziger, said that the authority to withhold bodies should be anchored in a specific and explicit law.

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Monday’s ruling overturned the previous one, with the court accepting the state’s position that emergency measures that are in effect contain a specific authorization allowing the IDF to hold on to the bodies of terrorists.

Esther Hayut during a Supreme Court hearing, July 29, 2019. Credit: No credit

Hayut, who led the majority, agreed with Hendel’s 2017 position, according to which “the [British] Mandatory legislator intended to authorize the military commander to refrain, out of considerations of public safety and security, from handing over bodies to family members, postponing burial to a time and place, and in a manner that he found suitable.”

Hayut wrote that “holding on to bodies does involve a violation of human rights and of the dignity of the deceased and his family,” but is legal according to Israeli law.

Hayut further noted that she wasn’t delving in depth into the issue’s legitimacy according to international law, but added that “international humanitarian law or laws pertaining to international human rights do not contain a prohibition on withholding the return of bodies during an armed conflict.”

Therefore, Hayut wrote, no decision is required with regard to the law’s standing vis-à-vis international law. She added that Danziger’s claim in 2017 that “this practice evokes many reservations and poses significant legal problems” was unfounded.

According to the judges who were in the minority, the withholding of bodies was partially or completely prohibited. Karra, who was part of the panel led by Danziger in 2017, reitterated his opposition, saying that this ruling violates a basic right, thus requiring specific legislation. Justice Vogelman wrote in a similar vein.

Justice Barak-Erez made a distinction between the bodies of terrorists from Gaza, which international law allows Israel to keep, and those of terrorists from the West Bank or of Israeli citizens or residents.

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