Two weeks after assuming his position, Defense Minister Naftali Bennett announced that he had instructed the Israel Defense Forces and the defense establishment to prepare to completely halt the release of all terrorists' bodies, regardless of which terror organization they were affiliated with.
The Defense Ministry announced that bodies would be returned only in exceptional cases, based on the minister's judgment, “as part of a broader policy of deterrence.” Bennett added that “as long as they don't release the bodies of our soldiers, we won't release their bodies.”
But senior Israeli defense officials and other sources involved in the issue of prisoner exchanges and missing persons believe that withholding bodies of Palestinians will not advance Israeli interests. Refusing to return any bodies, including those not associated with Hamas as Bennett is proposing in a departure from the current Israeli policy, will not advance the return of Israeli civilians or bodies of Israeli soldiers held captive by Hamas, and could even undermine attempts at an agreement, sources said.
Israel hasn’t returned any bodies of Hamas members since the 2014 Gaza war.
In 2016 and 2017 no bodies were returned to Gaza. In the two years since, three bodies have been returned to the coastal enclave. One was the body of a fisherman killed by Israeli Navy fire after he had exceeded the permitted fishing zone. Another body was that of a demonstrator shot dead while attempting to breach the Gaza border fence. The army explained that the state could not continue holding the bodies, as the deceased were not part of any terror group.
In January 2017, the security cabinet, of which Bennett was a member, decided that Israel would no longer return bodies of Hamas members, but would bury them at a designated site. In addition, the cabinet agreed that the bodies of terrorists that committed attacks defined as unusually severe would not be returned.
Later that year, the High Court of justice ruled that the state has no authority to withhold bodies, but in September 2019 an expanded panel of justices reversed that ruling, saying that bodies could be withheld in cases in which holding them may help reach a prisoner exchange deal with Hamas.
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“The efforts to return IDF fallen soldiers and Israeli citizens held captive by a terror organization is part of preserving state security,” the justices said in their ruling. Since Bennett's newly-declared policy isn't in keeping with the court's ruling, it might raise legal difficulties.
In 2018, the family of Hadar Goldin, who was killed during Operation Protective Edge in Gaza in 2014 and whose body is still being held in the Strip by Hamas, petitioned the High Court against returning the three aforementioned Palestinian bodies to Gaza.
The state rejected the Goldins' petition, stating in their decision that the deceased did not meet the conditions set by the cabinet to keep them in Israel and therefore there was nothing preventing the return of the bodies.
Justice Neal Hendel wrote in the ruling that “the decision to return the bodies is consistent with the security cabinet's decision. While the respondents [the defense establishment] have taken all the necessary steps to assure the implementation of the security cabinet's decision, the army's considerations about when to return the terrorists' bodies who meet the criteria set by the cabinet should not be interfered with.”
Senior security officials have previously been reluctant to hold onto bodies of non-Hamas members and have denied that this facilitates the return of Israelis kept in Gaza.
In November 2018, Yaron Blum, the coordinator for POWs and MIAs, addressed the criticism sparked after a body of a Palestinian was returned to Gaza, saying: “The young man whose body was returned to Gaza wasn't a Hamas member and does not meet the parameters that would allow us to keep his body in Israel. We hold dozens of other bodies.”
In November 2015, then-Defense Minister Moshe Ya’alon said that “holding bodies in itself does not deter potential terrorists." In reference to the 'lone wolf' terrorists killed, Ya'alon said that “there is no professional source that can link the bodies of terrorists from the Jerusalem area to the bodies of soldiers held by Hamas.”
Following Bennett’s announcement, Yitzhak Ilan, a former deputy head of the Shin Bet security service and a member of Kahol Lavan, said: “Such a move has never helped. Not returning the bodies is as helpful as cupping a corpse. It won’t help; it might even hurt. We must not degrade ourselves to the level of terrorist organizations.”