Israeli Cabinet Decides Not to Return Terrorists' Bodies, Will Appeal High Court Ruling

At this stage, the cabinet won't pursue new legislation on the matter, until the High Court responds to the request for another hearing

Mourners carry the body of the Palestinian woman Sara Tarayra Hjoj, who was shot by Israeli police after she tried to stab one of them in July.
Mussa Issa Qawasma / Reuters

The Israeli security cabinet on Monday accepted the recommendation of Attorney General Avichai Mendelblit to urge the High Court of Justice to revisit its prohibition on the state holding onto the bodies of terrorists.

In practice, Israel does return terrorists' bodies to their families, but not in all cases.

Israel has the prerogative of holding onto bodies, the cabinet ministers stated, adding that the principles set forth in the majority opinion of the justices are unacceptable. At this stage they won't be pursuing new legislation on the matter, until the court responds to the request for another hearing.

Sources familiar with the reasons behind the decision-making told Haaretz that two main explanations arose in the discussion from the legal establishment: The first was that the promotion of legislation would weaken the chances for another discussion, and therefore that it’s better to try it first.

Another explanation that came up was that Judge Yoram Danziger had already delineaeted restricing principles for such a legislation, and by that hinted that a potential law could be ruled out.

Additionally, there are ministers who estimated that if the principle claiming that policy cannot be implemented without legislation will be widely accepted, that would crush the ability to use emergency defense regulations. The latter are not protected by offical Knesset legislation. In recent years, the High Court started instructing for a process to change the regulations, but it is expected to take a long time until the process is finalized.

Relatives of Hadar Goldin, an IDF soldier whose body is believed to be held by Hamas in the Gaza Strip, blasted the cabinet decision as “miserable” and Netanyahu’s policy as “weak.”

Goldin’s parents, Dr. Leah Goldin and Professor Simcha Goldin, said Monday that “Prime Minister Netanyahu and the cabinet chose again to give in to Hamas. The decision not to promote a law that would enable [the state] to hold on to bodies of terrorists and apply pressure on Hamas is a miserable decision that conveys weakness to the enemy To bring Hadar and Oron [Shaul, the other soldier whose body is believed to be held in the Strip]  back home the Israeli leadership ought to show bravery and determination.”

Last week the High Court ruled that the State of Israel may not intentionally hold onto the bodies of terrorists for the purpose of negotiations, since there is no specific, explicit law allowing it to do so.

Bucking the minority opinion of Justice Neal Hendel, justices Yoram Danziger and George Kara said that if the state wants, it could enact a law setting legal standards accepted in Israeli and international law, and gave the state six months to do so. Failing to do so would mean the state would have to return the terrorists' bodies to the families, the court ruled. Hendel in a minority said he felt that existing law gave the state the power to hold onto bodies.

Prime Minister Benjamin Netanyahu lashed out at the court last week, 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