A State Is Not a Terror Organization

In any normal country, the constitutional right of the state to confiscate bodies for bargaining purposes would never have reached the courts

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The funeral of a Palestinian terrorist whose body was held for months prior to its release, December 2017.
The funeral of a Palestinian terrorist whose body was held for months prior to its release, December 2017.Credit: Mussa Issa Qawasma / Reuters

The High Court of Justice’s ruling on Thursday that the state cannot hold onto the bodies of terrorists for negotiation purposes is a worthy yet troubling decision. It’s a worthy one because people’s bodies, even those of terrorists, are not goods that can be traded. Holding bodies for the sake of bargaining is akin to kidnapping live hostages for the same purpose.

The fact that the terror organization Israel is fighting is holding the bodies of Israeli soldiers does not allow it to act in a similar manner. Israel – which agonizes over the price it should pay for the return of kidnapped or deceased soldiers and civilians – states that not everything is acceptable or worth it in such exchanges. But just as there is a price Israel is not willing to pay, it must also recognize the moral red lines it must not cross, including the denial of a person’s right to be buried.

However, the High Court ruling is also a troubling one, since it clings to the dry legalistic aspect by determining that in the absence of a legal clause allowing the state to hold onto terrorists’ bodies, it must return them or enact a suitable law that allows these bodies to be retained. It does not base its ruling on the fact that it is immoral to hold onto these bodies.

What message are the High Court justices conveying to the government in their ruling? If such a law is enacted, will the court then back it? Would the justices be willing to support this moral wrongdoing as long as it is enshrined in law? The High Court knows full well that the current government of Prime Minister Benjamin Netanyahu does not hesitate when it comes to legislating immoral laws – some of them based on real or ostensible security risks facing the country. This government has championed restricting the scope of the High Court’s decision-making in order to broaden the scope of its own freedoms of action. It doesn’t need court backing to legislate a law that allows it to trade bodies whenever it wishes to do so. Thus, the High Court ruling, which lacks any reference to the morality of future legislation in this matter, grants the government and Knesset the power to circumvent the court on any topic through legislation.

In any normal country, the constitutional right of the state to confiscate bodies for bargaining purposes would never have reached the courts. A state that is not a terror organization – especially a state that declares it will not negotiate with terrorists – cannot behave like a highwayman. This should be the policy adopted by Israel’s government. It should not rush into legislating wrongful laws, but should strive to find other ways of bringing back kidnapped civilians and the bodies of dead soldiers. On the contrary, Israel must return the bodies in its possession, thus distinguishing itself from the terrorist organizations it is fighting against, and their despicable methods.

The above article is Haaretz's lead editorial, as published in the Hebrew and English newspapers in Israel.

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