Al-Haq condemns the recent decision reached by the Israeli Supreme Court sitting as the Israeli High Court of Justice, reviewing with approval Israel’s policy of withholding the bodies of killed Palestinians under newly enactedIsraeli Knesset legislation, applied directly in occupied East Jerusalem. Additionally, Israel’s practice of withholding the bodies of deceased Palestinians is also carried out across the rest of the Occupied Palestinian Territory. It should be noted that the Israeli occupying authorities have a long history of such, and similar practices, including the use of Enforced Disappearancesand “cemeteries of numbers”, wherein Palestinians are buried in secret to be solely identified, and dehumanised, by numbers.This amounts to a discriminatory practice of Enforced Disappearance, cruel and inhumane treatment of grieving bereaved families, and to an act of collective punishment against Palestinians.
Under a landmark 2017 decision, the Israeli High Court of Justice held that the State of Israel, “did not indicate a source of [legal] authority that allows it to hold bodies until consent to certain funeral arrangements is given” by the families of the deceased.The Court recognized that “there are a number of fundamental rights at stake, first and foremost human dignity” involved in the withholding of remains.However, while the Court observed the inherent right for a proper and respectful burial, it somewhat paradoxically claimed obiter that the State may explicitly legislate to authorise the violation of fundamental rights.Nonetheless, the Court ordered that the bodies be returned within 30 hours of its judgement, with two hours-notice given to the bereaved families.
Following the Court’s decision, the Israeli government, with cross-party support in the Knesset, passed the Counterterrorism Law (Amendment No.3, 2018), which allows the Israeli Occupying Forces (IOF) to withhold bodies pending the coerced acceptance of bereaved families of certain restrictions upon their burial.Chief among these restrictions is the requirement that burials take place at night immediately after the return of the remains, which relatives have indicated makes burial according to tradition and the carrying out of an autopsy, impossible.Alongside the passing of the amendment, the State of Israel requested, and was granted, permission to delay the returning of Palestinian remains pending an additional hearing in light of the newly adopted legislation.
As noted by Adalah and the Commission of Detainees’ and Ex-Detainees’ Affairs, the Israeli Supreme Court:
"rendered a decision that makes Israel’s ongoing violation of international humanitarian law (IHL) possible. IHL prohibits the occupying power from holding bodies, and using them as bargaining chips. In addition, the Supreme Court’s decision further delays the transfer of the bodies for burial, thus giving a green light to the grave violation of the right of the families and the deceased themselves to a prompt and proper burial.”
Under customary IHL, parties to an armed conflict must show respect to the dead, which “must be disposed of in a respectful manner”.Further, the remains of the dead, as outlined in all four Geneva Conventions, must be returned to their families.Moreover, the practice of withholding bodies amounts to a policy of collective punishment,which is expressly prohibited under Article 50 of the Hague Regulations, Article 33(1) of the Fourth Geneva Convention, and Article 75(2)(d) of Additional Protocol I to the Geneva Conventions, all of which Israel is either a party to, or are recognised to constitute customary international law. It has also been observed that this practice is contrary to the prohibition on torture and inhuman or degrading treatment.
The final Israeli High Court of Justice decision, of a majority vote, is premised on a gross denial of the provisions of international law: paradoxically Justice Esther Hayut argued that “holding on to bodies does involve a violation of human rights and of the dignity of the deceased and his family”, while also somewhat unpersuasively arguing 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”.Although some recognised the clear breach of international law, Justice Barak-Erez of the minority made a strange and unfounded “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”.
It would therefore appear that the Court is wilfully unconcerned with Israel’s obligations to respect the dead under the Hague Conventions of 1907 and the Fourth Geneva Convention of 1949, as well as customary IHL and the provisions of the International Covenant on Civil and Political Rights and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as relevant to the Palestinian population.
Al-Haq strongly condemns this extreme ruling and calls upon the State of Israel to recognise and respect the rights of the families of those whose bodies are being unlawfully withheld by the IOF, and to repeal the 2018 Amendment, which stands in reckless violation of international humanitarian and human rights law and human dignity.
The Electronic Intifiada, Mother waits 36 years for Israel to return son’s body (2 November 2015) https://electronicintifada.net/content/mother-waits-36-years-israel-return-sons-body/14969
HCJ 5887/17 Jabareen v Israeli Police at para 4 – English translation by Adalah available at https://www.adalah.org/uploads/uploads/English_SCT_decision_release_bodies_Umm_al-Fahem_July_2017_FINAL.pdf
Ibid at 10.
Jabareen v Israeli Police(n 4) at para 15
The Electronic Intifada, Israel holding bodies of Palestinians as bargaining chips (14 March 2018) https://electronicintifada.net/blogs/maureen-clare-murphy/israel-holding-bodies-palestinians-bargaining-chips
Customary IHL, Rule 115
Article 16, First Geneva Convention; Article 19, Second Geneva Convention; Article 122, Third Geneva Convention; Article 33(1), 139, Fourth Geneva Convention
Ibid; Al-Haq (n 1); Al-Haq, PHROC Stands in Solidarity with the Manasrah Family for Refusing to Receive their Son’s Frozen Body (22 March 2016) http://www.alhaq.org/palestinian-human-rights-organizations-council/6425.html; Adalah, Israeli Supreme Court reverses earlier ruling, authorizes Israel to hold bodies of Palestinians as bargaining chips (9 September 2019) https://www.adalah.org/en/content/view/9808?fbclid=IwAR28Z1wCuR2UqZYUJ1C1SQwPjoxOcWpEFElM-ORFmox_swu24GEj0tJDZs0
UN Committee against Torture, Concluding Observations on the fifth periodic report of Israel (3 June 2016) at para 43; UN General Assembly, Israeli Practices Affecting the Human Rights of the Palestinian People in the Occupied Palestinian Territory, including East Jerusalem (30 August 2016) at paras 4, 25, 72(g); Article 7, International Covenant of Civil and Political Rights
Hareetz, Israel Can Hold Bodies of Terrorists, High Court Rules, Reversing Landmark Decision (9 September 2019) https://www.haaretz.com/israel-news/.premium-israel-can-hold-bodies-of-terrorist-high-court-rules-reversing-landmark-decsion-1.7823491