Bid to hold all terrorists’ bodies captive may rest on shaky legal ground

Bid to hold all terrorists’ bodies captive may rest on shaky legal ground

Supreme Court has upheld the government’s right to withhold remains, but only for the purposes of negotiations for return of IDF soldiers’ bodies, not for Bennett’s ‘deterrence’

Judah Ari Gross is The Times of Israel's military correspondent.

Mourners carry the body of Mohammed Aqal, a Palestinian assailant killed after carrying out a stabbing attack on a Border Police officer, during his funeral in the West Bank village of Beit Ula on December 16, 2017. (AFP Photo/ Hazem Bader)
Mourners carry the body of Mohammed Aqal, a Palestinian assailant killed after carrying out a stabbing attack on a Border Police officer, during his funeral in the West Bank village of Beit Ula on December 16, 2017. (AFP Photo/ Hazem Bader)

In announcing plans to halt the return of all bodies of Palestinian terrorists to their families as a deterrent measure Wednesday, Defense Minister Naftali Bennett appeared to significantly downplay the tough uphill battle he will face in actually passing and implementing the measure.

Bennett’s proposal requires the approval of the security cabinet and may face opposition from military brass, who have expressed misgivings about the efficacy of such a policy in the past.

If the measure is enacted, he will likely still face a challenge over its legality in the High Court of Justice at its first implementation, one that government attorneys will be hard-pressed to defend, according to experts.

His intention to advance such a proposal under a transitional government also raised eyebrows, as caretaker coalitions are generally not meant to enact significant policy reforms without being given a mandate by voters.

New Right party leader Naftali Bennett speaks during a press conference at the Expo Tel Aviv on September 5, 2019. (Hadas Parush/Flash90)

To some, the confluence of likely challenges and a subsequent fight for credit over the measure indicated that it was less of an earnest policy proposal and more of a bid for publicity.

“It just seems to be a desire to get a headline,” said Pnina Sharvit Baruch, a former military lawyer and current researcher at Tel Aviv’s Institute for National Security Studies think tank.

Deterrence or negotiations?

In September, following a lengthy court battle, the Supreme Court ruled that Israeli law permitted the military to withhold the corpses of terrorists from their families for the purposes of negotiating with terror groups for the release of two Israeli civilians — Avera Mengistu and Hisham al-Sayed — and the remains of two Israeli soldiers — Hadar Goldin and Oron Shaul — currently being held by the Hamas terror group in Gaza.

Though Chief Justice Esther Hayut, who wrote the ruling on the case, said that the government ought to write a new, specific law on how the country should handle the remains of terrorists and enemy combatants, she accepted the argument that it is not expressly forbidden for the military to use these corpses for negotiations on a short-term basis.

Illustrative: Supreme Court Chief Justice Esther Hayut arrives for a hearing on August 22, 2019. (Yonatan Sindel/Flash90)

In general, Israeli security services have not advocated for a harsher policy on holding the corpses of Palestinian terrorists captive — beyond those used to negotiate with Hamas — seeing the move as having limited value as both a deterrent and a bargaining chip, as well as being morally dubious.

As a result, Israel’s policy has been to release the bodies of slain terrorists to their families, except for members of Hamas and “exceptional cases,” in which the attacks were particularly heinous.

Israel currently holds the remains of upwards of 50 Palestinian terrorists, according to Israeli human rights groups Adalah and B’Tselem.

However, while a Defense Ministry source hinted that the bodies could be used for bargaining, Bennett himself indicated that the new policy was not negotiating the release of Mengistu, al-Sayed, Goldin and Shaul, but deterrence, which the court has not ruled in a justifiable reason to withhold remains.

A composite photo of IDF soldiers Oron Shaul, left, and Hadar Goldin, right.

“Defense Minister Naftali Bennett decided on a change in policy — a complete stop to returning the bodies of terrorists, regardless of what organization they belong to. This follows a number of discussions the minister has held about deterrence with leaders in the defense establishment,” his office said.

The statement added that this was “part of a wider deterrence effort” that he planned to roll out shortly.

Later in the day, Bennett added in a video statement: “Against Palestinian terror you must act forcefully, and deterrence is built from actions.”

In her ruling, Hayut specifically and explicitly said that deterrence was not a legitimate reason to withhold the bodies of terrorists under the relevant law — section 133, paragraph three of the 1945 Defense (Emergency) Regulations, which allows a military commander to decide when and where a person can be buried.

“In my opinion, Section 133(3) of the Defense Regulations does not allow the holding of terrorists bodies for an extended period — not for the purposes of deterrence or for any other reasons,” Hayut wrote.

Supreme Court Justice Neal Hendel at the Supreme Court in Jerusalem on April 23, 2018. (Yonatan Sindel/Flash90)

In 2017, High Court Justice Neal Hendel also wrote an opinion on the matter in favor of the government’s ability to withhold the bodies of terrorists — though this was overruled at the time — and, unlike Hayut, said that this could be done as a deterrent measure.

However, even Hendel’s lenient opinion would not accept Bennett’s proposal, as it was based on the assumption that it would only be used in specific, extraordinary cases on a temporary basis, not as an across-the-board ban for extended periods of time, as Bennett is seeking to implement.

This issue would be more easily resolved were the defense minister to say that negotiations — not deterrence — was the main motivating factor for his proposal, though his public comments to the contrary may make this a difficult position to argue.

“Without new information or new figures — I don’t see how this will be accepted [by the court], at least not if the judges stand by what they wrote,” said Amichai Cohen, a research fellow at the Israel Democracy Institute think tank in Jerusalem.

No value

Cohen, dean of the Faculty of Law at Ono Academic College, said he’s asked the military, Defense Ministry and Justice Ministry if they’ve come up with some new legal opinion or justification for Bennett’s proposal, but has yet to hear back as of Wednesday evening.

“I wonder if there’s a legal opinion that explains the decision. But if there isn’t one, then I don’t understand how it works — actually, strike that — it just doesn’t work,” Cohen said.

The Times of Israel also contacted to the defense minister’s office for clarification on the matter, but did not receive a response.

There’s no value in it. There’s even a price in binding your hands

Cohen also noted the issue of implementing such a proposal in a transitional government.

“Yeah, that is a problem,” he said.

Sharvit Baruch scoffed at Bennett’s announcement, describing it as both largely meaningless and — if actually adopted to its fullest — strategically unsound.

“You [already] have permission to [hold terrorists’ bodies]. What do you want? What’s the point? Is it to show that you’re a manly man?” Sharvit Baruch said.

“Sweeping policies are just for politics,” she added. “There’s no value in it. There’s even a price in binding your hands. In strategy, you want flexibility.”

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