Bill allowing Israel to hold terrorists’ bodies for leverage clears first hurdle

Knesset gives preliminary approval to law allowing police to demand family’s okay for funeral restrictions aimed at preventing encouragement of more terror attacks

Palestinians carry the corpses of terrorists through the streets of Hebron during a massive funeral march in the West Bank, October 31, 2015. (Flash90)
Palestinians carry the corpses of terrorists through the streets of Hebron during a massive funeral march in the West Bank, October 31, 2015. (Flash90)

The Knesset gave preliminary approval Wednesday to a bill allowing Israel to hold the bodies of terrorists rather than returning them to their families, over fears that their funerals may be used to encourage further attacks.

The bill came after the High Court of Justice had ruled that the practice cannot continue without a law explicitly permitting it.

Two versions of the bill, one by Jewish Home MK Bezalel Smotrich and another by Likud MK Anat Berko, passed a preliminary reading in the Knesset, with 62 lawmakers voting for it, 21 opposing it and 3 abstaining, a Knesset spokesperson said in a statement. The statement did not elaborate on the differences between the two versions.

The bills would grant a police district commander authority to set conditions for returning the body of a terrorist for family burial, if the commander determines that there is reason to fear that as a result of the funeral a terror attack might be committed or lives might be at risk, or the funeral will be used as a platform to praise terror attacks. Conditions could limit the size, location, timing, and attendance of the burial ceremony and a body could be held until the family agrees to the terms.

Likud party MK Anat Berko speaks in the Knesset, July 12, 2016. (Miriam Alster/FLASH90)

The preamble to the bill noted that in recent years the funerals for terrorists have become rallying events praising and encouraging further terror.

Conditioning the return of a terrorist’s body on the fulfillment of police requirements is intended “to ensure that the burial ceremony is carried out for the purpose of burying the corpse alone,” the bill said.

Public Security Minister Gilad Erdan criticized the High Court for creating a need to write what he said was an unnecessary bill.

“If not for the mistaken interpretation of the High Court of the law and general logic, these bills would not have needed to reach the Knesset,” Erdan said, referring to a High Court ruling that Israel cannot hold on to the bodies for use as bargaining chips against the terror groups in Gaza without passing a new law to authorize and regulate the practice.

That decision was seen as also applying to using bodies for leverage on funeral ceremonies, a practice that had been common in cases in the West Bank.

Public Security Minister Gilad Erdan at the Likud party conference in Lod, December 31, 2017. (Tomer Neuberg/Flash90)

Referring to an uptick in terror attacks over the past few years, Erdan said, “All security entities have the opinion that a central factor is the honor and praise that those despicable terrorists enjoy in Palestinian society.”

Erdan recalled the funeral of three terrorists in the northern Arab town of Umm al-Fahm which, he said, served to inspire others from the same town to engage in terror. The High Court had ordered police to release the bodies to be buried, against the wishes of the force, which held them for two weeks after the terrorists killed two Israeli policemen in a shooting at at the Temple Mount compound in the Old City of Jerusalem.

“Since then, more than one terror cell in Umm al-Fahm that got their inspiration from that funeral was arrested by the Shin Bet”security service, he said.

Author of the bill MK Smotrich echoed Erdan in panning the High Court.

Jewish Home MK Bezalel Smotrich speaks during an Interior Affairs committee meeting at the Knesset, January 1, 2018. (Miriam Alster/Flash90)

“This is a bill that should never have been necessary” he said, claiming that police had for years had the authority to hold the bodies of terrorists.

“Despite the section in the law, and despite common sense, the High Court suggested that it isn’t prepared to be satisfied with a general authorization and demanded specific authorization. So today we are defining clear authority,” Smotrich said.

Opposition MK Abd al-Hakim Hajj Yahya of the Joint (Arab) List denounced the bill for explicitly contradicting the High Court ruling.

“This is a populist bill and it is a poke in the eye for the High Court,” Yahya said. “This law clearly says they want to trade in bodies for bargaining purposes. There is a High Court, either you believe in it or you can continue to drive over it with a bulldozer. The court said the burial needs to be done. According to all religions respect for the dead is to bury the person regardless of what he has done.””

Joint (Arab) List MK Abd al-Hakim Hajj Yahya reacts during a vote in the Knesset, April 05, 2017. (Hadas Parush/FLASH90)

Israeli security forces recently wanted to hold the bodies of terrorists killed in an attack tunnel from Gaza with the intent of using them in negotiations to retrieve the bodies of IDF soldiers Hadar Goldin and Oron Shaul, whose remains have been held by Hamas in the Gaza Strip ever since they were killed during the summer 2014 conflict in the coastal enclave.

In its December ruling the High Court found that “The State of Israel, as a nation of laws, cannot hold on to corpses for the purposes of negotiations at a time when there is no specific and explicit law that allows it do so.”

The High Court of Justice gave the government six months to enact legislation.

“If a law is not made before this time, the bodies of the terrorists will be returned to their families,” the court wrote in its decision at the time.

The court was ruling on a petition by a number of families of terrorists whose bodies are currently being held by Israel.

Times of Israel staff contributed to this report.

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