High Court okays withholding bodies of Palestinian terrorists for leverage

Decision reverses a 2017 ruling that suspended the practice until it was anchored in law

Palestinian mourners carry the body of a Hamas sniper killed by Israeli fire, during his funeral in Jabalia, in the northern Gaza Strip, on August 7, 2018. (AFP/MAHMUD HAMS)
Palestinian mourners carry the body of a Hamas sniper killed by Israeli fire, during his funeral in Jabalia, in the northern Gaza Strip, on August 7, 2018. (AFP/MAHMUD HAMS)

The High Court of Justice on Monday ruled that the military has the legal right to hold on to the bodies of slain terrorists for use as leverage in future negotiations with Palestinians.

The decision, adopted after a majority vote by an expanded panel of seven justices, reverses a 2017 High Court ruling on the matter and came in response to a petition by the families of six terrorists whose bodies are currently in the government’s possession.

The justices in their decision determined that  withholding terrorists’ bodies falls within the purview of national security, and said the practice was not illegal under international law governing armed conflict.

Israeli security forces regularly take custody of terrorists’ bodies. Sometimes the bodies are later returned to the assailants’ families for burial. At other times they are withheld — to prevent celebratory funerals in attackers’ hometowns, or with a view to using using them in negotiations to retrieve the bodies of Israeli soldiers held by terror groups.

Illustrative: The High Court of Justice in session. (Miriam Alster/Flash90)

In its December 2017 decision, the court did not outright forbid Israel from holding terrorists’ bodies but said it could not be done as long as there was no law in place dictating how it is managed.

“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 justices wrote at the time.

The 2017 ruling came in response to a petition by the family of Lt. Hadar Goldin, an IDF soldier whose body is being held in the Gaza Strip by the Hamas terrorist group, requesting that the court order the government to implement a “plan of action” adopted by the security cabinet earlier that year. This plan stipulated that Israel would no longer return the bodies of Hamas terrorists killed during attacks and would instead bury them. Goldin was killed during Operation Protective Edge in 2014, alongside Sgt. Oron Shaul, whose body is also held by Hamas.

In response, the Knesset in March 2018 passed a law allowing police to withhold the bodies of Palestinian assailants killed while carrying out terror attacks.

Mourners carry the body of Mohammed al-Houm, 14, who was killed during a violent protest along the Israel-Gaza border, during his funeral in the Bureij refugee camp, in central Gaza on September 29, 2018. (AFP PHOTO / Anas BABA)

Under that law, district police commanders can determine whether to release terrorists’ bodies for burial.

The law notes that the funerals of Palestinian terrorists increasingly feature praise of terrorism and incitement for further attacks.

Monday’s ruling appeared to serve as a judicial endorsement of the legality of that bill.

Minister of Public Security and Strategic Affairs Gilad Erdan welcomed the ruling, tweeting that “a despicable terrorist is not worthy of honor — not during his life and not in death. The State of Israel cannot be asked to honor the bodies of terrorists belonging to Hamas or other terrorist organizations that are holding the bodies of our soldiers.”

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