High Court: State entitled to hold bodies of Israeli terror suspects for negotiations
Court has ‘exceedingly limited’ scope for intervention in security matters, justice writes; representatives of slain men say ruling allows state to violate citizens’ ‘basic rights’
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The High Court of Justice ruled unanimously on Sunday to reject six petitions demanding that the state release for burial the bodies of slain Israeli citizens accused of acts of terrorism.
The court ruled that previous decisions by the High Court have upheld the government’s authority not to release the bodies of such individuals, and that since the security cabinet has determined that the bodies of the men in question may be needed in the framework of an agreement for the return of Israeli hostages held by Hamas in Gaza, the court has no scope for intervention.
The Adalah legal aid organization, which represented the petitioners, denounced the ruling for allowing the state to “violate the basic rights of its citizens,” and said it amounted to “the suspension of the rule of law.”
Petitions were filed against the state last year by relatives of six men, all of whom are Arab citizens of Israel, whose bodies security services have refused to release for burial in accordance with the decisions of the security cabinet.
Authorities say five of those men were killed by security forces while carrying out or trying to carry out terror attacks, while the sixth was a terror suspect who died in the hospital.
The petitions argued that the security cabinet’s decision not to release the bodies of the men was unlawful, taken without legal authority, and did “severe and blatant harm” to the dignity of the dead and of their families.
At least two of the petitioners also argued that their relative’s actions had been carried out due to mental illness, and not on the basis of nationalistic or terrorist motivations.
The state argued in response that negotiations for the release of Israeli hostages and the dead being held by Hamas were “dynamic” and were at a sensitive stage, and that at present “it is not possible to rule out that holding the bodies of these terrorists will be needed for the purpose of [returning] the captives and missing.”
In Sunday’s decision, Justice David Mintz, who penned the opinion for the three-justice panel, wrote that the court has “the most limited scope” for intervening in government decisions relating to security decisions, and that such intervention is reserved for extreme situations.
The conservative Mintz also wrote that military commanders have the authority under a 1945, pre-state regulation to withhold the release of bodies of terrorists, and that the court previously ruled in September of last year that this applied to Israeli citizens as well.
The justice conceded that the state’s position on not releasing the bodies of Israeli citizens has changed of late, since it had previously been reserved for situations when there is a legal position paper from security services stating that the measure was necessary.
The state’s position under the current circumstances, as laid out in a security cabinet decision in September 2024, is that as long as Israeli hostages and the bodies of Israeli civilians are being held in Gaza, Israel will continue to hold onto the bodies of Israeli citizens who were convicted of or are suspected of terror offenses. The cabinet decided in December 2024 to persist with that policy for at least another three months.
“As has been determined more than once, the extent of this court’s intervention in policy decisions made by the [security] cabinet on matters of a distinct security nature is extremely limited, and is reserved only for exceptional and extreme cases in which a serious flaw has been found in the decision,” wrote Mintz.
“The cabinet’s decision to hold the bodies of Israeli civilian terrorists — temporarily and for a limited time — at this time does not reveal any flaw that justifies our intervention.”
Mintz conceded that the security cabinet decision was a blanket order, and that the circumstances of the six bodies currently being held by the security services, and specifically whether they would assist negotiations for the release of Israeli hostages, had not yet been evaluated.
He nevertheless asserted that the security cabinet’s decision “did not come against an empty background,” but rather followed “the murderous terror attack which began on October 7, 2023,” when 251 Israeli hostages and dead were taken captive, and “100 of them still being held in captivity.”
He added that terror groups in Gaza are holding numerous bodies of slain Israelis and that these were taken specifically for use in negotiations.
“This is a temporary and time-limited decision which is reviewed from time to time by the cabinet,” he said. “In light of this, and with respect to the current security reality, the negotiations currently being conducted and their dynamic nature… we did not find that there was any room for our intervention,” concluded Mintz.
Adalah denounced the decision, saying: “Practically speaking, it totally suspends the principle of the rule of law and constitutes a further deterioration for the significance of the citizenship of Palestinian citizens of the State of Israel.”
Adalah added that the decision “gives a green light to the policy of accumulating the bodies of civilians and holding them hostage without any specific examination of their case,” including in cases when authorities have not yet ruled that the background to the incident was terrorism.
“This is an extremely dangerous decision that gives the government the green light to act above the rule of law in all matters related to the violation of the fundamental rights of its citizens. We are diligently studying the ruling in depth and will consider further legal steps accordingly.”
