High Court rejects petition demanding release of body of Arab-Israeli terror convict

The High Court of Justice unanimously rejects a petition demanding that the government release the body of Walid Daqqa, an Arab-Israeli citizen who died in April this year in prison after being convicted for his role in the abduction and murder of Israeli soldier Moshe Tamam in 1984.

The ruling, issued by justices Isaac Amit, Ofer Grosskopf and Gila Kanfi Steinitz, determines that the decision of Defense Minister Yoav Gallant, approved by the security cabinet, to keep hold of Daqqa’s body did not exceed the boundaries of the principles of reasonableness or proportionality, and that there was therefore no cause for judicial intervention.

Owing to Daqqa’s importance to the Palestinian national movement, the security cabinet decided to keep hold of Daqqa’s body in order to use it as leverage in negotiations with Hamas for the return of the hostages abducted by the terror organization on October 7.

In its decision, the High Court rules that alongside the value of respecting the dead and the right of family members to bury their dead, the goal of freeing captives is a foundational principle of the country and is expressed in the controversial nation-state law, one of Israel’s quasi-constitutional Basic Laws.

The court acknowledges that the case of Daqqa was exceptional, in that although Israel has in the past held on to bodies of Palestinian terrorists, it has not done so for Israeli citizens. It says however that the military commander has the right to hold on to bodies including those of Israeli citizens.

It also says that Daqqa was “adopted” as a symbol by Hamas which itself hold on to the bodies of Israelis for use in negotiations to release its Palestinian prisoners.

The court says that since it is the opinion of professionals within the security establishment that holding on to Daqqa’s body “is likely to advance in an effective manner” negotiations for the return of the bodies of IDF soldiers and Israeli citizens, the decision is reasonable and proportionate.

“At the time of writing these lines, standing before my eyes are the hostages, the captives, and the missing, and the IDF soldiers, who have been in Gaza since October 7, and the families of those who have been there [Gaza] for many years — IDF soldiers Sgt. Hadar Goldin and Staff-Sgt Oron Shaul, and Israeli citizens Avera Mengistu and Hisham al-Sayed,” writes Amit.

“The voice of our brothers cries out from the tunnels in the Gaza Strip. May the prophecy of Jeremiah ‘and the children shall return to their borders’ be fulfilled for all of them speedily in our days.'”

The Adalah legal aid organization, which works to protect civil rights of Arab Israelis and Palestinians which petitioned the court to have Daqqa’s body released, condemns the decision, saying it was based on a “racist worldview.”

Said the organization, “Judge Yitzhak Amit justified the denial of the constitutional rights of the deceased and his family members to burial according to their faith by relying on the state’s duty to protect the members of the Jewish people in accordance with the provisions of the Basic Law: Nation-State.”

It adds that anyone who believed that the contentious nation-state law was only declarative “can now clearly conclude that the High Court has validated anchoring the status of Arab citizens as an enemy population that has no protection for their fundamental rights.”

IDF soldier Moshe Tamam, who was murdered in 1984. (screen capture: YouTube)