- While the Israeli Supreme Court recognized, for the first time, the illegality of withholding the bodies of deceased Palestinians under the Mandate-era Defense (Emergency) Regulations, it gave the Israeli government the opportunity to legalize this practice by formulating a primary legislation within six months;
- Any law approved by the Israeli parliament legalizing the practice of withholding bodies or authorizing Israel to use them as bargaining chips in negotiations will constitute a grave violation of international humanitarian law and international human rights law;

Last Thursday, the Israeli Supreme Court, functioning as the High Court of Justice, accepted a petition submitted by JLAC (Jerusalem Legal Aid and Human Rights Center) and by CDEA (Commission of Detainees and Ex Detainees Affair) on behalf of six Palestinian families whose loved ones’ bodies  are being withheld by Israeli authorities. The Court ruled that the Israeli Cabinet’s policy to withhold the bodies of deceased Palestinians as bargaining chips in negotiations was illegal. In a 2 to1 vote, the three-judge panel decided for the first time that Regulation 133(3) of the Defense (Emergency) Regulations of 1945, used by Israel as the legal basis for this policy, does not explicitly authorize the Military Commander to withhold bodies of deceased Palestinians. Instead of ordering the immediate release of the bodies withheld by Israel, though, the Court adopted a compromising position that grants the State of Israel six months to come up with primary legislation that directly and explicitly permits the practice of withholding bodies. This remedy approved by the Court effectively gives a green-light to a potentially grave and blatant violation of the right to human dignity. The ruling stresses the extent to which the Israeli Supreme Court is bound by state policy over the enforcement of basic human rights.

In January 2017, the Israeli Ministerial Committee on National Security adopted a policy which allows the state of Israel to withhold the bodeis of deceased Palestinians and postpone their return to their families under two exceptions: if the deceased Palestinians identify with Hamas, meaning that their bodies can be used as bargaining chips in negotiations over a possible prisoner exchange deal; and if the alleged attacks carried out by the deceased Palestinian are deemed exceptionally severe.

Israel’s policy to withhold the bodies of deceased Palestinians and Arab war victims is decades-long, but in 2004, the Attorney General of the State of Israel suspended the policy without officially repealing it. However, this practice, particularly in cases of persons extra-judicially executed by Israeli occupation forces following allegations of carrying out attacks, has been revived and systematically implemented by Israel since October 2015. The bodies of over 140 Palestinians have been withheld by Israel during the last two years in total, with the vast majority eventually being returned to their families, albeit after months of collective punishment. Israel continues to withhold the bodies of fifteen deceased Palestinians under this policy, the longest-held of which is the body of Abdel Hamid Abu Surour, withheld by Israel since April 2016. In addition, Israeli Authorities holds an undefined number of remains, some of them have been kept for decades (the National Campaign to Retrieve the remains of Palestinian and Arab Martyrs documented 265 cases).

The petitioners, represented by the JLAC’s Attorney Muhammad Abu Sninah, and by CDEA’s Attorney Mohammad Mahmoud, argued that the practice of withholding bodies has no clear, explicit and direct basis in domestic Israel law. Additionally, the practice infringes upon the dignity of the dead and that of their families, a constitutional right enshrined in the Basic Law: violation of Human Dignity and Liberty, constitute a grave violation of international humanitarian law and international human rights law. The practice also denies the families the right to bury their loved ones in accordance with their religious and cultural norms, deprives them of the right to mourn and have a closure to their pain, and inflicts massive collective punishment upon the families.

This majority opinion was largely adopted in the petitioners’ position. It held that the practice of withholding the bodies of deceased Palestinian amounts to a breach of dignity of the dead and their families and violates international law. For the first time, the Israeli Supreme Court ruled that Regulation 133(3) of the Defense (Emergency) Regulations, a set of emergency regulations promulgate by the British Mandatory Government in 1945, does not authorize the state of Israel to withhold the bodies of deceased Palestinians so they can later be used in possible negotiations. The practice of withholding the bodies of war victims is so rare that, according to the ruling, Russia is the only other country besides Israel that implements it. The provision in the Russian Federal Burial Act that permits this practice was deemed illegal by the European Court for Human Rights.

Yet, despite the liberal arguments used in the majority opinion and instead of ordering the immediate release of withheld bodies, the Court attempted to strike a supposed “balance” and allowed the government a leeway by giving it a six-month period to enact a specific and primary legislation explicitly designed to deal with the issue of withholding bodies.

The minority opinion, written by Justice Neal Hendel, expanded the scope of application of Regulation 133(3), interpreting it in a way that authorizes the Military Commander to withhold the bodies of deceased Palestinians. The opinion failed to recognize the severity of the violations inflicted by this practice and even claimed that it met the principle of proportionality and that the purpose of withholding the bodies- using them as bargaining chips in negotiations - was a significant and rightful one.

The Israeli Supreme Court’s failure to order the immediate release of withheld victims’ bodies, despite recognizing the illegality of the practice and acknowledging its violations of domestic and international law, indicates that the Court’s judgment was politicized. JLAC views any attempt to legalize the practice of withholding bodies through primary legislation is a grave violation of international law and international human rights law. JLAC also calls for the immediate and unconditional release of all bodies withheld by Israel and demands that the policy of withholding corpses be repealed. The human dignity of the dead and that of their families is a fundamental and basic right that should not be turned into political manoeuvres.