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Withholding bodies of dead Palestinians for negotiation purposes: the case of `A
9025/01 | documents: 1  |  Updates: 8 Under both Israeli law and international humanitarian law, Israel must return the bodies of dead Palestinians to their families. However, Israel continues to evade its obligation and to mistreat the families, under the protection of the court. After years of inconsistent policy, dating back to 1967, Israel ceased to return the bodies of Palestinians to their families in late 1994, with rare exceptions.

In September 1998, Israel killed two Palestinian brothers. Their bodies were interred at the cemetery for enemy dead, near the Adam Bridge in the Jordan Valley. In August 2000, HaMoked petitioned the HCJ on behalf of the two widows, demanding to receive the brothers' bodies for burial. The judgment in the petition incorporated the state's decision to return the bodies to the family. However, in time, it became known that the military was effectively delaying the transfer by demanding that the Palestinian Authority (PA) must first guarantee to maintain security and order during the funerals. A year later, in November 2001, HaMoked petitioned the HCJ again, demanding that the transfer be expedited. In response, the state notified that the bodies had not yet been delivered because PA officials were refusing commit to maintaining order during the funerals. Inquiries with the PA revealed that the PA had consented to maintain order, but had refused additional demands as to the burial location and funeral arrangements. The state rejected HaMoked's proposed alternatives to these conditions, and as an agreement proved difficult, hearings on petition were repeatedly postponed. 

In 2005, the state announced its consent to return the bodies to the families, subject to genetic testing. But it was soon retracted, as Israel notified that following the capture of soldiers Gilad Shalit, Eldad Regev, and Ehud Goldwasser, it would continue to withhold the bodies of the  in order to facilitate negotiations for the captives' return.

In early 2009, the state notified the court that bodies of Fatah members would be returned to their families subject to the families' applications, whereas bodies of Hamas or the Islamic Jihad members would not be returned, including those of the two brothers. No update notice by the state has been received to date (May 2011).  
 
Since its inception in 1988, HaMoked has handled the applications of a hundred families for the return their loved ones' bodies. In some 20 of these cases, the bodies were returned to the families for burial. The other applications remain pending. Despite Israel's statement that it has no knowledge of any Palestinian proposal to include dead bodies in a future transaction for the return of Gilad Shalit, it persists in its refusal to return the bodies to the families.


HCJ 9025/01 ‘Awadallah et al. v. Commander of IDF Forces in the Judea and Samaria Area et al. Transcript
Transcript  |  9025/01   |  12.10.2009
Transcript of hearing held at the HCJ in three petitions filed by HaMoked for the return of the bodies of 4 Palestinians to their families. The court found that due to a possible exchange deal for Gilad Shalit, the time was not right for deliberation and postponed the hearing for six months. Two of the bodies had been held by Israel since 1998, one since 2001 and one since 2003. The petitioners...
Updates
19.5.2015
HaMoked in a petition to the HCJ: instruct the military to return the body of a Palestinian man Israel has been holding for the past 13 years
25.11.2014
As part of the long struggle to have Palestinians’ remains returned to their families, it now turns out: Israel does not know where it had buried some of the bodies it has pledged to return
29.5.2014
After a protracted legal battle: Israel returned most of the bodies of dead Palestinians it had kept for many years
16.1.2014
After a long legal battle fought by HaMoked: Israel has begun returning the bodies of Palestinians it has been holding for many years
18.8.2013
Following HaMoked's petitions: the Minister of Defense has instructed the security establishment "to speedily hand over to the Palestinian Authority all terrorists' bodies which are in Israel's possession"
13.3.2013
HaMoked in a petition to the HCJ seeking the return of the bodies of Palestinians to their families for proper burial: the handling of the return of bodies was suspended in the summer of 2006, following the capture of three Israeli soldiers
19.7.2012
After years of retaining bodies of dozens of Palestinians as bargaining chips Israel returned 91 bodies to their families. Dozens of Palestinian families are still waiting to bring their loved ones to burial.
9.12.2009
The High Court of Justice once again postponed a hearing in HaMoked’s petitions to return the bodies of Palestinians to their families: Despite the fact that under Israeli law and international humanitarian law, Israel must return the bodies of the dead to the families, it continues to avoid carrying out its duty and to mistreat the families
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