On December 14, 2017, the
High Court of Justice (HCJ) issued its judgment on petitions for the return of Palestinians’ bodies Israel has been withholding for more than a year now, to allow their families to bring them to proper burial according to custom and religion.
In a majority decision, the HCJ accepted the claims of the families – who petitioned through private attorneys – determining that “from the right to human dignity derive also the rights of the deceased and his relatives to bring the dead to dignified and proper burial, allowing communion and remembrance. These rights were also recognized in the case law, irrespective of the identity of the dead, even when they were terrorists and enemy soldiers. This, in the context of the general norm that human rights are innate to all human beings, whoever they may be…” The court also held that Israeli law does not authorize the military commander to withhold bodies of assailants for the purpose of negotiations, and that the burial orders had been issued by the military commander contrary to the law. Nonetheless, the HCJ ruled that the state has six months in which to formulate a specific law regulating Israel’s withholding of Palestinians’ bodies, and only if it is fails to do so, will the state have to return the bodies to the families.
Beginning in the 1990s, HaMoked has been advocating for the return to their families of Palestinians’ bodies held by Israel. In the course of handling hundreds such cases over the years, HaMoked exposed a grim picture concerning the treatment of bodies; burials were performed negligently and disrespectfully and in severe violation of the dignity of the dead and their families. In many cases, these failures made the future task of locating and identifying the bodies almost impossible. Worse still,
seven of the bodies Israel undertook to return to their families have never been located.
HaMoked stresses that no act of legislation can legitimize this unacceptable practice, and again calls on Israel to uphold its duty according to the rules of basic human morality and international law, and return to the families the remains of their loved ones. Political or diplomatic considerations, which Israel raises in this context, are inherently extraneous and invalid.
