In one of its ‘most extreme’ rulings, Israeli Supreme Court says state has right to withhold bodies of slain Palestinians

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In the reversal of an earlier ruling, the Israeli Supreme Court ruled on Monday that the Israeli government can withhold the bodies of 13 Palestinians killed by Israeli forces and use their bodies as bargaining chips in future negotiations with Palestinian political factions.

The ruling, passed in a 4-3 majority vote, stated that under Israel’s “emergency regulations,” the military is permitted to order the bodies of slain Palestinians who have been declared “deceased enemies,” Adalah, the Legal Center for Arab Minority Rights in Israel, said in a statement.

It came in response to a petition filed by the families of six Palestinians who were killed by Israeli forces, and their bodies subsequently withheld, after they carried out attacks on Israelis.

Despite the families arguing that holding the bodies of their relatives to be used as bargaining chips was a violation of international law, the court ruled that the “interim burial” of said enemies is permitted when state security, “civil order” and the “need to negotiate for the return of the bodies of Israeli soldiers,” are taken into account.

According to Adalah, the three dissenting judges had accepted the position of the lawyers representing the families of slain Palestinians that “emergency regulations do not authorize the military to hold bodies as bargaining chips, and that holding them directly contravenes the basic principles of international law.”

“This is the first time in history that a court – anywhere in the world – authorizes state authorities to hold the bodies of subjects under its control, to which international laws governing occupation apply, and to use them as bargaining chips,” Adalah said in response to the ruling.

The group called the decision “one of the most extreme” Supreme Court rulings in Israel since the state was established, because “it undermines the most basic principles of universal humanity.”

Adalah added that the ruling violates both Israeli and international law, specifically the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Monday’s ruling overturned a 2017 decision by the Supreme Court that said the state could not hold the bodies of Palestinians so long as there was no law in place outlining how the process is managed.

But in 2018, Israel’s parliament, the Knesset, passed a law permitting Israeli district police to decide whether to hold the bodies of Palestinians who were killed while carrying out attacks.

“Monday’s ruling appeared to serve as a judicial endorsement of the legality of that bill,” the Times of Israel said. 

One of the petitioners in the case, Muhammad Alyan, was quoted by Adalah as saying “this is an extremely racist ruling that runs contrary to international law but, yet, is consistent with the Israeli government’s political decisions.”

Alyan called the decision “collective punishment”, and floated the idea that the families would consider appealing the decision in international courts “in an effort to do everything possible to recover the bodies of their loved ones.”

It is estimated that over 300 Palestinians killed by Israel are being held by the government, with the majority being held in what is known as a “cemetery of numbers” in an undesignated location in Israel, with their families unable to visit their graves or bury them in traditional Islamic burial ceremonies.

While the Israeli government has employed the practice of withholding bodies of Palestinians since 1967, it has been halted and restarted a number of times over the years due to widespread criticism.

Prime Minister Benjamin Netanyahu’s government began heavily employing the practice again in 2016 during a wave of unrest in the occupied Palestinian territory, characterized mostly by young Palestinians carrying out small-scale stabbing attacks against armed Israeli soldiers.

Netanyahu and his government argued that, like punitive home demolitions,  withholding bodies served as a “deterrent” of future attacks. Rights groups have largely disregarded this narrative, deeming such policies as collective punishment that do little to deter attacks.