Israeli Supreme Court approves the continued hold of Ahmed Erekat's deceased body by the Israeli army; Adalah, representing Erekat’s family: Israel is committing a war crime by holding Palestinian bodies as hostages

18/08/2021

In a split decision of 2-to-1, the Court determined that the Israeli military has the authority to hold Palestinian bodies as bargaining chips, even without relying on a Cabinet Decision; Justice Amit, who dissented, ruled that the initial decision to hold Erekat’s body was illegal, and that he was not convinced of the relevance of the secret material presented by military

The Israeli Supreme Court rejected a petition on Wednesday, 18 August 2021, filed by Adalah - The Legal Center for Arab Minority Rights in Israel, on behalf of Mustafa Erekat, against the Israeli army’s continuous hold of the deceased body of his son, Ahmad Erekat. Ahmad Erekat, a 27-year old Palestinian man, was shot and killed by Israeli Border Police at the "Container" checkpoint in Abu Dis on 23 June 2020, after the car he was driving hit a policewoman who was standing at the checkpoint.

In response to the Supreme Court’s decision, Adalah stated :
"Israel's policy of holding Palestinian bodies – 81 people since 2015 - is inhumane and degrading, and a blatant violation of international law, including the Rome Statute of the International Criminal Court. The Court’s decision today gives a free hand to the military, without governmental authority, and retroactively approves such an illegal practice. Israel must immediately return the dozens of Palestinian bodies it currently holds.”

The Israeli military decided to hold Erekat's body even though he did not belong to Hamas, and there was no allegation by Israel as such. This condition for holding bodies was explicitly made in an Israeli Security Cabinet's decision of January 2017 regarding a "uniform policy for the treatment of terrorist bodies".

After the first hearing on the petition, the Supreme Court issued an order nisi on 22 July 2020, instructing the respondents to explain why they would not hand over Erekat’s body to his family as soon as possible. In September 2020, the state informed the Court that there was a change in policy and that Palestinian bodies would be held "unrelated to organizational affiliation."

Following this announcement, Adalah filed an amended petition arguing that the new policy was unconstitutional and contradicted the 2004 position of the Attorney General and prior rulings of the Supreme Court. Adalah further contended that the new policy should not apply to Erekat since it was made months after his body was held.

At a hearing held on 8 March 2021, Adalah Attorney Sawsan Zaher argued that the new policy was not only disproportionate but also violated international human rights and humanitarian law, and the Rome Statute of the International Criminal Court. Withholding the body of a deceased individual from his or her family violates the International Convention Against Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment, to which Israel is a State Party. Indeed, the United Nations Committee Against Torture called on Israel in June 2016 to take all necessary steps to return bodies to families for burial as soon as possible. The Rome Statute prohibits the “taking of hostages”.

CLICK HERE to read the amended petition [Hebrew]

In the judgment today, the two justices in the majority, Neil Handel and David Mintz, ruled that the defense regulations authorize the military commander to make decisions regarding the burial of the bodies of "terrorists or enemy casualties" for reasons related to the need to negotiate the bodies of Israeli soldiers, even without any cabinet policy decision. In contrast, Justice Yitzhak Amit, who was in the minority, ruled that the initial decision to hold the body was illegal and made without authority, since the army acted on its own without a decision of the government, which is required. Justice Amit also noted in his position that he was not convinced by the relevance of the secret materials presented by the army to the court in a closed hearing, to negotiating the return of prisoners and bodies of Israeli soldiers from Hamas.

Although the petition was rejected, the Court stated that the petitioner would be allowed to raise his objections again against the discretion of the military commander six months after the judgment is rendered.

CLICK HERE to read the Supreme Court’s decision [Hebrew]

CLICK HERE to read the decision in English

Notably, Adalah submitted the expert opinion of “Forensic Architecture”, an organization that examined the evidence from the scene of the incident in which Erekat was shot and killed, to the Supreme Court. According to Forensic Architecture, the evidence raises serious questions about whether Erekat intended to harm the policewoman. It is clear that Erekat was shot when there was no danger to the police and that the shooting was done in violation of procedures. On 15 April 2021, Adalah submitted a letter to the Attorney General objecting to the decision of the military prosecutor's office not to open a criminal investigation into the murder of Erekat.

CLICK HERE to read the letter to the Attorney General [Hebrew]

Case Citation: HCJ 4462/20 Mustafa Erekat v. The Military Commander for Judea and Samaria (the West Bank) and the Minister of Defense (decision delivered 18 August 2021)

Related Press Releases

Israeli cabinet declares: We won’t return bodies of Palestinians to their families for burial, 2 September 2020

Israeli Supreme Court reverses earlier ruling, authorizes Israel to hold bodies of Palestinians as bargaining chips, 9 September 2019