In a chilling decision, the Israeli Supreme Court approves the withholding of Walid Daqqa’s body as a bargaining chip, citing the Jewish Nation-State Law as justification
Today, 30 September 2024, the Israeli Supreme Court delivered a judgment in which it upheld the Israeli Cabinet’s decision to withhold the body of Walid Daqqa, a Palestinian citizen of Israel, author and playwright, who was imprisoned for decades and who died of cancer while in custody on 7 April 2024. The petition, filed on behalf of Daqqa’s family, demanded the immediate release of his body for burial.
CLICK HERE to read more about the petition
CLICK HERE to read the decision [Hebrew]
Walid Daqqa, 62 years old at the time of his death, was from the Palestinian town of Baqa Al-Gharbiyyah in central Israel. Daqqa was convicted in 1987 for involvement with the Popular Front for the Liberation of Palestine, specifically, for his alleged involvement in the kidnapping and murder of Israeli soldier Moshe Tamam in 1984, allegations he repeatedly denied. A military court sentenced Daqqa to life imprisonment, and in 2018, he received an additional two year punishment for smuggling a mobile phone into prison. He was due to be released in March 2025. During his incarceration, Daqqa completed a Master’s degree in democracy studies and wrote extensively about the lives of Palestinians in Israeli prisons, the importance of non-violent struggle as a means of resolving the Israeli-Palestinian conflict, and the right to self-determination of the Palestinian people.
On 9 June 2024, the Security Cabinet of Israel ratified Defense Minister Yoav Gallant's decision to withhold Daqqa's body for future negotiations with Hamas. Adalah argued that the Cabinet lacks the authority to make such a decision, which violates both Daqqa's and his family’s right to dignity and breaches the rule of law. This right is anchored in international humanitarian law, international human rights law, and Israeli Supreme Court rulings.
In a unanimous three-justice decision written by Justice Yitzhak Amit, the court acknowledged that while withholding Daqqa’s body undermines the rights of the deceased and his family, it is justified by the competing value of returning Israeli hostages. The court stated that alongside the rights of the dead and their families, “another fundamental value stands in opposition—an additional general purpose derived from the core values of the state, which is the value of 'redeeming captives'” (...). This value also includes the burial of those [individuals] whose bodies are held by the enemy and is part of the Israeli ethos, regarded as a "most supreme commandment" (words of Justice M. Cheshin in his minority opinion in the "Bargaining Chips" case – CrimA 7048/97 Anonymous v. Minister of Defense, PD 54(1) 721, 747 (2000))”.
The court cited the purpose of withholding the body as part of Israel’s efforts to release the hostages and corpses held captive by Hamas.
The court justified violating the constitutional rights of Walid Daqqa’s family based on the Basic Law: Israel – The Nation-State of the Jewish People. According to the court, this law enshrines the state's obligation to pursue the release of captives. Section 6(a) mandates that “the state shall act to ensure the safety of members of the Jewish people and its citizens who are in distress or captivity due to their Jewishness or citizenship”. Therefore, the court concluded that “holding the bodies of terrorists, due to the possibility that it will aid negotiations for the return of soldiers, civilians, and fallen individuals held by Hamas, is done for a legitimate purpose.”
While the court's decision specifically addresses the withholding of Walid Daqqa’s body, it does not tackle the broader policy of withholding the bodies of Palestinian citizens of Israel in general. It references statements by Ismail Haniyeh, the former head of Hamas who was recently assassinated by Israel, and others regarding Daqqa, asserting that Daqqa "was adopted as a symbol by terrorist organizations." According to the court, for this reason, his case was exempt from the general policy, according to which the Cabinet decisions mandating the withholding of bodies should not apply to the bodies of Israeli citizens.
Moreover, the court fails to address the contradiction in the state’s positions. While the state claimed that the decision to withhold Daqqa’s body constituted an “extremely exceptional case” justifying a deviation from the policy of not withholding the bodies of Israeli citizens, it simultaneously continues to hold in custody the bodies of all Palestinian citizens of Israel who allegedly carried out attacks. This new general policy will remain in effect until the government decides on the overarching approach to this issue. Notably, the state is holding the bodies of six other Palestinian citizens of Israel as bargaining chips, with Adalah currently representing the families of four of these individuals.
In response, Adalah commented:
“Today, the Israeli Supreme Court has sanctioned the government's brutal policy of withholding the bodies of Palestinians, including citizens of Israel, purely based on security assessments of their potential value to be exploited as bargaining chips in negotiations for Jewish Israeli hostages. The fact that Walid Daqqa had already served his sentence for alleged terror offenses, and that his sentence was commuted by the President of Israel, did nothing to sway the Court's chilling conclusion. This decision empowers the state to kidnap and withhold the bodies of Palestinian citizens of Israel. The ruling embodies a deeply racist ideology, weighing the right of the deceased and their families to a dignified burial against the so-called interests of the Jewish people, as dictated by the Jewish Nation-State Law, while unmistakably favoring the latter. The stark reality is that Israel’s Supreme Court has now legitimized the dehumanization of Palestinian citizens of Israel, classifying them as an enemy population stripped of their fundamental rights and dignity.”
