Israeli Supreme Court decision to allow additional hearing on Israel's holding of Palestinian bodies violates int'l law

21/02/2018

Israel is holding bodies of 16 Palestinians as bargaining chips; will delay transfer of bodies until final decision is reached following additional hearing five months from now.

Israeli Supreme Court Chief Justice Esther Hayut accepted on 19 February 2018 the Israeli state's request to hold an additional hearing – post-judgment – in a case involving Israel's continued practice of holding the bodies of deceased Palestinians as bargaining chips for negotation.

The state is currently holding the bodies of 16 Palestinians as bargaining chips.

The Supreme Court had ruled on 14 December 2017 that the state has no authority to hold the bodies of Palestinians as bargaining chips, and that it must transfer bodies to the families of the deceased for burial.

The state nevertheless sought an additional hearing in order to challenge this ruling, which was granted by Hayut on 19 February.

Chief Justice Hayut also consented to the state's request to delay the transfer of the bodies until a final decision is reached following the additional hearing. According to the decision, the hearing will take place five months from now in June 2018 before an expanded panel of seven justices.

In response to the decision to grant an additional hearing, Adalah – The Legal Center for Arab Minority Rights in Israel, the Jerusalem Legal Aid Center (JLAC), and the Commission of Detainees and Ex-Detainees Affairs which represent the families, emphasized that:

"The Supreme Court rendered a decision that makes Israel’s ongoing violation of international humanitarian law (IHL) possible. IHL prohibits the occupying power from holding bodies, and using them as bargaining chips. In addition, the Supreme Court’s decision further delays the transfer of the bodies for burial, thus giving a green light to the grave violation of the right of the families and the deceased themselves to a prompt and proper burial.”

Earlier this month, Adalah, JLAC, and the Commission of Detainees and Ex-Detainees Affairs submitted their response to the state's request for an additional hearing. The three asked the Supreme Court to deny the state's request for an additional hearing and to reject its request to delay the implementation of the December 2017 ruling.

The organizations emphasized that the policy of withholding bodies as bargaining chips for negotiation purposes is illegal – under international law as well as past Israeli Supreme Court precedent; that it exceeds the authorities’ powers applicable to this matter; and that the Emergency Defense Regulations also do not grant such authority.

The organizations further argued that the state's conduct constitutes a flagrant violation of the right to dignity of their deceased sons, as well as that of their families: "The right of every person to a prompt, dignified, and proper burial is an integral part of his right to human dignity, because human dignity is not only the dignity of a person in his life, but also the dignity of a person after his death".

Adalah Attorneys Fady Khoury and Hassan Jabareen, JLAC Attorneys Mohammad Abu Sneneh and Sliman Shahin, and Commission Attorney Mohammad Mahmoud represent the families in this case.

Case Citation: Additional Hearing 10190/17, Israeli military commander of Judea & Samaria (West Bank) v. Muhammad Eliyan