Counter-Terrorism Law (Amendment No. 3) - 2018

Amendment No. 3 to the Counter-Terrorism Law authorizes the Israeli police to withhold the bodies of deceased Palestinians and impose restrictions on their funerals. The law applies to Palestinian citizens of Israel and Palestinian residents of occupied East Jerusalem.

The law stipulates that the police are permitted to withhold the bodies of Palestinians killed by Israeli forces who were suspected of carrying out or attempting to carry out a terrorist act, for a period of up to 10 days, until the bereaved families agree to any conditions and restrictions placed on the burial and procession. The police commissioner can then extend such a period until the conditions and restrictions are met. These conditions may include holding only nighttime burials, limiting the location of the burial, restricting  the number of mourners who may attend, or specifying who is permitted or prohibited from attending. The law further authorizes police to require that family members collecting the body pay a financial deposit, the amount of which is unspecified, to guarantee that they abide by the conditions set.

This law – which targets Palestinians, as evidenced by public statements made by the proponents of the legislation and the context within which it was introduced – violates numerous provisions of Israeli and international law, including the Geneva Conventions and provisions of international human rights law that protect the rights to dignity, freedom of religion, and to practice one’s culture. It aligns with the state’s view of all Palestinians as the enemy, and serves as a means of dehumanizing them and denying their rights, even in death and bereavement.

Main provisions:

70A. [For the purposes of] this section -

“Assailant” - someone who was killed in connection with carrying out a terrorist act or an attempt to carry out the aforementioned act.

(b) For the purpose of maintaining public peace and security, and in order to prevent disruptions of the peace, incitement to terror, or the [expression] of identification with a terrorist organization or a terrorist act, the district commander is authorized to order, through a directive, conditions for conducting the funeral of an assailant …

(c) Conditions in the restricting directive regarding the funeral procession of an assailant may address, among other things, the number and identities of the participants in the assailant’s funeral, the route of the funeral procession, the timing of the funeral, and items that are prohibited for use during the funeral, and in special cases, also the location of the assailant’s burial, [taking into account] the family’s position.

(d) If the commander opines that, due to the holding of the assailant’s funeral, there is a concern regarding endangering public peace and security, disrupting order, inciting terror, or expressing identification with a terrorist organization or a terrorist act, he is authorized to order in the restricting directive concerning the assailant’s funeral, the  deposition of a guarantee from the person responsible for organizing the assailant’s funeral, to ensure compliance with the conditions stipulated in the order, whether in full or in part.

70B.

(a) If the district commander has reasonable concern that, due to the funeral of the assailant, harm will be caused to public security or an act of terror will be committed, or that during the funeral, incitement to terror or the expression of identification with a terrorist organization or a terrorist act will occur, he is authorized to issue a directive if he believes that it is essential to prevent the harm or the mentioned acts, and that they cannot be prevented by any other reasonable means, in order to delay the release of the assailant's body and the holding of his funeral, until the conditions specified in the restricting directive concerning the assailant’s funeral are complied with or until the end of [a period of] 10 days from the day the order is issued according to this subsection, whichever comes earlier.

Context:

The police have been withholding the bodies of deceased Palestinian citizens of Israel and residents of East Jerusalem who were killed by the police since before the passage of this 2018 amendment to the Counter-Terrorism Law. For example, in January 2017, Israeli police withheld the body of Ya’akub Abu Al-Qi’an, a 50-year-old math teacher from the unrecognized village of Umm al-Hiran in the Naqab, who was killed by the police during state preparations for a large-scale home demolition operation in the village. His body was withheld from 18 January 2017 and was released to his family on 23 January, only after a legal intervention that resulted in a Supreme Court decision ordering the release of the body for a funeral procession and burial.^[1]

Half a year later, on 14 July 2017, Israeli police shot and killed three Palestinian citizens of Israel who were suspected of being involved in a shooting incident at the Al Aqsa Mosque, though video evidence indicated that at the time they were killed they posed no serious immediate danger to police that would have justified the use of heavy, fatal gunfire. Following the killings, Adalah filed a petition to the Supreme Court to demand that the police release the bodies in order to allow for autopsies and a timely burial. On 26 July, the Supreme Court ruled that the Israeli authorities had no authority to withhold the bodies of Palestinian citizens, citing, inter alia, a lack of authorizing legislation, and ordered the police to return the bodies to their families for burial within a period of 30 hours (read more below: Jabareen v. Israeli police).

Following the Supreme Court's decision in Jabareen, the Knesset passed Amendment No. 3 to the Counter-Terrorism Law on 7 March 2018, granting the police the authority to withhold the bodies of Palestinian citizens and East Jerusalem residents to impose restrictions on funerals.

The initiators of the bill, during Knesset deliberations, made it clear that the amendment to the Counter Terrorism Law was intended to exclusively target Palestinians. For instance, the then-Minister of Internal Security, Gilad Erdan, noted: “In Arab society, when an ordinary person passes away, you will never witness a funeral with 5,000 or 7,000 attendees. Strangely, despite what Knesset member Tibi stated, it’s precisely at the funerals of police killers that 5,000, 6,000, or even 7,000 residents of Umm al-Fahem show up.”^[2] MK Anat Berko (Likud) further emphasized that the legislation was aimed at “preventing a display of hatred and incitement like we saw in Umm al-Fahem.” She further targeted Palestinian MKs who objected to the proposed bill, noting that “none of the speakers from the Joint List [a list of Palestinian political parties] took the time to apologize to the families of the policemen, all of whom lost their loved ones, who altogether did their job and ensured order on the Temple Mount”, implying that they were responsible for the killings simply due to their national belonging.

The police's authority under the amendment runs parallel to Israel's policy of indefinitely withholding the bodies of deceased Palestinians from East Jerusalem, the West Bank, and Gaza. This policy explicitly seeks to use the detained bodies as bargaining chips in potential negotiations with Hamas and other entities. As of March 2022, the estimated number of withheld bodies stood at over 370. The legal basis that the Israeli military uses to justify this policy is the Defence Regulations (Regulation 133(3)) and several related Israeli Cabinet decisions. The Israeli Supreme Court sanctioned a comprehensive written policy adopted by the Security Cabinet in 2020, according to which the military shall withhold the bodies of deceased Palestinians — including residents of East Jerusalem, the West Bank, and Gaza — regardless of the circumstances.^[3] Notably, while the police have the authority, under Amendment No. 3 to the Counter-Terrorism Law, to set conditions on funerals for Palestinian residents of East Jerusalem, the Israeli military has assumed authority to withhold bodies under the former legal framework indefinitely, as bargaining chips.

Why is it discriminatory?

The law, which is intended to target Palestinians — as evident by statements made by its initiators and the context within which it was introduced — constitutes an attempt by Israel to label Palestinians as the ‘enemy’ and thereby provide a rationale for the state to violate even their most basic rights, including the rights to dignity and to last rites. By delaying the return of Palestinians’ bodies to their families, along with the imposition of restrictive conditions on funerals, the law also violates both their religious and cultural rights, and prevents them from providing the deceased with a timely burial, in accordance with the practices of their faith.

The withholding of bodies is a violation of both Israeli domestic law and international law. The far-reaching and intrusive restrictions that the law authorizes the police to impose on funeral rites and burials violate the right to human dignity, as recognized under international law, of the deceased and their family members. In addition, Article 130 of the Fourth Geneva Convention, which applies to East Jerusalem as occupied territory, as well as Article 34 of the Additional Protocol to the Fourth Geneva Convention, require that the bodies of those who die in conflict must be dealt with in a respectful manner and that their graves be respected and properly maintained. Israel’s Supreme Court has reaffirmed this international obligation, underscoring the paramount significance of establishing a proper grave for the deceased within a recognized cemetery, and the conduct of a burial ceremony.^[4]

The discriminatory nature of the amendment is also evident in the racist and discriminatory framework of counter-terrorism, of which the amendment is a part. The law employs an overly broad and vague definition of a “terrorist act”. Based on this definition, it grants the Israeli police the authority to withhold the bodies of Palestinian citizens of Israel and Palestinian residents of East Jerusalem who are killed by the Israeli police, thereby violating their and their families’ most fundamental rights. Furthermore, there's no independent process to determine if an event meets the legal definition of a “terrorist act”. This leaves many families without a way to challenge the State's explanation for how their loved ones died or to contest the State's use of the Counter-Terrorism Law to impose restrictions on funerals and delay the return of their bodies.

An illustrative example, one among many, which highlights how the amendment has been employed by the police, is its prevention of the timely burial of the deceased Shadi Bana, a Palestinian man and a citizen of Israel, who was accused of carrying out an attack in Jerusalem. The police claimed that it was necessary to withhold the body in order to conduct an investigation. Such a step is illegal, even under the draconian Counter-Terrorism Law, including this amendment, which does not provide for the withholding of the body of a deceased individual for the purposes of carrying out an investigation. The police agreed to release his body for burial a week after he was killed, following a legal intervention by Adalah.^[5] The police often withhold the bodies of Palestinian citizens of Israel for longer periods than the law allows, even when families agree to the conditions set by the police. It usually takes a Supreme Court petition for the police to release the body, which indicates a clear abuse of their authority under the law.^[6]

Legal challenges:

●      HCJ 5887/17 Ahmed Musa Jabareen, et. al. v. The Israeli police, et. al. (decision delivered 25 July 2017)

○      On 20 July 2017, Adalah filed a petition to the Supreme Court against the government’s policy of withholding the bodies of slain Palestinians. On 25 July, the Supreme Court issued a precedent setting decision, finding that the Israeli police were required to return the bodies of three murdered Palestinians, as no law authorized the government to withhold these bodies. To read Adalah’s full petition [Hebrew], click here.

International criticism:

●      The United Nations Secretary General Ban Ki-Moon condemned Israel’s withholding of bodies as “collective punishment” and in violation of the Fourth Geneva Convention.

●      The U.N. Committee Against Torture raised concern about Israel’s failure to return bodies and cautioned Israel to avoid such situations in the future.

●      U.N. Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Michael Lynk, described Israel’s policy of withholding bodies of Palestinians from their families as a form of collective punishment against the Palestinian people and observed that such a practice contravenes the Geneva Conventions, which puts a positive obligation on states to “facilitate the repatriation of bodies”. In his 2020 concluding recommendations, he urged Israel to “End all measures amounting to collective punishment, including an end to…all delays in returning bodies for burial.”

●      The International Committee of the Red Cross called on Israel to return the body of former prisoner Khader Adnan, who died in his cell after a hunger strike, “so his family can mourn and arrange a dignified burial according to their customs and beliefs.”

●      In its 2022 concluding observations, the U.N. Human Rights Committee stated:

o   32. The Committee is particularly concerned that, pursuant to amendment No. 3 to the Counter Terrorism Law of 2018, the Israeli police authorities have been withholding the bodies of Palestinian militants and civilians who allegedly committed terrorist acts and were killed by the Israeli security forces. It is further concerned that the bodies were used as leverage for the release of the bodies of Israelis held by Palestinian militant groups, and that the authorities set conditions for the release of bodies, including the payment of deposits and specific requirements for the funerals, including a limited number of participants and immediate burial. It expresses concern that the practice of withholding the bodies of the deceased and denying the right of their families to bury them may amount to collective punishment and to torture and ill-treatment (arts. 6 and 7).

o   33. The State party should review amendment No. 3 to the Counter Terrorism Law of 2018, allowing for the withholding of bodies of deceased Palestinians, with a view to bringing it into conformity with the Covenant, and immediately return the bodies of deceased Palestinians to their families.