The High Court of Justice on Thursday endorsed the state’s plan to conditionally return nine bodies of east Jerusalem Arab assailants to their families for burial.
Two petitions for return of the nine corpses, filed by Israeli NGOs Adalah – The Legal Center for Arab Minority Rights in Israel and Palestinian NGO the Adameer Prisoner Support and Human Rights Association, had some successes and left some unanswered questions by virtue of the High Court proceedings.
On one hand, the petitions broke a two-week official freeze by Prime Minister Benjamin Netanyahu on returning such bodies, got an agreement from the state to remove the bodies from storage freezers 48 hours before transport so that they would not be frozen at burial and won an official court endorsement of the state’s commitment to move faster on handing them over.
On the other hand, the state avoided any commitment to specific deadlines for returning the bodies, even refusing to commit to returning all of them within 30 days, which calls into question whether further delays may lead to another round in court.
Also, the state did not budge on its conditions for transferring the corpses. Prior to the state returning bodies of such assailants it has demanded that families commit to receiving the corpse between midnight and 1:30 a.m., taking it straight to the relevant cemetery, having a maximum of 30 family members present and posting a substantial financial security deposit.
Adalah lawyer Nadeem Shehadeh and Adameer lawyer Muhammad Mahmoud tried repeatedly to get the High Court to pin the state down to specific dates, but state attorney Avi Milikovsky convinced the justices to leave it vague, saying setting specific dates “is impossible and also would make things hard for the Shin Bet.”
Supreme Court Vice President Elyakim Rubinstein, Justice Neal Hendel and Justice Yitzhak Amit said they took the state at its word that it would move forward speedily.
Some issues were not cleared up by the hearing and the decision. The state never fully explained why the prime minister had frozen the returning of bodies in mid- April or why bodies, such as that of Muataz Awisat, were not returned long ago after his family agreed to all of the state’s conditions as early as February 29.
According to police, Awisat, 16, was shot dead by border police in the capital’s Armon Hanatziv neighborhood on October 17, when they asked to search him and he responded by trying to stab them. The family disputes the narrative and wants an autopsy performed to clarify the circumstances of the incident as well as so it can bury him.
According to a document signed by police Supt. Yigal Almaliach and the family’s lawyer, Muhammad Mahmoud, the state was obligated to return Awisat’s body to the family “within days” of the February 29 signing.
Clarifying some of the general mystery, Netanyahu on Tuesday night explained the return of one of the bodies as resulting from him having passed authority over the issue to Defense Minister Moshe Ya’alon in the West Bank and Public Security Minister Gilad Erdan within the Green line and in east Jerusalem.
Erdan on Wednesday also confirmed that the total number of corpses being held relating to incidents within the Green Line and in east Jerusalem was 13. This means there are four bodies which were not part of Thursday’s High Court decision, though the decision is expected to reflect general policy applying to all attackers’ bodies.
Notably, Thursday’s High Court decision did not relate to bodies relating to incidents in the West Bank where Ya’alon has been returning bodies much faster and Adalah estimated there may at most be only a few bodies currently being held.
Ya’alon and the IDF have butted heads with Erdan and the police over the issue, with Ya’alon and the IDF believing returning the bodies faster promotes security and public order, and Erdan and the police wanting to go slower to ensure burials do not become recruitment tools for terrorists.
The petitioners have largely given up on their original line of argument: that the entire procedure of refusing to return bodies for burial unless the families sign such agreements is illegal.
Referring to the most fundamental right of the Basic Laws, the right of the dignity of man, Adalah said in its petition that “the right of a human being to a prompt, respectful and decent burial is an inseparable part of the right to dignity, since the dignity of man is not only about dignity of man in life, but also the dignity of man in death.”
It added that “political factors” were at the center of conditioning the release of Palestinians’ bodies to their families and that the High Court’s rulings make it clear that political factors cannot trump the dignity of man.
Moreover, it said that there is no basis to claim there is a security issue, as any such claim must be based on an “existing and concrete security danger,” not a mere vague suspicion of the general impact of incitement.
A senior government official responded to the petitions when they were filed that both Netanyahu and Erdan have taken a clear position on the issue that they will “not give back bodies without a promise of a quiet and small funeral at night to avoid incitement supporting terrorism.” He added, “All of the current wave of violence is based on incitement...which also comes out of burials.”
Further, the official added that with the terrorist who killed two and wounded seven others on Dizengoff Street in Tel Aviv on January 1, and then killed a taxi driver while fleeing, the state’s conditions were met promptly and the body was returned promptly, proving that the police do not hold on to a body if the state’s conditions are met.
The High Court appeared disinclined to get into the fundamental legal issues once the state was committed to moving forward the return process faster.
Ultimately, Shehadeh said that all or nearly all of the nine families are expected to agree to the police’s conditions in order to swiftly end the standoff.