Court rules terrorist bodies can’t be held as bargaining chips

“Free gifts must not be given to Hamas,” Netanyahu said.

Israeli soldiers carry the dead body of one of two Palestinians, whom the Israeli military said were shot dead by Israeli troops after they attacked an Israeli soldier, in Tal Rumaida in the West Bank city of Hebron March 24, 2016.  (photo credit: REUTERS)
Israeli soldiers carry the dead body of one of two Palestinians, whom the Israeli military said were shot dead by Israeli troops after they attacked an Israeli soldier, in Tal Rumaida in the West Bank city of Hebron March 24, 2016.
(photo credit: REUTERS)
Prime Minister Benjamin Netanyahu slammed Thursday’s High Court ruling that the government cannot hold bodies of terrorists as bargaining chips, saying Israel must not give Hamas any “free gifts.”
“This is a very problematic decision,” the prime minister wrote on his Twitter account, referring to the decision that ordered the state to either pass legislation granting the government authority to retain the bodies of terrorists, or to return them to their families.
“Free gifts must not be given to Hamas,” Netanyahu said. “I will convene the cabinet ministers and the attorney-general on Sunday for a special discussion to find practical and legal solutions [to enable] the continuation of pressure on Hamas.”
Knesset Speaker Yuli Edelstein vowed earlier on Thursday to pass a law to reverse the High Court of Justice’s ruling, saying that “as Knesset speaker, I think the time has come for all the Zionist parties in the opposition and the coalition whose children serve in the IDF to unite and lead legislation that will allow the holding of terrorists’ bodies for negotiations and the demand to return our captives.”
The Knesset speaker said he will do all he can to make sure such a law passes quickly.
Defense Minister Avigdor Liberman ordered his office to draft legislation to that end.
The High Court in its ruling declared that the state cannot retain terrorist bodies as part of a strategy to force Hamas to return living and dead Israelis from the Gaza Strip, without a law explicitly granting that authority.
Two justices voted against the state, while one voted in favor.
Memorial service for IDF soldier Hadar Goldin , whose body is being held for ransom in Gaza after he was killed in Operation Protective Edge in 2014
The majority decision gave the state six months to pass a law granting it the authority to hold onto the terrorist bodies that would comply with both related domestic and international law, or it will need to return the bodies.
Regarding the key principles that would come into play with such a law, the majority of Justices Yoram Danziger and George Kara said that international law only permits temporary holding of an adversaries’ bodies in times of ongoing conflict.
The court hinted that international law might allow a state to hold onto an adversaries’ bodies immediately after a battle, where the adversary was holding bodies of its soldiers from the same battle.
But the court added that if this were possible, the Knesset would need to explicitly authorize it, setting specific parameters. Vague provisions in Israel’s Emergency Regulations, which had not foreseen the current scenario, could not serve as a legal basis.
In any event, the court said that in the case before it, the terrorists held by Israel may not even be connected to Hamas, as they were taken at an entirely different time than when the Israelis’ bodies were taken by Hamas.
In recent years, the court has repeatedly ordered the state to return terrorist’s bodies, but usually the state agreed to do it, making Thursday’s decision the first time that the court was forced to definitively rule about the state’s authority on the issue.
Several other ministers and leading MKs in the coalition and opposition called for such a law to be passed.
Education Minister Naftali Bennett and Justice Minister Ayelet Shaked released a joint statement saying that “the High Court was mistaken in its ruling prohibiting the State of Israel to hold terrorists’ bodies. We are in a war against murderous terrorist organizations, and we cannot fight them with our hands tied.”
The Bayit Yehudi ministers said they, too, will draft a bill allowing the government to hold bodies.
“We will make sure terrorists’ bodies are not transferred to their families without freeing our sons Hadar Goldin, Oron Shaul and the civilians who are in Hamas’ hands,” Bennett and Shaked stated.
Soldiers Goldin and Shaul were killed in action during Operation Protective Edge in the Gaza Strip in 2014, and Hamas took their bodies from the battlefield to use as bargaining chips with Israel.
Tourism Minister Yariv Levin (Likud) said “terrorism received another prize from High Court judges who, with their ruling, leveled a fatal blow to our ability to bring back our boys held by Hamas.”
Culture Minister Miri Regev (Likud) came out against the High Court for intervening in a “legitimate and measured” government policy.
“The High Court ruling once again represents a twisted scale of values, in which vile murderers and their families get extra rights, at the expense of IDF soldiers and bereaved families,” Regev said.
Yesh Atid chairman Yair Lapid took the High Court ruling as instructions to the government “to do what it should have done long ago: pass a law that will allow it to hold the bodies. This is a significant act in the war on terror and negotiations to return the boys’ bodies. I will support such a law. The State of Israel is committed to bringing the boys back to their families.”
Zionist Union MK Itzik Shmuly said “the High Court ruling is important and does not block, but rather makes possible, a legal arrangement of holding terrorists’ bodies in certain conditions, so that fighting despicable terrorist organizations will go together with the rule of law. We have a moral responsibility to bring the boys home, and the law should be supported if it is worded precisely.”
Herb Keinon contributed to this report.