Government asks High Court to redo ruling against holding terrorist bodies

The debate over the application of international law continues.

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December 18, 2017 13:16
3 minute read.
Government asks High Court to redo ruling against holding terrorist bodies

New court rulings could have ramifications in Israel.. (photo credit: REUTERS)

The security cabinet has decided to hold off moving forward on a law to authorize holding terrorists’ remains in certain circumstances, the Prime Minister’s Office announced on Monday, after Attorney-General Avichai Mandelblit convinced the cabinet to ask the High Court of Justice for a redo of its ruling last week prohibiting holding such terrorist remains.

Last week, a three-justice panel of the High Court ruled that the state cannot hold onto terrorists’ remains as part of a strategy to get Hamas to return both living and dead Israelis without an explicit law granting that authority.

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Two justices ruled against the state, while one ruled in favor.

Prime Minister Benjamin Netanyahu and a wide range of coalition politicians had pledged to move fast to pass a law to authorize the government to hold onto terrorists’ remains in certain circumstances.

Netanyahu had slammed the High Court ruling, saying Israel must not give Hamas any “free gifts.”

“This is a very problematic decision,” the prime minister wrote on his Twitter account, while promising to raise the issue early this week.

However, the Prime Minister’s Office said in a statement that Mandelblit convinced the cabinet to appeal the ruling to a broader panel of the High Court, seven to nine justices on constitutional issues, in an unusual procedure that is rarely used or successful.

The statement added: “The remains of terrorists will not be returned, and the principles that were put forth by the majority [of the High Court] are not acceptable,” but the legislative path was on ice until a broader panel of the High Court rules on the issue.

Mandelblit issued no statement, his office would not comment on the record, and it was unclear whether the statement of the Prime Minister’s Office fully represented his viewpoint.

In last week’s decision, the majority gave the state six months to pass a law granting it authority to hold onto terrorists’ remains that would comply with both related domestic and international law; if not, it will need to return the remains.

Regarding the key principles that would come into play with such a law, the majority, including Justices Yoram Danziger and George Kara, said international law only permits the temporary holding of an adversary’s remains in times of ongoing conflict.

The court hinted that international law might allow a state to hold onto an adversary’s remains immediately after a battle if the adversary was holding the remains of its soldiers from the same battle.

But the court said if this were possible, the Knesset would need to explicitly authorize it and set specific parameters, since vague provisions in Israel’s Emergency Regulations had not foreseen the current scenario and could not serve as a legal basis.

In any event, the court said regarding the case before it, the terrorists held by Israel may not even be connected to Hamas and were taken at an entirely different time than the Israeli remains taken by Hamas.

Justice Neal Hendel disagreed and said current Israeli law could be a basis to hold onto terrorist remains.

In recent years, the court has repeatedly ordered the state to return terrorists’ remains. The state usually agreed to do it, making Thursday’s decision the first time the court was forced to explicitly rule about the state’s authority on the issue.

IDF soldiers Hadar Goldin and Oron Shaul were killed in action during the 2014 Gaza War, and Hamas took their remains from the battlefield to use as bargaining chips with Israel.

Yesh Atid party leader Yair Lapid slammed the cabinet decision, calling it “cowardly,” and said it showed an “absence of operational responsibility.”

The government must cease “dropping every issue on the High Court” and act to pass a new law as the High Court suggested, he said. If the government proposed such a law, his party would support it, Lapid said.


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