High Court lets state appeal ruling on terrorists’ remains to broader panel

A three-justice ruling in December prohibited the state from holding onto terrorists’ bodies as a strategy to get Hamas to return both living and dead Israelis.

February 19, 2018 21:01
1 minute read.
High Court lets state appeal ruling on terrorists’ remains to broader panel

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)


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The High Court of Justice on Monday granted the state’s request to appeal a December ruling on the handling of terrorists’ remains before a broader panel. The state and the terrorists’ families have until May to file a variety of briefs for a hearing scheduled in June.

In December, a three-justice panel prohibited the state from holding onto bodies as leverage for the return of living and dead Israelis without an explicit law granting it that authority. Two justices ruled against the state and one ruled in favor.

Prime Minister Benjamin Netanyahu and coalition politicians had pledged to quickly pass a law authorizing the government to hold onto terrorists’ bodies in certain circumstances. However, Attorney-General Avichai Mandelblit convinced the cabinet to appeal to a broader panel of the High Court – an unusual procedure that is rarely used and rarely successful.

A statement from the prime minister in December said: “The bodies of terrorists will not be returned and... the principles put forth by the majority [of the High Court] are not acceptable.” It added that the legislative path would be put on ice until a broader panel of the High Court ruled on the issue.

The High Court majority in December gave the state six months to pass a law granting it the authority to hold onto the terrorists’ bodies that would comply with domestic and international law, or it would need to return the bodies.

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 temporary custody of adversaries’ bodies in times of ongoing conflict.

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

In recent years, the court has repeatedly ordered the state to return terrorists’ bodies. The state has usually agreed to do so, making the December decision the first time the court has been forced to explicitly rule on the state’s authority on the issue.

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