High Court reverses itself, Israel to hold terrorists’ remains

Justices complimented by Right, slammed as breaking int’l law by NGO

Palestinian Hamas supporters take part in a rally marking the 30th anniversary of Hamas' founding, in the West Bank city of Nablus December 15, (photo credit: ABED OMAR QUSINI/REUTERS)
Palestinian Hamas supporters take part in a rally marking the 30th anniversary of Hamas' founding, in the West Bank city of Nablus December 15,
 A seven-justice panel of the High Court of Justice reversed itself on Monday, deciding in a rare move to allow the government to hold terrorists’ remains in order to bargain for the return of Israelis’ remains.
The bombshell decision led to domestic political praise from members of the ruling coalition and on the political Right, but will likely mar the reputation of the High Court globally as having disregarded international law, or at the very least international custom.
Even the broad High Court panel split with a 4-3 vote in its reversal of an earlier December 2017 regular High Court panel.
That panel had voted 2-1 to declare the government policy of holding terrorist bodies for an indefinite period as part of negotiations to be unconstitutional.
The High Court rarely reverses itself, a special procedure, which is not even an option unless the High Court president gives special permission for an appeal to go forward.
In this case, High Court president Esther Hayut approved the appeal to a broader panel in December 2018, and then voted with the majority to overturn the earlier decision.
The security cabinet had been prepared to move a bill forward to potentially override the original High Court decision by specifically authorizing holding terrorists’ remains in certain circumstances.
However, the Prime Minister’s Office announced at the time that the issue would be frozen after Attorney-General Avichai Mandelblit convinced the cabinet to ask the High Court for a redo.
The original three-justice panel of the High Court had ruled that the state cannot hold onto terrorists’ remains as part of a strategy to get Hamas or other terrorist groups to return both living and dead Israelis without an explicit law granting that authority.
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 at the time.
The tweet 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 would rule on the issue.
In the original High Court decision, the majority gave the state six months to enact a law granting it authority to hold onto terrorists’ remains that would comply with both related domestic and international law; if not, it would 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 IDF remains seized by Hamas.
Justice Neal Hendel disagreed and said current Israeli law could be a basis to hold onto terrorist remains.
In the broader seven-justice panel, three other justices, crucially including Hayut, joined Hendel.
They ruled that international law was not clear about the issue of returning bodies, particularly in the unique circumstances that Israel faced where the other side was purposely not returning human remains.
They also ruled that Israeli domestic law already serves as a basis for holding the bodies, which made the international law question more secondary.
Former justice minister and Yamina party leader Ayelet Shaked praised the High Court ruling as restoring the proper balance on the issue so that the country could fully pursue getting Israelis’ remains back from Hamas.
Shaked added that the close 4-3 ruling showed the importance of appointing conservative justices.
She has taken credit, through her appointments as justice minister, with shifting the balance of the court to be more conservative.
Adalah, which petitioned the High Court to strike the state’s policy as unconstitutional, responded saying, “This is the first time in history that a court – anywhere in the world – authorizes state authorities to hold the bodies of subjects under its control, to which international laws governing occupation apply, and to use them as bargaining chips. This is one of the most extreme Supreme Court rulings since 1948, as it undermines the most basic principles of universal humanity… and violates international law, most notably the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.”
In recent years, the court has repeatedly ordered the state to return terrorists’ remains. The state usually agreed to do it, making the December 2017 decision and Monday’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 seized their remains from the battlefield to use as bargaining chips with Israel.