According to B'Tselem figures, Israel is currently holding the bodies of at least 52 Palestinians who carried out attacks against Israelis, or whom the military claims attempted such attacks since September 2015, and is refusing to return them to their families. This causes immense suffering to the families, as they are unable to bury their loved ones and perform the mourning rituals.

Holding the bodies of Palestinians as bargaining chips for future negotiations is a long-standing practice in Israel, but the policy has always been vague. At times, it seemed as though decisions were made in every case separately and on an ad-hoc basis in response to pressure put on the establishment and according to political considerations. At other times, Israel generally refused to return the bodies of Palestinians, and there were also times when Israel did return them. When the wave of attacks began in October 2015, Israel resumed its practice of holding onto the bodies of Palestinians who had perpetrated attacks or had been suspected of committing them. Some were returned to the families after being kept by Israel for several months.

It is not just the policy that is shrouded in ambiguity, but also the exact number of bodies Israel has held onto and returned since 1967. Various estimates put the number at the hundreds. According to information provided to the court in petitions concerning the capture of bodies by the state, between 1991 and 2008, Israel made deals in which it handed over 405 bodies in return for the bodies of deceased soldiers.

On 1 January 2017, for the first time, the Security Cabinet passed a resolution entitled Uniform Policy on the Handling of Terrorist Bodies. The resolution states that, as a rule, “Terrorists’ bodies will be returned subject to restrictive conditions set by security officials”. However, the bodies of “terrorists associated with Hamas” and of “terrorists who perpetrated a particularly heinous terrorist attack” will be kept by Israel and not returned to their families.

The relatives of six Palestinians who perpetrated, or were suspected of perpetrating, attacks and whose bodies Israel refused to return filed a High Court petition against this decision. The state claimed that it draws the power to retain the bodies from Regulation 133(3) of the Defence (Emergency) Regulations , which sets forth:

Notwithstanding anything contained in any law, it shall be lawful for a Military Commander to order that the body of any deceased person shall be buried in such place as the Military Commander may direct. The Military Commander may by such order direct to whom and at what hour the said body shall be buried. Such order shall be full and sufficient authority for the burial of said body, and any person who contravenes or obstructs such order shall be guilty of an offence against these Regulations.

The petition was accepted by the majority opinions of Justice Yoram Danziger and George Karra, with a dissenting opinion by Justice Neal Hendel. Justice Danziger found that Regulation 133(3) does not grant the state the power to hold onto bodies for the purpose of negotiations. Despite this finding, Justice Danziger stopped short of ordering the state to return the bodies to the families. Instead, he gave the state six months to pass a law that would allow it to hold bodies. If no such law is passed within this timeframe, the state will have to return the bodies to their families.

Rather than passing the law, the state filed a motion for a further hearing before an extended panel, arguing that the existing law allows it to hold bodies. The motion was granted and the extended panel presiding over the further hearing held (Hebrew), by majority opinion, that the existing law does, in fact, grant the state the power to hold bodies for the purpose of negotiations.

The lead judgment in the further hearing was penned by Supreme Court President Justice Esther Hayut, with concurring judgments, using similar arguments, by Justice Neal Hendel, Yitzhak Amit and Noam Sohlberg. Justices Uzi Vogelman, George Karra and Daphne Barak-Erez gave dissenting opinions.

The opinion of Supreme Court President Justice Esther Hayut

President Hayut opens her judgment with a clarification that since holding bodies “involves a certain violation of respect for the dead and their family”, the power to do so must be expressly granted in law: “No statute can be interpreted as sanctioning a violation of fundamental rights, unless it clearly and unequivocally grants such powers”. Does Regulation 133(3) expressly grant the military commander the power to order a temporary burial of terrorists’ bodies for the purpose of negotiations? That was the question on which the court was required to rule.

The President concedes that “the language of the regulation makes no reference to temporary burial for the purpose of negotiations”, adding that “the language is ambiguous” and hence, the interpretation proposed by Justice Danziger in the original proceeding is “textually feasible”. However, President Hayut adds, “where the language supports varying interpretations and remains ambiguous, its purpose must also be considered, i.e., the values, goals and policy it is intended to fulfill”.

From here, the President proceeds to examine the subjective purpose of the regulation – in other words, the intention of the legislator. She finds that the Defence Regulations, which were enacted by British authorities, constitute, “security-military emergency law that includes broad enforcement powers and a variety of administrative and punitive tools to combat all manner of terrorism.” Regulation 133(3) itself has undergone several amendments over the years. It originally referred only to “the burial of prisoners who were executed and whose bodies remained unclaimed”. However, in its current version,

the power granted to the military commander was expanded from ‘the body of a prisoner’ to ‘the body of any deceased person’; the provision to bury the deceased in their community’s cemetery, included in the original version, was omitted; and the power to deny the return of the body was transferred from the district commissioners to the military commander.

President Hayut views these changes as indicative of “an expansion of the powers concerning burial within the Regulations, whose purpose, as stated, is clearly security related”. The President goes on to say that the purpose of the Regulation is “to provide the military commander with a flexible tool to address issues concerning burial in a security context”.

The President follows this with an examination of the objective purpose of the Regulations, including reference to the goals and fundamental principles of the Israeli legal system, assuming the law “is intended to uphold human rights, maintain the rule of law and the separation of powers, ensure justice and morality and protect the state and its security”. According to Hayut, the primary purpose of the relevant regulation is solely “to protect national security with a focus on counterterrorism”. However, she does clarify, based on a previous ruling she handed down, that, “in fact, terrorism does not respect any of the rules of the game the old world put in place in the laws of war. This reality forces not only security forces, but also jurists, to rethink these laws in order to reshape them and adjust them to the new reality”. Therefore, “even if the Mandatory legislator did not envision a situation of bodies kept for the purpose of negotiations with terrorist organizations, the objective purpose of the Regulation must be examined according to current reality and the challenges it poses.”

The President summarizes the purpose of Regulation 133(3) as follows:

The objective purpose of the Defence Regulations is to provide the nation’s leadership with effective tools for combatting terrorism and protecting the security of the country and its citizens. Our obligation to perpetually seek the retrieval of remains of Israeli citizens and fallen IDF soldiers held by terrorist organizations lies at the heart of protecting national security, and therefore, at the heart of the objective purpose of Regulation 133(3). In my view, as part of this purpose, Regulation 133(3) grants the military commander the power to hold, including by way of temporary burial, the remains of terrorists for the purpose of protecting national security or upholding the dignity of fallen enemies that cannot be returned.

To support this conclusion, President Hayut notes that until the judgment was delivered, the state had conducted itself as if Regulation 133(3) gave it the power to hold onto bodies. While the court does have the final word on the proper interpretation of the law, President Hayut notes that, “it has often been ruled that one of the considerations justices must take into account when faced with two possible interpretations for a piece of legislation is the position of the public authority on the proper interpretation and its practice in this context”. The President also relies on the fact that some of the provisions of the Defence Regulations were revoked in the process of drafting the Counterterrorism Law, as the powers they bestowed had been incorporated into the law. Regulation 133(3), however, was not one of the provisions that were revoked, and during a session of the Knesset Constitution, Law and Justice Committee on 23 May 2016, the Ministry of Justice said the Regulation remained in place since it was “the source of powers on questions related to the burial of terrorist and all such arrangements”.

President Hayut does mention that holding the bodies entails an impingement on human rights, but maintains the issue is nearly insignificant:

Israel’s holding of the bodies of terrorists does entail an impingement on the deceased’s dignity and the dignity of their families. However, in the matter at hand, I believe the harm done does not touch on the core of the right to respect for the dead or on the core of the right to family dignity. We must bear in mind that the bodies are held temporarily; that they are interred in a respectful manner in a metal coffin, in a cemetery; and that genetic identifying markers are taken to facilitate future identification of the remains. These circumstances blunt the force and scope of the impingement.

Finally, the President reviews the provisions of international law and finds that the fact they contain no explicit prohibition on holding bodies for the purpose of negotiations implies that this is permitted. President Hayut examines the articles relating to the treatment of human remains during armed conflict and finds that none contain a duty to return bodies or a prohibition on keeping them. The articles merely address the obligation to handle the remains properly and ensure they are identifiable once hostilities end. President Hayut agrees that the ICRC commentary regarding the First Geneva Convention “does state a preference that bodies be returned to their families. However, the conclusion that arises out of the commentary is that there is no such duty under the First Geneva Convention”. President Hayut dismisses any parallels drawn between the question before her and decisions made by the UN Human Rights Committee and the European Court of Human Rights, holding that the circumstances of those cases were entirely different from those before her, and that therefore, the cases are irrelevant.

President Hayut repeats her statement that “in fact, terrorism does not respect any of the rules of the game the old world put in place in the laws of war”, which forces jurists to “rethink these laws in order to reshape them and adjust them to the new reality”. Therefore, she concludes, “so long as international law has not adjusted itself to this new reality, I believe we must interpret existing provisions ‘in a dynamic manner that is sensitive to the changing times’ – as wisely advised by my colleague Justice Hendel.”

Several flaws in President Hayut’s decision

1. Unreasonable interpretation of Regulation 133(3)):

President Hayut follows an untenable interpretative path in order to reach the conclusion that Regulation 133(3) of the Defence Regulations allows the state to hold on to bodies as bargaining chips. This path defies the basic tenet of judicial interpretation, which requires choosing the option that is least injurious to human rights and to the rule of law.

President Hayut reviews the legislative history of the Regulation and claims she relies on this history in search of the subjective purpose of the Regulation. In reality, however, she ignores this history and rests her conclusion that the Regulation provides the military commander with a “flexible tool” for handling bodies on the final version of the Regulation. The legislative history, on the other hand, actually indicates that the Regulation addressed the issue of handling bodies of prisoners who had been executed in cases where objective, technical difficulties arose with respect to returning the body to the family. The Regulation is aimed at resolving this difficulty.

President Hayut’s analysis of the objective purpose of the Regulation is similarly incomplete. The President begins her remarks on this issue by clarifying that the objective purpose includes an examination of “basic tenets of the system”, which include the promotion of human rights and the rule of law. However, she immediately proceeds to ignore these, noting only that the purpose of the Defence Regulations and the values underlying them “relate primarily to national security and public order concerns”. The President projects this general purpose of the Defence Regulations as a whole onto Regulation 133(3), holding that, “our obligation to perpetually seek the retrieval of remains of Israeli citizens and fallen IDF soldiers held by terrorist organizations lies at the heart of protecting national security”. This sets the stage for the finding that the objective purpose of Regulation 133(3) is to grant “the military commander the power to hold, including by way of temporary burial, the remains of terrorists for the purpose of protecting national security or upholding the dignity of fallen enemies whose bodies cannot be returned”.

There is no doubt the state must tirelessly seek the retrieval of citizens’ and soldiers’ remains, or that this goal is essential. Nor is there any doubt that the suffering experienced by the deceased’s families is unbearable and that the state has an obligation to take immediate action to end it, out of deep commitment, and with sensitivity both to the complexity of human emotions in such agonizing situations and to its responsibilities toward its citizens and soldiers as a whole. Yet concluding that the issue is a matter of security, and one that “lies at the heart of protecting national security” at that, is quite a leap. In fact, the state itself, in its motion for a further hearing, avoided showcasing the security argument and merely contended that holding the bodies might help “outline the details of a future agreement, namely, assist in improving the conditions of a concrete deal reached at the end of the negotiations and reduce the security risk involved in said deal”.

President’s Hayut’s contention that the fact that the state has thus far relied on Regulation 133(3) to hold onto bodies, and has refrained from revoking the Regulation in the course of drafting the Counterterrorism Law, serves as evidence that this power is contained in law – must also be rejected. This argument obviates the role of the court and gives the state a free hand to break the law, as the end result is that the state’s contention that it has always acted in a particular manner and that its actions are lawful is sufficient to legitimize its actions. Accepting this argument would obviate the President’s own ruling, which focuses on whether or not Regulation 133(3) does, in fact, grant the state the power to hold bodies as bargaining chips.

In the judgment, President Hayut postulates that the drafters of the Regulations might not have considered the possibility of holding bodies for the purpose of negotiations, but “the objective purpose of the regulation must be examined according to current reality and the challenges it poses”. Thus, according to the President, it is possible to choose a “creative” interpretation that would give the state the powers it seeks. This ignores the finding in her own opening remarks, whereby any violation of human rights must be expressly sanctioned in law.

2. Disregard for the provisions of international law

In contrast to the President’s flexible approach, one might even say judicial activism, regarding the Defence Regulations, when it comes to international law she adopts a patently conservative approach. “Legislative history”, “objective purpose”, “legislative intent” – none of these features here. As opposed to the question she posed in examining the Defence Regulations, President Hayut does not think the question here is whether international law grants the military commander the power to hold bodies for negotiations, but whether it expressly forbids it. In the absence of such a prohibition, although the President does establish that international law clearly favors returning bodies, she finds no impediment to keeping them. President Hayut makes no effort to explain why she takes almost contradicting interpretive approaches to the Defence Regulations and to international law.

Moreover, the President focuses on a handful of provisions that relate to how bodies should be treated, but ignores specific provisions that prohibit holding bodies as bargaining chips. The petitioners addressed these provisions in their original petition and in their response to the motion for further hearing. The President herself listed these provisions in the opening of the judgment, where she presented the parties’ arguments. Article 43 of the Fourth Geneva Convention prohibits taking hostages, which implies that bodies should not be held for bargaining, either. Also, Article 33 of the Convention and Article 50 of the Hague Regulations prohibit collective punishment. These prohibitions derive from fundamental moral principles, and are therefore rare examples of absolute prohibitions for which international law tolerates no exceptions.

President Hayut also ignores the provisions of international law that limit the latitude afforded to the military commander within the occupied territory and require that the commander’s actions benefit the local population and protect its interests and rights. The only exception is cases in which the immediate military needs of the occupying power, within the occupied territory itself, necessitate otherwise. In ignoring this, the President sets aside the principles laid down by the Supreme Court itself. In one of the court’s most quoted judgments, former Supreme Court President Justice Aharon Barak outlined the boundaries of the military commander’s discretion:

[T]he considerations of the military commander are ensuring his security interests in the Area on one hand and safeguarding the interests of the civilian population in the Area on the other. Both are directed toward the Area. The military commander may not weigh the national, economic and social interests of his own country, insofar as they do not affect his security interest in the Area or the interest of the local population. Military necessities are his military needs and not the needs of national security in the broader sense.

President Hayut’s choice to apply different interpretive approaches and ignore some of the relevant provisions may be attributed to her overall approach to international law. Hayut holds that the provisions of international law do not reflect the reality that is Israel is facing and therefore must be “rethought” employing “dynamic” interpretation. This approach exempts the state from abiding by international law, creating a dangerous opening for sweeping human rights abuses, including the retention of dead bodies as bargaining chips.

President Hayut’s choice to apply different interpretive approaches and ignore some of the relevant provisions may be attributed to her overall approach to international law. Hayut holds that the provisions of international law do not reflect the reality that is Israel is facing and therefore must be “rethought” employing “dynamic” interpretation. This approach exempts the state from abiding by international law, creating a dangerous opening for sweeping human rights abuses, including the retention of dead bodies as bargaining chips.

3. Holding bodies entails severe violation of the rights of the deceased and their families

Denying families the right to bring their loved ones to burial, practice religious and traditional death rituals, and visit graves causes them indescribable pain. When referring to the families of soldiers whose bodies are held by Hamas, President Hayut expresses deep understanding and sensitivity for this pain – a natural, appropriate human reaction. Yet when it comes to Palestinian families, she callously minimizes the anguish, even though in most of these cases, no one argues that the families were involved in the acts perpetrated by the deceased or bear any responsibility for them.

Aside from dismissing the pain suffered by certain families, the President’s contention that the state upholds the dignity of the dead and properly handles the bodies, so that their future identification will not be an issue, is incongruent with the state’s practices so far – a fact of which the court is well aware. Petitions filed by dozens of Palestinian families, represented among others by JLAC and HaMoked: Center for the Defense of the Individual, whose loved ones’ bodies Israel refused to return, have been pending before the Supreme Court for years. In one of these hearings, Justice Danziger described the state’s handling of bodies as “not optimal, to say the least”.

Over the course of the proceedings in these petitions, the state admitted it was unable to locate the bodies or identify ones it had located, argued that the process would require a significant investment, and notified that the State Attorney’s Office had held a meeting to “devise how the location and identification of bodies should be pursued and by what government agency”. The state undertook to provide the court with an update on the developments but has since repeatedly asked the court for extensions – and received them. Currently, the state is expected (Hebrew) to provide the court with an update on this issue in December 2019.

4. The main issue: Not lack of power, but extreme unreasonableness

In her opening remarks, President Hayut clarifies that the main question on which she is asked to deliberate is whether Regulation 133(3) gives the state the power to hold onto bodies as bargaining chips. She concludes that it does and that therefore, the Cabinet decision is lawful. The dissenting justices in the further hearing also addressed the question of power, as did Justice Danziger in the original hearing. Having found that no such power is granted under existing law, Justice Danziger gave the state six months to pass a law that would give it this power.

Justice Amit, who concurred with the President in the further hearing, clarified this position, stating: “This is purely a question of power, not discretion. In this context, we are not required to examine the reasonableness or wisdom of the policy concerning the return of terrorists’ bodies”. While it is true that the court is not charged with examining whether a certain policy is proper or desirable, but only whether it is lawful or not, lawfulness does not boil down to identifying a legal source of power. If that were the case, the Knesset could pass a law that red-headed Palestinians cannot receive permits to enter Israel, or that Israeli citizens born in EU countries may not open a bank account.

Any injustice can be legislated, but formal power is only the first criterion for the legality of an act by a state authority. Determining legality also requires considering whether the policy meets the principles of administrative law. As part of this examination, the court considers whether the decision was made in pursuit of a proper purpose, whether it falls within the bounds of reasonableness, whether it meets the proportionality tests, and other questions. Otherwise, the role of the court becomes technical and devoid of any substance.

These principles feature in some Supreme Court judgments. They are partly why some legislators call for restricting the court’s powers. In this case, however, the justices chose to ignore these principles and stick to technical, almost dry, rules in order to justify an unlawful, immoral and improper policy.

HCJ proves yet again is an arm of the occupation

Over the years, Israel’s Supreme Court has validated nearly every human rights violation perpetrated by Israel in the Occupied Territories. In doing so, it has relied on unfounded legal interpretation that empty the principles of international law designed to protect, even if minimally, people living under occupation from any real meaning. The Supreme Court has approved punitive house demolitions, lengthy detention without trial, the protracted blockade on Gaza imprisoning some two million people, the displacement of entire communities and the construction of the separation barrier on Palestinian land, to name a few.

This judgment is yet another link in the chain. In handing it down, the Supreme Court proved yet again that it is willing to greenlight almost any injustice when the human rights violation is directed against Palestinians. This time, President Hayut chose a circuitous interpretation of the Defence Regulations and an almost perfunctory assessment of the provisions of international law, while emphasizing the need for creative, dynamic interpretation given the harsh reality.

The justices of the Supreme Court may not enact laws, design policy or implement it, but they do have the power, and the duty, to determine whether a policy brought before them for deliberation is lawful. They have the power and duty to prohibit a policy when it defies international and Israeli law, and when it unjustifiably violates the human rights of Palestinian residents of the Occupied Territories.

Instead, the justices elect, time and time again, to ignore the broader context in which these violations take place: a rigid military regime that has been in place for more than fifty years, governing an occupied population that has no political rights and no say in the most basic decisions affecting its life. These circumstances warrant enhanced protection for the population, yet the court uses its powers of judicial review to enhance the power of the state, including its use of draconian measures. In so doing, not only do the Supreme Court justices fail to discharge their duties, but they also play a pivotal role in legitimizing the entire occupation, which benefits from the seal of approval given to its inherent human rights violations by the highest judicial instance in the land.