Newly Adopted Law to Withhold the Bodies of Palestinians Killed Breaches ‎International Law, Must be Repealed ‎

• Date: 2018-03-14

On 7 March 2018, the Israeli Parliament passed a new amendment to the Israeli Counterterrorism Law (Amendment No. 3 2018), granting Israeli police the power to withhold the bodies of Palestinians killed by the Israeli Occupying Forces (IOF). The Law imposes conditions on families of the deceased as regards to the burial of the bodies, limiting the size of the funeral, location, timing, and attendees.[1] The newly adopted Law is applicable to Palestinian citizens in Israel and Palestinians in occupied Jerusalem,[2] and pertains to the authority to the Israeli police rather than the Israeli army, yet the practice of withholding corpses is also exercised by the Israeli army against Palestinians across the Occupied Palestinian Territory (OPT).

The practice of withholding the bodies of Palestinians killed by the Israeli army has been repeatedly challenged by human rights organizations. In July 2017, the Israeli Supreme Court ruled in the Jabareen v. Israeli police case that there is ‘no source of [legal] authority’ to allow for the withholding of the bodies and rendered the imposition of conditions on the families of the deceased ‘superfluous’.[3] In addition, in December 2017, the Israeli Supreme Court had accepted, in a precedent-setting ruling, a petition submitted by the Jerusalem Legal Aid and Human Rights Centre and the Commission of Detainees and Ex-Detainees Affairs on behalf of six families whose loved ones’ corpses have been withheld by the Israeli authorities. The Court ruled that the Israeli government’s policy of authorizing the army to withhold corpses of deceased Palestinians as bargaining chips in negotiations is illegal. The majority opinion concluded that Regulation 133(3) of the Defense (Emergency) Regulations of 1945, used by Israel as the legal basis for this policy, does not explicitly authorize the Military Commander to withhold bodies of deceased Palestinians. However, instead of ordering the immediate release of the bodies withheld by Israel, the Court adopted a compromising position that granted the State of Israel six months to enact primary legislation that directly and explicitly permits the practice of withholding bodies.[4] About three months later, the Israeli Parliament approved Amendment No. 3, proposed by Public Security Minister Gilad Erdan, to enshrine the legal authority required to carry out such inhumane and unlawful punitive practice against Palestinians killed and their families.

Over the past few years, the Occupying Power has withheld the bodies of Palestinians killed and set inconsiderate, restrictive, and degrading conditions on their families to receive their bodies, including by paying deposits, restricting the number of participants in the funeral, and requirements for the immediate burial of bodies following their release, among others. As of 13 March 2018, 18 Palestinian bodies remain withheld[5] by the Israeli occupying authorities since 2016, killed by the IOF for alleged attacks:

Name	Age	Date Killed	Resident of	Cause
Abdel Hamid Abu Srour	19	18 April 2016	Bethlehem	Alleged attack
Muhammad Naser Tarayra	17	30 June 2016	Hebron	Alleged attack
Muhammad Jabara Al-Faqih	29	27 July 2016	Hebron	Armed clashes, shelling, house demolition
Rami Muhammad Awartani	31	31 July 2016	Nablus	Alleged attack
Misbah Abu Sbeih	39	9 October 2016	Jerusalem	Armed clashes
Fadi Ahmad Qunbar	28	8 January 2017	Jerusalem	Alleged attack
Baraa Ibrahim Saleh	18	16 June 2017	Ramallah	Alleged attack
Adel Ahmad ‘Ankoush	18	16 June 2017	Ramallah	Alleged attack
Usama Ahmad ‘Ata	19	16 June 2017	Ramallah	Alleged attack
Bader Kamal Misbeh	23	30 October 2017	Gaza	Shelling
Ahmad Hassan Al-Sabakhi	22	30 October 2017	Gaza	Shelling
Shadi Sami Al-Hamri	24	30 October 2017	Gaza	Shelling
Muhammad Khair Al-Din Al-Bahisi	21	30 October 2017	Gaza	Shelling
Alaa Sami Abu Ghurab	25	30 October 2017	Gaza	Shelling
Ahmad Ismail Jarrar	31	17 January 2018	Jenin	Armed clashes
Ahmad Nasr Jarrar	27	6 February 2018	Jenin	Armed clashes
Yasin Omar Saradih[6]	35	22 February 2018	Jericho	Confrontations
Ismail Saleh Abu Rayala[7]	18	25 February 2018	Gaza	Shot while fishing

During alleged attacks, the IOF deploys excessive, disproportionate, and unnecessary use of lethal of force, executing a shoot-to-kill policy amounting to unlawful and extra-judicial killings. The IOF then withholds the bodies, thus obstructing information that could be collected from autopsies as evidence of unlawful killing. The withholding of Palestinian bodies is a standard practice long used by Israel[8] which violates its obligations as an Occupying Power under international law.

Customary international humanitarian law stipulates that parties to an armed conflict must respect the dead who “must be disposed of in a respectful manner.”[9] It further obliges parties to the conflict to return the remains and personal effects of the dead to their families.[10] In addition, Article 17 of the Second Geneva Convention requires that the deceased must be held in accordance with the religious rites that they belong to. According to Additional Protocol I, the families of the deceased have a right to be informed of the fate of their relatives, as part of the general principle requiring parties to the conflict to conduct their activities within this scope.[11]

The withholding of the bodies of the deceased further amounts to the collective punishment of the protected population, prohibited under Article 50 of the Hague Regulations, Article 33(1) of the Fourth Geneva Convention, and Article 75(2)(d) of Additional Protocol I. Moreover, the practice violates the prohibition of torture and ill-treatment.[12] Where the deceased are not buried in accordance to their religious and cultural traditions, the withholding of the bodies of the deceased further violates cultural rights enshrined in the International Covenant on Economic, Social and Cultural Rights.

In light of this, and the ongoing impunity granted to Israel, its actions, laws and policies, the international community must immediately intervene and take measures regarding Israel’s rapid and recent adoption of discriminatory and unlawful laws. As part of their obligations under international law, Third States must condemn and deem unlawful Israel’s recently adopted laws, including those pertaining to withholding the bodies of the Palestinians killed, passed on 7 March 2018, and call on Israel to repeal the law which allows for such unlawful, degrading, discriminatory practice.

Undersigned organisations:

Al-Haq – Civic Coalition for Palestinian Rights in Jerusalem – Jerusalem Legal Aid and Human Rights Centre, St. Yves - Catholic Center for Human Rights