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Newly Adopted Law to Withhold the Bodies of Palestinians Killed Breaches International Law, Must be Repealed

Wednesday, 14 March 2018 18:52
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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
1.    Abdel Hamid Abu Srour 19 18 April 2016 Bethlehem Alleged attack
2.    Muhammad Naser Tarayra 17 30 June 2016 Hebron Alleged attack
3.    Muhammad Jabara Al-Faqih 29 27 July 2016 Hebron Armed clashes, shelling, house demolition
4.    Rami Muhammad Awartani 31 31 July 2016 Nablus Alleged attack
5.    Misbah Abu Sbeih 39 9 October 2016 Jerusalem Armed clashes
6.    Fadi Ahmad Qunbar 28 8 January 2017 Jerusalem Alleged attack
7.    Baraa Ibrahim Saleh 18 16 June 2017 Ramallah Alleged attack
8.    Adel Ahmad ‘Ankoush 18 16 June 2017 Ramallah Alleged attack
9.    Usama Ahmad ‘Ata 19 16 June 2017 Ramallah Alleged attack
10.  Bader Kamal Misbeh 23 30 October 2017 Gaza Shelling
11.  Ahmad Hassan Al-Sabakhi 22 30 October 2017 Gaza Shelling
12.  Shadi Sami Al-Hamri 24 30 October 2017 Gaza Shelling
13.  Muhammad Khair Al-Din Al-Bahisi 21 30 October 2017 Gaza Shelling
14.  Alaa Sami Abu Ghurab 25 30 October 2017 Gaza Shelling
15.  Ahmad Ismail Jarrar 31 17 January 2018 Jenin Armed clashes
16.  Ahmad Nasr Jarrar 27 6 February 2018 Jenin Armed clashes
17.  Yasin Omar Saradih[6] 35 22 February 2018 Jericho Confrontations
18.  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 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

Community Action Centre (Al-Quds University)

Jerusalem Legal Aid and Human Rights Centre

Society of St. Yves

Badil Resource Centre for Palestinian Residency and Refugee Rights


 

[1] See: Knesset, Knesset Passes Law Granting Police the Authority to Hold Terrorists’ Bodies, 8 March 2018, available at: https://knesset.gov.il/spokesman/eng/PR_eng.asp?PRID=13804

[2] Adalah, Knesset Passes Law Allowing Israeli Police to Hold Bodies of Palestinians as Precondition for Funeral Arrangements, 12 March 2018, available at: https://www.adalah.org/en/content/view/9430

[3] See: Adalah, Translation of Decision from Hebrew to English by Adalah, available at: https://www.adalah.org/uploads/uploads/English_SCT_decision_release_bodies_Umm_al-Fahem_July_2017_FINAL.pdf; See also: Adalah, Precedent-Setting Israeli Supreme Court Ruling on Adalah Petition: Israeli Police Not Allowed to Hold Bodies, 26 July 2017, available at: https://www.adalah.org/en/content/view/9172

[4] On 19 February 2018, the Israeli Supreme Court accepted a request by the Israeli government for an additional hearing on the issue to be held before an expanded panel of seven justices on 17 July 2018.

[5] See: JLAC, Following the Supreme Court Ruling, JLAC calls for the immediate and unconditional release of all bodies withheld by Israel, available at: http://www.jlac.ps/details.php?id=nwjkfoa1502y4xxtgq2tv

[6] On 12 March 2018, the Israeli Authorities informed the Saradih family that they will release the body within the next 72 hours, but as of 13 March 2018 the body has yet to be returned.

[7] On 8 March 2018, the Supreme Court issued an injunction against returning the body of fisherman Abu Rayala to his family after a petition filed by the family of a killed Israeli soldier (8627/17, Golden v. Government of Israel). On March 13 the court canceled the injunction, effectively paving the way for the release of Abu Rayala’s body. See: Supreme Court Decision, 13 March 2018, available at: https://supremedecisions.court.gov.il/Home/Download?path=HebrewVerdicts\17\270\086\z16&fileName=17086270.Z16&type=2

[8] In addition to the 18 bodies, the Israeli authorities have long withheld the remains of at least 265 Palestinians and Arabs in so called “cemeteries of numbers” without disclosing or identifying the location of their burial.

[9] Customary International Humanitarian Law, Rule 115.

[10] This is also stipulated in First Geneva Convention, Article 16; Second Geneva Convention, Article 19; Third Geneva Convention, Article 122; Fourth Geneva Convention, Article 139.

[11] Additional Protocol I, Article 32.

[12] See: UN Committee against Torture, Concluding Observations on the fifth periodic report of Israel, 3 June 2016, para. 43; Also See: UN General Assembly, Israeli Practices Affecting the Human Rights of the Palestinian People in the Occupied Palestinian Territory, including East Jerusalem, 30 August 2016, para. 4, 25, 72(g).

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