[News] Update on Israel’s Restrictions on the Return of Bodies of Killed Jerusalemites
news at freedomarchives.org
Tue Apr 5 17:26:02 EDT 2016
*Update on Israel’s Restrictions on the Return of Bodies of Killed
*Civic Coalition for Palestinian Rights in Jerusalem*
*April 4, 2016*
*_Update of April 4, 2016_**__*
In response, the families of the deceased Palestinians submitted a
petition to the Israeli courts. The Israeli High Court, the day before
yesterday, has set a hearing to discuss the petition and determine on
the Israeli refusals. The hearing will be held on April 18 and will be
presided over by three judges, led by Elyakim Rubinstein.*__*
On March 28, Israeli Prime Minister, Benjamin Netanyahu, declared that
he will prevent the return of all of the bodies of Palestinians
currently held by Israel. Israeli authorities have held fifteen bodies,
twelve of whom are from Jerusalem, some of them for nearly six months.
*_Update of January 4, 2016_*
As of January 4, 2016, Israel has returned all the bodies of
Palestinians killed in the West Bank, excluding Jerusalem. It has still
not returned a single body of those killed from Occupied East Jerusalem.
Although bodies were recently returned in the West Bank, some
restrictions were attached to the release of those bodies. The families
were allowed to hold funerals for the bodies during the day, but no
independent autopsies were permitted.
Israeli authorities have required families to pay a 5000 shekel deposit
to ensure that the families abide by this and any other conditions.
The prohibition of autopsies is a disturbing restriction. Autopsies are
necessary to tell how exactly the person died. It is important to know
where and how many times a person was shot in order to tell whether the
killing was arbitrary or resulted from an unjustified use of force.
Without an autopsy, families are unable to prove whether their loved
ones were murdered. Israel’s removal of evidence by prohibiting
autopsies may indicate an attempt to cover up illegalities in the killings.
The Israeli authorities offered to return the bodies of four individuals
from Jerusalem provided the families abide by an additional condition:
the bodies may not be buried within Jerusalem city limits.
Later, as a result of the local and international presser, the Israeli
Authority allowed the Jerusalemites to bury the bodies in Jerusalem,
with the conditions that they will be no autopsy, no funeral only 30
people, at the meddle of the night within one hour, and to pay 20,000
grantee to abide by the condition.
Israel still has possession of 15 bodies of Palestinians killed in
The Civic Coalition urges the international community to put pressure on
Israel to immediately return the bodies of the deceased to their
families without any conditions or restrictions.**
The Israeli military has long had a practice of refusing to return the
bodies of killed Palestinians. Since the 1960s, Israel has been burying
Palestinians in their own cemeteries, known as “cemeteries of numbers”;
the bodies are unceremoniously disposed of in nameless graves with only
a number to mark the place. This practice, which was sporadic for many
decades, has become more common since 1994. <#_ftn1>
In mid-October 2015, the Israeli security cabinet decided to stop its
practice of returning bodies immediately to the deceased’s families. The
rationale behind the decision was to prevent the occurrence of mass
funerals, based on a claim that the funerals often include speeches of
incitement, which sparks more violence.
Israeli authorities began requiring families to sign a commitment that
they would refrain from holding a mass funeral in order for the body to
be handed over to them. Israel also made the same demand of the
Palestinian Authority (PA) as a condition of returning bodies to it.
Israeli authorities claim that the PA has not abided by this condition.
On November 1, 2015, Israeli Defence Minister Moshe Ya’alon announced
that he would not authorize the transfer of any more bodies to the PA if
it did not ensure that all funerals maintain a low profile. He has
threatened to have the bodies buried in Israel if this demand is not
At the time of writing, Israel has the bodies of 41 killed Palestinians
in its possession and is refusing to return them to their families.
<#_ftn3>Rather than reducing conflict, this practice has created more
tension with Palestinians, and sparked demonstrations and clashes.
*Impact on the Families*
Israel’s refusal to return the bodies greatly adds to the grief of
families who are dealing with the loss of a loved one by denying them
their cultural dignity. One family, whose son’s body is currently being
held by Israel, said, “The seizing of the body causes us much suffering,
anxiety and sadness. We believe that our son must be honoured with a
funeral according to our culture and religion in order to have dignity.”
Muslim burial rites stipulate that the deceased are to be buried as
quickly as possible, bathed and wrapped in white, with their bodies
facing Mecca. <#_ftn5>Without the body, Palestinians cannot perform
these important rites.
The families also speak of how their inability to see the bodies
inflicts additional mental and emotional trauma upon them. “As long as
the bodies are seized, we cannot carry on our life normally as a family.
Our mourning cannot begin to subside until we see the body.” “We know he
is dead, but until we see the body, we do not truly know. It is as if it
has not happened. Questions and doubts still linger in our minds about
whether or not he is really dead. You start to question reality.”
In addition to performing burial rites, some of the families want access
to the deceased’s body to allow for an independent autopsy to determine
the cause of death. There are many questions surrounding the
circumstances of some of the deaths, and it is imperative for the
families that the truth be revealed.
The families’ lawyers have contacted the head of the Israeli police and
the legal advisor to the police to request the bodies. The police first
responded that, due to the political situation, it was not appropriate
to return the bodies. Later, the case was transferred to the Minister of
Security, who stated the decision is to be dealt with on the political
level. The families are still waiting to this day.
*International Law Violations*
Israel’s refusal to return Palestinian bodies violates provisions of
both international humanitarian law and international human rights law.
*1.**International Humanitarian Law*
Returning bodies of the deceased from a conflict is an obligation under
customary international law and is codified in a number of treaties,
some of which Israel is a state party to. Article 34 of Additional
Protocol I of the Geneva Conventions, which is reflective of customary
international law, providesthat states must “facilitate the return of
the remains of the deceased and of personal effects to the home country
upon its request, or unless that country objects, upon the request of
the next of kin.” <#_ftn6>
The Geneva Conventions also require that bodies be “honourably interred
according to the rites of the religion to which they belonged.”
<#_ftn7>An Official Graves Registration Service must be organized to
allow for bodies to be subsequently exhumed and identified for “possible
transportation to the home country.” <#_ftn8>Bodies may not be
cremated except for imperative reasons of hygiene or motives based on
the religion of the deceased, but if they are, the ashes must be
disposed of “in accordance with the wishes of the home country”
<#_ftn9>and “transferred as soon as possible to the next of kin on their
While these specific treaty provisions contemplate a situation where
there may be some difficulty in returning bodies immediately to
conflicting parties, the purpose of the law is clear: bodies are to be
treated with respect to the deceased’s religion and returned to their
home country as soon as possible.
In the present case, Israel is entirely capable of returning the bodies
immediately, so there is no need to bury the bodies inside Israel and
later exhume them in order to return to Palestine. Israel must therefore
return the bodies as soon as possible.
*2.**International Human Rights Law*
Failing to return the bodies of the deceased is a violation, inter alia,
of the right to dignity, freedom of religion, and the right to practice
*a.**Right to Dignity*
Israel’s refusal to return Palestinian bodies violates the right to
human dignity of the deceased person and that of the person’s family.
The fundamental right to human dignity is at the core of international
human rights law, guaranteed first and foremost by Article 1 of the
Universal Declaration of Human Rights (UDHR). <#_ftn11>The right to
a quick, honorable and proper burial is an integral part of the right to
dignity, which is not only a right of a living person, but also applies
to a person after death.
This right has been recognized by the Israeli Supreme Court as part of
the constitutional right enshrined in the Basic Law: Human Dignity and
Liberty. <#_ftn12>The Supreme Court has even recognized this right
during wartime and military operations; indeed, the right to human
dignity of the dead was the main, and even exclusive, consideration of
the court in this situation <#_ftn13>.
*b.**Freedom of Religion*
The right to freedom of religion is stipulated in both Article 18 of the
UDHR <#_ftn14>and Article 18 of the International Covenant on Civil
and Political Rights (ICCPR), to which Israel is a state party. The
ICCPR states that this right includes the freedom for each person to
“manifest his religion or belief in worship, observance, practice and
General Comment No. 22 on Article 18 clarifies that “[t]he observance
and practice of religion or belief may include not only ceremonial acts
but also such customs as the … participation in rituals associated with
certain stages of life.” <#_ftn16>
Holding a funeral and burying one’s family members is a religious
practice and a ritual associated with a certain stage in life.
Therefore, families are entitled to protection under ICCPR Article 18,
and Israel’s refusal to return the bodies of deceased Palestinians
violates the families’ freedom of religion.
*c.**Right to Practice Culture*
Both Article 15 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR) and Article 27 of the UDHR recognize the right
of everyone to take part in cultural life. <#_ftn17>ICCPR Article 27
also states that “minorities shall not be denied the right … to enjoy
their own culture.” <#_ftn18>
According to General Comment No. 21, clarifying Article 15 of the
ICESCR, “culture is a broad, inclusive concept encompassing all
manifestations of human existence.” It goes on to say that culture
“encompasses, inter alia, … religion or belief systems, rites and
ceremonies.” <#_ftn19>States have the obligation to refrain from
interfering with, and to ensure access to, cultural goods and
A funeral clearly falls into the category of cultural practice. Thus
Israel has the obligation to provide, and not to interfere with, access
to the bodies so that funerals can be held in accordance with the
culture of the Palestinian families.**
Israel’s refusal to return the bodies of the 41 dead Palestinians to
their families is a violation of multiple provisions of international
human rights and humanitarian law. The Civic Coalition for Palestinian
Rights in Jerusalem and Adalah – The Legal Center for Arab Minority
Rights in Israel call upon:
·Israel to return the bodies of the deceased to their families immediately;
·Israel to hold accountable those who committed the killings by
facilitating impartial investigations that include allowing
international participation in autopsies of the deceased;
·The international community to put pressure on Israel to uphold its
obligations under international law and immediately return the bodies of
the deceased to their families.
 <#_ftnref1>Emily Mulder, “Israel’s decades-long policy of holding
Palestinian bodies,” Maan News. Nov 4, 2015 available at
 <#_ftnref2>Amos Harel, “Israel Faces Tough Dilemma Over Bodies of
Palestinian Terrorists,” HAARETZ. Nov 2, 2015 available at
 <#_ftnref3>“PRCS’ Operational Update N. 21/2015” (29/11-1/12/2015),
Palestine Red Crescent Society, available at
 <#_ftnref4>“Hebron clashes break out after residents demand release
of bodies,” Maan News. Nov 10, 2015 available at
 <#_ftnref5>Lizzie Dearden, “Israel could stop returning bodies of
Palestinian attackers killed by security forces to their families,”
INDEPENDENT. Oct 14, 2015 available at
 <#_ftnref6>Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of International
Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 34. Not
ratified by Israel.
 <#_ftnref7>Convention (I) for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August
1949, Article 17 [GC I]. Ratified by Israel 1951. Convention (IV)
relative to the Protection of Civilian Persons in Time of War, Geneva,
12 August 1949, Article 130 [GC IV]. Ratified by Israel 1951.
 <#_ftnref8>GC I, /ibid/.
 <#_ftnref9>GC I, /ibid/. Convention (III) relative to the Treatment
of Prisoners of War, Geneva, 12 August 1949, Article 120 [GC III].
Ratified by Israel 1951.
 <#_ftnref10>GC IV, /supra/ note 11.
 <#_ftnref11>UN General Assembly, /Universal Declaration of Human
Rights/, 10 December 1948, 217 A (III) [UDHR].
 <#_ftnref12>CA 294/91 Kadisha v. Kastenbaum, PD 2 464 (1992), CA
6024/97 /Fredricka Shavit v. Kadisha/, PD 3 600 (1999), HCJ 52/06
/Alaqsa Ltd. v. Simon Wiesenthal Center Museum Corp./, (unpublished
decision, October 29, 2008).
 <#_ftnref13>HCJ 3114/02 /MK Barakeh v. The Minister of Security et
al./, PD 3 11 (2002).
 <#_ftnref14>UDHR, /supra/ note 8.
 <#_ftnref15>UN General Assembly, International Covenant on Civil
and Political Rights, 16 December 1966, United Nations, Treaty Series,
vol. 999, p. 171 [ICCPR].
 <#_ftnref16>UN Human Rights Committee (HRC), CCPR General Comment
No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July
1993, CCPR/C/21/Rev.1/Add.4 at para 4, available at:
 <#_ftnref17>UN General Assembly, International Covenant on
Economic, Social and Cultural Rights, 16 December 1966, United Nations,
Treaty Series, vol. 993, p. 3 [ICESCR]; UDHR, /supra/ note 8.
 <#_ftnref18>ICCPR, /supra/ note 18.
 <#_ftnref19>UN Committee on Economic, Social and Cultural Rights
(CESCR), General comment no. 21, Right of everyone to take part in
cultural life (art. 15, para. 1a of the Covenant on Economic, Social and
Cultural Rights), 21 December 2009, E/C.12/GC/21, available at:
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