[News] Update on Israel’s Restrictions on the Return of Bodies of Killed Jerusalemites

[Anti-Imperialist News]

*Update on Israel’s Restrictions on the Return of Bodies of Killed 
Jerusalemites*

*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 
Jerusalem.

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.**

*Background*

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.[1] <#_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 
met.[2] <#_ftn2>

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.[3] 
<#_ftn3>Rather than reducing conflict, this practice has created more 
tension with Palestinians, and sparked demonstrations and clashes.[4] 
<#_ftn4>

*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.[5] <#_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.”[6] <#_ftn6>

The Geneva Conventions also require that bodies be “honourably interred 
according to the rites of the religion to which they belonged.”[7] 
<#_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.”[8] <#_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”[9] 
<#_ftn9>and “transferred as soon as possible to the next of kin on their 
request.”[10] <#_ftn10>

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 
one’s culture.

*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).[11] <#_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.[12] <#_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[13] <#_ftn13>.

*b.**Freedom of Religion*

The right to freedom of religion is stipulated in both Article 18 of the 
UDHR[14] <#_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 
teaching.”[15] <#_ftn15>

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.”[16] <#_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.[17] <#_ftn17>ICCPR Article 27 
also states that “minorities shall not be denied the right … to enjoy 
their own culture.”[18] <#_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.”[19] <#_ftn19>States have the obligation to refrain from 
interfering with, and to ensure access to, cultural goods and 
services.[20] <#_ftn20>

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.**

*Recommendations*

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.


------------------------------------------------------------------------

[1] <#_ftnref1>Emily Mulder, “Israel’s decades-long policy of holding 
Palestinian bodies,” Maan News. Nov 4, 2015 available at 
http://www.maannews.com/Content.aspx?id=768641.

[2] <#_ftnref2>Amos Harel, “Israel Faces Tough Dilemma Over Bodies of 
Palestinian Terrorists,” HAARETZ. Nov 2, 2015 available at 
http://www.haaretz.com/israel-news/.premium-1.683695.

[3] <#_ftnref3>“PRCS’ Operational Update N. 21/2015” (29/11-1/12/2015), 
Palestine Red Crescent Society, available at 
http://www.palestinercs.org/reports/PRCS%20Operational%20Update%2021%20En.pdf.

[4] <#_ftnref4>“Hebron clashes break out after residents demand release 
of bodies,” Maan News. Nov 10, 2015 available at 
http://www.maannews.com/Content.aspx?id=768745.

[5] <#_ftnref5>Lizzie Dearden, “Israel could stop returning bodies of 
Palestinian attackers killed by security forces to their families,” 
INDEPENDENT. Oct 14, 2015 available at 
http://www.independent.co.uk/news/world/middle-east/israel-could-stop-returning-bodies-of-palestinian-attackers-killed-by-security-forces-to-their-a6693966.html.

[6] <#_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.

[7] <#_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.

[8] <#_ftnref8>GC I, /ibid/.

[9] <#_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.

[10] <#_ftnref10>GC IV, /supra/ note 11.

[11] <#_ftnref11>UN General Assembly, /Universal Declaration of Human 
Rights/, 10 December 1948, 217 A (III) [UDHR].

[12] <#_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).

[13] <#_ftnref13>HCJ 3114/02 /MK Barakeh v. The Minister of Security et 
al./, PD 3 11 (2002).

[14] <#_ftnref14>UDHR, /supra/ note 8.

[15] <#_ftnref15>UN General Assembly, International Covenant on Civil 
and Political Rights, 16 December 1966, United Nations, Treaty Series, 
vol. 999, p. 171 [ICCPR].

[16] <#_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: 
http://www.refworld.org/docid/453883fb22.html

[17] <#_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.

[18] <#_ftnref18>ICCPR, /supra/ note 18.

[19] <#_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: 
http://www.refworld.org/docid/4ed35bae2.html.

[20] <#_ftnref20>/Ibid./

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