Respect for the Dead

Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs.

Convention (IV) relative to the Protection of Civilian Persons in Time of War (1949), Article 27

In rulings of the Supreme Court, it was held that the fundamental principle of human dignity – a constitutional right in Israel – includes not only the dignity of a person when alive, but also the dignity following his death, and the dignity of the deceased person's loved ones who cherish his memory. The relatives of the deceased, the court held, have the right and liberty to have the memory of their loved one be respected as they deem appropriate, and that they be given the opportunity to express their feelings toward the deceased as they wish. These statements reflect the special importance that the state and society in Israel give to respect for the dead, which is expressed, inter alia, by the great effort made to bring fallen security forces to burial in Israel, by the great concern that the state shows for bereaved families, and by the perpetuation of the memory of the fallen.

In great contrast to the above, Israel's handling of the bodies of Palestinians killed in violent actions against soldiers or civilians is degrading, disrespectful, and revolting. Following an unclear policy that lasted for years, Israel ceased almost completely, beginning in the end of 1994, to return the bodies of Palestinians to their families.

HaMoked is working to return these bodies to the families for burial. In its responses to petitions filed by HaMoked in the High Court of Justice, the state contended that it does not return the bodies as means of deterrence, and because it wishes to use the bodies in negotiating future exchanges. These reasons point out the cynical use Israel makes of the dead bodies and of the families' pain. The persons harmed by this policy are the members of the deceased's family, to whom no wrongdoing against the state is alleged. The refusal to return the bodies to their families constitutes collective punishment, which contradicts the fundamental principle that a person not be punished for acts he did not commit. This practice, along with the use of bodies as hostages and as bargaining chips, are prohibited measures which contravene, international humanitarian law conventions to which Israel is party. The state further contended that the policy is also intended to prevent the use of funerals to disturb public order. This argument is an insufficient basis for denying the respect to which the dead are entitled and to the right of the family to bury their loved one. This is especially true in those cases in which the family agreed to the restrictions that the army imposed on the time and place of the funeral, and the number of participants who may attend.

In the course of the petitions filed by HaMoked in the High Court of Justice on this matter, a harsh picture of the treatment given the bodies of the killed Palestinians has come to light. The treatment of the bodies severely violates the provisions of international law relating to the handling of bodies belonging to the enemy, and also violates the army's own orders. Signs in the cemeteries for enemy fallen were defective, and sometimes did not exist at all; burial was done in a negligent and disrespectful manner; bodies were buried in trenches and not individually. In addition to the grave violation of the respect for the dead and their families, these failures and omissions, in many cases, have made locating and identifying the bodies almost impossible.

At the end of 2004, the policy changed; it was decided that except for exceptional cases (the grounds of which have not been stated) bodies will be returned to the families. The state imposes a condition: scientific identification is required. In most instances, this involves a DNA test, the high cost of which must be borne by the family. Even if this demand is legitimate, and limits the chance of error, it is hard not to get the impression that there is a double standard at play. In many cases, there is no problem in identifying the body from the start, based on “administrative evidence,” such as a declaration of an organization that the person killed was one of its members, or documents found on the body. In many cases, the state has demolished the house of Palestinians who died in an attack. The demolition did not require any scientific identification. Now, however, before a body is handed over to the family, the state demands a scientific identification.

HCJ 3348/15 - Badir et al. v. Military Commander of the West Bank et al. Petition for Order Nisi

HaMoked's petition to have the military return the body of a Palestinian to his family. The man was killed in 2002 while committing an attack and the military has been holding his body ever since. HaMoked asserts that respect for the dead, regardless of identity and actions in life, forms an integral part of the principle of human dignity.

HaMoked’s Report on Human Rights Violations Perpetrated by Israel in the Summer of 2014

HaMoked's report, submitted to the UN-appointed independent commission of inquiry on the 2014 Gaza conflict, focuses on five areas addressed by HaMoked regarding Israel's measures against the Palestinian population in the OPT before, during and after the fighting in Gaza: detainee tracing, the right to freedom of movement, detainee rights, punitive house demolitions and respect for the dead.

To Prevent Ill Rumors: HCJ 3114/02 MK Barake v. Minister of Defense (Judgment of April 14, 2002)

The events that took place in Jenin Refugee Camp during the April 2002 Israeli military operation (known as “Operation Defensive Shield”), or rather, the fight over their representation, provided the background for a number of legal actions. One of them was heard very shortly after the incidents, before the bodies were buried. In fact, on the face of it, this action resolved the issue of the bodies' burial, but even then, the battle over how the events would go down in history and how they would be remembered in public discourse, was already underway.

HCJ 9025/01 ‘Awadallah et al. v. Commander of IDF Forces in the Judea and Samaria Area et al. Transcript

Transcript of hearing held at the HCJ in three petitions filed by HaMoked for the return of the bodies of 4 Palestinians to their families. The court found that due to a possible exchange deal for Gilad Shalit, the time was not right for deliberation and postponed the hearing for six months. Two of the bodies had been held by Israel since 1998, one since 2001 and one since 2003.

HCJ 6807/94 Abbas v. State of Israel et al.

HCJ rejected a petition to return the body of a Palestinian who was killed while carrying out a shooting attack in Jerusalem in order to bring it to burial. The HCJ considered reasonable the State's position that the body would be returned when soldier Ilan Sa'don's place of burial is revealed – which is in effect using the body as a hostage. Ilan Sa'don's gravesite was revealed in July 1996 and following HaMoked's requests, the body was eventually returned and brought to burial.

HCJ 6807/94 - Abbas v. State of Israel et al.
Affidavit Response on behalf of Respondents

In his response to the petition to return the body of a Palestinian killed while carrying out a shooting attack in Jerusalem, the affiant declares, on behalf of the Respondents, that a decision had been made not to return the body until the location of Ilan Sa'adon's burial site is revealed. Sa'adon was a soldier killed in 1989. The Respondents' decision constitutes the use of the body as a hostage. The Respondents claim that the decision is rooted in relevant considerations in accordance with the legislative purpose of Section 133 (3) of the Emergency Defense Regulations.

HCJ 6807/94 - Abbas v. State of Israel et al.
Petition for Order Nisi

Petition to return the body of a Palestinian killed while carrying out a shooting attack in Jerusalem in order to bring him to burial. The petition was filed after HaMoked's appeals on this matter had yielded no results and the body had been kept in the National Center for Forensic Medicine at Abu Kabir for two months. The petition highlights the importance respecting the dead and the right of the deceased's relatives to adequately honor the memory of their loved one.

HCJ 3114/02 – MK Barake v. The Minister of Defense et al. Judgment

Following the petitions to direct the Respondents not to evacuate the bodies of Palestinians who were shot in the Jenin refugee camp in the fighting during Operation Defensive Shield, enable Red Cross officials to collect the bodies, and enable the families of the persons killed to bury them, the parties agreed that identification of the bodies would be done by Red Cross officials as well as army personnel, and that the burial, to follow shortly thereafter, would be done by the Palestinians, with dignity and according to their religious rites.

HCJ 2936/02 - Physicians for Human Rights - Israel et al. v. IDF Commander in the West Bank Judgment

The HCJ heard petitions dealing with various events during "Operation Defensive Shield": Military forces fired at Red Crescent and Red Cross medical crews, prevented evacuation for medical treatment, removal of corpses and supply of medical equipment to besieged hospitals. The HCJ did not discuss the specific events but emphasized that the military is obliged to obey humanitarian rules regarding treatment of the wounded, the sick and corpses.