Israeli court allows withholding bodies of citizens as bargaining chips

A top court in Israel has ruled that the state has the right to use the bodies of slain Israeli citizens as bargaining chips in hostage negotiations.

A three-judge panel of the High Court of Justice, which is part of Israel’s Supreme Court, unanimously rejected six petitions that demanded that the state should release for burial the bodies of slain Israeli citizens accused of acts of terrorism.

Withholding bodies of Palestinian “terror suspects” as bargaining chips for future negotiations with resistance groups has been a long-standing practice in Israel.

Israel has been on a killing spree in Gaza since October 2023, when it launched a full-blown war on the enclave, murdering nearly 46,000 Palestinians, mostly women and children.

Tel Aviv is currently withholding the bodies of as many as 198 Palestinians killed in 2024.

However, the latest court decision pertains to the cases where the withheld bodies are of Palestinian Israelis.

It noted that a separate verdict from last September – which allowed military commanders to withhold the release of bodies of so-called terrorists – also applied to those Palestinians who held Israeli citizenship.

Israeli media reported that five of the six men were killed by Israeli forces while carrying out or trying to carry out “terror attacks”. The sixth person was a “terror suspect” who died in hospital.

The petitions maintained that the Israeli cabinet’s earlier decision against releasing the bodies of the slain men was unlawful, taken without legal authority, and did “severe and blatant harm” to the dignity of the dead.

In response, the Israeli state argued that hostage negotiations with Hamas were at a sensitive stage and that “it is not possible to rule out that holding the bodies of these terrorists will be needed for the purpose of [returning] the captives and missing.”

“The extent of this court’s intervention in policy decisions made by the [security] cabinet on matters of a distinct security nature is extremely limited, and is reserved only for exceptional and extreme cases,” wrote Justice David Mintz, a conservative judge of the Israeli Supreme Court who lives in a West Bank settlement.

“The cabinet’s decision to hold the bodies of Israeli civilian terrorists — temporarily and for a limited time — at this time does not reveal any flaw that justifies our intervention,” he wrote.

Regardless of their political affiliation, Palestinians killed by Israel under suspicion of planning attacks are considered militants. They are buried in military cemeteries throughout the country. Instead of using their names, Israel assigns numbers to each body to identify their graves in cemeteries – and some in refrigerators.

Under international law, every family has the right to receive the body of their loved one regardless of the innocence or guilt of the accused person.

Under a 1977 amendment protocol to the Geneva Conventions – a set of international laws enacted to ensure humanitarian treatment in war – the remains of people who have died for reasons related to occupation or hostilities must be respected and returned to the next of kin.

Adalah, a legal aid organisation representing the petitioners, denounced the decision. “It totally suspends the principle of the rule of law and constitutes a further deterioration for the significance of the citizenship of Palestinian citizens of the State of Israel.”

The exact number of bodies Israel has held onto and returned since 1967 is shrouded in mystery. According to one estimate, Israel handed over 405 bodies in return for the bodies of its deceased soldiers between 1991 and 2008.