In a hearing held at the High Court of Justice (HCJ) on 19 October 2009 in three petitions filed by HaMoked for the return of the bodies of 4 Palestinians to their families, the court ruled that due to a possible exchange deal in the matter of Gilad Shalit, it was not the time to review the matter. Therefore, the court postponed the hearing for an additional six months. It must be noted that two of the bodies have been held by Israel since 1998, one since 2001 and the fourth since 2003.
The state’s abusive treatment of the families of the dead under the auspices of the court is as old as the occupation, and postponement of the current petition by the court – in the framework of the families’ struggle to receive the bodies of their loved ones in order to mourn them and bring them to proper burial – is not an isolated case. After many years of ever shifting policy, lasting since 1967, in 1994, Israel ceased returning the bodies of Palestinians to their families, with the exception of rare cases.
In addition to its refusal to return the bodies of Palestinians it is holding, Israel has treated them with contempt and neglect. Information exposed by HaMoked through the course of its work on this issue revealed substantive problems regarding identification and location of the bodies due to,
inter alia, the disrespectful manner in which Israel treated the burial of those killed while carrying out attacks against Israelis, or in altercations with or assassinations by the military.
Following information exposed in petitions conducted by HaMoked before the HCJ in the late 1990’s, the chief of staff ordered the establishment of a military investigative committee into the matter of “treatment of enemy casualties.” The findings of the report issued by the committee confirm the existence of severe defects in the process of documenting and marking the bodies of the dead, as well as the contemptuous treatment of the bodies. Thus, among other things, the committee found that most of the officials who appeared before it were unaware of the military procedures on this matter; that orders regarding the marking of bodies, burial by order, burial in separate graves etc. – were not being followed and that maintenance of the cemetery for enemy casualties was lacking. A clear example of the faulty maintenance of the cemetery was the cow dung found among the graves.
Following publication of the report and the recommendations filed by the committee in its wake, some improvements were made, but the general refusal to return the bodies remained intact. The failed treatment of the bodies has far reaching ramifications, beyond disrespect for the dead. Thus,
inter alia, in the course of a hearing held in 2004 in a petition filed by HaMoked, Israel demanded – despite the state’s notice that it had decided to change its policy and, as a general rule, return the bodies to the families – that the families would bear the high cost involved in exhuming the bodies and conducting genetic testing for the purpose of identification. It is important to note that these genetic tests would have been unnecessary in some of the cases, had the state handled the bodies appropriately at the time of burial.
Since the cost of genetic testing is high and there are few families who are able to bear them, HaMoked worked toward achieving an arrangement regarding the expenses involved in these tests.
The current hearing of the petitions clearly exposes the methods used by the state in order to avoid returning the bodies while treating the families in an abusive manner and punishing them for the actions of the dead. As stated, the hearing focused on HaMoked’s demand to return four bodies, including those of two brothers who were assassinated by Israel in September 1998. The state initially refused the families’ request to return the bodies arguing that the brothers’ intended burial site was close to a settlement and as such, there was concern that the funerals would cause massive public disorder which would put the residents of the nearby settlement at risk. HaMoked was forced to file a petition on the matter due to the refusal.
Following submission of the petition, the state retracted its refusal subject to coordination of arrangements for the funeral with the Palestinian Authority (PA). This coordination was required, according to the state, in order to prevent harm to security and public order. Despite the state’s consent to return the bodies and the PA's agreement in principle to maintain order during the funerals, the state retracted its consent on the claim that it required an undertaking
in writing from the PA, despite the fact that the brothers’ widows had agreed to an arrangement whereby the brothers would be buried in a different location, away from the settlement and that participation in the funerals would be limited. Once an arrangement was finally reached, the state announced, in 2006, that it approved the return of the bodies to their families subject to genetic testing and rigorous funeral arrangements with the purpose of preventing public disorder.
Even before the decision was implemented, the state notified, that following the capture of soldiers Shalit, Regev and Goldwasser, it would continue to hold the bodies of the Palestinian dead in order to use them as bargaining chips in exchange deals. In early 2009, in the framework of HaMoked’s petitions, the state notified the court that the bodies of dead affiliated with the Fatah organization would be returned to their families as per the families’ request, whereas the bodies of those affiliated with Hamas and Jihad would not be returned. Despite the agreements in principle, in the few cases in which Israel returned bodies outside of exchange deals, it did so only after the court reviewed the specific cases regarding the applying family alone.
Following the state’s retreat from the agreement, HaMoked was forced to submit a new petition on the matter to the court. In the current hearing in the petition which was held long after the exchange deal for Regev and Goldwasser had been completed and the state itself admitted that it was not aware of a Palestinian request to include bodies in a future deal for Shalit, the state held fast to its refusal to return the bodies to the families. All this did not prevent the court from providing the state with the rubber stamp it needs and to sanction its unacceptable policy for the foreseeable future.
Since its establishment in 1988, HaMoked has handled applications by 100 families for the return of the bodies of their loved ones. In 20 cases, the body was returned to the family. The rest are still pending.
To view transcript of the HCJ hearing dated 12 October 2009 (Hebrew)
To view the petition dated 18 November 2001 (Hebrew)
To view the report by the investigative committee into the matter of treatment of enemy casualties (Hebrew)
To view a report by HaMoked and B’Tselem Captive Corpses 
