The principle of respect for the dead is recognized in Israeli common law as part of the constitutional right of human dignity and concerns not only the dead person but also his relatives. The High Court of Justice (HCJ) has long since ruled that “the principle of respect for the dead, not just as a religious commandment but also as a norm and social obligation, is concerned with allowing those who live – his relatives, kinfolk, friends and those who cherished him – to respect his memory and commune with his memory in the place where he was brought to his final rest”.
Although following the release in 2012 of Israeli soldier Gilad Shalit from Hamas captivity,
Israel resumed returning the bodies of Palestinian fatalities to their families, the handling process – from the identification and burial to the return of the remains to the families – has been severely flawed and defective,
as was revealed also in 2015, to the extent that graves “went missing” and bodies were “lost”. Despite the conclusions of an official inquiry commission into the failures in handling the bodies, which operated back in 1999, it seems that the security establishment still has not drawn the necessary lessons. As a result, many families have been waiting in vain for many years to have their sons properly interred and conduct funeral rites over their remains (
HCJ 4638/07).
In the framework of seventeen petitions filed by HaMoked on this issue –
ten in 2013 and
seven in 2015 – the state announced that it failed to trace the bodies in seven of the cases.
On October 10, 2016, HaMoked filed
another series of petitions in a bid to compel Israel to return to the families the bodies it had been keeping since the second intifada. HaMoked asserted that the authorities were dragging their feet unreasonably in handling the families’ applications, and failing their legal duty to respond to HaMoked’s repeated communications on the matter. HaMoked reiterated that Israel’s flawed conduct in treating, identifying and returning the remains of Palestinian fatalities was a severe violation of the principle of respect for the dead.
Concurrently, the Jerusalem Legal Aid and Human Right Center (JLAC) filed a series of petitions to the HCJ for the return to the families of over 100 Palestinians’ bodies Israel had been withholding.
On March 6, 2017, the
state announced in the framework of these petitions that “given the rise in [the number] of applications and petitions on this issue, submitted within a relatively short period, a meeting was held at the State Attorney’s Office in order to examine how the task of tracing the bodies and identifying them should have been coordinated and managed – and by which government body”.
The state later said that this related to both the current petitions and several of HaMoked’s previous petitions. The state then asked to submit an updating notice on its progress within four months.
In the
court hearing of March 16, 2017, the justices remarked that the handling of identification and burial of Palestinians’ bodies was, “to say the least, not optimal”. The court expressed dismay over the fact that for years the state had not bothered to place the issue in the hands of one defined entity. The state had no answer to that but promised that now “the matter has been placed before the Prime Minister and there have been several other dealings over this issue with the relevant entities”. The justices stressed that “we are now entering the stage where the court supervises the process”. The court added that it was advisable for the state to now take DNA samples from relatives of Palestinian fatalities whose burial place had not yet been traced.
That same day
the HCJ ordered the state to submit an updating notice within four months, to which the petitioners may respond within the following 15 days.
