Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons […] is prohibited, except where such destruction is rendered absolutely necessary by military operations.
Convention (IV) relative to the Protection of Civilian Persons in Time of War (1949), Article 53
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.