Terrorist Bodies as Bargaining Chips: Alyan v. The Military Commander in the West Bank

Does the Israeli government have the authority to decline to release the bodies of perpetrators of terrorist attacks to their families for burial in order to use them as bargaining chips in negotiations to secure the return of Israeli casualties and citizens? In Alyan v. The Military Commander in the West Bank, the Supreme Court of Israel recently ruled (in Hebrew) that it does not, finding that a clear statutory authorization is required for this practice to continue. The court suspended its ruling for six months in order to allow the government to secure the necessary authorization.

The court’s holding rested on principles of domestic administrative law, but the decision also offers a view of international law that appears to restrict the circumstances in which the bodies of perpetrators of terrorist attacks could lawfully be withheld. This restrictive approach, for now just obiter dictum, could prove consequential if the Israeli parliament goes forward with legislation that would authorize the practice. At the moment, however, the government’s efforts seem to be primarily focused on overturning the decision. On Friday, the government petitioned the Supreme Court for further hearing of the case before an extended panel.

The 2016 Policy Regarding the Handling of Terrorist Bodies

In late 2016, as part of its response to the wave of attacks that has plagued Israel over the past few years, the Israeli government issued a decision outlining its policy regarding the handling of terrorist bodies. According to this decision, most of the bodies would be returned to their families under certain conditions designed to preserve public order during their funerals. However, bodies of Hamas affiliates or perpetrators of particularly serious attacks would not be released to their families, and would be buried at a temporary gravesite. Those categories of perpetrators, the government maintained, have special symbolic value, and declining to release their bodies could help the government in prisoner exchange negotiations with Hamas. At present, Hamas is holding the bodies of two Israeli soldiers killed during the 2014 Gaza hostilities as well as two Israeli citizens who voluntarily entered the Gaza Strip under unclear circumstance. The court noted that Israel is currently holding nine bodies of perpetrators of terrorist attacks. More than 40 bodies have been released to their families over the past year under the 2016 policy.

The military commander in the West Bank was tasked with implementing the policy. The government argued that the military commander has the authority to order temporary burials in order to retain the buried bodies for negotiation purposes, and that such authority stems from regulation 133(3) of the Defence (Emergency) Regulations, 1945, which dates back to the British Mandate. The regulation provides:

Notwithstanding anything contained in any law, it shall be lawful for a Military Commander to order that the dead body of any person shall be buried in such place as the Military Commander may direct. The Military Commander may by such order direct to whom and at what hour the said body shall be buried. The said order shall be full and sufficient authority for the burial of the said body, and any person who contravenes or obstructs such order shall be guilty of an offence against these Regulations.

The Court’s Reasoning

Writing for a two-justice majority (Justice Neal Hendel dissented), Justice Yoram Danziger first reiterated that an administrative measure that violates human rights requires explicit statutory authorization. The government cannot rely on its residual authorities as Israel’s executive branch to implement such measures. The court determined that temporary burial by the military commander violates the right to proper burial, which derives from the right to human dignity. That right attaches, the court observed, irrespective of the identity of the deceased or their actions against Israel. Therefore, explicit statutory authorization was necessary.

The court then determined that regulation 133(3) does not constitute an explicit statutory authorization for the military commander to hold and bury bodies temporarily in order to use them as bargaining chips. Based on the history of the regulation from the British Mandate to its current version, the court concluded that it was primarily designed to facilitate burial in situations in which the release of a body was not possible for objective reasons, such as difficulties in identification or failure to locate the next of kin. It was not designed to provide the military commander with broad authority to conduct temporary burials to create leverage for negotiations.

The court asserted that this conclusion is in line with related Israeli precedents that hinged on the issue of statutory authorization. A number of petitions have been filed in recent years against Israeli authorities that challenged their refusal to release bodies for burial. The court noted that most of those cases did not implicate regulation 133(3), but rather the government’s authority to take measures to preserve public order. The court highlighted a recent Supreme Court ruling (in Hebrew) that the Israeli police lacked the authority to decline to release a body until the family of the deceased agrees to certain conditions concerning the funeral. In that case, too, the court held that explicit statutory authorization was required. The court also mentioned the landmark 2000 decision in Does v. Minister of Defense. In Does, an extended panel of the Supreme Court held that the administrative detention of Lebanese members of “hostile organizations”—who no longer posed a security threat themselves—in order to use them as bargaining chips in negotiations to secure the return of Israeli prisoners was unlawful. As in the other example, the case turned on the absence of explicit statutory authorization for such detentions. (In response to the decision, in 2002 the Israeli Knesset passed the controversial Internment of Unlawful Combatants Law, which the court later upheld, but narrowly construed.) Still, one could argue that there is room to distinguish Does, which involved living detainees, and that the requirement for statutory authorization should be less stringent when it comes to retention of bodies.

By contrast, Justice Hendel’s minority opinion concluded that regulation 133(3) constitutes a sufficient statutory basis for withholding the release of certain bodies for negotiations purposes. Justice Hendel reasoned that in interpreting the regulation, the court must balance the competing objectives that it was designed to fulfill: the legitimate security interests of the state, including the interest in securing the return of Israeli citizens and the bodies of Israeli soldiers, on the one hand; and respecting the rights of the deceased and their relatives on the other. According to Justice Hendel, the proper balance between these competing objectives supports the interpretation that regulation 133(3) authorizes the government to decline to release bodies for negotiation purposes or due to security reasons. Justice Hendel asserted that the harm to the rights of the deceased is mitigated by the temporary nature of the burial based on regulation 133(3) according the government’s policy. Furthermore, he read a requirement for proper and respectful burial (including temporary burial) by the military commander into the regulation.

The Role of International Law

The majority opinion drew heavily on international law in interpreting regulation 133(3). It concluded that while international law does not explicitly prohibit the practice of declining to release bodies, the tenor of international law indicates that the preferred course of action is ensuring the return of the bodies to their families or home countries.

Importantly, the court did not specify which international legal framework—international humanitarian law (IHL), international human rights law, or both—applies to the Israeli government’s body-withholding practice as a general matter. Nor did the court determine whether the practice should be viewed as regulated by the laws of armed conflict, and if so, whether the conflict is international or, more likely, non-international. These distinctions are, of course, crucial to ascertaining what international law requires of Israel. The court only implied that the applicable legal framework would depend on the identity of the perpetrator (Israeli citizen, resident of east Jerusalem, resident of the West Bank, or resident of Gaza).

Instead, the court relied on a rather impressionistic sketch of international law on the subject of treatment of the dead, surveying relevant provisions in international instruments and commentary. The court began with an analysis of pertinent IHL obligations that apply in an international armed conflict. While recognizing that the Geneva Conventions do not create an obligation to return bodies to their families, the court emphasized that the International Committee of the Red Cross’ (ICRC) latest commentary on article 17 of the first Geneva Convention clearly states that release to the family is the preferred disposition. It is noteworthy, however, that the commentary suggests that burial by the party holding the body is lawful as well:

The obligation to ensure that the dead are buried or cremated can be satisfied in different ways. The Party in question may itself honourably inter the deceased. Alternatively, it may return the bodies of the deceased to their families for burial or cremation…

The court further mentioned article 34 of Additional Protocol I to the Geneva Conventions. (Israel is not a party to the Protocol but regards many of its provisions as reflective of customary international law.) Article 34 requires that adverse parties conclude agreements to facilitate the return of the deceased to their home country as soon as circumstances permit. Here, again, the court acknowledged that article 34 only creates a qualified obligation to return bodies, which depends on an agreement being reached. At the same time, the court relied once again on the ICRC’s commentary to support its conclusion that the tenor of international law on this issue is that a state is required to make every effort to return to their home country the bodies of those who died as a result of occupation or hostilities.

The court also touched on the law governing non-international armed conflict (NIAC). It recognized that there is no explicit obligation to return bodies in the norms applicable to NIAC, and that the rules governing the treatment of bodies in NIACs are ill-defined due to the absence of specific provisions on this issue. Yet, the court noted, again based on the ICRC’s commentary, that several resolutions of international institutions have supported obligations designed to ensure the return of the dead to their home countries.

Finally, the court maintained that international human rights law, which protects the right to human dignity and the right to family life, should also inform the interpretation of regulation 133(3). The court cited a number of UN and European Court of Human Rights (ECtHR) decisions that indicate that failure to return bodies to the families of the deceased for burial, allow the families to participate in the burial, or inform the families about the location of the gravesite constituted human rights violations (for example, see the UN Human Rights Committee’s views in Mariya Staselovich v. Belarus; and the ECtHR’s decision in Sabanchiyeva v. Russia).

In light of the foregoing, the court acknowledged that international law does not explicitly prohibit holding bodies and declining to release them to their families. Yet, despite the absence of a prohibition, the court asserted that international law frowns upon such practices and clearly favors the release of bodies to their families. Therefore, according to the court, the practice of withholding bodies could only be justified in exceptional circumstances. For instance, it could be justified when the body is needed for an investigation, or while hostilities persist. Interestingly, the court also noted that declining to return bodies could be justified when both parties to a conflict hold bodies of the rival side simultaneously. The court made it clear that a reciprocity claim of this sort could not render the government’s practice lawful in the current legal situation, that is, in the absence of sufficiently specific authorizing legislation. But it hinted that a reciprocity claim might be acceptable in the framework of sufficiently specific authorizing legislation.

It thus appears that what worried the court was not so much the practice of using bodies as bargaining chips to secure the return of Israeli prisoners and casualties as such, but rather the broad and vague nature of the authority that the government relied upon in regulation 133(3). Although the court emphasized that its judgment is limited to the issue of statutory authorization, the decision could be read as a roadmap for the legislature, should it decide to authorize the practice in response to the court’s decision. Legislation that would incorporate and specify international law obligations related to treatment of the dead; distinguish between policing and armed conflict and among the different categories of potential perpetrators of terrorist attacks; and limit the circumstances in which withholding bodies for negotiations purposes would be permitted could meet the legal requirements that the court had outlined.

It is perhaps too early, however, to contemplate the fate of potential authorizing legislation. The decision was greeted with intense political criticism. The Cabinet, the government committee tasked with foreign affairs and national security, stated that the decision is “unacceptable.” On the recommendation of Israel’s attorney general, Avichai Mandelblit, the government already petitioned the Supreme Court for further hearing of the case before an extended panel. Even if the request is denied, the government is likely to promote new legislation. Either way, it does not appear that the nine bodies currently in Israel’s possession would be released any time soon.