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Photo:
Nassim Abu Rumi. Published by IMEMC News
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by IMEMC News
September 22, 2019 6:07 AM

by Maureen Clare Murphy

A Palestinian family in the Jerusalem-area village of al-Eizariya has been unable to bury their 14-year-old son, who was killed by Israeli police last month.

Nassim Abu Rumi’s family has petitioned Israel’s high court to order the release of his body, which will be reportedly transferred on Friday. Israel will also be transferring the remains of Omar Younis, who died in an Israeli hospital in April after being shot by occupation forces at a West Bank checkpoint.

Israel is holding the remains of more than a dozen Palestinians recently killed during alleged and actual attacks on occupation forces and civilians.

This month, following a petition by several families whose relatives’ remains are being held by Israel, the country’s highest court rubber-stamped its approval of the policy.

The court ruled that Israel’s military has “the legal right to hold on to the bodies of slain terrorists for use as leverage in future negotiations with Palestinians,” as The Times of Israel reported.

In December 2017, the court stated that Israel has no legal authority to hold bodies “until consent to certain funeral arrangements is given” by a slain Palestinian’s family.

Israel “cannot hold on to corpses for the purposes of negotiations at a time when there is no specific and explicit law that allows it to do so,” the judges stated at the time.

The following year, Israel’s parliament, the Knesset, passed a law allowing police to withhold the bodies of Palestinians killed while allegedly carrying out attacks on Israelis.

The law authorizes police commanders to withhold a body if it is determined the slain person’s funeral “could be used to carry out an attack or provide a platform for praising terrorism,” according to The Times of Israel.

“We have no need for them”

Public security minister Gilad Erdan, who oversees Israel’s police, said at the time of the law’s passing that “The government doesn’t want to hold on to these bodies. As far as we are concerned, the bodies of these cursed terrorists will rot. We have no need for them.”

The Israeli high court’s ruling this month, however, shows that the state intends to use the bodies as bargaining chips to secure the remains of Israeli soldiers held by Palestinians.

Human rights groups refute the high court’s claim that withholding Palestinian bodies is permissible under international humanitarian law, which governs armed conflict.

Adalah, a group that advocates for the rights of Palestinians in Israel, said the ruling was among the “most extreme” ever made by the court, “as it undermines the most basic principles of universal humanity.”

The rights group added that the court ruling is the first anywhere in the world permitting state authorities to hold bodies so that they may be used as bargaining chips.

“The practice of withholding bodies amounts to a policy of collective punishment,” which is prohibited under international law, the Palestinian human rights group Al-Haq stated.

The withholding of bodies is also “contrary to the prohibition on torture and inhuman or degrading treatment,” Al-Haq added.

The families who petitioned the court stated that they “will consider appealing to international courts in an effort to do everything possible to recover the bodies of their loved ones.”

Left to bleed to death

Video shows that Nassim Abu Rumi was killed moments after he and another Palestinian child, holding kitchen knives, lunged at Israeli police officers in Jerusalem’s Old City on 15 August.

Officers opened fire at the boys as a matter of first resort, making no use of less-lethal means to detain them.

The other boy was seriously injured and has been charged with attempted murder. A Palestinian bystander was injured during the incident, and one officer was lightly wounded by the youths.

Videos from the scene do not show any attempt to administer first aid to either of the boys after they were shot by police. Video shows an officer receiving treatment.

A human rights group is demanding an investigation by Israel’s health ministry into another case of a suspected Palestinian assailant being left to bleed to death, even though a police physician was at the scene.

Yaqoub Abu al-Qiyan was shot by police during what they thought was an attempted car-ramming attack during a raid on Umm al-Hiran, a Bedouin village in southern Israel that is not recognized by the state.

Analysis published by the UK-based research group Forensic Architecture indicates that contrary to claims from Israeli leaders, including Prime Minister Benjamin Netanyahu, Abu al-Qiyan was not attempting any such attack when police opened fire on his vehicle in January 2017.

Forensic Architecture’s findings indicate that Abu al-Qiyan, a Palestinian citizen of Israel, was driving slowly and his vehicle only accelerated after he was shot at by police, suggesting he had lost control of his car.

A recently concluded internal police probe cleared the police physician of negligence.

Human rights groups say that the failure of the police physician to administer first-aid to Abu al-Qiyan “is not a localized failure, but a systemic problem.”

Physicians for Human Rights-Israel stated that “Vague procedures for caring for injured parties in scenes suspected as scenes of a terrorist attack allow for situations in which injured parties suspected as perpetrators do not receive care.”

“Physicians cannot act as judge and jury,” the group added. “Physicians and other medical staff must treat all injured parties according to triage principles.”

In its investigation of a pattern of unlawful killings of Palestinians by Israeli forces, Amnesty International stated that the failure to administer first aid – “especially intentional failure – violates the prohibition on torture and other cruel, inhuman and degrading punishment.”

The human rights organization added that “As such, failure to provide medical aid should be investigated as a criminal offense.”

On Wednesday, a Palestinian woman was shot by Israeli forces at a West Bank checkpoint and left to bleed to death in the street.

Eyewitnesses said that the woman was denied first aid. The Palestine Red Crescent Society said that Israeli forces prevented paramedics from reaching her.

~Electronic Intifada/Days of Palestine
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Israeli High Court of Justice Upholds Israel’s Policy of Withholding the Bodies of Palestinians Killed
Published by Al Haq
16 Sept 2019

Al-Haq condemns the recent decision reached by the Israeli Supreme Court sitting as the Israeli High Court of Justice, reviewing with approval Israel’s policy of withholding the bodies of killed Palestinians under newly enactedIsraeli Knesset legislation, applied directly in occupied East Jerusalem. Additionally, Israel’s practice of withholding the bodies of deceased Palestinians is also carried out across the rest of the Occupied Palestinian Territory. It should be noted that the Israeli occupying authorities have a long history of such, and similar practices, including the use of Enforced Disappearances[1]and “cemeteries of numbers”, wherein Palestinians are buried in secret to be solely identified, and dehumanised, by numbers.[2]This amounts to a discriminatory practice of Enforced Disappearance, cruel and inhumane treatment of grieving bereaved families, and to an act of collective punishment against Palestinians.

Under a landmark 2017 decision, the Israeli High Court of Justice held that the State of Israel, “did not indicate a source of [legal] authority that allows it to hold bodies until consent to certain funeral arrangements is given” by the families of the deceased.[3]The Court recognized that “there are a number of fundamental rights at stake, first and foremost human dignity” involved in the withholding of remains.[4]However, while the Court observed the inherent right for a proper and respectful burial, it somewhat paradoxically claimed obiter that the State may explicitly legislate to authorise the violation of fundamental rights.[5]Nonetheless, the Court ordered that the bodies be returned within 30 hours of its judgement, with two hours-notice given to the bereaved families.[6]

Following the Court’s decision, the Israeli government, with cross-party support in the Knesset, passed the Counterterrorism Law (Amendment No.3, 2018), which allows the Israeli Occupying Forces (IOF) to withhold bodies pending the coerced acceptance of bereaved families of certain restrictions upon their burial.[7]Chief among these restrictions is the requirement that burials take place at night immediately after the return of the remains, which relatives have indicated makes burial according to tradition and the carrying out of an autopsy, impossible.[8]Alongside the passing of the amendment, the State of Israel requested, and was granted, permission to delay the returning of Palestinian remains pending an additional hearing in light of the newly adopted legislation.

As noted by Adalah and the Commission of Detainees’ and Ex-Detainees’ Affairs, the Israeli Supreme Court:

"rendered a decision that makes Israel’s ongoing violation of international humanitarian law (IHL) possible. IHL prohibits the occupying power from holding bodies, and using them as bargaining chips. In addition, the Supreme Court’s decision further delays the transfer of the bodies for burial, thus giving a green light to the grave violation of the right of the families and the deceased themselves to a prompt and proper burial.”[9]

Under customary IHL, parties to an armed conflict must show respect to the dead, which “must be disposed of in a respectful manner”.[10]Further, the remains of the dead, as outlined in all four Geneva Conventions, must be returned to their families.[11]Moreover, the practice of withholding bodies amounts to a policy of collective punishment,[12]which is expressly prohibited under Article 50 of the Hague Regulations, Article 33(1) of the Fourth Geneva Convention, and Article 75(2)(d) of Additional Protocol I to the Geneva Conventions, all of which Israel is either a party to, or are recognised to constitute customary international law. It has also been observed that this practice is contrary to the prohibition on torture and inhuman or degrading treatment.[13]

The final Israeli High Court of Justice decision, of a majority vote, is premised on a gross denial of the provisions of international law: paradoxically Justice Esther Hayut argued that “holding on to bodies does involve a violation of human rights and of the dignity of the deceased and his family”, while also somewhat unpersuasively arguing that “international humanitarian law or laws pertaining to international human rights do not contain a prohibition on withholding the return of bodies during an armed conflict”.[14]Although some recognised the clear breach of international law, Justice Barak-Erez of the minority made a strange and unfounded “distinction between the bodies of terrorists from Gaza, which international law allows Israel to keep, and those of terrorists from the West Bank or of Israeli citizens or residents”.[15]

It would therefore appear that the Court is wilfully unconcerned with Israel’s obligations to respect the dead under the Hague Conventions of 1907 and the Fourth Geneva Convention of 1949, as well as customary IHL and the provisions of the International Covenant on Civil and Political Rights and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as relevant to the Palestinian population.

Al-Haq strongly condemns this extreme ruling and calls upon the State of Israel to recognise and respect the rights of the families of those whose bodies are being unlawfully withheld by the IOF, and to repeal the 2018 Amendment, which stands in reckless violation of international humanitarian and human rights law and human dignity.


[1]Al-Haq, Al-Haq Sends Urgent Appeal to UN Special Procedures on the Enforced Disappearance of Saleh Omar Barghouthi (27 December 2018) http://www.alhaq.org/advocacy/6119.html

[2]The Electronic Intifiada, Mother waits 36 years for Israel to return son’s body (2 November 2015) https://electronicintifada.net/content/mother-waits-36-years-israel-return-sons-body/14969

[3]HCJ 5887/17 Jabareen v Israeli Police at para 4 – English translation by Adalah available at https://www.adalah.org/uploads/uploads/English_SCT_decision_release_bodies_Umm_al-Fahem_July_2017_FINAL.pdf

[4]Ibidat 9.

[5]Ibid at 10.

[6]Jabareen v Israeli Police(n 4) at para 15

[7]Al-Haq (n 8); Adalah, Knesset passes law allowing Israeli police to hold bodies of Palestinians as precondition for funeral arrangements (12 March 2018) https://www.adalah.org/en/content/view/9430

[8]The Electronic Intifada, Israel holding bodies of Palestinians as bargaining chips (14 March 2018) https://electronicintifada.net/blogs/maureen-clare-murphy/israel-holding-bodies-palestinians-bargaining-chips

[9]Adalah, Israeli Supreme Court decision to allow additional hearing on Israel’s holding of Palestinian bodies violates int’l law (21 February 2018)https://www.adalah.org/en/content/view/9400

[10]Customary IHL, Rule 115

[11]Article 16, First Geneva Convention; Article 19, Second Geneva Convention; Article 122, Third Geneva Convention; Article 33(1), 139, Fourth Geneva Convention

[12]Ibid; Al-Haq (n 1); Al-Haq, PHROC Stands in Solidarity with the Manasrah Family for Refusing to Receive their Son’s Frozen Body (22 March 2016) http://www.alhaq.org/palestinian-human-rights-organizations-council/6425.html; Adalah, Israeli Supreme Court reverses earlier ruling, authorizes Israel to hold bodies of Palestinians as bargaining chips (9 September 2019) https://www.adalah.org/en/content/view/9808?fbclid=IwAR28Z1wCuR2UqZYUJ1C1SQwPjoxOcWpEFElM-ORFmox_swu24GEj0tJDZs0

[13]UN Committee against Torture, Concluding Observations on the fifth periodic report of Israel (3 June 2016) at para 43; UN General Assembly, Israeli Practices Affecting the Human Rights of the Palestinian People in the Occupied Palestinian Territory, including East Jerusalem (30 August 2016) at paras 4, 25, 72(g); Article 7, International Covenant of Civil and Political Rights

[14]Hareetz, Israel Can Hold Bodies of Terrorists, High Court Rules, Reversing Landmark Decision (9 September 2019) https://www.haaretz.com/israel-news/.premium-israel-can-hold-bodies-of-terrorist-high-court-rules-reversing-landmark-decsion-1.7823491

[15]Ibid.