Palestinians are not exempt from Israeli detention after death. The decision to withhold the body of deceased Palestinian prisoner Nasser Abu Hmeid, who died of cancer while in custody, is the most recent manifestation of the Israeli necropolitical regime that regulates the bodies of dead Palestinians. The history of withholding Palestinian bodies spans several decades. Since 1967, Israel has withheld hundreds of Palestinian corpses, which it has primarily used as “bargaining chips” in negotiations or potential prisoner swap deals. While the exact numbers are obfuscated by a lack of state transparency, between 1991 to 2008, Israel intermittently returned over 400 dead Palestinian bodies. Today, the number of Palestinian corpses Israel continues to withhold is estimated to be over 370: more than 115 bodies are withheld in morgues, in addition to 256 corpses buried in numbered graves without identification known as the “cemeteries for enemy combatants” or the “Cemetery of Numbers.”
Despite the prolonged and continuous practice of withholding Palestinian bodies, the Israeli policy has not been linear or singular but rather inconsistent and fluctuating over time. Israel did not publicly formulate an official policy with regard to the indefinite withholding of Palestinian bodies until 2015, following the “Intifada of the individuals,” when young Palestinians in Jerusalem—oppressed by Israeli authorities and lacking an adequate political leadership and means of organized resistance—began to sporadically and individually attack military, police, and settlers with knives and other makeshift weapons. These ebbs and flows in the ways Israel has captivated Palestinian corpses reinforced a sense of unpredictability, collective punishment, as well as arbitrary and malicious detention of the dead.
This essay highlights and analyzes the Israeli laws and policies pertaining to Palestinian corpses, written and deliberated in a language most Palestinians do not speak. It takes a closer look at four Israeli High Court decisions from recent years that have constructed the legal maze of withholding dead Palestinian bodies: Jabareen (2017), Alian I (2017), Alian II (2019), and Erekat (2020) and offers that this policy is tantamount to a jurisprudence of death. The essay builds on foundational works by Nadera Shalhoub-Kevorkian, Suhad Daher-Nashef, Budour Hassan, and Randa Wahbe, which together provide the most comprehensive study of the phenomenon to date.
The Emergence of Israeli Legal Policies regarding Palestinian Corpses
Mustafa Barakat was a Palestinian from the West Bank village of Anabta who died from Israeli torture and abuse while in custody. “During his investigation, Mustafa Barakat died,” reads the 1992 Israeli High Court decision pertaining to his funeral processions. The Israeli army decided to restrict his funeral by limiting it to family members and holding it at night. The family petitioned the court to overturn the army’s restrictions. In Barakat v. OC Central Command, the court found that the army is authorized to impose limitations on funeral processions that risk “violating the security and public order.” The court further ruled that in the case of Barakat the decision to impose restrictions on the funeral processions was “reasonable.”
While the Israeli practice of imposing restrictions on Palestinian funerals and withholding dead bodies well predates the Barakat decision, this case was the first instance in which the court reviewed and adopted such restrictions through judicial review. Israel has derived its legal authority to regulate Palestinian death from the 1936 Defense Regulations 133(3). Originally enacted by Britain during its Mandatory rule to temporarily bury Palestinian prisoners who died in captivity during the Great Revolt, Israel adopted the regulation upon its establishment in 1948. The regulation reads in relevant part that, “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 by whom and at what hour the said body shall be buried.”
By ruling in favor of the army’s authorization to impose restrictions on Palestinian funerals, the Israeli High Court paved the way for an institutionalized expansion of the State’s necropolitical regime. In 1995, the Court expanded the legal corpus on this matter when it issued a ruling allowing the army to withhold the body of Hassan Abbas, a Hamas member, as a “bargaining chip” in exchange for information about the burial of an Israeli soldier by Hamas. In a four-line ruling, the court simply concluded that it cannot find withholding the dead body “unreasonable.”
The legality stamp that the Israeli army received in court corresponded with a remarkable increase in withholding Palestinian dead bodies. By the end of the 1990s, Israeli NGOs Btselem and Hamoked reported a “turning point” when the captivity of the dead shifted from a largely arbitrary policy towards a default of withholding the bodies of alleged Palestinian assailants. The report documents at least 24 cases of Palestinian bodies withheld by Israel between 1995 and 1998 and concludes that “[collective] punishment is the primary motivation in not returning the bodies.”
The practice of withholding Palestinian bodies expanded again at the turn of the century. As Budor Hasan notes, the number of Palestinian dead bodies withheld by Israel reached “unprecedented levels in the wake of the second intifada.” Against this background, in 2004, the Israeli Attorney General adopted an official policy allowing the state to withhold corpses for the sake of a potential deal, “not on an indefinite need for some future negotiations” but rather for a “concrete deal with an enemy for an exchange of corpses.” This limitation, however, did not lead to a mass release of Palestinian corpses. In fact, the Attorney General’s policy provided a veneer of legality that would later allow the state to defend its policy and claim that it adheres to democratic-legal norms in withholding Palestinian bodies.
Israel dramatically intensified its policy of withholding Palestinian bodies in the aftermath of the 2015 “Intifada of the individuals.” In response, advocates brought a series of legal challenges before the Israeli High Court, which we analyze below.
The Death Courts: Adjudicating Palestinian Dead Bodies
In the context of the “Intifada of Individuals”, the Israeli government amended its rules of engagement regulating police force to de facto permit officers to use lethal force as a measure of first resort for the sake of preventative security. In effect, police were authorized to execute Palestinians on suspicion that they posed a threat. By 2016, Israeli officers had shot to kill 97 Palestinians, including 36 children. According to the Palestinian Center for Human Rights, there existed no evidence of the means to carry out a lethal attack in 95 out of the 97 cases. The Committee Against Torture as well as Human Rights Watch confirmed these findings between 2016 and 2017 condemning Israel’s relaxed rules of engagement as contrary to international law. The Israeli Ministry of Interior, nonetheless, refused to investigate nearly all Palestinian complaints against the police. Worse, the Military began to systematically withhold the bodies of the slain Palestinians, arbitrarily labeled terrorists in deference to the Military Commander’s assessment.
The state sanctioned such withholdings under the pretext of negotiating the release of two bodies of Israeli soldiers, Hadar Goldin and Oron Shaul, and two Israeli civilians, Avner Mengistu and Hisham al-Sayed, held by Hamas. Though prisoner exchanges are common and regulated by the laws of armed conflict, corpses are not included in the scope of such exchanges. To the contrary, such a policy contravenes occupation law, customary law, as well as the Convention Against Torture.
In late 2016, the Israeli government decided to formulate an official policy on withholding corpses of alleged Palestinian assailants and on 1 January 2017, the Israeli State Security Cabinet adopted a resolution titled “A Uniform Policy on Handling the Corpses of Terrorists.” The resolution anchored the decision to withhold corpses of “terrorists associated with Hamas” or “terrorists who perpetrated a particularly exceptional terrorist attack.” This Cabinet decision relied on the 2004 Attorney General policy which conditioned the withholding of bodies in relation to a “concrete deal with an enemy for an exchange of corpses.” In this sense, the updated Cabinet decision stretches the temporal concept of concrete, indefinite, temporary, and permanent, which we will discuss at greater length below.
The phenomenon of withholding Palestinian bodies historically applied only to Palestinians in Gaza, the West Bank, or East Jerusalem. However, in parallel with the 2017 Cabinet decision, the Israeli police also revived the practice of conditioning funeral processions with regard to Palestinian who hold Israeli citizenship as well. After killing Yacoub Abu al-Qi’an while he drove his car in the village of Umm al-Hiran, Israeli police withheld his body to exact restrictions on his funeral processions. The police ultimately released the body following a High Court decision in response to the family’s complaint and after the court exacted its own assurances from the petitioners to “maintain the public order.”
In 2017, in Jabareen v. Israeli Police, the High Court reviewed this policy of withholding bodies of Palestinian who hold Israeli citizenship. In Jabareen, Adalah filed a petition for the release of the corpses of three Palestinian citizens accused of killing two Israeli patrol officers in Jerusalem. Israeli police sought to detain their bodies until they could exact specific conditions regarding their funerals from their families. The Court concluded that the police lack specific and direct statutory authority to do so and ordered the police to return the three corpses to their families.
In response to the ruling in Jabareen, the Israeli Knesset passed a legislative amendment to its counter-terrorism law that explicitly authorized the police to place conditions on Palestinian funerals and to withhold Palestinian corpses until they could exact security assurances. The 2017 amendment includes limitations on the time and location of the funeral as well as the participants permitted to attend. This legislation effectively extended the 1992 Barakat policy established in the West Bank to Palestinian citizens of Israel. While laws enacted by the Knesset also apply to Palestinian residents of East Jerusalem, the Israeli military already assumed parallel authorities and detained corpses of Palestinian Jerusalemites. Israeli law has therefore created a distinction with regards to the treatment of dead Palestinian bodies based on legal status: whereas citizen bodies may be withheld by the police to impose conditions on the funeral processions, non-citizen bodies may also be withheld as a “bargaining chip” by the Israeli military under the conditions of the Cabinet decision, namely, either association with Hamas or “particularly exceptional” cases.
Following the newly adopted Cabinet decision and given the Jabareen ruling, Palestinian civil society organizations challenged the Cabinet decision to withhold Palestinian bodies as “bargaining chips.” In Alian v. Commander of IDF Forces in the West Bank, the Court sought to answer, “whether reg. 133(3) of the Defence Regulations authorizes the Military Commander to order temporary burial of terrorist corpses with a view to hold them for negotiation purposes.”
The Court found by a 2-1 decision that Regulation 133(3) was meant as a matter of exception, rather than policy, to temporarily bury a corpse when “the corpse’s body could not be transferred to the person’s relatives.” The majority reasoned that while the Defense Regulation authorized the Military to determine temporary circumstance of burial when the corpse could not be immediately transferred to their relatives, that authority did not provide a blanket exception to temporarily withhold the body for “negotiating purposes.” The Court’s primary objection to the State’s policy was about a lack of specific statutory authority.
The majority agreed with the State that international law does not create a specific prohibition on the withholding of bodies for negotiating purposes by distinguishing Israeli policy from Russian policy, deemed illegal by the European Court of Human Rights. In particular, the Israeli judicial panel used the temporal distinction between indefinite and permanent to argue that whereas Russia never returns corpses, Israel ultimately returns them though at an unknown and unspecified time. More, the Court ruled that because families could legally challenge the withholding of their kin, it was not arbitrary as in Russia where there is no possibility for judicial review. The Court thus found its policy in compliance with international law but remained concerned that Israeli law itself was silent on the matter and appealed to the State to legislate such authority. The Court concluded to grant “a suspended declaration of voidance” to allow the State time to formulate an explicit legal arrangement and should the State fail to do so within six months, that the bodies be returned to their families for burial.
Despite the ability to legislate and explicitly authorize the military to withhold bodies, the State appealed the decision and in 2019, an expanded panel of seven judges presided by the head of the High Court, Esther Hayut, overturned the decision. In Alian II, the court decided in a 4-3 majority that Regulation 133(3) does, in fact, authorize the army to withhold bodies for negotiating purposes, namely as “bargaining chips,” thus sanctioning implementation of the Israeli Cabinet’s 2017 decision.
In a paragraph that captures the institutional inability of the Israeli Court to deliver justice for Palestinians and highlights the court’s self-perception as an agent of “the nation” rather than of law, President Hayut concludes:
The objective purpose of the Defence Regulations is to provide the nation’s leadership with effective tools for combatting terrorism and protecting the security of the country and its citizens. Our obligation to perpetually seek the retrieval of remains of Israeli citizens and fallen IDF soldiers held by terrorist organizations lies at the heart of protecting national security, and therefore, at the heart of the objective purpose of Regulation 133(3). In my view, as part of this purpose, Regulation 133(3) grants the military commander the power to hold, including by way of temporary burial, the remains of terrorists for the purpose of protecting national security or upholding the dignity of fallen enemies that cannot be returned.
The majority’s opinion in Alian II has not only upheld the 2017 Cabinet decision but effectively granted blanket authorization to withhold Palestinian bodies with almost no scrutiny or limitation on how this policy is implemented. In doing so, the court not only dismissed the plight of Palestinian families to bury their loved ones but also paved the way for the state to expand the Cabinet policy.
In 2020, Adalah filed a petition on behalf of the family of Ahmad Erekat, whose body was withheld after two border patrol officers shot to kill him when his car veered into a checkpoint kiosk. Significantly, the Court in Erekat v. Military Commander of the West Bank, accepted without question, that Erekat was shot “in the course of an attempted vehicle-ramming accident.” Based on the Military’s account and its own review of the material presented to it, the 3-judge panel held that “Erekat should be viewed as a terrorist, and this is the starting point for [their] discussion” thus eliminating a key opportunity to challenge the facts of the State’s case.
The Court agreed that Erekat was not affiliated with Hamas, and, since the incident only caused light injuries to one officer, the attack was not “particularly exceptional.” This created a unique legal issue. The State withheld Erekat’s body in June 2020 when the 2017 Cabinet decision stipulating that authority to withhold bodies exists for the holding of corpses affiliated with Hamas or those attacks are “particularly exceptional.” The Cabinet did not amend its policy to withhold “the bodies of terrorists to all terrorists, regardless of their organizational affiliation, whether they killed or injured anyone, or whether they carried a cold or hot weapon,” until September 2020. This therefore raised the legal issue of whether Erekat’s detainment for the first two months was illegal as the policy authorizing withholding policies did not apply to him. While one judge concluded that it was illegal and ruled that Erekat’s corpse should be returned to his family, the majority decided that such withholding is permissible during review of the Government policy.
The Erekat court allowed the government to detain Palestinian bodies without specific statutory authority and to provide such authority retroactively. The court’s suggestion to the family was, simply, wait while the state may reconsider your request to release the body within six months. A request on behalf of the family to rehear the case was dismissed by the court’s president. A request to reconsider releasing the body after the period the court specified was denied by the military.
Law after Death: The Legal Process & the Ritual of Death
The Israeli policies and court decisions that have enabled the State to withhold Palestinian bodies have formed a legal corpus that regulates Palestinians after death. We refer to this as the jurisprudence of death, a legal regime that attempts to provide justification for the detention of corpses in freezers and relegates Palestinian mourning to a liminal zone of non-burial and non-closure. Once a Palestinian body is withheld, Israeli law assumes a central role in regulating grief and suspending closure. In such cases, the jurisprudence of death has effectively replaced the ritual of death. The law’s violence becomes the ritual and the grave turns into a courtroom. The legal process takes over the dead bodies and controls the timeline of grief and closure.
The jurisprudence of death aims to fortify Israel’s necropolitical policy with a veneer of law and order. The legal process presents it as a series of isolated, “reviewable” actions subject to “reasonable” limitations. However, the fact that a judicial panel will rarely, if ever, challenge the military’s finding that a slain Palestinian is a “terrorist,” even in the face of contrary evidence, reveals the inadequacy of judicial review. There is no chance to adequately challenge the State’s decision to withhold a corpse, there is only a narrow opportunity to challenge whether the State has the requisite authority to do so at that time. The Erekat decision further reveals how far the court is ready to go to protect and legalize the withholding of bodies even when no such authority exists. The jurisprudence facilitating the withholding of Palestinian bodies illuminates how popular sovereignty, judicial review, and other legal-democratic mechanisms can simultaneously exist in a racialized regime that values Jewish lives above Palestinian life and death, which it denigrates and controls.
Beyond the law, the kidnapping of dead Palestinian bodies has engrained in the Palestinian psyche a collective trauma and anxiety. So much so that among the horrors of watching Israeli officers beat the pallbearers carrying the casket of renowned journalist, Shireen Abu Akleh, was the fear that they would also confiscate her corpse. While Abu Akleh has never been accused of terrorism by Israel—supposedly a precondition to withhold Palestinian bodies—this gap between the Palestinian experience and Israeli law is illustrative of the sense of lawlessness Palestinians endure under a regime that simultaneously micromanages their death and grief. This duality of unpredictability and harsh rule within a hyper-legalized context is intended to reinforce the sense of subjugation and helplessness among Palestinians. Contrary to the State’s claims, this is not merely a policy aimed at retrieving Israeli bodies held by Hamas. Withholding Palestinian bodies is meant as a display of overwhelming and all-consuming power.
Far from submitting to this oppressive force, Palestinians have continued to practice steadfastness and to organize themselves with vigilance. In 2008, and with the collaboration of affected Palestinian families, the Jerusalem Legal Aid Center, Palestinian families launched the National Campaign for the Retrieval of Palestinian and Arab War Victims’ Bodies and the Disclosure of the Fate of the Missing. Their popular efforts echo those in Spain, Argentina, and Lebanon where families disappeared persons continue to search for the remains of their beloved kin and to agitate a popular consciousness regarding the violence that undergirded those disappearances. Their efforts – together with those waged in Palestine- demonstrate the limitation of law in redressing legal violence. Such redress is located in the crucible of popular movements, which aim to make a decisive shift in the balance of power. While these efforts have yet to yield their desired outcome, Palestinians continue to demand the return of their kins’ bodies for the sake of closure and in testament to a life with dignity.