North Carolina Journal of International Law

"Connecting North Carolina to the World of International Law"

A Form of Psychological Torture: Why Israel’s Refusal to Return the Bodies of Palestinian Soldiers is a Violation of International Law

By: Matthew Ledford

A funeral ceremony and a proper burial have always seemingly been associated with maintaining the dignity of the dead and providing the family of those deceased with some amount of closure, no matter how small. Yet, for some individuals in Palestine, this important burial ritual has been made nearly impossible.[1]  In the midst of the ever-raging battle between Palestine and Israel, the Israeli government has recently refused to return the bodies of Islamic Jihad soldiers who were killed as a result of an attack by Israeli forces.[2]  Human rights advocates argue that such a deprivation is a violation of international law.[3]  Exploring the historical context of Israel’s decision, the relevant law, and emotional repercussions will necessarily shed some light on whether such a claim is justified.

CONTEXT

On Monday, October 30, 2017, the Israeli army attacked and demolished a “terror tunnel” that was being operated by an Islamic Jihadist terrorist organization.[4]  The detonation of the tunnel was carried out with “advanced and groundbreaking” technology (although the Israeli government will not confirm what methods were used) and resulted in the death of eight individuals.[5]  At least four of the individuals were Islamic Jihadists.[6]

Here, the relevant occurrence is Israel’s choice not to return the bodies of the deceased Jihadists back to their families in Palestine. As in a lot of cultures around the world, a funeral procession and a burial ritual is a significant tradition in Palestinian culture.[7]  While the actions of Israel seem inherently wrong and potentially extreme, this is not the first time that the country has refused to return the bodies of opposing political activists who were killed within Israeli borders.[8]  Many of these bodies have been kept in what has become known as the “cemeteries of numbers,” mass graves marked with numbers rather than names.[9]  According to a report published last month by a Palestinian rights group, there are close to 250 Palestinians buried in Israeli military zones, and a number are kept in freezers in Tel Aviv.[10]  It is believed that some bodies have been buried there for over 50 years.[11]

Critics of the deprivation therefore claim that this is just the most recent development in a historical chain of events in which the bodies of Jihadists have been used as “bargaining chips” between the two Middle Eastern countries.[12]  Israel Prime Minister, Benjamin Netanyahu, seemed to indirectly affirm this assertion when he defended his stance on not releasing the bodies: “We’re defending our country with a simple rule – we attack whoever attacks us, and the second [rule] is we’re not going to give something for nothing.”[13]  According to Netanyahu, he is doing what he believes is best for the safety and well-being of his country.[14]

RELEVANT LAW

Naturally, this situation begs the question whether the refusal to return the dead bodies of terrorists to their home countries is a violation of international law. The answer is seemingly yes. In fact, it is surprisingly even a violation of Israeli domestic law.

A Violation of International Law:

The deprivation of the Palestinian bodies by the Israeli government is a violation of international law. The obligation to dispose of the dead in a respectful manner was first codified in the 1929 Geneva Conventions, a set of rules that only apply in armed conflicts and apply to individuals who are no longer taking part in the hostilities including the sick, wounded, and deceased.[15]  Twenty years later, the 1949 Geneva conventions went more in depth and stated that if an individual were to die in a location other than his or her home country as a result of international armed conflict the government of the country in which the individual died shall see to it  “if possible [that the deceased shall be buried] according to the rites of the religion to which [the deceased] belonged and that their graves [be] respected, properly maintained, and marked in such a way that they can be recognized.”[16]  The need for respect towards the deceased became realized in the aftermath of WWII in which it was discovered that the deceased were stolen from, mutilated, and even eaten (cannibalism).[17]  The US Military Tribunal at Nuremberg stated that robbing the dead “is and always has been a crime.”[18]  While this obviously applies to the physical belongings of the dead, it also applies to ill treatment and mutilation of their mortal remains.[19]

This respect for the bodies of the deceased is not just relegated to the past however. In 2016, the United Nations Convention against Torture advised Israel to return Palestinian bodies to their relatives to be buried in accordance with their traditional and religious customs.[20]  However, this suggestion from the United Nations, “which served as the midwife of Israel’s birth,”[21] has been blatantly ignored by the country.

A Violation of Domestic Law:

As stated previously, the illegality of the country’s decision to withhold the bodies of the deceased is not just confirmed by international law, but is ironically done so by Israeli domestic law.[22]  Recently, the Israeli Supreme Court issued a decision and held that the country’s police officers do not have the authority to withhold the Palestinian bodies.[23]

On July 25, 2017, Adalah, the Legal Center for Arab Minority Rights in Israel, filed a petition to the Supreme Court on behalf of the families of three individuals who were killed in the midst of a shooting attack that took place nearly two weeks prior at the Al Aqsa Mosque compound in Jerusalem.[24]  Despite the demands from the suspects’ families for the Israeli police to perform autopsies and to return the bodies for burial, the officers refused.[25]  The Supreme Court held that the Israeli police must return the bodies to their families for burial within 30 hours.[26]  The Court also held that the police can set conditions for how funerals of the dead will be carried out, but the bodies must be released two hours before the ceremony takes place.[27]

The Israeli government argued that the deprivation should be deemed permissible as the government is allowed to take “any action that is necessary” to maintain public order.[28]  However, this position ultimately failed. The Supreme Court held that the government must provide legal authorization when it is depriving individuals of basic human rights, especially those associated with human dignity, and that in the case in question, the government failed to do so.[29]

Despite the fact that various laws prohibit Israel from continuing this deprivation, there is no guarantee that the country will begin to return the bodies. The battle between Israel and Palestine is deeply rooted in history, and embedded in that history is Israel’s willingness to obtain the upper-hand over its enemy at all costs, even if it results in breaking the law.[30]  Israel “has long used excessive force against Palestinians in ways that are not only disproportionate, but unfathomable in comparison to the manner in which the vast majority of Jewish citizens are treated.”[31]  Additionally, “law enforcement personnel remain largely unaccountable for their actions, and Palestinians have few means of challenging the patterns of excessive force used against them.”[32]  Based on Israel’s actions in the past it seems unlikely that change will occur, but time will surely tell if the Supreme Court decision will sway the momentum in favor of compliance.

EMOTIONAL TRAUMA

Israel’s refusal to return the bodies to Palestine has had an extreme emotional impact on the families of those who have lost their lives. Family members are naturally left with a void after the death of a loved one, and this void becomes even deeper when the body of the deceased is not returned for a proper ceremony and burial. It stunts the healing process and even provides family members with the false hope that just maybe their loved ones are still alive. Admittedly, a majority of the deceased individuals were part of the resistance movement against Israel, but the family members of these individuals were not the ones who ultimately carried out these actions and in some cases, did not even support or condone them. Yet, it is the families who feel the brunt of the punishment. Salwa Hammad, a lawyer and campaign coordinator, states that the main reason the Israelis are depriving Palestinians of the bodies, is “to collectively punish the family of the martyr.”[33]

These emotional repercussions are adequately illustrated by the story of Mohammed Nassar.[34]  In 2002, Nasser’s son, Shadi, carried out a suicide bombing at the illegal Israeli settlement of Ariel.[35]  Shadi killed himself and wounded 15 Israelis.[36]  He is believed to be buried in Israel’s cemetery of numbers (mentioned above).[37]  Nassar has since verbally condemned the suicide bombing, but understandably he wants to bury his son whom he hasn’t seen in almost two decades.[38]  He claims that because he has not personally buried his son, he has doubts about whether his son is still alive; creating a hope that unfortunately will not be realized.[39]  Every day is seemingly painful for Nassar, who refers to the deprivation of his son’s body as a “form of psychological torture.”[40]

CLOSING

            War and conflicts are unfortunately a reality in today’s world. Yet, despite this turmoil, we should not lose sight of the importance of human dignity – even in death. This is not to be construed as supporting the political resistance of the Islamic Jihadists but as bolstering of human rights for the deceased and their families. Dawoud Yusef, Advocacy Coordinator for Addameer, a prisoner’s rights group says, “it doesn’t matter what these people were doing, the families still deserve the right to give them a burial.”[41]  This sentiment seems to not only be echoed by basic moral principles, but (as made evident by international and Israeli domestic law) legal principles as well. In the midst of so much pain, these families deserve the bodies of their loved ones, and to therefore be in at least some fashion, at peace.

________________________________________________________________________________________

[1] Jaclynn Ashley, Israel Condemned for Using Bodies as ‘Bargaining Chips,’ Aljazeera (Nov. 6, 2017) http://www.aljazeera.com/news/2017/11/israel-condemned-bodies-bargaining-chips-171106152908445.html.

[2] Id.

[3] Id.

[4] Ralph Ellis & Andrew Carey, 8 Killed as Israel Strikes Gaza Tunnel, Palestinian Health Ministry Says, CNN (Oct. 30, 2017) http://www.cnn.com/2017/10/30/middleeast/israel-strikes-gaza-tunnel/index.html.

[5] Id.

[6] Ashley, supra note 1.

[7] Zena Tahhan, Why Does Israel Keep the Bodies of Palestinians?, Aljazeera (Aug. 10, 2017) http://www.aljazeera.com/indepth/features/2017/08/israel-bodies-palestinians-170810075805418.html.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Ashley, supra note 1.

[13] Israel Refuses to Release Bodies of Palestinians Killed in Gaza Blast, Middle East Monitor (MEMO) (Nov. 7, 2017), https://www.middleeastmonitor.com/20171107-israel-refuses-to-release-bodies-of-palestinians-killed-in-gaza-tunnel-blast/.

[14] Id.

[15] 1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Art. 4, fifth paragraph (cited in Vol. II, Ch. 35, § 328); 1929 Geneva Convention Relative to the Treatment of Prisoners of War, Art. 76, third paragraph (ibid., § 329).

[16] First Geneva Convention, Art. 17 (ibid., § 330); Second Geneva Convention, Art. 20 (ibid., § 330); Third Geneva Convention, Art. 120 (ibid., § 330); Fourth Geneva Convention, Art. 130 (ibid., § 330).

[17] Anna Petrig, The War Dead and their Gravesites, 91 Int’l Rev. of the Red Cross, 341, 351 (2009).

[18] Id.

[19] Id.

[20] Israel Violates the Convention against Torture in Palestine, says UN Human Rights Monitoring Body, Alkarama (May 23, 2016) https://www.alkarama.org/en/articles/israel-violates-convention-against-torture-palestine-says-un-human-rights-monitoring-body.

[21] K.P. Fabian, The Israeli-Palestinian Conflict: How to Cut the Gordian Knot?, 58 India Quarterly, 51 (2002).

[22] Precedent-setting Israeli Supreme Court Ruling on Adalah Petition: Israeli Police not Allowed to Hold Bodies, Adalah (July 26, 2017) https://www.adalah.org/en/content/view/9172 [hereinafter Supreme Court].

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Supreme Court, supra note 10

[29] Id.

[30] Emily Schaeffer Omer-Man, Extrajudicial Killing with Near Impunity: Excessive Force by Israeli Law Enforcement against Palestinians, 35 B.U. Int’l L. J. 115, 118 (2017).

[31] Id.

[32] Id.

[33] Zena Tahhan, Why Does Israel Keep the Bodies of Palestinians?, Aljazeera (Aug. 10, 2017) http://www.aljazeera.com/indepth/features/2017/08/israel-bodies-palestinians-170810075805418.html.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Tahhan, supra note 10.

[40] Id.

[41] Ashley, supra note 1.

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