The claims about the bodies of “martyrs” held by Israel, which concern the remains of Palestinian terrorists who perpetrated attacks against Israelis, is a distortion of fact and law. Hamas and other Palestinian terror groups use kidnapping as a military tactic, which is a grave violation of international law. For the limited purpose of enabling Israel to respond to this threat and to negotiate the return of living or dead Israelis who were kidnapped or are otherwise unlawfully being held in Palestinian custody, Israel withholds and temporarily buries the remains of Palestinian terrorists, which is not a violation of international law. There is no moral equivalence between Hamas, which openly violates and disdains the laws of armed conflict, and Israel, which is forced to respond to these violations and protect its citizens.

Over its long history of fighting Palestinian terrorism, Israel has had to deal with many hostage situations.[1] Palestinian terror groups like Hamas and Hezbollah employ a deliberate strategy of kidnapping Israeli soldiers and civilians in order to achieve prisoner exchanges. In 2008, Israel obtained from Hezbollah the return of the remains of Israeli soldiers Ehud Goldwasser and Eldad Regev, abducted and killed at the start of the 2006 Lebanon War, only because it was able to exchange five live terrorists and the remains of dozens of others. In 2011, Israel succeeded in negotiating the return of just one captured Israeli soldier—Gilad Shalit, unlawfully kidnapped by Hamas and held captive for five years—by exchanging 1,027 Palestinian security prisoners.[2]

In violation of international law, Hamas has been holding the bodies of two Israeli soldiers, Hadar Goldin and Oron Shaul, since 2014. Hamas also holds hostage two mentally ill Israelis, Avera Mengitsu and Hisham al-Sayed, who separately entered Gaza in 2014 and 2015, respectively.[3]

Contrary to the claims made in the UNHRC by the Palestinians, Iraq, and the Arab Group, Israel’s policy does not violate international law:

• Article 17 of the First Geneva Convention provides that burial should be “preceded by careful examination…with a view to confirming death” and “establishing identity” and should be done “honorably…if possible, according to the rites of the religion to which they belonged.” However, the Article contains no obligation to return the bodies.[4]
• The Commentary of the International Committee of the Red Cross to this provision explains that the principle underlying Article 17 “is to preserve the dignity of the dead.” In this regard, the commentary states that the “obligation to ensure that the dead are buried or cremated can be satisfied in different ways. The Party in question may itself honorably inter the deceased. Alternatively, it may return the bodies of the deceased to their families for burial or cremation.” While the commentary adds that “the preferred option” is to return the remains of the deceased to their families, which it adds is a “basic humanitarian goal,” return of the bodies is presented as “the preferred option,” rather than as an obligation.[5]
• Article 34 of the First Additional Protocol to the Geneva Conventions provides that parties to a conflict should “conclude agreements” to “facilitate the return of the remains of the deceased and of personal effects to the home country upon its request.” It adds that “in the absence of agreements,” the party where the graves are situated “may offer to facilitate the return of the remains…” Again, the provision encourages return of the remains but does not present it as an obligation.
• Red Cross Rule 114 of the Customary Rules of International Law states “Parties to the conflict must endeavor to facilitate the return of the remains of the deceased upon request of the party to which they belong or upon the request of their next of kin. They must return their personal effects to them.” (Emphasis added).[6] According to this rule, return of the deceased’s personal effects is an obligation, but return of the remains is not.

The Supreme Court of Israel, with an expanded panel of seven justices, recently examined this difficult question in Commander of IDF forces in Judea and Samaria v. Alyan, Case No. 10190/17 (September 9, 2019). The Supreme Court acknowledged that withholding terrorists’ bodies and preventing them from being buried by family entails some harm to the dignity of the deceased and their families, but noted that the withholding is temporary, the remains are buried with dignity, in a metal coffin in a cemetery, and with proper genetic identification.[7] The Supreme Court concluded that the policy was authorized by Israeli law and did not violate international law which it said should be interpreted dynamically to take into account new threats arising from terrorism. The court emphasized that the withholding was temporary and for a limited security purpose—to negotiate and exchange.[8]