Security Cabinet Opts to Request Court Review on Returning Terrorists’ Bodies

The Prime Minister’s Office announced on Monday a change of tactics in pursuit of its policy of holding the bodies of slain terrorists for the purpose of negotiating with Hamas, which continues to refuse the return of two fallen Israeli soldiers and two civilians presumed to be still alive.

Initially, government officials responded to a High Court ruling that it could not indefinitely refuse to return terrorists’ bodies in lieu of a law authorizing the policy by immediately calling for passage of such a law. The court gave the government six months to do so, or give up the bodies.

However, on Monday the Security Cabinet agreed to a proposal urged upon the ministers by Attorney General Avichai Mandelblit, to ask the High Court to review its ruling with an expanded panel of seven to nine justices. Last week’s decision was the result of a 2-1 split. Although such expanded panels are rarely inclined to overturn previous decisions, Mandelblit apparently believes that in this case the division of opinion among the justices indicates that the procedure could work in the government’s favor, according to The Jerusalem Post.

The government has not decided to abandon the legislative route, just to give the court another try first.

It said in a statement that “the bodies of terrorists will not be returned and that the principles which were put forth by the majority [of the High Court] are not acceptable,” but that the legislative path was deferred until a broader panel considered the matter.

Among the key issues was whether the state has the right under international law to refuse the return of the bodies. The majority, Justices Yoram Danziger and George Kara, argued it only permits temporary holding of adversaries’ bodies in times of ongoing conflict.

The court indicated that international law might permit a state to hold onto adversaries’ bodies immediately after a battle in which the adversary was holding bodies of its soldiers from the same battle. But even if so, the Knesset would have to pass a law explicitly authorizing it to do so.