A/HRC/44/60 October 2019, Israel was withholding the bodies of 52 Palestinians. 123 Israel retains the bodies to use as bargaining chips for the release of bodies of Israelis held by Palestinian militant groups, primarily Hamas. The then Israeli Minister of Defence issued in 2016, following a gun attack in Tel Aviv, that the bodies of the attackers were not to be returned “to deter potential attackers and their families.124 A former Israeli Minister of Justice has recently criticized the policy, stating that: “Refusing to hand over bodies motivates similar conduct by the other side.”125 73. International law stipulates that the remains of dead combatants should be treated with respect and dignity. The Geneva Conventions provide that the military has an obligation to facilitate the repatriation of the bodies and remains of the dead.126 In particular, Rule 114 of the Rules of Customary International Law, developed by the ICRC, states that: Parties to the conflict must endeavour to facilitate the return of the remains of the deceased upon request of the party to which they belong or upon request of their next of kin.127 74. UN Secretary General Ban Ki-Moon observed in 2016 that the withholding of bodies amounts to collective punishment and is also inconsistent with Israel’s obligations as an occupying power under the Fourth Geneva Convention.128 75. Israel’s legal basis for withholding the bodies is found in Article 133 of the Defense (Emergency) Regulations,129 which authorizes the Military Commander to retain bodies of dead combatants. In December 2017, the Israeli High Court held, 2-1, that the bargainingchips policy was unlawful, as Article 133 did not specifically authorize the Commander to withhold bodies. 130 It noted that, besides Israel, only Russia withheld the bodies of dead combatants, and this practice had been deemed illegal by the European Court of Human Rights.131 76. However, the High Court subsequently decided to review the policy, sitting as a seven judge panel. In September 2019, the Court in Alayan reversed the 2017 precedent and endorsed the practice of withholding bodies in a 4-3 majority. Chief Justice Esther Hayut wrote that the objective purpose of the Defense (Emergency) Regulations was to offer the State of Israel effective tools to fight terror and to protect state security. While the withholding of bodies violates fundamental rights such as human dignity and family life, she found that this is outweighed by the public interest to reclaim the bodies of dead Israeli soldiers.132 According to B’Tselem, the High Court’s ruling: “defies the basic tenet of judicial interpretation, which requires choosing the option that is least injurious to human rights and to the rule of law.” It added that the circumstances of occupation: “warrant enhanced protection for the population, yet the Court uses its powers of judicial review to enhance the power of the state, including its use of draconian measures.”133 123 124 125 126 127 128 129 130 131 132 133 18 https://www.btselem.org/routine_founded_on_violence/20191022_hcj_greenlights _holding_palestinian_bodies_as_bargaining_chips. https://www.haaretz.com/israel-news/lieberman-seeks-to-fast-track-demolition-of-terrorists-homes1.5393808. https://www.al-monitor.com/pulse/originals/2019/11/israel-palestinians-hamas-islamic-jihad-bodiesexchange-deal.html. First Geneva Convention, Article 17; Third Geneva Convention, Article 120; Fourth Geneva Convention, Article 130; Additional Protocol 1, Article 34. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule114. A/71/364, para. 25. The Secretary General referred to Articles 27 and 30 of the Fourth Geneva Convention. 1442 Palestine Gazette, Supp. No. 2, at 1055, 1089 (27 September 1945), as amended. http://www.jlac.ps/details.php?id=nwjkfoa1502y4xxtgq2tv. Sabanchiyeva v Russia (ECHR) (6 June 2013), accessed at: http://hudoc.echr.coe.int/eng?i=001120070. http://www.jlac.ps/details.php?id=nwjkfoa1502y4xxtgq2tv. https://www.btselem.org/routine_founded_on_violence/20191022_hcj_greenlights _holding_palestinian_bodies_as_bargaining_chips.