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Israeli high court rules to return bodies of Al-Aqsa assailants, with conditions

July 25, 2017 10:58 P.M. (Updated: July 26, 2017 8:24 P.M.)
JERUSALEM (Ma'an) -- In a precedent-setting case, the Israeli Supreme Court has ruled to release of the bodies of three Palestinian citizens of Israel, who were killed after they carried out a deadly shooting attack on two Israeli border policemen at the Al-Aqsa Mosque compound on July 14, an event that triggered an unprecedented security crackdown by Israel and more than a week of escalating unrest.

After convening for three consecutive days on the case, the court ruled Tuesday evening to accept an appeal submitted by human rights organization Adalah that called for the immediate return of the bodies of Muhammad Ahmad Muhammad Jabarin, 29, Muhammad Hamid Abd al-Latif Jabarin, 19, and Muhammad Ahmad Mufdal Jabarin, 19, who were all from Umm al-Fahm in northern Israel.

Israel has justified its policy of withholding Palestinian bodies killed by Israeli forces, claiming that the funerals provide grounds for “incitement” against the Israeli state, though the practice has been widely condemned by rights groups as an act of collective punishment and deemed ineffective by Israeli security officials.

Adalah, the Legal Center for Arab Minority Rights in Israel, released a statement announcing that the court ordered that the bodies of the three young men must be released within 30 hours starting Tuesday evening, but that police could still impose conditions and restriction on the funerals as has been done in the past.

The three-justice panel decided that Israeli police do not have any authority to hold the bodies, on the basis that there is no Israeli law specifically authorizing the police to hold bodies. The justices also rejected the Israeli state's position that Israeli police are legally able to carry out "any action that is necessary" in order to maintain public order.

The justices ruled that "the police's position conflicts with the need for detailed (legal) authorization for any action that harms a basic right. In our eyes, a number of basic rights hang here in the balance, first and foremost the right to human dignity," according to a press release on the case from Adalah.

"This precedent-setting ruling determines in a most detailed manner that the police have no authority to hold bodies of deceased individuals, and the police may not use bodies as bargaining chips even for purposes that the police feel are legitimate objectives. We hope that this ruling will put an end to the police practice that has become increasing common over the past several years -- particularly in East Jerusalem cases --causing serious harm to basic human rights and to the rule of law."

Adalah spokesperson Mati Milstein told Ma'an on Wednesday that the court's ruling made no reference the three Jabarins' status as Israeli citizens as a factor in the decision, which simply says that Israeli police have no legal authority to hold bodies and use them as bargaining chips. 

Milstein thus expressed optimism that the case could still be relevant to slain Palestinians with residency status in occupied East Jerusalem, as well as for slain Palestinians from the occupied West Bank.

However, unlike the majority of cases in which Palestinians from the occupied territory are accused of carrying out attacks, Israel has not yet ordered for the three homes of the Jabarin families to be punitively demolished -- though at least one Israeli minister has called for it -- presumably due to their status as citizens of Israel.

Israeli police still able to set conditions to restrict the funeral

Despite the court agreeing for the release of the three bodies, the justices did say that Israeli police could set conditions to restrict the funerals, regarding how many people are allowed to attend and the time at which the funerals can be held, though these conditions have yet to be determined as of Wednesday afternoon, hours before the bodies were supposed to be returned by midnight.

Adalah reported earlier on Tuesday, before the final ruling, that Israeli police testified that it was ready to return the bodies under specific conditions, including a 75,000-shekel ($20,996) fine to be paid by the families of the three suspects.

Additionally, police called for a complete media ban for the funeral, that Knesset members and other public figures be barred from attending the funeral, and that a restricted number of people per each family be allowed to attend.

According to Adalah, there was a spoken agreement that the conditions for the fines as well as the media and public figures ban were probably off the table, and that it would be "very unusual if they came back up for consideration."

However, Adalah objected to all the restrictions and conditions, particularly the limit on the number of funeral participants, and demanded that the number be raised from 100 mourners per family to 500, in addition to allowing for the funeral to be held in time for four of the five daily prayers, not including the dawn prayer.

As of earlier Tuesday afternoon, the court had yet to decide on the number of participants for the funeral, however, a judge reportedly mentioned that having a funeral during late night hours was “unusual.”

The exact details regarding the funeral restrictions were still being negotiated as of Wednesday afternoon.

"Holding of and refusal to return the bodies has no legal authority or basis, and there is no legal order that allows Israeli police to retain bodies," Adalah lawyer Muhammad Bassam wrote in the original petition.

"It is the right of every individual to be buried in a quick, respectable, and appropriate manner. This right cannot be separated from the right to dignity; indeed, the right to dignity is not granted strictly to the living but also to individuals after their death."

Adalah had also called on the Israeli Ministry of Justice’s police investigations division to perform autopsies on the bodies to determine their causes of death.

Israeli authorities dramatically escalated a policy of withholding Palestinian bodies killed by Israeli forces following the emergence of a wave of unrest across the occupied Palestinian territory and Israel in October 2015, having repeatedly claimed that funerals of Palestinians had provided grounds for “incitement” against the Israeli state.

Following uproar among Palestinians over the policy, and recommendations by Israeli security officials who stated that the policy was not effective, Israeli authorities began scaling down the practice.

However, Israel’s security cabinet said in January that the bodies of Palestinians allegedly affiliated to the Hamas movement would not be returned to their families, as Israel considers the bodies to be a bargaining chip that could be used in a future exchange deal with Hamas.

There has been no indication thus far that the Jabarins were affiliated with Hamas.

The shoot-out at Al-Aqsa triggered an unprecedented security response from Israeli authorities at the holy site, which has sparked mass civil disobedience protests in occupied East Jerusalem that have been violently suppressed by Israeli police.

Four Palestinians have been shot dead by Israelis during the clashes and more than 1,000 have been wounded.

Palestinians have long accused the Israeli government of using Israeli-Palestinian violence and tensions as a means of furthering control over important sites in the occupied Palestinian territory and normalizing heightened measures by Israeli forces targeting Palestinians.
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