Security Cabinet seeks additional HCJ hearing on returning terrorists' bodies
Cabinet disavows High Court ruling on state returning bodies of terrorists held as bargaining chips to families or enacting law permitting it to do so; ministers say if request to hold another hearing before an expanded panel is denied, Anti-Terror Law will be amended to allow state to hold bodies.
The Security Cabinet said Monday it had accepted a recommendation made by Attorney General Avichai Mandelblit to seek a further hearing in the High Court of Justice on returning the bodies of terrorists instead of using them as bargaining chips.
The Cabinet's decision came in response to a High Court ruling last Thursday that stated Israel had no legal authority to withhold the bodies from the terrorists' families and said the government must enact a law allowing it to do so, if it wished. The Cabinet responded by saying the bodies would not be returned and appealed for a further hearing.
The Cabinet ministers said the principles delineated in the court's majority opinion were unacceptable and added no legislation on the matter would be drafted at this stage, until the court responded to the request for a further hearing with an expanded panel of justices.
Yesh Atid Chairman Yair Lapid said during a party meeting: "The Cabinet's decision to seek a further hearing is a combination of moral cowardice and operational irresponsibility. Instead of passing the buck to the High Court time and again, the government should just do its job and seek legislation."
Zionist Union MK Itzik Shmuli called the Cabinet's decision "cowardly and shameful."
"Instead of grand statements and passing the buck right back to the High Court, it's time to take proper action and draft one simple memorandum for a law," Shmuli said.
Leah and Simcha Goldin, parents of Lieutenant Hadar Goldin whose body is still being held by Hamas, tweeted before the Cabinet's decision that they would "not allow (Prime Minister Benjamin) Netanyahu and the Security Cabinet to skirt the issue again. The Israeli government and Knesset must enact a clear law preventing the return of terrorists' bodies to our enemies."
After the decision was made public, Goldin's parents said they were incensed. "Prime Minister Netanyahu and the Cabinet have once again chosen to yield to Hamas. The decision to not promote a law allowing to hold terrorists' bodies, thereby exerting pressure on Hamas, is an unfortunate decision signaling weakness and flaccidity to our enemies," they responded.
Thursday's High Court ruling was supported by Justices Yoram Danziger and George Karra with a dissenting opinion by Justice Neal Hendel. The High Court gave the state six months to draft a law on the matter, or it would be forced to return the bodies to their families when the period elapsed.
Justice Minister Ayelet Shaked and other ministers are of the opinion the High Court's decision was wrong and Justice Hendel's dissenting opinion—supporting withholding of the bodies—should be adopted.
Shaked and Defense Minister Avigdor Lieberman announced that should the High Court deny the request for a further hearing, the government will create a legislation memorandum for an amendment to the Anti-Terror Law permitting Israel to hold terrorists' bodies for the purpose of negotiations.
Mandelblit's initial stance was that no amendment was needed and that decades' old regulations on defense allowed the state to do so. Following the High Court's ruling, however, the 2016 law on combating terrorism may now be amended. According to Shaked, "The Israeli government will not return the bodies of terrorists so long as the bodies of our soldiers are in our enemies' hands."
Prime Minister Benjamin Netanyahu said after the ruling that he would convene the Security Cabinet Sunday to draft "possible legal solutions" in order to pressure Hamas to return the bodies of Israeli soldiers and civilians held in Gaza, calling the High Court's ruling "highly problematic."
"We must not give free gifts to Hamas," Netanyahu said.
The state currently holds the bodies of nine terrorists—seven of whom have already been buried—among which are the bodies of those who carried out attacks in East Talpiot and Kiryat Arba, where the late Hallel Yaffa Ariel was murdered in her home about a year and a half ago.
The terrorists' families originally appealed to the High Court seeking the bodies' return. The State refused, claiming that holding them of the terrorists might help in obtaining a prisoner exchange deal with Hamas, which holds the bodies of late IDF soldiers Lieutenant Goldin and Staff Sergeant Oron Shaul, who were killed in Operation Protective Edge, and civilians Abera Mengistu and Hisham al-Sayed.
Tovah Tzimuki, Itamar Eichner, Moran Azulay and Raanan Ben Zur contributed to this report.
