Case Number
HCJ 3114/02
Date Decided
10-14-2002
Decision Type
Original
Document Type
Full Opinion
Abstract
Facts: This petition was submitted during IDF operations against the terrorist infrastructure in the areas of the Palestinian Authority. (“Operation Defensive Wall.”) Petitioners requested that the IDF be ordered to cease checking and removing the bodies of Palestinians that had been killed during the course of warfare in the Jenin refugee camp. Petitioners also requested that the IDF be ordered not to bury those ascertained to be terrorists in the Jordan valley cemetery. Petitioners request that the tasks of identifying and removing the bodies be the responsibility of medical teams and the Red Cross. Petitioners also request that the families be allowed to bring their dead to a quick and honorable burial.
Held: The Supreme Court held that the respondents were responsible, under international law, for the location, identification, and burial of the bodies. As such, and according to guidelines that will be set out by respondent, teams will be assembled for the location, identification and removal of bodies. Respondent agrees that the Red Cross should participate in these activities and is prepared to positively consider the suggestion that the Red Crescent also participate, according to the discretion of the Military Commander. The identification process will be completed as quickly as possible, and will ensure the dignity of the dead as well as the security of the forces. At the end of the identification process, the burial stage will begin. Respondents’ position was that the Palestinian side should perform the burials in a timely manner. Of course, successful implementation requires agreement between the respondents and the Palestinian side. If it becomes clear that the Palestinian side is refraining from bringing the bodies to an immediate burial, in light of the concern that such a situation will compromise national security, the possibility that respondents will bring the bodies to immediate burial will be weighed. Burials be carried out in an appropriate and respectful manner, while ensuring respect for the dead. No differentiation will be made between bodies, and no differentiation will be made between the bodies of civilians and the bodies of armed terrorists.
Keywords
Constitutional Law -- Basic Law: Human Dignity and Liberty, International Law -- Laws of war
Recommended Citation
Barak, Aharon; Beinisch, Dorit; and Or, Theodor, "Barake v. Minister of Defense" (2002). Translated Opinions. 76.
https://larc.cardozo.yu.edu/iscp-opinions/76
