Detention after death

By EA Belinda.

“The call came out of the blue” late on 15 August, Nasim’s father told us as we sat with him in the front room of his home in Al ‘Eizariya in East Jerusalem. The Israeli security agency, Shabak (also known as Shin Bet) said that Nasim was dead. He had been shot by the police just inside the Chain Gate entrance to the Haram al-Sarif compound which contains the Al Aqsa mosque, the third most holy mosque in Islam (after Mecca and Medina). Nasim Abu Rumi was 14 years old. He was small for his age and had his father’s slight build.

Picture taken from the Facebook page of the City of Al ‘Eizariya

A police video, which was quickly uploaded online, appears to show that Nasim and his friend stabbed one of the four police officers guarding the entrance. At least two other police officers then shot Nassim and his friend multiple times. Nasim was killed, his friend badly wounded. Nassim’s father told us he was very sorry for what happened and he did not know why his son had acted the way he had. But, he explained, there were no playgrounds for children to use up their energy and children saw every day on the news how the police treated Palestinians. He was not seeking to make excuses, he told us, but there had been widespread anger among Palestinians that the police had attacked Muslim worshippers a few days earlier as they prayed at the mosque on the first day of the Feast of the Sacrifice, Eid al-Adha. The police had subsequently protected many hundreds of Israeli settlers when they entered the compound.

This was a sensitive issue. Jews consider the compound, which they call Temple Mount, to be the holiest site in Judaism but, in practice, they are not allowed to enter the compound during Muslim prayers. The newspaper, Haaretz quoted a security official as saying that “for the past 52 years, Jews have never been admitted to the Temple Mount during Muslim prayers. This is a status quo.” Tensions again increased on 15 August when an Israeli minister joined settlers who again entered the compound.

Picture showing the Nasim’s body on the right while the police tend to the injured officer on the left. Taken from a video published on 15 August 2019

When we met Nasim’s father, ten days had passed since his son’s death. Yet he still had no idea when he would be able to recover his son’s body. Despite his grief, he was keen for us to tell his story and showed us videos of Nasim. One of these was of Nasim cutting the hair of his little brother who was scared to go to the barbers. The little boy wandered into the room as we spoke.

People from the community had marched with the family the previous day to the Zaytoun checkpoint to call for Nasim’s body to be returned. They had had no success – their demands had been dismissed by the soldiers at the checkpoint. We were told that one soldier had mocked Nasim’s younger sister with a throat-cutting gesture.

Nasim’s father told us how important it is in his religion that the body is prepared and buried as quickly as possible after death. “They killed him; how can they hang on to his body?”, he asked us. He said that the only thing worse than imagining his son’s body being kept in a cold morgue was that it might be buried without any identification in what have come to be known as the Israeli military’s ‘cemeteries of numbers’.

Israel has argued in the Israeli High Court of Justice, in response to petitions filed by HaMoked, an Israeli NGO, that detaining bodies acts as a deterrent and also that it wishes to be able to use the bodies in negotiating future prisoner exchanges. It has argued too that the funerals of persons who were killed by the Israeli authorities or who died in its custody can become occasions of confrontation with the authorities.

This policy can lead to unseemly tussles over a body. Such a tussle occurred on in June in Al ‘Isawiya in East Jerusalem following the police shooting of 21 year old Muhammad Abeid, after he threw firecrackers at them. According to Israeli NGO, B’Tselem, some residents put the wounded man into a car and drove away. They were then pursued by Israeli police who took Mr Abeid at gunpoint and put him into an ambulance, refusing to let anyone from the community go with him. At the hospital, Muhammad Abeid was pronounced dead. The police kept the body for four days and then only allowed the funeral to take place under certain conditions, such as that no Palestinian flags would be flown, and subject to the family posting a bond of ₪ 50 000 (about £11 500). According to the UN, the Israeli authorities have now opened a criminal investigation into the shooting.

A number of NGOs have taken up the cases of the ‘confiscated’ bodies. The Jerusalem Legal Aid and Human Rights Center (JALC) has been running a campaign for some years. JLAC told us that they represent the families of 120 Palestinians whose remains are in unmarked graves in the ‘cemeteries of numbers’. They told us too that, since 2015, Israel has held 235 Palestinian bodies, of which 45 are held in morgues. Many more bodies have been held for much longer, decades in some cases.

In a 2017 judgment, the Israeli Supreme Court took issue with the legal base which Israel uses to justify the detention of bodies. That legal base is the 1945 Palestine Defence (Emergency) Regulations which Britain introduced when it had responsibility for Palestine. These regulations were incorporated into Israeli law in 1948 and are dependent on the existence of state of emergency for their implementation. Israel declared a state of emergency immediately after its establishment as a state in 1948 – and it has renewed that declaration annually ever since. Many of the rules that allow Israel to detain bodies or to arrest and detain people without charge are only possible because of these Emergency Regulations.

The Court found in 2017 that these Regulations do not give the army the legal authority to hold on to Palestinian bodies. The Israeli government was given six months to enact a new law on the matter. The Knesset passed such a law and the government requested another hearing in front of the Court. That hearing took place in July 2018 and the Court gave its findings on 9 September 2019. In a 4-3 decision, the Israeli Supreme Court reversed its earlier ruling.

“This is the first time in history that a court – anywhere in the world – authorises state authorities to hold the bodies of individuals under its control, to which international laws governing occupation apply, and to use them as bargaining chips.”

Although the Court said that the practice of withholding bodies is not illegal under international law governing armed conflict, Adalah, a Palestinian NGO in Israel, commented: “This is the first time in history that a court – anywhere in the world – authorises state authorities to hold the bodies of individuals under its control, to which international laws governing occupation apply, and to use them as bargaining chips”.

In the case of 14 year old Nasim, his body was finally released to his family on 20 September. The family’s lawyer had had to petition the Supreme Court for the release of the body and his parents had had to wait six long weeks to bury their son.

International humanitarian law

Israel’s action in retaining the bodies of Palestinians breaches the provisions of Article 17(3) of the first Geneva Convention, Article 120 of the second Convention, Article 130 of the third Convention and Protocol 1 of the Geneva Conventions. These lay down the standards which have to be observed in relation to the rights of the deceased. In addition, Israel’s practice constitutes a collective punishment of the relatives of the deceased, which is contrary to Article 33 of the Fourth Convention.

Take action

• Follow the work of NGOs working to protect the human rights of Palestinians such as B’Tselem, HaMoked and JLAC.
• Write to your elected representatives asking them to place pressure on the Israeli government to put an immediate end to the practice of withholding bodies and to identify and return to their families all the bodies they still hold.
• Write to the Israeli ambassador to the UK to demand an end to the macabre practice of detention after death.