Barake et al. v. The Ministry of Foreign Defense et al.

This case summary is being revised and will be updated soon

Court	Supreme Court of Israel sitting as the High Court of Justice, Israel
Case number	HCJ 3114/02, HCJ 3115/02, HCJ 3116/02
Decision title	Judgment
Decision date	14 April 2002
Parties	Mohammed Barake Ahmed Tibi Adalah – The Legal Center for Arab Minority Rights in Israel LAW – The Palestinian Organization For the Defense of Human Rights The Minister of Defense, Benjamin Ben-Eliezer The Chief of Staff, Shaul Mofaz The Commander of the IDF Forces in the Jenin Area The Prime Minister, Ariel Sharon The Commander of the Central Command, Yitzchak Eitan The Commander of the IDF Forces in the West Bank
Categories	War crimes
Keywords	war crimes, Palestinian territories, prescriptions regarding the dead
Links	Judgment

Summary

During IDF operations against terrorist infrastructure in the areas of the Palestinian Authority (“Operation Defensive Wall”), a dispute arose about burial rights. The Palestinian 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, and that the IDF be ordered not to bury those ascertained to be terrorists in the Jordan valley cemetery. Petitioners also requested to acknowledge that the tasks of identifying and removing the bodies were the responsibility of medical teams and the Red Cross, and that the families be allowed to bring their dead to a quick and honorable burial.

The Supreme Court of Israel held that the government was responsible, under international law, for the location, identification, and burial of the bodies. As such, teams will be assembled for the location, identification and removal of bodies. The government agreed that the Red Cross should participate in these activities and would "positively consider the suggestion" that the Red Crescent also participate, according to the discretion of the Military Commander. Furthermore, it was established that the identification process 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; the government allowed the Palestinians to do this themselves, as long as they did it in a timely manner and without threatening Israeli security. Also, no differentiation will be made between bodies (e.g. between the bodies of civilians and the bodies of declared terrorists).

Procedural history

Two human rights organisations and two individuals filed petitions with the Supreme Court, sitting as the High Court of Justice, to order the respondents to refrain from locating and evacuating the bodies of Palestinians in the Jenin refugee camp. In addition, they requested that the respondents be ordered to refrain from burying, in the Jordan Valley cemetery, the bodies of those ascertained to be terrorists. They requested that the task of locating and collecting the bodies be given to medical teams and representatives of the Red Cross. In addition, they requested that the family members of the deceased be allowed to bring their dead to a timely, appropriate and respectful burial.

Legally relevant facts

In the context of ‘Operation Defensive Wall’ - combat activities which were initiated by the IDF on 29 March 2002 on the West Bank - IDF forces entered the area of the city of Jenin and the refugee camp adjacent to it on 3 April 2002 (para. 2). In the days that followed, 23 Israeli soldiers and around 60 Palestinians perished. While the IDF fought to get the refugee camp under control, bodies of Palestinians remained in the camp. At time of the ruling, 26 bodies had yet to be evacuated (para. 3).

Core legal questions

Who was responsible for the location, evacuation and burial of the Palestinian casualties?
What is the scope of these responsibilities?
Should the IDF be ordered to allow the Red Cross to take over the task of locating and collecting the bodies?

Court's holding and analysis

Without referring to specific provisions, the Court held that the respondents are responsible under international law for the location, identification, evacuation and burial of the bodies (para. 7). Overall, the Court concluded, there is no real disagreement between parties (para. 9). Respondents accepted that representatives of the Red Cross would be included in the teams which were assembled to locate, identify and evacuate the bodies. The Court recommended the Military Commander to include a representative of the Red Crescent. Respondents also stated that they would accept assistance from local representatives in the process of identification, which the Court found fitting. In first instance, burials should be performed by the Palestinians, the Court held. If this were not to happen within timely manner, the respondents might bring the bodies to an immediate burial in an appropriate and respectful manner, without differentiating between bodies (para. 8). Still, the Court held, all the above was ‘subject to the security situation in the field’ (para. 9). Finally, the Court refused to take position regarding the manner in which the battle in Jenin was conducted, as these assessments were to be made by the military (para. 12).