Practice Relating to Rule 115. Disposal of the Dead
According to Israel’s Manual on the Laws of War (1998), a “[legal] combatant is entitled to the status of a prisoner of war, according him … the right to a proper burial”.
Israel’s Manual on the Rules of Warfare (2006) states: “The bodies of the fallen must not be desecrated and they must be given suitable burial.”
The manual further states:
Following barbaric acts committed by soldiers, such as scalping, cutting off the ears and “collecting” fingers, the Geneva Convention was required to provide for the orderly and honourable burial of the enemy’s fallen. The pressure for this actually came from the combatants who wanted to give the last honours to their enemies and ensure that the same treatment would be accorded to their own fallen.
In addition, the manual states:
The IDF [Israel Defense Forces] maintains a cemetery where the bodies are laid to rest of terrorists killed in skirmishes with the IDF. In exchange for the return of the bodies of IDF soldiers who fell, the bodies of Hezbollah fighters were returned to it.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
In its ruling in the Barake case
in 2002, dealing with the question of when, how and by whom the mortal remains of Palestinians who died in a battle in Jenin refugee camp should be identified and buried, Israel’s High Court of Justice stated: “Needless to say, the burial will be made in an appropriate and respectful manner, maintaining the respect for the dead … [T]he burial will be conducted in a respectful manner, conforming to religious laws, and as soon as possible.”
In its judgment in Physicians for Human Rights v Commander of IDF Forces in the Gaza Strip in 2004, Israel’s High Court of Justice stated:
Our assumption is that the fundamental principle that the dignity of local residents must be protected, as enshrined in section 27 of the Fourth Geneva Convention, encompasses not only local residents who are living, but also the dead. Compare Fourth Geneva Convention, §130; see Pictet, at 506; see also HCJ 3436/02 The International Custodian of Terra Santa v. The Government of Israel, at 22, 25. Human dignity includes the dignity of the living and the dignity of the dead. The same applies with regard to domestic Israeli law. See CA 294/91 Jerusalem Community Jewish Burial Society v. Kestenbaum, at 464; FH HCJ 3299/93 Wikselbaum v. The Minister of Defense, at 195; CA 6024/97 Shavit v. Rishon Lezion Jewish Burial Society, at 600. “The protection of the dead and their dignity is just like the protection of the living and their dignity.” See Justice J. Türkel in HCJ 81/66 The Inspector-General of The Israel Police v. Ramla Magistrate Court Judge Mr. Baizer, at 337, 353. The military commander is duty-bound to search for and locate dead bodies. See HCJ 3117/02 The Center for the Defense of the Individual – Founded by Dr. Lota Salzberger v. The Minister of Defense, at 17, 18. After bodies are found, he is obligated to ensure that they are accorded a dignified burial. In the Barake case, which discussed the duty of the military commander regarding dead bodies during army operations, we stated:
Our starting point is that, under the circumstances, respondents are responsible for the location, identification, evacuation and burial of the bodies. This is their obligation under international law. Respondents accept this position … The location, identification, and burial of bodies are important humanitarian acts. They are a direct consequence of the principle of respect for the dead – respect for all dead. They are fundamental to our existence as a Jewish and democratic state. Respondents declared that they are acting according to this approach, and this attitude seems appropriate to us … Indeed, it is usually possible to agree on humanitarian issues. Respect for the dead is important to us all, as man was created in the image of God. All parties hope to finish the location, identification, and burial process as soon as possible. Respondents are willing to include representatives of the Red Cross and, during the identification stage after the location and evacuation stages, local authorities as well (subject to specific decision of the military commander). All agree that burials should be performed with respect, according to religious custom, in a timely manner. Id, at 15.
The army attempted to act according to these principles in the case at hand. The dead were identified and transferred to A-Najar Hospital. At both these stages the Red Cross and the Red Crescent were involved. The problem here, however, concerned burial. Respondent was obviously prepared to bury the dead, but it believed that it had discharged this duty by transferring the bodies to A-Najar Hospital. This was not the case. The duty of the respondent is to ensure a dignified burial for the bodies. To this end, he must negotiate with the local authorities, to the extent that they are functioning, and find respectful ways to carry out this duty. As is clear from the information presented to us, the main difficulty which arose was the participation of the relatives of the dead. This matter was in the power of the respondent, whose forces controlled all entrances and exits to Tel A-Sultan, and respondent was obviously limited by security considerations. Apparently, the later proposals should have been proposed earlier. The changing position of respondent indicates that it did not prepare for the situation in advance, and it improvised the proposed solutions on the spot. This should not have happened. Preparations for dealing with the dead should have been planned in advance. Clear procedures should be fixed regarding the different stages of the process. Of course, if, at the end of the day, the dead are in a hospital and their relatives refuse to bury them, they should not be forced to do so. Nevertheless, everything should be done in order to reach an agreement on this matter.
According to the Report on the Practice of Israel, the Israel Defense Forces are sensitive to the correct and proper treatment of remains and have established detailed internal regulations and procedures concerning their burial.