Barake v. Minister of Defense

The Supreme Court Sitting as the High Court of Justice 
[April 14, 2002] 
Before President A. Barak, Justices T. Or, D. Beinisch 
Petition to the Supreme Court sitting as the High Court of Justice. 

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, Barake v. Minister of Defence
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. 

Israeli Supreme Court Cases Cited: 
[1] HCJ 2901/02 The Center for the Defense of the Individual v. The
Commander of the IDF Forces in the West Bank IsrSC 56(3) 19 
[2] HCJ 2936/02 Physicians for Human Rights v. The Commander of the
IDF Forces in the West Bank, IsrSC 56(3) 3 
[3] HCJ 2977/02 Adalah—The Legal Center for the Arab Minority Rights in 
Israel v. The Commander of the IDF Forces in the West Bank, IsrSC 
56(3) 6. 
[4] HCJ 3022/02 LAW—The Palestinian Organization for the Defence of
Human Rights and the Environment v. The Commander of the IDF 
Forces in the West Bank IsrSC 56(3) 9 
For the petitioner in HCJ 3114/02—Ihab Iraqi 
For the petitioner in 3115/02—Saadi Usama 
For petitioner 1 in HCJ 3116/02—Hasan Jabareen 
For petitioner 2 in HCJ 3116/02—Jamal Dakwar 
For the respondents—Malchiel Blass, Yuval Roitman 

Judgment 
President A. Barak 
1. Since March 29, 2002, combat activities, known as “Operation 
Defensive Wall,” have been taking place in areas of Judea and Samaria. 
Their objective is to prevail over the Palestinian terror infrastructure, and 
to prevent the recurrence of the terror attacks which have plagued Israel. In the context of this operation, on April 3, 2002, IDF forces entered the 
area of the city of Jenin and the refugee camp adjacent to it. According to 
respondents, an extensive terror infrastructure (in their words—a bona fide 
“Palestinian Military Industries”) has developed in the city of Jenin and in 
the refugee camp. More than twenty three suicide bombers have come 
from that area—about one quarter of all terrorists who have executed 
suicide bombing attacks, including the attacks during Passover, the attack 
in the Matza Restaurant in Haifa, in the Sbarro Restaurant in Jerusalem, 
in the train station in Benyamina, the bus attack at the Mosmos junction, 
and the attack at the junction adjacent to Army Base 80. 
2. As IDF forces entered the refugee camp, they found that a large 
proportion of the houses were empty. The civilian population was 
concentrated in the center of the camp. As IDF forces arrived, they 
appealed to residents to come out of their houses. According to the 
information before us, this call was not answered until the night of April 7, 
2002. At that point, approximately one hundred people left the camp. In 
order to apprehend the terrorists, and locate weapons and explosives, IDF 
forces began house to house combat activity. This technique was adopted, 
among other reasons, in order to prevent casualties to innocent civilians. It 
became clear that the empty houses had been booby-trapped. As a result 
of this fighting, twenty three of our soldiers fell in battle. After several 
days of house to house combat, the army achieved control of the camp. 
According to respondents, during the fighting, after calls to evacuate the 
houses, bulldozers were deployed in order to destroy houses, and some 
Palestinians were killed. 
3. Bodies of Palestinians remained in the camp. Until the camp was 
completely under IDF control, it was impossible to evacuate them. Once 
the camp was under control, explosive charges, which had been scattered 
around the refugee camp by Palestinians, were neutralized and removed. 
As of the submission of these petitions, thirty seven bodies had been found. 
Eight bodies were transferred to the Palestinian side. Twenty six bodies 
have yet to be evacuated. Barake v. Minister of Defence
4. The three petitions here ask us to order respondents to refrain from 
locating and evacuating the bodies of Palestinians in the Jenin refugee 
camp. In addition, they request that the respondents be ordered to refrain 
from burying, in the Jordan Valley cemetery, the bodies of those 
ascertained to be terrorists. Petitioners request that the task of locating and 
collecting the bodies be given to medical teams and representatives of the 
Red Cross. In addition, they request that family members of the deceased 
be allowed to bring their dead to a timely, appropriate and respectful 
burial. 
5. The petitions were submitted on Friday afternoon, April 12, 2002. 
We requested an immediate response from the Office of the State 
Attorney. That response was submitted on Friday evening. After reading 
the petitions and the response, we decided that arguments would be heard 
on Sunday, April 14, 2002. The President of the Court granted a 
temporary order forbidding, until after the hearing, the evacuation of the 
bodies from the places where they lay. 
6. At the beginning of arguments this morning, April 14, 2002, a 
group of reserve soldiers, who had served in the area of the Jenin refugee 
camp, requested to be added as respondents to this petition. We read their 
submissions and heard the arguments of their attorney, Y. Caspi. We 
requested the State’s position. The State responded that the reservists did 
not present anything that was not already present in the position of the 
State and, as such, there was no place to grant their request. As such, and 
according to our procedures, we rejected the request to join as respondents 
to this petition. We allow the addition of a petitioner or respondent when 
their position adds to what has already been put before us. As the State 
correctly noted, this is not the case in this situation. 
7. 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. Pursuant to this, and according to procedures that 
were decided upon, teams were assembled, including the bomb squad unit, medical representatives, and other professionals. These teams will locate 
the bodies. They will expedite the identification process. They will 
evacuate the bodies to a central location. In response to our questions, 
respondents stated that they are prepared to include representatives of the 
Red Cross in the teams. In addition, they are willing to consider, according 
to the judgment of the Military Commander and in consideration of the 
changing circumstances, the participation of a representative of the Red 
Crescent in the location and identification process. We recommended that 
a representative of the Red Crescent be included subject, of course, to the 
judgment of the military commanders. Respondents also state that it is 
acceptable to them that local representatives will assist with the process of 
identification, following the location and evacuation of the bodies. 
Identification activities on the part of the IDF will include documentation 
according to st\andard procedures. These activities will be done as soon as 
possible, with respect for the dead and while safeguarding the security of 
the forces. These principles are also acceptable to petitioners. 
8. At the end of the identification process, the burial stage will begin. 
Respondents’ position is 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. Though it is unnecessary, 
we add that it is respondents’ position that such 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. 
Petitioners find this position acceptable. 
9. Indeed, there is no real disagreement between the parties. 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 Barake v. Minister of Defence
Jewish and democratic state. Respondents declared that they are acting 
according to this approach, and this attitude seems appropriate to us. As 
we have said, in order to prevent rumors, it is fitting that representatives of 
the Red Crescent be included in the body location process. It is also fitting, 
and this is acceptable to the respondents, that local Palestinian authorities 
be included in the process of the identification of the bodies. Finally, it is 
fitting, and this is the original position of the respondents, that burials 
should be performed respectfully, according to religious custom by local 
Palestinian authorities. All these acts should be performed in as timely a 
manner as possible. All the parties are in agreement in that regard. 
Needless to say, all of the above is subject to the security situation in the 
field, and to the judgment of the Military Commander. 
10. 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, even local authorities (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. 
11. Petitions claimed that a massacre had been committed in the Jenin 
refugee camp. Respondents strongly disagree. There was a battle in Jenin, 
a battle in which many of our soldiers fell. The army fought house to 
house and, in order to prevent civilian casualties, did not bomb from the 
air. Twenty three IDF soldiers lost their lives. Scores of soldiers were 
wounded. Petitioners did not satisfy their evidentiary burden. A massacre 
is one thing; a difficult battle is something else entirely. Respondents 
repeat before us that they wish to hide nothing, and that they have nothing 
to hide. The pragmatic arrangement that we have arrived at is an 
expression of that position. 
12. It is good that the parties to these petitions have reached an understanding. This understanding is desirable. It respects the living and 
the dead. It avoids rumors. Of course, the law applies always and 
immediately. Respondents informed us that, in all their activities, the 
military authorities are advised by the Chief Military Attorney. This is 
how it should be. Even in a time of combat, the laws of war must be 
followed. Even in a time of combat, all must be done in order to protect 
the civilian population. See HCJ 2901/02 [1]; HCJ 2936/02 [2]; HCJ 
2977/02 [3]; and HCJ 3022/02 [4]. Clearly this Court will take no position 
regarding the manner in which combat is being conducted. As long as 
soldiers’ lives are in danger, these decisions will be made by the 
commanders. In the case before us, it was not claimed that the 
arrangement at which we arrived endangered the lives of soldiers. Nor was 
it claimed that the temporary order endangered the lives of soldiers. On the 
contrary; the arrangement at which we arrived is an arrangement in which 
all are interested. 
In light of the arrangement detailed above, which is acceptable to all 
parties before us, the petitions are rejected. 
April 14, 2002