Walid Daqqah's body will not be returned until hostages are freed, High Court rules

The body of terrorist Walid Daqqah will not be returned until the hostages detained in Hamas captivity are freed, Israel’s High Court of Justice ruled on Monday.

The court ruled that this decision did not exceed the bounds of reasonableness and proportionality, and therefore, there was no cause for judicial intervention.

Walid Daqqah was convicted in 1987 for his role as the leader of a terrorist cell responsible for the kidnapping and murder of Israeli soldier Moshe Tamam. Daqqah, an Israeli citizen, was sentenced to life imprisonment, later reduced to 37 years. While serving his sentence, Daqqah was convicted of an additional security offense for attempting to smuggle a phone into prison, for which he was sentenced to an additional two years. On April 7, 2024, while in custody, Daqqah died of cancer.

Justice Amit authored the ruling, with Justices Grosskopf and Canfy-Steinitz concurring. The court acknowledged the value of the deceased’s dignity and the right of his family to a proper burial but weighed it against the principle of prisoner exchanges, a fundamental value of the state, as expressed in the Basic Law: Israel as the Nation-State of the Jewish People.

An unprecedented case

The court noted that this case is unprecedented in that the decision was made to hold the body of a terrorist who is an Israeli citizen. At the same time, it was explained that the military has the authority to order the holding of terrorist bodies for negotiation purposes, including those of Israeli citizens.

The court further emphasized the significant change in the security situation, tragically brought about by the October 7 massacre. It added that Daqqah had been “adopted” as a symbol by the Hamas terrorist organization, which seeks to create an equation of “bodies for bodies” with Israel.

Under these circumstances, and based on the professional assessment that holding the body could advance negotiations for the return of the bodies of IDF soldiers and Israeli citizens, the court ruled that the decision was reasonable and proportional, leaving no grounds for intervention.

Adalah – The Legal Center for Arab Minority Rights in Israel, a Palestinian-run legal center, commented that the court fails to address the “broader policy of withholding the bodies of Palestinian citizens of Israel in general.”

The organization explained that the decision treats Daqqah as an exception because he was “adopted as a symbol by terrorist organizations,” exempting his case from the general policy that withholding bodies should not apply to Israeli citizens. It also pointed out that it is contradictory to call this case exceptional when Israel actually holds six such bodies.

“The Court sanctioned the government’s brutal policy of withholding the bodies of Palestinians, including citizens of Israel, purely based on security assessments of their potential value to be exploited as bargaining chips in negotiations,” said Adalah.

“The fact that Walid Daqqah had already served his sentence for alleged terror offenses and that his sentence was commuted by the President of Israel did nothing to sway the Court’s chilling conclusion,” it added.