The Supreme Court today (Monday) unanimously rejected a petition against the Defense Minister's decision, ratified by the Political-Security Cabinet, to hold the body of the terrorist and his hand for a minute for bargaining purposes for the return of captives and missing persons.
The ruling determined that this decision did not exceed the limits of reasonableness and proportionality, and therefore there was no reason for the court to intervene.
The terrorist Walid Daka was convicted in 1987 as responsible for a terrorist cell that kidnapped and murdered soldier Moshe Tamam. Daka, an Israeli citizen, was sentenced to life imprisonment, and his sentence was later reduced to 37 years in prison. While serving his sentence, Daka was convicted of another security offense of attempting to smuggle a telephone into prison, and he was sentenced to an additional two years in prison. On April 7, 2024, while incarcerated, Daka died of cancer.
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The ruling was written by Justice Amit, with the concurrence of Justice Grosskopf and Justice Kanfi-Steinitz. The court emphasized that, in contrast to the value of the dignity of the deceased and the right of his relatives to bring him to a proper burial, stands the purpose of redeeming captives, which is derived from the fundamental values of the state, and was even expressed in the provisions of the Basic Law: Israel – the Nation-State of the Jewish People.
Judge Amit wrote: "As I write these lines, I see before my eyes the kidnapped, captives, and missing IDF soldiers who have been in the Gaza Strip since October 7th, and the families of those who have been there for many years - IDF soldiers Lieutenant Hadar Goldin and Sergeant Oron Shaul, the late, and Israeli citizens Avraham Mengistu and Hisham Al-Sayed. The voice of our brothers cries out from the tunnels in the Gaza Strip, and may Jeremiah's prophecy, 'And the children shall return to their border,' be fulfilled in all of them soon in our days.".
The court noted that while this was a precedent-setting case, in that it was decided to hold the body of a terrorist who was an Israeli citizen, it was also explained that the military commander has the authority to order the holding of terrorist bodies for the purposes of negotiations, including the bodies of terrorists who are Israeli citizens.
National Security Minister Itamar Ben-Gvir responded: "I welcome the fact that the High Court of Justice did not intervene in the cabinet decision that was made in accordance with my position, according to which the bodies of Israeli Arab terrorists, headed by the despicable terrorist Walid Daka, should continue to be held for the purposes of negotiations. As long as Hamas continues to hold our hostages, every possible lever of pressure should be applied to it in favor of their release.".
Attorney Yehuda Foa, chairman of the Temaam Law Firm, who represented the Tamam family: "We welcome the clear and obvious decision. There is no doubt that the State of Israel is obligated to leave the body of the despicable terrorist until all the hostages are released. The State of Israel is obligated to ensure the security of its citizens and the return of the hostages, and therefore this is a necessary decision.".
