Posthumous Existence and the Law: The (Il)legality of Withholding Dead Bodies by States – The Case of Israel
My research aims to explore and challenge posthumous practices of holding dead bodies as ‘hostages’ by states; namely, the refusal of states to return the dead body of a person it has killed and labelled as ‘enemy’ to the next of kin, using it, as it were, for political gain. The ‘detained’ dead body when deployed in this way lacks any special legal status and protections under international law. Such practices raise the question, which will be the main focus of this research, of whether the law should, and to what extent it can, set obligations on states within a context where the state holds the dead body as hostage.
Due to its history of ‘detaining’ dead bodies of Palestinians, Israel will serve as the main case study. I will examine the different policies and practices of its government, that started in the 1960s and was approved in an official governmental policy in 2017, along with the decisions of its Supreme Court, the most prominent contemporary court to deliberate on cases dealing with this posthumous practice.
Israel’s current policy and the history of ‘posthumous hostage’ practices, more generally, have received little attention among legal scholars. I intend to interrogate the policy vis-à-vis the unique status of the deceased body while also deconstructing the current legal frameworks. I will also analyze how existing international and domestic laws address or fail to address the phenomenon, and investigate the drafting of the relevant international legal norms. In addition, I intend to explore the difference under law between a dead body on the battlefield, bodies of the missing, and bodies controlled and held by their occupier. I will draw on the perspectives of Third World Approaches to International Law in order to trace and assess the role of international law in constituting order and disorder in the posthumous existence as well as the racialization of the dead body. This part of the analysis will add a critical dimension to the doctrinal investigation.
Drawing upon Carl Schmitt’s writings on the relationship between legality, decisionism and his concept of the political, I will investigate how notions of ‘emergency’ and ‘exception’ inform these posthumous practices and policies. My goal is to interrogate mechanisms through which liberal legalism undermines protections for ‘enemies’ of the state and in this way contribute a critical perspective to the study of the rule of law.