BURIAL OF FALLEN ISRAELI SOLDIERS

(Questions asked by Rabbi Moshe Zemer, Tel-Aviv Progressive Congregation)

QUESTION # 1:

The Israeli Army Chaplaincy has arranged for temporary burial in provisional military cemeteries in the Negev and in the Galilee for soldiers killed in action. The bodies will remain in these temporary cemeteries for twelve months and then will be transferred to permanent cemeteries near their homes. Many families feel this is a great hardship, that for twelve months they will have to go down to the Negev or up to the Golan Heights to visit the graves of their dear ones. Why is it necessary to keep them buried in these temporary burial places for a full year?

ANSWER:

THERE IS a general objection in the law to disinterring bodies altogether. The objection is primarily based upon the anecdote told concerning Rabbi Akiba in Baba Basra 154a. A young man (or a boy) had died. Before his death, he had sold some property from his father’s estate. The relatives insisted that when the boy had sold the property, he was a minor and, therefore, the sale to which they had objections was invalid.

They asked Rabbi Akiba whether they may open the grave in order to examine the body of the deceased, to find out whether he was an adult or not. Rabbi Akiba answered, “No, you have no right (I’navlo) to reveal the ugliness of the decaying body.” This “uglification” is the only reason in the basic Talmudic literature against disinterring a body.

After Talmudic times, other objections were developed. The most important of these is called cherdas ha-din, “fear of the judgment.” It means that if the body is disturbed, the dead (who are presumed to be somehow conscious) will fear that they are being brought to judgment and possible punishment. This strange objection to disturbing the body is cited by Joseph Caro in his Bes Josef to the Tur, Yore Deah 363. He quotes it from the early medieval work, Kol Bo. He says, “The Kol Bo has written the reason that we do not disinter the dead to move the body from one place to another because this disturbing of the body creates a (psychic) hardship for the dead, because they are afraid of judgment (and punishment).” The proof text for this idea is the complaint of the ghost of Samuel who, when he was brought up by the witch of Endor, complained to Saul, “Why hast thou disturbed my rest?” (I Samuel 28:15)

But how long must the body lie undisturbed? The answer to this is based chiefly on the Mishnah in Sanhedrin 6:6. There we are told that the courts had separate cemeteries for executed criminals. Many of our burial laws are derived from the relevant criminal laws as, for example, all the laws against delay in burial.

In this Mishnah we are told that after the flesh of these bodies has decayed, the bones of criminals are taken out and buried in their family cemeteries. The reason for waiting until the flesh is gone is that it is held that once the flesh is gone, death has forgiven all sins. Hence, based upon this, no body is to be moved from its first burial place until the flesh has finally gone.

Now it is taken as a rule that it takes twelve months for the flesh to wear away and then the bones can be moved. This is the reason why the rabbinate has decided to keep the bodies in the temporary burying place for twelve months.

What concerns us is whether it is necessary as an actual legal requirement that the bodies wait out there a full twelve months for the flesh to decay. There is an interesting landmark decision on this matter in an oftcited responsum by the Rashba, Solomon Ben Adret, # 3 8 9 in his responsa. A man and his sons traveled from Oran to Algiers on a business errand. The man turned sick in Algiers and he told his sons, “If I die here in Algiers, I want you to see that I am buried in our family cemetery in Oran.” He died, but the sons could not fulfill his request immediately because war had broken out and it was unsafe to travel to Oran. They buried him in Algiers. Then they came to Rabbi Solomon Ben Adret and asked him whether they may put quicklime into the grave to hasten the decay of the flesh. The Rabbi said that they may do so. This decision has been cited frequently in the law. In fact you will notice that Isserles, in Yore Deah 363:2, says, “It is permitted to put lime upon him in order to hasten the decay of the flesh and to bring him to the place where he had asked to be buried.” And more recently than Isserles, the famous Rabbi of Metz (1870) Jacob Reischer, in his Shevus Yaacov, Vol. 2, 97, speaks of the case in which the government prohibited the burial in the Jewish cemetery and buried the dead out in the field. He recommends that they follow the precedent of Solomon Ben Adret to put lime on the body so that they will be able to transfer it to the security of the regular Jewish cemetery. You will notice that at the end of his responsum, he mentions what should concern us about burial in the wild Negev, namely, that animals, dogs, might root about those graves in the wilds. In fact, it has become a custom, especially among the Sephardim, to follow this practice of using quicklime. Therefore if the families will consent to this procedure, the bodies may be brought back in full conformity with the law almost immediately.

If for some reason there is an objection on the part of the family to hastening the decay of the flesh in this way, there is another reason why it is quite possible to decide that they need not wait for twelve months. Joseph Caro in 363:4 speaks of waiting for the flesh to decay in those places where they bury bodies first in caves. That is because the ugliness of the body is visible and should not be touched until the bones are clean. But what if the body is originally buried in a closed coffin? What objection is there then to moving the body? While it may be argued that there is still the objection of cherdas ha-din, “fear of the judgment,” when the body with the coffin is taken, at least the primary and only Talmudic objection to seeing the ugliness of the decaying body is completely obviated. Thus, for example, Greenwald in his Kol Bo (p. 224) concludes that if the coffin is closed, the primary objection of nivvul is obviated.

There is still another strong reason why the bodies need not be kept out there for twelve months. The Talmud records that many of the scholars of Babylon were buried in Israel. Certainly there is no evidence at all that their bodies waited for twelve months in Babylon before they were buried in Israel. This is because there is special merit to being buried in the sacred soil, and that is a special privilege which should not be kept from them (see Kol Bo, p. 236). Especially it should not be kept from those who died to defend the sacred soil.

It is clear that if the rabbinate in Israel would want to decide that the bodies need not be kept out in the Negev, etc., for twelve months, they would have these three reasons for such a liberal decision: First, that the decay of the flesh could be hastened by the use of quicklime, as is well established in the law. Second, the bodies were buried in closed coffins, so the ugliness of decay is not visible and there is no nivvul. And third, the moving of the bodies is for the purpose of burying them in Eretz Yisrael, which should not be delayed.

QUESTION #2:

Army units are going out to search for the remains of fallen soldiers. The Army Chaplaincy has decided that on the Sabbath the Chevra Kadisha may not remove the remains of these soldiers. In view of the fact that fighting may break out at any moment, as well as the danger of what dogs or other animals that roam the desert may do, can we not find Halachic basis for permitting the removal of those remains lying in the open desert on whatever day they are found?

ANSWER:

THERE IS a great deal of discussion in the law as to moving the body of the dead on the Sabbath. As you correctly point out, the source is Orah Hayyim 311. There are various means of permitting the removal on the Sabbath, putting a loaf on the body, or carrying a child with the body. Isserles says that in this case it is permitted to ask a non-Jew to move the body. Surely there are enough friendly Bedouins or Druze who could help in this matter.

QUESTION # 3:

What is the basis of the law permitting families to begin their regular mourning, even though they have no absolute proof of the death of the soldier? In other words, what is the basis of the law that they may count their “seven and thirty” (shiva and sheloshim) from the moment that they give up hope?

ANSWER:

IN Yore Deah 375 there is the discussion as to when people may begin the days of their formal mourning. Caro in 375:2 quotes Raba in Moed Katan 22a, to the effect that when the body is being buried in another city, the mourners accompany the body up to the gates of their city. When they turn away from the gates of their own city (and the body is being carried on the road to the distant city for burial) the moment that these mourners in the home city turn their faces away from the gate, even though normally mourning should not begin until the body is actually buried, these mourners may begin their “seven and thirty” days of mourning because they cannot know on what date the body will be buried in the distant city. On this basis, the Gaonic handbook Semachos (chapter 2, paragraph 12), says that in other cases where the people do not know when the burial will take place (as, for example, the man whose body was swept away by a river) and they do not know when, or if ever, they can recover the body for burial, then the moment the mourners give up hope (m’she’nish ‘yo’ashu) , they should begin counting their days of mourning. This same precedent is followed in a tragic account given by Isaac Or Zorua in the Rhineland eleventh century: A Jewish businessman and his Gentile porter went on a business trip. He never returned home. When the unhappy family finally found his possessions in the hands of the porter, they were certain that their dear one was killed, his body thrown into the Rhine. Isaac Or Zorua uses the exact words of the tractate Semachos and says they should begin their “seven and thirty” from the moment of their despair (Part 2, #425). This same phrase, then, is carried over into the Shulchan Aruch, which says that for those whom the government does not permit to be buried, the relatives begin their mourning from the moment of their despair. This psychological test of the beginning of mourning is well established in Jewish law.