CURR 169-175


A chaplain is about to participate in a discussion under military auspices of the question of mass burial, and asks whether there had been any responsa written during the war on this question by our Responsa Committee. (From Chaplain Aryeh Lev, New York City.)

THERE has been no such responsum. While it is true that there were mass burials during the war, particularly when airplanes crashed on Pacific islands and left nothing there but fragments of bodies; and while, therefore, there was some discussion in our Chaplaincy Commission about them, nevertheless we concluded at that time not to write a formal responsum on the question. Our reasons were, first, because the body of a Jewish soldier killed in this way was to be considered equivalent to a mays mitsvoh, who must be buried where he fell and who, according to the law, “acquires” the land where his body was found, and that is his proper burial place. Secondly, if under war conditions any Jewish chaplain was asked to participate in such burial, he was under military orders, and in war time it was felt that he simply should obey, because even if the bodies were all of Gentile soldiers, it was part of his duty to bury them if called upon to do so.

However, now that we are under peacetime conditions, we can go into the subject more fully, especially since in the discussion panel that is about to be held, the authorities have the right to learn what our attitude is to such events, should they occur. They can very well occur since planes occasionally crash, or if, God forbid, there should be atomic hostilities and quick mass burials would then be necessary.

Tragically enough, it happens that precedents on the question of mass burial have now come up in Jewish legal literature since the war ended. The first one is described in the Responsa M’ma’amakim by Ephraim Oshry, and the other in the Responsa M’gay Ha-Haregah, by Simon Ephrati. The questions are discussed in M’ma’amakim, p. 131 ff., and in M’gay Ha-Haregah, p. 66 ff. These two discussions deal with many of the problems involved in our question, but it would be better for our purposes if we dealt with the questions systematically in accordance with the problems as they concern us. There are the following religiolegal questions involved in the type of mass burial which might occur under military circumstances.

1. Is it a religious duty, a mitzvah, to bury scattered limbs or parts of a body?

2. Does the burial of broken parts of the body constitute the official burial according to Jewish law, after which regular mourning must begin, and from the date of which Yahrzeit is fixed?

3. Is it permissible to bury the broken remains of a large number of individuals, helter-skelter in one grave?

4. Is it permissible to bury these broken remnants with broken remnants of non-Jewish soldiers? In other words, can the chaplain, in conscience, participate in such a “mixed” burial ceremony?

As to whether we are in duty bound to bury fragments of a body. There is no doubt that there is indeed such a duty incumbent upon us. Of course a distinction must be made between burial of an amputated limb of a living person and the burial of a limb of a dead person. As for the burial of a limb of a living person, there is no mandatory mitzvah of burial involved. If such a limb is buried, it is only for convenience. If, however, the limb from a living person is preserved in a bone bank, that also would be permitted. (See the earlier responsum by our Committee on this subject.) As to the custom in Talmudic times of burying the limbs so as to protect priests from defilement, (Kesubos, 20b and Rashi) note especially the responsum of Jacob Reischer, “Shevus Jaacov, ” II, 101. As for the burial of the scattered limbs of the dead, the law goes back to the later tractate Semachos II, 10, where it speaks of the dead being discovered with scattered limbs and the limbs gathered and buried. This is clarified as law in the Shulchan Aruch, Yore Deah 374, 2, in the case of a priest who may defile his priestly sanctity with the burial of a mays mitzvoh. If he finds a body with limbs missing, he must search for the missing limbs (i.e., this is part of his duty). There is, however, disagreement in the law whether very small fragments of a body (“as much as a barley seed or an olive”) must be searched for. Some authorities believe that even the smallest amount of a dead body must be buried. See, for example, Minchas Hinuch, 537. But this is an unsettled question in the law. There is no doubt that larger parts of the body must be buried. Moses Sofer, in Responsa Yore Deah, 353, says, “It makes no difference whether it be a complete body or an incomplete body; it must be buried.”

Now as to the second question, whether the burial of, let us say, a few bones of a Jewish soldier is sufficient to make it official burial, permitting the wife to be remarried, marking the time of mourning, etc. In this regard the law is clearly in the negative, and it goes back to Semachos II, 10, which states that mourning begins only if it is the head and the bulk of the body or, according to one authority, the head and the backbone. That much of the body is the minimum sufficient to provide identification, and regular mourning may then ensue. However, the bereaved family, while it cannot count on the burial of one or two scattered limbs as permitting mourning, remarriage, etc., has another ground for the permission. According to the law developed early, mostly in the Rhineland, the family can begin regular mourning over a body that is lost when they despair (mishenishyoashu) of getting the body for burial. This law is repeated frequently in the Rhineland authorities, such as Or Zeruah, Mordecai, etc. Perhaps the most accessible statement of the law is in Asher ben Yehiel’s compendium to the Talmud, to Moed Katan (56). Of course, ever since the decision by Isaac Elkanan Spector (Eyn Yitzchok, Even Hoezer, 19) the official statement of the government that the man is dead, not merely that he is missing, is acceptable in Jewish law, and the notification from the government to that effect can be equivalent to “despair” (mishenishyoashu) . Of course, if in the mass burial there is enough of the body for identification, “the head and the spine,” etc., then of course, mourning begins from the time of burial, provided it had not begun sooner. In that case, it does not need to be resumed. But if there are only a few unidentifiable limbs, then the mourning dates from the “despair” occasioned by the government notification.

Is it permitted in Jewish law to bury the bodies of a number of Jews in one grave? The Law, in general, is very strict that each body (except small children, who may be buried with their parents, Yore Deah 362:2) should have its own space; and careful regulations determine how many handbreadths there shall be between grave and grave. However, when the flesh has gone and nothing is left but bones, the great Hungarian authority, Moses Sofer, in the responsum cited, declares that these bones do not require their own separate space. Nevertheless, the question comes up whether the bones of many dead should be buried helter-skelter together, or kept as separate as possible. This again is a matter of dispute in the law. Moses Sofer and others believe that the bones should be kept apart as much as possible. But the Egyptian authority, David ben Zimri, in his Responsa II, 611, comes to the opposite decision. (Incidentally, the whole discussion comes up in Jewish law when it is necessary to transfer, en masse, bones from an old cemetery which, for example, are being taken away by the government, and moved to the new cemetery.) David ben Zimri says, “We come to the conclusion that even if the bones of many of the dead are all mixed up together, we need not be concerned with that fact since the matter (i.e., the reburial into a safe cemetery) is for the honor of the dead, and the general rule is that whatever is for their honor, is permitted.”

While Moses Sofer and others are opposed to mixing the bones of various bodies, their reasoning would apply only to circumstances in peacetime or whenever each set of bones lies separately in its own grave. But if the bones are found lying already scattered in a field, or in a bomb crater, there is no doubt that Moses Sofer would agree with David ben Zimri that the burial of them, even mixed together, is for “the honor of the dead,” and therefore permitted. In fact, it is upon this basis (the separate bones could no longer be recognized) that Ephraim Oshry buried in one common grave (kever achim) the bones of Jews which they found on funeral pyres after the Germans retreated from Kovno. It is clear, then, that it is not contrary to Jewish law under the special circumstances which concern us, to bury the various bones together.

The final question is whether a Jewish chaplain can conscientiously officiate at the burial of the bones of Jewish soldiers when they are mixed up with the bones of non- Jewish soldiers. When we consider the efforts made by Jewish communities to maintain separate Jewish cemeteries, and to bring Jewish bodies to Jewish burial in a Jewish cemetery, it would seem at first blush that to bury deliberately Jewish bodies together with Christian bodies would be contrary to the spirit of Jewish legal tradition. However, the following considerations must be borne in mind: First of all, if it is wartime, we have always followed the practice of burying the Jewish boys in the general military cemetery, content with the Star of David marker to show that it is a Jewish grave. Here, too, in the mixed burial, we would have a Star of David among the other markers. Secondly, we must consider that these Jewish bodies are “mays mitzvoh” and, according to the Law, “acquire” the place where they have fallen and are to be buried there. Therefore, the Jewish soldiers have the right to be buried in that place, whoever else is buried there.

Of course, in a joint service, the Jewish chaplain is officiating also over the burial of the bodies of Christian soldiers; but this he is in duty bound to do, not only according to his military duty, but according to the Talmudic dictum: “We sustain the poor of non-Jews, comfort their mourning, and bury their dead.” (Gittin 61a). We have a duty to bury the dead of Gentiles if there is no one else to do it. Note that Rashi says: “We engage in their (the Gentiles’) burial, if they are found slain among Jewish slain.” Of course, according to Rashi and the general understanding of this statement, we are not to bury the Gentile body alongside Jewish bodies (i.e., in the same cemetery) and if, therefore, it were possible to separate the bones, it would be preferable if that were done; but this is impossible, and therefore there is no choice.

To sum up: According to Jewish law, the fragments of a body must be buried. It is a mitzvah. If the fragments are unidentifiable, the mourning for the dead must depend upon official government announcement. The fragments of various bodies which cannot be identified may, by Jewish law, be buried all together. And finally, the fact that Christian bodies, or fragments of bodies, are buried there too, does not affect the situation materially.