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The Laws of Burial and Mourning in Wake of the Recent Events in Gaza

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Translated by David Silverberg 

 

     I was asked to present the basic halakhot of mourning as they apply to the recent tragedies that occurred in the Gaza Strip, where remains of fallen soldiers were seized by terrorists.  Given the complexity of these halakhot, I will briefly touch upon the central halakhic concepts and their application in several situations.  Needless to say, each case must be addressed independently and thoroughly.

 

A Body Seized in its Entirety

 

     The Tur (Y.D. 375) cites the following berayta from Masekhet Semachot: "If someone fell into the sea, was killed by bandits or was dragged by an animal, from when do [the relatives] begin to count [days of the mourning]?  From the point when they despair from burying him."  This berayta thus explicitly establishes that mourning begins once the family despairs from the possibility of retrieving the body for burial.  The Tur proceeds to record a debate among the Rishonim as to the precise definition of "despair" in this context:

 

"A question was posed to Rav Hai Gaon and Rav Sherira concerning a person killed by the authorities and whose relatives resided in a different city.  When do they begin mourning?  They replied: From the moment they receive the news.  For that which was said concerning people executed by the government, that [mourning begins] once they despair from requesting [the remains for burial] – this applies only when it has not been conclusively established that he died, but rather rumors spread and the relatives searched for the truth of the matter.  Regarding such a case it is said that when they despair and stop petitioning, they begin counting, for their minds have been put to rest.  But if they know he was killed, he is considered as having died naturally and they begin counting from the time the news arrives.

 

The Ri, however, wrote regarding someone who died in captivity and whom the governor did not return for burial that they count for him only once they despair from him entirely.  The Ramban wrote this, as well.  If it [the body] is discovered after they despaired from it, the relatives need not observe mourning, with the exception of the children.  But if they are present when it is found, they mourn for him that day, as this is no less than exhuming bones [upon which a day of mourning is observed]."

 

     We thus find two different views as to when aveilut begins in a situation where the body cannot as yet be buried.  The Geonim maintain that aveilut begins even without burial, and the aforementioned berayta, which calls for delaying aveilut until the point of yeiush (despair), refers specifically to a case where death has not been definitively confirmed.  But once the person's death is confirmed, aveilut begins even before the body is available for burial.  By contrast, the Ri and Ramban hold that so long as there exists the possibility of burial, the obligation of aveilut does not take effect.  The family must do what it can to retrieve the deceased's remains, and only after employing all means at its disposal does it begin observing shiva.  The Shulchan Arukh (in 341 and 375) follows the position of the Ri and the Ramban.

 

     In our situation, when enemies hold onto the soldier's remains, yeiush has certainly yet to occur, and there is an obligation to make every effort to have the bodies returned.  It would seem that although it is the government that has the power to secure the bodies' return, the families nevertheless share the responsibility, as they can influence public opinion and pressure the government officials to continue their efforts.  It would thus seem that according to Halakha, the families do not begin aveilut until the bodies have been returned and buried.

 

     If the families feel a very strong need to begin observing shiva rather than continue waiting, we may permit them to do so, due to several considerations.  Since the formal responsibility for the bodies' return is cast upon the army and Rabbinate, we might equate this situation with a case of when the family transfers the body to others to care for the burial, in which case aveilut begins at that point.  In addition, we may add the factor that the Geonim, as we saw, require the relatives to begin aveilut once death has been ascertained.  The basic halakha, however, is that they must wait for the bodies' return before beginning aveilut.

 

     Generally speaking, until burial relatives of the deceased have the status of "onenim," to whom several halakhot apply.  Are the families of the fallen soldiers considered onenim while they wait for the bodies' return – a period which could, potentially, last a very long time?  The Bet-Yosef (341) cites the various views among the Rishonim in this regard:

 

"The Rosh (55) and the Mordekhai (899) wrote: The Ri instructed regarding a Jew who had been captured by the governor and died in captivity, and the governor did not give him over for burial, that aninut does not take effect for the relatives.  We do not consider him 'someone whose deceased [relative] lies before him [awaiting burial]' since they [currently] bear no obligation to bury him.  Nevertheless, they had not yet rushed to despair from burying him, such that aveilut would take effect for them, as in the case of the victims of Beitar (Berakhot 48b), where they despaired from burying them by way of the government.  Similarly, in the case of Rabbi Elazar Ben Rabbi Shimon's wife (Bava Metzia 84), he was not in a position to bury and therefore aveilut took effect for him, for closing the coffin is akin to closing the grave.  In this case, however, they had not completely despaired from burying him, and they were waiting for God's salvation to stir the spirit of the governor to give him over for burial for a modest sum of money.  Therefore, aveilut does not take effect for the relatives, and they are not onenim because they cannot involve themselves in his burial."

 

The Shulchan Arukh (341:4) rules accordingly: "If someone died in captivity and was not given over for burial, aninut does not take effect for the relatives, nor does aveilut take effect, since they have yet to despair from burying him." 

 

In our case, it is clear, then, that since they are currently unable to involve themselves with the deceased's burial needs, they do not have the status of onenim.

 

If Some Body Parts Were Retrieved

 

     In the case of the fallen soldiers in Gaza, several limbs were discovered, and the rest of the bodies was feared destroyed or otherwise permanently lost.  The question thus arises as to whether Halakha requires burying the parts that were retrieved.

     Generally, burying the dead constitutes a Torah obligation.  The Rambam lists this in his Sefer Ha-mitzvot as one of the 613 mitzvot (mitzvat asei 231), whereas the Ramban writes that according to the Behag, this mitzva falls under the general obligation to follow God's example of benevolence ("ve-halakhta bi-drakhav").  In addition, there is a Torah prohibition against allowing a dead body to remain without burial ("bal talin").  The Talmudic source of this discussion appears in Masekhet Sanhedrin (46b).

 

     The Talmud Yerushalmi (Nazir 7:1) comments:

 

"'you shall bury him' – in his entirety, and not part of him; 'you shall bury him' – from here we learn that if some part of him remains, nothing has been accomplished, as it says, 'For you shall bury him' – from here we learn that he does not become a 'meit mitzva' unless his head and majority of his body remain."

 

The Mishneh Le-melekh (end of Hilkhot Avel) derives from this Yerushalmi that the Torah obligation of burial applies only to "rosho ve-rubo" (the head and majority of the body).  The Minchat Chinukh (mitzva 537), however, as well as the Tosefot Yom Tov (Shabbat 10:5), maintain that the obligation applies even to a ke-zayit of a deceased's body.  These authorities remained undecided concerning smaller amounts.

 

     Rav Ovadya Yosef addresses this issue in Yabia Omer (3:22) and concludes that the obligation applies to every limb.  Rav Moshe Feinstein (Iggerot Moshe, Y.D. 2:150) writes that even if the formal mitzva of burial does not apply to each limb, the general obligation to show respect to a deceased person requires burying all remains of the body.  There is thus an outright obligation in any event to bury any part of the body that is discovered.

 

     It would follow, then, that if several limbs were retrieved and the family has despaired from recovering the rest of the body, they should bury what they retrieved and begin aveilut.  They observe aninut from the moment they despair from the rest of the body until the burial of the available limbs.  [One may offer an alternative understanding.  Namely, that the question as to when aveilut starts (and thus aninut ends) when there is no "rosho ve-rubo" at all hinges on this very question of the nature of the act of burying the remaining body parts.  According to Rav Ovadya Yosef, it constitutes the main mitzva of kevura, thus the family would start aveilut after burial, and be in aninut until then.  If, however, it is solely a fulfillment of kavod ha-met, albeit an obligation, then aveilut should start at the moment of certainty of death. – Mordechai Friedman, ed.]

 

     If the family has yet to despair from recovering the rest of the body, then the halakha depends on which parts have been retrieved and which remain in enemy hands.  The berayta states in Masekhet Semachot, "If they found him dismembered, they do not count [days of mourning] until they find rosho ve-rubo.  Rabbi Yehuda says, the spinal cord and skull constitute rubo [the majority of the body]."  Meaning, if they find only a number of limbs, then so long as they have not despaired from recovering the rest of the body they continue searching and aveilut does not begin.  Once they despair, the family begins aveilut, as discussed above.  The Shulchan Arukh (375) rules accordingly:

 

"If someone drowned in a finite body of water, or if rumors spread that bandits killed him or an animal dragged him, from when do they begin counting?  From the time they despair from searching.  If they found him dismembered, and they recognize him based on his bodily features, they do not count for him until they find his head and majority of his body, or they despair from searching."

 

It thus emerges from the Shulchan Arukh that if they retrieve only several limbs, they do not begin aveilut until either they find the head and majority of the body, or they reach the point of yeiush.  In the opposite case, where they retrieved the head and the majority of the body, they should then bury what they found and immediately begin shiva, without waiting for the remaining organs.  If the remaining parts are later recovered, the grave is opened and these parts are placed inside together with the rest of the body. 

 

Serious consideration, however, should be given to the possibility that the remaining limbs will be recovered in a short period of time.  Opening a grave, even without exhuming the remains, is strongly discouraged for a number of reasons, and this consideration must be taken very seriously when deciding whether to bury the recovered body without the remaining organs, or to wait to retrieve the missing parts.  Therefore, if it appears that it will take some time before the missing organs are returned, the family should, seemingly, bury the body and begin shiva.  If the possibility exists of recovering the remaining parts within a day or two, as was the case in our situation, then they should perhaps delay the burial so as to avoid having to reopen the grave later.  But this is a very serious issue that requires further study and analysis.

 

     In summary, since the heads and majority of the bodies were recovered, the families immediately become onenim and retain that status until the burial.  If, however, only several limbs were retrieved, and the heads and majority of the bodies were known to be in enemy hands, then the family should make every effort to recover the bodies and delay aveilut until the bodies are returned.

 

     May it be His will that our nation will know no more sorrow, and "the Lord God will wipe the tears away from all faces" (Yeshayahu 25:8).

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