Shiur #17: 9 November 1989 The Fall of the Berlin Wall and Aliya from the Soviet Union, Part 2

  • Rav Aviad Tabory
 
 
During the 90s, the aliya from the countries of the former USSR included many Jews that came from assimilated families. Many of those who immigrated to Israel under the Law of Return were not halakhically recognized as Jewish, because, all too often, the father, not the mother, was Jewish.
 
One of the most sensitive challenges that unfortunately became a practical question was the burial of these citizens who joined the IDF and were killed in the line of duty.
 
Jewish custom is very particular about whom we bury in a Jewish cemetery, limiting interment only to those who are halakhically recognized as Jewish.
 
In the past, this question had not arisen, because although there had always been soldiers in the IDF who were not Jewish — Druze, Bedouin, Circassian — their families and communities preferred for them to be buried in their own cemeteries, in keeping with their own faith traditions.
 
However, when it comes to immigrants from the former Soviet Union, these soldiers and their families identify themselves as Jewish. They speak Hebrew and are passionate Zionists. They risk their lives to protect the Jewish people — and, in our case, sacrifice their lives. Is there room to consider this when the question of burial arises? In other words, is the non-Jewish Israeli soldier regarded as a non-Jew for the purpose of burial?
 
There are many other questions and challenges that arrived together with the aliya from the former Soviet Union, most of which have to do with conversion, yet the specific matter of burial serves as an example that reflects upon the unique challenge of this particular aliya.
 
One infamous case occurred on 6 August 1996, when a sergeant in the IDF, Lev Pischov, fell in battle. As Lev’s mother wasn’t Jewish, the military chaplaincy decided to bury him at the far edge of the military cemetery in Beit She’an. This led to public fury, which forced the government to appoint a committee to decide on an official policy regarding how to solve this issue.
 
In recent years, many suggestions have been made of how to solve this delicate matter, including by politicians. Today, we will study this topic, starting with the source of the prohibition of burying non-Jews alongside Jews.
 
Burying a non-Jew in a Jewish cemetery
 
The Mishna states that separate cemeteries were established for those executed by the court, depending on the severity of the method used for their punishment.
 
And they did not bury him [the executed person] in his ancestral tomb, but two burial places were prepared by the court, one for those who were decapitated or strangled, and the other for those who were stoned or burned[1].
 
The Gemara explains that this is because one should not bury an evil person next to a righteous person
 
And why such severity? Because a wicked man may not be buried beside a righteous one. For R. Acha b. Chanina said: Whence is it inferred that a wicked man may not be buried beside a righteous one? From the verse (II Melakhim 13:21), “And it came to pass as they were burying a man that behold they spied a band and they cast the man into the sepulchre of Elisha, and as soon as the man touched the bones of Elisha, he revived and stood up on his feet…”
 
And just as a wicked person is not buried beside a righteous one, so is a grossly wicked person not to be buried beside one moderately wicked. Then should there not have been four graveyards? It is a tradition that there should be but two[2].
 
This is the source for the custom in Jewish law that people should be buried next to those of similar religious stature, with the very pious separated from the less pious[3].
 
Nevertheless, the rabbis argue about the status of this law. On the one hand, the Rambam omits this law; on the other hand, others like Rav Moshe Sofer understood that this is a law given to Moshe at Sinai and accordingly has the status of a biblical law.[4] Similarly, Rav A. Y. Kook holds that because this law is derived from the prophet Elisha, it has the weight of biblical law.[5] Rav Ya’akov ben Moshe Levi Moelin (Maharil, 1365-1427, Mainz, Germany) deems the principle a more general custom with mystical connotations.[6]
 
Theoretically, the sources mentioned above prohibit burying a non-Jewish soldier in a Jewish cemetery. However, other sources indicate otherwise:
 
The Gemara[7] states:
 
Our Rabbis have taught: we support the poor of the non-Jews along with the poor of Israel; and visit the sick of the non-Jews along with the sick of Israel; and bury the dead of the non-Jews along with the dead of Israel — in the interests of peace.
 
The Gemara’s phrasing, “we bury the dead of the non-Jews along with the dead of Israel,” might be understood to mean that not only do we bury non-Jews, but we bury them with Jews in the same place.  Rashi, anticipating an improper interpretation of this sort, explains:
 
But not in the graves of Jews; rather we tend to their funeral needs if they are found dead amongst Jews.[8] 
 
Rav Nissim ben Reuven (1320-1376, Spain) quotes the above opinion of Rashi and explains that although the language of Rashi seems to imply that the obligation to bury non-Jews applies only when they are found together with Jews, this is not the case; rather the obligation to tend to their dead applies even when they are found dead by themselves. The Ran, like Rashi, holds that according to Jewish law it is forbidden to bury them together.
 
As mentioned above, the Rambam does not mention the law of not burying the righteous with the less righteous in Mishneh Torah. However, the obligation of burying the dead, both Jews and non-Jews, is found in numerous places in Mishneh Torah. While the phrase “along with the dead of Israel” is mentioned in Hilkhot Melakhim 10:16, it does not appear in Hilkhot Avel 14:12.
 
Rav Yoel Sirkis explains the meaning of this inconsistency:
 
It seems that his use of the phrase “along with the dead of Israel” does not imply that if the non-Jew is found alone, we do not tend to the burial. Of course, even in the absence of Jewish dead, we bury a non-Jew…
 
The Rambam’s terminology, however, does give implicit permission in the case of a non-Jew found dead amongst Jewish dead. In such a case, the non-Jew may be buried in a Jewish cemetery. Even though we do not bury a non-Jew alongside a Jew … we may, however bury this non-Jew in our cemetery in the interests of peace.[9]
 
Rav Yehuda Shaviv, a prominent Torah scholar from Alon Shevut who passed away in late 2018, wrote an article on our topic, arguing that in delicate situations like ours, the soldiers should be buried in a Jewish military cemetery.[10] His arguments include the opinion of the Bach quoted above and several other claims:
 
  1. As mentioned above, the source for separation in cemeteries today is learned from the custom to separate the wicked from the less wicked who were killed by the religious courts. There are rare cases in Halakha in which it is possible (as in the case of a person sentenced to death by a court) to determine who is righteous and who is not, and the degree of that righteousness. However, it is difficult, if not close to impossible, to make these determinations outside of the realm of capital punishment. Moreover, the soldiers who give up their lives for the Jewish people are surely tzaddikim, who deserve their place in the World to Come. 
 
  1. When the rabbis of the Talmud enacted rabbinic decrees, they sometimes limited the scope of those decrees to avoid situations when complying with them might lead to a result which undermines human dignity, kevod ha-beriyot. If our law of separation is only a custom (as the Maharil suggests) surely the respect we owe these fallen soldiers should permit us to bury them together with their Jewish comrades.
 
Decisions of IDF Chief Rabbis
 
Rav Shelomo Goren writes in his autobiography that when he served as the Chief Rabbi of the IDF, a British soldier who volunteered to fight for Israel in the War of Independence was killed in battle. When the question of where to bury him was raised, Rav Goren decided to permit burying him together with the Jewish soldiers.[11] However, since Rav Goren was concerned that the family would want to place a cross on the grave, he decided that the grave should be placed in a sperate section within the cemetery.
 
In 1968, a similar question was raised regarding an officer in the IDF who was killed. The officer’s mother wasn’t Jewish, but his father was.
 
Rav Goren quotes a Talmudic source about Rabbi Chananya ben Teradyon, one of the "Ten Martyrs" who was killed by the Romans for teaching Torah. The Romans wrapped him in a Torah scroll, piled bundles of twigs around him, and before setting him afire placed damp woolen cloths on him to prolong the agony of being burned to death.
 
His pupils advised him: "Open your mouth, that the fire may enter and the sooner put an end to your sufferings.”
 
Rav Chananya replied, "It is best that He who has given the soul should also take it away: no man may hasten his death."
 
Thereupon the executioner removed the wool and fanned the flame, thus accelerating the end, and then himself plunged into the flames.[12]
 
The Gemara adds that a voice from heaven declared that the executioner (who wasn’t Jewish) was welcomed together with Rabbi Chananya to enter the world to come.
 
Rav Goren concludes:
 
From all this, it is clear that even a foreigner who gives up his life for the people of Israel has a part in the World to Come, even if he does not convert to our faith. It seems that the same applies regarding burying him in a Jewish cemetery.[13]
 
During his tenure as Chief Rabbi of the IDF, Rav Yisrael Weiss proposed a solution to our problem. The solution was formulated in consultation with Rav Yosef Shalom Elyashiv, Rav Mordekhai Eliyahu and Rav Ovadya Yosef. The proposed solution was the establishment of designated plots for non-Jewish casualties in the middle of the military cemetery.[14] The plot in this case is identical to the other plots and tombs in the cemetery, so that on entering the cemetery, one cannot notice any difference between the graves.
 
A later IDF Chief Rabbi, Rav Rafi Peretz, presented a slightly different solution:
 
We in the rabbinate decided that the halakhic position would be that the burial of a Jew and non-Jew would be in the same cemetery (although there are different opinions). In the military cemeteries, the difference between the graves will be four cubits (about two meters). These two meters are “swallowed up” in the trees and other things.[15]
 
This entire discussion proves that non-Jews who serve in the IDF are treated differently than other non-Jews. Although they have not converted to Judaism, these soldiers have a special connection to the Jewish people, and Halakha takes this into consideration.
 
[1] Sanhedrin 6:5.
[2] Sanhedrin 47a.
[3] Shulchan Arukh YD 362:5.
[4] Chatam Sofer, YD 341.
[5] Da’at Kohen 201.
[6] Maharil, Semachot 10.
[7] Gittin 61a.
[8] Gittin 61a, s.v. Im meitei Yisrael.
[9] Bayit Chadash, Tur YD 151, s.v. Asur.
[10] Techumin 14, pp.319-330.
[11] Rav Goren, Be-oz Ve-ta’atzumot, pp.152-153.
[12] Avoda Zara 17b. 
[13] Terumat Ha-goren, Vol. 2, p. 198.
[14] For a summary of the solutions, see: http://izs.org.il/papers/BurialSoldiers.pdf.
[15] From the minutes of the 56th session of the Knesset Committee on Immigration, Absorption and Diaspora Affairs.