May Israel withhold burying the corpses of terrorists?

Even as we fight a just war against our enemies, we should not lose sensitivity to the human tragedy of this wickedness.

By SHLOMO BRODY
June 9, 2016 22:55
4 minute read.
Palestinians mourn

Mourners carry the body of Palestinian assailant Abdel Fattah al-Sharif, who was shot and killed after being wounded last March by an Israeli soldier, during his funeral in Hebron on May 28. (photo credit: REUTERS)

In the wake of repeated terrorist attacks, the government has debated whether to withhold returning the corpses of killed terrorists to their families. Some claim this would deter future terrorists from seeking to become martyrs, especially given the heroic funerals they regularly receive. Others retort that such measures only further inflame the tense situation, and instead suggest demanding agreements from the terrorist’s family to hold a modest funeral before returning the corpse.

Many countries, including Israel, create cemeteries for enemy soldiers in times of warfare, with the understanding that there will be a reciprocal return of bodies with the signing of an armistice. When dealing with terrorists, however, no such understanding can be assumed.

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Some thus further argue that Israel must retain these corpses as bargaining chips in future deals for the return of our dead soldiers, including Hadar Goldin and Oron Shaul, who were killed during Operation Protective Edge in 2014.

The Torah explicitly mandates burying executed criminals.

“If a man is guilty of a capital offense and is put to death, and you impale him on a stake, you must not let his corpse remain on the stake overnight, but must bury him the same day. For an impaled body is an affront to God – you shall not defile the land that the Lord your God is giving you to possess” (Deuteronomy 21:22-23).

The rationale offered by the Torah is very telling. It is an affront to God to leave a body unburied since, as the Talmud explains, all humans were created in the image of God. No actions, however horrific, can remove that fundamental element of a person’s humanity.

This point was exemplified by Joshua, who at the beginning of Israel’s military conquests – when symbolic actions of brutality might have instilled fear in enemies – punctiliously buried the kings of Canaan (Joshua 10:27).

Josephus, in his Antiquities of the Jews, attests that ancient Jewish practice was to “let our enemies that fall in battle also be buried.” Even the enemies in the apocalyptic war of Gog and Magog will get buried, leading the nations of the world to proclaim the greatness of the Jewish nation for burying their enemies (Rashi, Ezekiel 39:13).

(In fact, according to Jewish law, the only human remains that might not be regularly entitled to burial are the ashes from cremated corpses, and even in that case many scholars disagree.) Yet the right to burial does not mean that every person is entitled to equal burial rites. The Talmud declares that an executed convict is not buried in his family’s grave because “we do not bury a wicked person next to a righteous one.” Instead, the community must create a separate cemetery in which to bury these executed criminals. Many scholars further assert that these criminals should be denied any honorary mourning rites. These laws signify society’s eternal condemnation of that criminal’s actions. Apostates or excommunicated community members were given similar treatments, and at times buried outside the cemetery walls.

While Jewish law mandates that Jews actively help to bury deceased gentile neighbors – in accordance with the divine image found in all humans – it also maintains that only Jews should be buried within Jewish cemeteries. (Indeed, in many societies, burial grounds convey cultural affinities, including familial, religious and national ties.) This has caused tensions in Israel where, after years of debate, intermarried Jewish Israelis may be buried with their gentile spouses in state cemeteries reserved for non-Jews. It has caused particularly acrimonious debates over separate military cemeteries, since many Israelis, including a few rabbinic scholars, believe that comrades in arms should be buried together, no matter what their religious affiliation.

These controversies highlight the powerful symbolism created by burial rites.

In the case of terrorists killed, there should be no debate: Their corpses should ideally be interred in their own non-glorified area. To achieve this goal, could Israel even refuse to bury these terrorists entirely? Admittedly, Maimonides and others have contended that in extreme circumstances, a king or government may suspend the mandate of burial for some broader societal purposes. This might explain, for example, why David did not try to immediately bury the children of King Saul after they were executed by hanging (II Samuel 21). Similarly, according to a few traditions, the Jewish people allowed the bodies of Haman and his sons to be left unburied for several days, to instill fear in their enemies.

Such an extreme approach would be a serious mistake.

First, while one might believe that such treatment will discourage future lone-wolf attacks, it is more likely that radical fundamentalists will find a theological explanation to assure their holy-war soldiers that they have a place in Heaven, whether they are buried or not. Second, one must weigh the consequences of how fundamentalists will react to such a symbolic action, especially when they have their hands on an Israeli corpse. Yet most fundamentally, while in the midst of a campaign against terrorism, one must never forget that every human being was created in God’s image.

Burying terrorists sends an important message to ourselves: Even as we fight a just war against our enemies, we should not lose sensitivity to the human tragedy of this wickedness.

Taking responsibility to bury these corpses, however, does not mean that Israel must return them to their families for burial. The strategic calculation of whether such an action helps or harms Israeli interests remains a decision of the political and military echelon. Spiritual leaders must continue to urge that we prioritize our safety without forgetting that all humans were created in the image of God.

 The writer directs the Tikvah Overseas Student Institute and is a junior research fellow at the Israel Democracy Institute. His collection of columns, A Guide to the Complex: Contemporary Halakhic Debates (Maggid), received a National Jewish Book Award.

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