Don't return terrorists' corpses - for now

The right to burial does not mean that every person is entitled to equal burial rites.

JEWISH CEMETERY in Chernivtsi, Western Ukraine (photo credit: Wikimedia Commons)
JEWISH CEMETERY in Chernivtsi, Western Ukraine
(photo credit: Wikimedia Commons)
In recent weeks, Naftali Bennett, Israel’s newest defense minister, has reinforced a policy that IDF troops should actively collect the bodies of terrorists killed on the Gaza border in order to use them as bargaining chips toward the return of killed IDF soldiers Hadar Goldin and Oron Shaul. This policy has been severely criticized by some in Israel, with Haaretz calling it a betrayal of the “purity of arms” doctrine and a desecration of the human body.
The Israeli Supreme Court, however, has upheld the policy, with at least one justice, Neal Hendel, citing Jewish law for support of the position. As proof, Hendel has cited an earlier article of mine regarding the need to bury terrorists. In this essay, I’ll continue that theme to argue why Bennett’s position is fully supported by Jewish law.
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 (Sanhedrin 46b). 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). In fact, even the enemies in the apocalyptic war of Gog and Magog (Ezekiel 39) will get buried, leading the nations of the world, according to one medieval commentator, to proclaim the greatness of the Jewish nation for burying their enemies. Accordingly, terrorists, like other murderers and sinners, should be buried.
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 site because, “We do not bury a wicked person next to a righteous one.” Instead, the community must create a separate cemetery to bury these executed criminals. Many scholars further assert that these criminals should be denied any honorary funeral or mourning rites. These laws signify society’s eternal condemnation of the criminals’ actions.
Over the centuries, the use of separate burial plots became an important yet controversial tool for social sanctions. Jewish law prohibits suicide because it shows a lack of respect for one’s own divine image. In eras before the impacts of depression and mental illness were fully appreciated, suicide victims would be buried at a distance from other burial plots. 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 within the State of 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. In my book, A Guide to the Complex, I’ve tried to argue there are ways for all Israeli soldiers, irrespective of their religious identity, to be buried together in military cemeteries.
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). Yet in this case of Hamas terrorists, that would be a mistake.
First, it is unclear why these terrorists should not be buried while mass murderers and serial rapists have not received similar treatment. One might argue that such treatment will discourage terrorists attacks, yet I find that claim unlikely; radical fundamentalists will find a way to argue that their holy war soldiers have a place in Heaven whether they are buried or not.
Second, one must weigh the consequences of how Muslim fundamentalists will react to such a symbolic action, especially when they have their hands on an Israeli corpse. Most fundamentally, while in the midst of a campaign against terrorists, 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. Indeed, for these reasons, Israel has always maintained special cemeteries and caskets to bury foreign soldiers in wartime.
All that being said, there is no reason why these buried terrorists must be immediately returned to their families for a glorious martyr’s funeral. Especially while Hamas holds onto the bodies of our soldiers (possibly in non-pristine conditions), it is perfectly reasonable for Israel to bury these terrorists within Israeli territory and return them only after Goldin and Shaul receive the funeral ceremonies they deserve. This position sensitively balances competing values to retain our humanity while ferociously waging an extended war against terrorists. ■

The writer directs the Tikvah Overseas Students Institute and is a post-doctoral fellow at Bar Ilan University Law School. Facebook.com/RabbiShlomoBrody