ISRAEL AT WAR - DAY 140

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ToI podcast'If someone was killed as a Jew, bury them in the cemetery'

What Matters Now to Rabbi Seth Farber: Hostages and mixed burials in Jewish law

Issues of religion and state can take on more urgency in times of war. The head of ITIM, an NGO aimed at helping Israelis navigate the country’s religious bureaucracy, explains

Deputy Editor Amanda Borschel-Dan is the host of The Times of Israel's Daily Briefing and What Matters Now podcasts and heads up The Times of Israel's Jewish World and Archaeology coverage.

Welcome to What Matters Now, a weekly podcast exploration into one key issue shaping Israel and the Jewish World — right now.

Several entire families were slaughtered during the Hamas onslaught on southern Israel on October 7, which left 1,200 dead. They were killed by terrorists together, so why shouldn’t a father, mother and their children be buried together?

When the father is not Jewish, the question becomes more complicated, at least in the Jewish state.

“In today’s modern state of Israel, we need a new tool kit in many ways. It doesn’t have to deny halacha, it doesn’t have to ignore it, it doesn’t have to say it’s irrelevant, it just has to find those moments in Jewish legal history that enable us to live together with our communities,” said Rabbi Seth Farber, the head of ITIM on Thursday.

ITIM is an organization that helps Israelis navigate the country’s religious bureaucracy. In its mission statement, the NGO says it is committed to increasing participation in Jewish life by making Israel’s religious establishment respectful of and responsive to the diverse Jewish needs of the Jewish people.

During this current war with Hamas, ITIM found itself helping on the issue of burials for those who are not considered halachically Jewish, as well as the idea of preemptively preventing anchored women, the wives of soldiers who may be taken captive.

So this week we hear from Rabbi Seth Farber, what matters now.

The following conversation has been slightly edited.

The Times of Israel: Seth, thank you so much for joining me today.

Rabbi Seth Farber: Thank you, Amanda.

Of course, the hostage deal is on everyone’s minds, and throughout history, Judaism has had to deal with this issue several times. So to begin our conversation, I would like to hear some of the traditional sources and what they have to say about hostages.

Okay, so the first thing to note as a preliminary statement is that today we have a sovereign state, and we’re blessed with a military, a strong military and a government. And because of that, when the sources were written, they didn’t have that kind of situation. So it’s very, very hard to apply any particular decision to this particular circumstance. That being said, the Talmud already in Masechet Gittin talks about how one is not allowed to spend more than the value of an individual in order to redeem that individual from captivity. The Talmud gives two reasons why that is: either because it would deprive the general public of funds needed for other critical areas, or perhaps because — this is a second opinion in the Talmud, it’s one that really carries throughout the generations and is really the normative opinion — because it would incentivize taking more captives. That’s certainly something we all feel.

A man and a child walk past portraits of Israeli hostages held in Gaza since the Oct. 7 onslaught by Hamas, in Tel Aviv on November 21, 2023, amid the ongoing war between Israel and the Palestinian terror group. (Ahmad Gharabli/AFP)

That decision of how one evaluates the value of someone and the issue of trading, usually they were talking there about money. There’s a famous story in 1193, a famous rabbi, one of the last of the Tosafists, the initial commentaries on the Talmud, Maharam of Rothenberg, was taken captive. Very possibly his prize student was run out of town — the Rosh was run out of Germany because of that and ended up in Spain because they wanted him to pay more money than the Maharam wanted. And the Maharam ultimately passed away in captivity and his body was only redeemed in 1307. So there are sources that talk about it.

Maimonides talks about it. The Shulchan Aruch talks about it. And of course, in the modern period, a number of prominent halachic decisors, poskim, have weighed in on the issue.

But again, my particular feeling is that the people who really need to make this decision are the ones who are making the decision in the interests of the greater military needs of our community, particularly in a time of war. There are some commentaries that talk about the fact that the whole discussion of the Talmud is not when people’s lives are in danger. And I think it’s very clear that today people’s lives are in danger when they’re taken in captivity.

So let’s talk about that. The issue of “pikuach nefesh” [saving a soul] seems to be able to negate almost every other halacha.

It certainly negates, according to the normative psak, the issue of only paying for people’s values, however one would determine that.

The issue is so heart-wrenching in so many ways. We hear the stories every single day, we know families, even in our community, who have relatives who have been taken captive. And it’s just so painful to see and to hear people talk about the fact that they were relieved when they found out their relatives were murdered because the alternative was worse. It’s horrifying and it’s surreal. It’s unimaginable what we’re living through. And the truth is, we’re living through one of the tragic moments in Jewish history. As someone who is not only a rabbi, but a PhD in Jewish history, someone who studied this stuff, I feel like we’re back in the Medieval period and we’re living through something that I read about that happened in the Crusades or something that happened in the Holocaust. You think about the Kielce Pogrom in 1946 where dozens of people were killed, and here we have 1,200 people killed, and people being killed every day, and then hundreds of people being taken hostage. It’s just heart-wrenching.

So the halacha on the hostage issue is somewhat hypothetical because there was no Jewish state at that time. But the Jewish law on burial is very practical. Unfortunately, all too practical in the wake of the Hamas massacre on October 7. One of the issues that has been in the news, of course, is how you bury a family when not all of its members are Jewish. And we’ve had a couple of cases of that. Can you, first of all, explain the cases?

So my organization, ITIM, has had to handle a number of these cases already, and we actually reached out to the Chief Rabbi just two or three days after the war started and said that there’s going to be issues that come up here. Israel is blessed at this moment to be a place of the kibbutz galuyot, or a place of the incoming of the exiles. Almost 550,000 people came on aliyah, immigrated to Israel, under the Law of Return as Jews, but don’t qualify as Jews according to the halachic system, or certainly can’t prove it. And because of that, their status is in question. Most of these people get full citizenship. The 550,000 I’m talking about gets full citizenship.

Illustrative: Family and friends attend the funeral of Israeli soldier Noa Marciano, who was killed in Hamas captivity, at the military cemetery in Modi’in. November 17, 2023. (Yonatan Sindel/Flash90)

As you know, Amanda, I’ve been arguing for more than a decade that we need to come up with a conversion process. I’m an Orthodox rabbi, and I believe there’s a halachically viable conversion process that would enable these 550,000 people with Jewish ancestry to fully join the halachic community as well. But today they haven’t yet for all sorts of reasons. And other than their Jewishness, they are basically full citizens. They struggle to get married, but other than that, they’re full citizens. They serve in the army, and they were at the rave festival, and they have been killed. Unfortunately, some of them have been killed in combat, on the front lines even. And then the issue basically comes in front of the rabbinate how to bury these people.

I think there’s a halachic way to do it. More than a decade ago, my organization ITIM was involved in trying to convince the Chief Rabbinate that within the military there should be a solution that doesn’t force people of questionable Jewish status to be buried “outside the fence.” And in fact, after a long lobbying effort — which I thought, until a few weeks ago was behind us — there was a modus operandi created in military cemeteries where it meets all the strictest halachic guidelines and still allows soldiers to be buried just as they served shoulder to shoulder with their colleagues, with their compatriots. Within the civil burial issue, that issue had been resolved to some extent in the law by enabling civil burial. But there are still many families that want to be buried. And all of a sudden you have a situation also not unprecedented in Jewish history. The Mishnah already talks about if someone is found in a field killed with Jews and how do we bury them? And a 16th-century commentary of the Bach — Joel ben Samuel Sirkis from Krakow — he discusses the fact that that’s normative psak, that it was someone who was killed al kiddush Hashem — sanctifying God’s name. If someone was killed as a Jew, even if they’re not halachically Jewish, you can bury them in the cemetery. Now, that wasn’t necessarily accepted. Rav Gorin, the chief rabbi of Israel in the early 1970s, had a number of teshuvot [responsa] where he discussed this issue, and he came up with one modus operandi. And if one reads his responsa very carefully, one sees that there is room to find a way for people even of questionable Jewish status, even if people who are not Jews but were killed al kiddush Hashem with Jews to be buried in the cemetery, they can do it in different ways. For example, digging a plot a little deeper, if that’s an issue, so that there is, so to speak, appropriate distance or having equal distance between all the plots. Those are ways that are being already implemented in the military.

We cautioned the chief rabbinate — already I have letters back and forth between me and the chief rabbis on October 12, just five days after the war. We anticipated this was going to happen, unfortunately. And I think it created a huge hillul Hashem, it created a huge desecration of God’s name. There were a number of rabbinates who decided to act on their own independently, including the one in Beit Shean. There was a woman there who was killed and a long-standing member of the community. Her Jewishness was of questionable status, meaning she tried to convert, actually, at some point, and the local rabbi said: “Well, she didn’t finish the conversion process, so she must not be interested in being Jewish.” Again, you know, I have a lot to say about the conversion process in Israel, but not everybody who doesn’t finish the conversion process in Israel doesn’t want to be fully Jewish. Again, she comes from Jewish ancestry, and they basically buried her on the other side of the fence. They buried her outside the cemetery. And that is something that we found very objectionable.

Graves of Kibbutz Be’eri residents who were murdered by Hamas terrorists on October 7, in Kibbutz Revivim, southern Israel, November 15, 2023. (Chaim Goldberg/Flash90)

And there were a number of responsa written, a number of activists and members of Knesset who got involved. We were at a hearing just a week ago in the Knesset about this issue. And because of the public pressure, essentially, I’m pleased to report that in the cemetery in Beit Shean, they didn’t rebury the person, but they did take down the fence or lower the fence. Again, the damage was done. The family felt, like I said, tragedy upon tragedy. The family felt incredibly disenfranchised following the incredible, heart-wrenching pain they must have felt when their daughter was killed.

I think that the public pressure made a difference in this case. Again, against my better judgment, because I really would have preferred that the chief rabbis had responded when I wrote the letter way before this became a public issue, and they’d come up with a solution. But I think the public pressure will hopefully prevent this from going on.

I just want to understand, because I’m not a halachic expert, what is the issue here with burying Jews and non-Jews together?

That’s an excellent question. There’s certainly nothing in the Bible that discusses having separate Jewish cemeteries. It’s clear that throughout Europe in the Medieval period, there were cemeteries that were together and cemeteries that were separate. But at some point along the way in Jewish history, and again, it began much earlier in the Medieval period, Jews had their own plots.

Death is considered antithetical to the central thrust of Jewish life, which is to sanctify life. At the same time, there was this sense that we want to sanctify people even in their death, and thus we want them to be among their community, etc. So such a tradition did develop. I’m not pretending it didn’t develop, and traditions were recorded of having separate Jewish cemeteries. And that was the way in modern Europe, that was pretty much the way things were unless someone really wanted to leave the Jewish community.

That being said, in today’s modern state of Israel, we need a new toolkit in many ways. In my humble opinion, it doesn’t have to deny the halachic process. It doesn’t have to ignore it, it doesn’t have to say it’s irrelevant. It just has to find those moments in halachic history, in Jewish legal history that enable us to live together with our communities. I think the longer-term narrative is to ensure that anybody who wants to, can be fully part of the Jewish community, can get married here, can convert here if they want, etc. But during war, the issue comes up, particularly when it comes to burial. And that’s something we want to make sure that everybody who wants to be buried in a Jewish ceremony in the cemetery with the people they died with kiddush Hashem, sanctifying God’s name, that’s something that should be able to be happening.

This week, we’ve turned to the attorney general to get involved so that it doesn’t happen again. Again, at my organization, ITIM, we’re using the tools that we’ve used in other areas for this particularly sensitive area. We’re trying to be as sensitive as possible, but particularly make sure that the families are getting the responses they need, especially at a time of deep tragedy.

Just to be clear, it sounds like it’s not even a halacha, but it’s a tradition, it’s at that level? Or is there actually a halacha?

Again, the line between those two things is somewhat vague, sometimes. It is a halachic issue. I don’t want to pretend it’s not a halachic issue, but that’s a halachic issue with halachic solutions. And there’s very, very clear halachic solutions. And like I said, in the military, they implement those solutions already. It’s just that the civil burial authorities — there are 600 burial societies in Israel, about 40 or 50 big ones that are run out of religious councils — they don’t have the nuances, they don’t have the toolkit to be able to do this. And someone needs to tell them: “This is what needs to be done. You simply can’t work for the State of Israel and disenfranchise citizens of the State of Israel who died sanctifying God’s name, who died as Jews. You simply can’t keep them outside the fence.”

Flowers stand on a coffin draped with the Israeli flag during the funeral of Dana Bachar and her son Carmel, victims of the October 7 Hamas massacre in Kibbutz Be’eri, at the cemetery in Kibbutz Gan Shlomo, near Rehovot, October 24, 2023. (AP Photo/Petros Giannakouris)

Let’s turn to another issue that you and I have discussed over the years, and that is, of course, the anchored women, the agunot, and so many soldiers, unfortunately, are unable to come back home either alive or in a coherent state. That also happens, of course. And there is a solution for this, a preemptive solution, correct?

There are some discussions that have been going on. We also reached out to a number of prominent rabbis in the first week of the war to see if they’d move this forward. Particularly if men are going out to fight and they’re married, we don’t want women having their husbands taken captive or not being able to identify their remains. It’s very, very hard to talk about in this kind of forum because it’s so painful in every case. So really, again, I use that word a lot, heart-wrenching. But that’s just the way I feel a lot of the time. You feel so helpless against what we’re dealing with here and the evil we’re dealing with here in Hamas.

Over the course of time and this is already a Talmudic solution that was kind of pinned on King David, that David’s army, the men would issue divorce documents to their wives and thus preempt — if something were to happen to them in war — then the women wouldn’t be left as agunot, left without knowing what their status was. Are they married or they’re not? Are their husbands alive or not? This is something that’s happened before. We dealt with it in America on 9/11, where people disappeared and we weren’t able to find them.

In this case, when people go out to war, it’s a very, very sensitive situation. I’ll explain why. On one hand, we want to make sure that women are protected, especially those who seek such a solution. On the other hand, we spent a lot of time talking to senior people in the army about what it does to morale. When you say to a soldier, a male soldier going out — of course, we have more and more female soldiers going out now as well, and that’s something to really be proud of, especially the role women soldiers played at the beginning of the war. It’s really remarkable and dramatic even, and I think it is a watershed moment for women serving in the military here — but leaving that aside for a moment, what is done to morale when you say to every soldier going out: “Hey, would you like to give a get [writ of divorce] to your wife now because you might not come back?”

Illustrative. (iStock)

The truth is, what I wanted to point out is that the official policy of the army is that this is supposed to happen, and when it’s official policy, it becomes not as painful. That being said, it isn’t being implemented. Not only across the board, it isn’t being implemented at all. It’s only being implemented on kind of an ad hoc basis for rabbis who know what it is. A couple of families turned to me individually, or ITIM, and asked me if I would affect this kind of thing. I asked them to think about it, and I gave them the two sides of the coin and both of them decided not to do it. But it is a very, very painful moment.

Also in 1973, we had scholars, rabbis, and chief rabbis who had broad shoulders to be able to solve these problems post facto. Today, I’m afraid that we do have those rabbis in play, but they’re not the chief rabbis, and we’re going to have to find a solution. I’ve already begun some discussions with some of my colleagues about who, if these questions do come up right now. It’s still too preliminary to figure out how much they’re going to come up. But there are rabbis who have the broad shoulders to be able to solve these problems, and I believe they will.

You’re saying that there are rabbis who could potentially post-mortem figure out a solution for these women who would be anchored to these men.

Post-mortem is less of an issue, but if we don’t know the status of people.

Those who are captive?

Right, if they’re in captivity forever, or if we can’t identify them. There’s a number of people, I don’t know how much the listenership knows, that we’ve only been able to identify something like close to 900 bodies, and we know there’s many more that were killed.

Okay, so that’s one issue. But the other issue, if I’m understanding you properly, is soldiers would give this kind of writ of divorce that is retroactively effective.

There are different mechanisms in which it works. But essentially, imagine if you give a get that says if you come back from war, then the get isn’t effective, but if you don’t come back, then it takes place. Now I’m oversimplifying, but that’s a simple mechanism. So then essentially, should they not come back, it turns out they were divorced or you don’t come back by a certain date or something like that, right? That’s one mechanism.

But they’re not divorced in the meantime, obviously.

Right, that’s one of the challenges. Can you give a divorce when you’re still living together? That’s one of the halachic challenges. But again, there are certain nuances and loopholes that you can use to basically write such a thing. And there is a formula, there is a text of such a get. Again, I’m oversimplifying it just because the technical details would be too complex for this kind of forum. But there is such a form that exists like I say, on the books. The army is supposed to be implementing it, but it’s very hard to implement.

And just as one can, for example, download a form to sell your chametz before a Passover, there is this kind of text already ready?

So you would need — again, it’s debatable how much you need a rabbinical court for a get — but you would need certainly three rabbis to be able to or two rabbis and a shaliach, a messenger. Again, the complexities of it are interesting and maybe we can talk about it more. But I think essentially you’re appointing someone as a messenger to give the get if you’re absent and then that’s one of the mechanisms. And then they can give the get, and you say I’m doing it from now, but the get isn’t actually given or maybe the get is given. There are different ways to do it. So you would necessarily need other players involved. You can’t just do it yourself.

Israeli reserve soldiers seen during military training in the Golan Heights, northern Israel, October 30, 2023. (David Cohen/Flash90)

So how do you see this playing out?

For right now, I don’t see this happening. I think, if there are cases, then I think it will generate another round of discourse about this. There are certainly some people who will be more vocal. It came up in 1973 and then it came up again in the First Lebanon War when we realized that there are people who just don’t come back. So without naming names, there are people who don’t come back who are married. And there was a round of discourse, halachic discourse about it and that changed things. But again, it took — thank God, maybe hopefully it won’t come up again because we strive for peace and we want peace — but I feel like we’ll have to see where that goes. There are always creative solutions that are put on the table and each time the formulation and the direction in which it goes kind of take on new meanings. So it could be there’ll be a new form and it could be there’ll be someone who comes up with a new creative solution in which to do this that will create greater consensus and actually greater will to be able to do it. In the end, I think it has to happen through the army, whereas the army rabbinate has become weakened over the years, they have become subservient to the Chief Rabbinate, and the Chief Rabbinate itself isn’t as strong as it once was in terms of its broad shoulders and its sensitivity to the military issues. I think if that were to change a little, that might create some new will to make it happen.

And just to take it to its conclusion: This is important for women who would want to get married again or who are willing to even live in some kind of partnership with somebody else and have children, because this would affect the status of their children.

Right, in other words, a standard aguna, a standard woman who’s anchored or chained is a woman whose husband disappears. And we’re familiar with it more in today’s society, the things we deal with in our day-to-day are women, who the husband refuses to give a get or the woman refuses to accept a get. That’s called a mesorevet, a refuser. But in the classic case, the husband just disappears, either in war or not in war. The classic case in the Talmud is the guy goes on a business trip on a boat and the boat sinks. And then what happens? The woman is just anchored forever because she doesn’t know if the husband is alive somewhere. And of course, in the Holocaust, we had multiple examples of this. Sure, the listenership is aware of people, the woman got remarried and then her first husband showed up years later, and then what do you do? And that happens every once in a while. And like I said, there are halachic solutions to this.

It’s in the interest of everybody to try to find solutions to this. And I hope we don’t get there in this particular war. But if there are cases, there are rabbinical court judges who are sensitive to the area and I think will step forward and take the responsibility like Rav Ovadia Yosef did at the time in 1973, or like some of the bigger poskim did after 9/11 in America.

Now, the third theme that we discussed speaking about, I don’t even understand why this is an issue at all. It’s about going to the mikveh, to the ritual bath, during the day.

So this is a really fascinating issue. First of all, it’s going to surprise your listenership to know that more than half a million women use the mikvah in Israel. This is not like a shtetl anymore. You have a tremendous, tremendous amount of women who are visiting the mikveh on a regular basis based on the family purity traditions of Orthodox law. Not all of them are Orthodox. Many of them are what we call traditional, masorti, here in Israel. But this is an area of Jewish life that they’ve adopted for themselves.

Now, mikvehs in traditional society were used at night. It was a private act, and it was only done at night, etc. And ITIM has gotten involved in the mikveh issue in a number of areas, allowing women to use the mikveh without an attendant there and having more expanded hours and stuff like that. What happened here was we started getting in our call center two types of calls. And then it turned out there was a much bigger issue than we thought. One type was from women who were supposed to go to the mikveh, but they had little kids at home, and their husbands were on reserve duty. And they said: “I can’t leave my kids at home at night without being afraid that the siren’s going to go off and no one’s going to be there with them, and I can’t get a babysitter,” especially at the beginning of the war.

A mikveh in Har Nof, Jerusalem, May 12, 2013. (Uri Lenz/Flash90)

The second one was from women who just said: “We need to know where there’s a shelter in the mikveh. What if the siren goes off and we refuse to go to the mikveh and we’ll be better off in daytime than in nighttime for that.” The issue here is actually a very interesting legal issue because the mikvehs are a public service here. It’s paid for by tax dollars, or shekels, as the case may be. So imagine a situation where you’re basically saying, listen, can you open up at hours that are not your regular hours? We all have an interest here in helping these women. And again, it wasn’t half a million women that called us, but there were dozens, hundreds even, that called and said: “What are we supposed to do?” And it turned out, every city had its own rules.

So what we tried to do was petition, lobby the Rabbinate to basically create in every major city one mikveh that would be open during the day and to create a mechanism where women could find that mikveh very easily if they wanted to, and use the mikveh during the day. How exactly that works from a technical perspective, etc., that’s less of interest. But assuming that there’s a way to do it during the day, then how do we get the mikvehs open during the day to make sure that happens?

So in the beginning, the Rabbinate said that it’s not a problem. Then we demonstrated to them that we had hundreds of calls, and they said: “Okay, we recognize the problem, but we can’t help you because we don’t want to open the mikvehs during the day, because the tradition is you’re supposed to do it at night.” And we said: “Look what’s going on here!”

And again, this is the gap that I expressed before about the burial issue or the divorce issue. Often the clerks, or the rabbis who work in the institutional Rabbinate, don’t have a window into the sensitivities that are going on on the street. So when we got involved, our job is to basically say: “Listen, there’s a whole population out here that is not going to use the mikveh. So according to your standards, it’s in your interest to figure out a solution for them.”

Rabbi Seth Farber of ITIM and Chief Rabbi David Lau in 2013. (Courtesy of ITIM)

In Jerusalem the solution they came up with was — and this I was very excited about, actually, because it was new territory — instead of saying: “Okay, if there’s a problem, call such and such rabbi,” which is what I’ve seen 50 times in the last 15-20 years of doing this, they actually appointed a woman. I was so excited. They appointed a woman to handle all the calls of women who had this problem. They told us: “Feel free to advertise this woman’s phone number. She will be our filter and open mikvehs as need be.” So it wasn’t perfect. It wasn’t like they said: “Okay, we’re going to open this mikveh no matter what.” But they had an address. People in Jerusalem, which is a huge population of mikvah users, had a place to go. In fact, the first day, we followed up on the calls that we got to make sure that it was working. And in fact, it worked. It worked. And still today, six weeks into the war — and again, I can’t believe I’m saying those words six weeks into the war — but six weeks into the war, there’s still an address in Jerusalem, and it’s happened just about in every city. On our website, we published a list of all the mikvehs. We took some of our staff, and we called all the municipalities, all the religious councils, and we basically made a list of all the places and how they’re solving this problem. Are they open during the day? Are they not open during the day? If they aren’t open in the day, who can you call to get it open during the day? If there isn’t one in your city, where can you go that’s close by?

So we put all that information and hopefully helped a lot of women traverse this difficult time. Hopefully, again, in other words, this won’t be an issue. Hopefully, the number of missiles will go down. Hopefully, the fear will go down, hopefully, for those whose husbands went away. And again, it’s not only husbands that are going away. I want to make it very clear there’s a lot of women serving also, and it’s incredible, and we’re blessed to have it, and it’s protecting our country.

In this particular issue of the mikveh, it’s primarily the husbands who are away and the women who need to use the mikveh, we’ve been very gratified to be able to help them.

Really interesting. Thank you, Seth, so much for bringing all of this to me today.

Thank you.

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