A matter of value-based principles, including freedom of religion & human dignity

Should religious freedom stop at the gates of military cemeteries?

Turning to the Minister of Defense, Chief of Staff, Head of IDF Personnel, Judge Advocate, and Minister of Religious Services, Hiddush suggested that civil burial plots be designated within military cemeteries, in which full military funerals can be conducted, ungoverned by the Orthodox Rabbinate.

Mount Herzl, courtesy: WikipediaMount Herzl, courtesy: Wikipedia

Israeli law (the 1996 Law on the right for alternative civil burial) provides that a person is entitled to be buried according to his/her outlook in an alternative, civil cemetery if he/she chooses such. The Minister of Religious Services is tasked with designating locations for alternative civil cemeteries, and such cemeteries may be part of existing cemeteries. Unfortunately it's no secret that this Law has not been fully implemented, and there are only a handful of civil cemeteries to date. The state comptroller has published a particularly harsh critique of the non-implementation of this law, which clearly has to do with the fact that the powers that be who control religious services are interested in maintaining Orthodox dominance and exclusivity in all matters pertaining to religious services, including burial.

Interestingly, the issue of military burials raises questions of core value-based principles, including freedom of religion, human dignity and civil liberties. In Hiddush’s review of the IDF rules, it seemed that the principled attitude towards the question of the dignity accorded to a deceased soldier hasn't even reached the point acknowledged by the general law, namely that a person is entitled to be buried according to his/her outlook.

Hiddush’s research uncovered that in 1994 there was a pioneering case, in which the family of a deceased soldier, represented by a lawyer, was able to get the Judge Advocate's support for a secular military burial ceremony, based in part on the 1992 Basic Law on Human Liberty and Dignity. However, in a subsequent instance in 1998, the family of another soldier demanded a secular burial, and was refused. This family was forced to bury their son in a non-military, secular funeral without any military honors. The IDF spokesman at the time stated that, “according to IDF regulations, a (Jewish) military funeral cannot be conducted without a military rabbi.” Media and public attention was drawn to these cases, and the Military Chief or Staff (Shaul Mofaz who later became Minister of Defense) announced that he instructed the IDF Chief of Human Resources (the arm that deals with funerals) to change the rules so as to allow discretions and exceptions to the uniform code, enabling secular military funerals to be conducted.

Military Chief or Staff Shaul Mofaz announced that he instructed the IDF Chief of Human Resources to change the IDF rules to enable secular military funerals to be conducted.

Further research demonstrated that the available IDF documents and the Military Cemeteries Law do not provide a satisfactory resolution to this matter. It goes without saying that the question of secular military funerals does not only arise in conjunction with the ability of soldiers and their families to choose a burial rituals (if God forbid the need arises) that respect the individuals’ outlooks and lifestyles, but also involves the issue of burial for soldiers of Jewish descent who are not halakhically Jewish (i.e. immigrants from the FSU with non-Jewish mothers) who wish to be buried next to their fallen comrades. Case in point: the public storm that erupted in 1993 when it came to light that Sergeant Lev Pesachov z"l who was shot to death by terrorists was buried beyond the fence of the military cemetery in his home town of Bet She'an because of the military rabbinate’s refusal to bury him in the section of the fallen soldiers, until the Minister of Defense of the time (Yitzhak Rabin z"l) ordered that his coffin be exhumed and reburied alongside his comrades.

Rabin's bold decision was subsequently affirmed by two Chief Military Rabbis (Rabbi Weiss and the current Chief Rabbi Peretz), confirming that there is no impediment to burying a non-Jewish soldier in a regular cemetery plot, provided that there is a four cubit distance (about two meters) between that grave and the next. Unfortunately, this affirmation was not translated into clear, binding military regulations, and back in 2010, twenty-three year old Tanya Lansky of Ashkelon who perished horrific Carmel Mountain fire that consumed a bus full of prison authority cadets was not buried in a regular plot in the military cemetery because of her mother's halakhically non-Jewish status. The media report described the mourning mother's strong resentment of the Rabbinate's position and her agreement to bury her daughter in the non-Jewish section of the cemetery only after many discussions and the city mayor's intervention.

The bottom line is that the IDF code does not provide for recognition of the dignity and religious choices of Jewish families who prefer non-Orthodox funerals, requiring them to give up the military honors accorded to fallen soldiers.

Hiddush’s legal review uncovered the following: the IDF code provides that only military funerals shall be conducted in military cemeteries, and Jewish funerals will be led by a military rabbi and cantor in strict observance of the rules of halakha. Exception to the religious ceremony rules outlined in the military code is subject to the authority of a senior military rabbinic official. In this case of the will of the deceased, a secular funeral may be conducted in a civil cemetery, and will be carried out without any official military honors such as the ceremonial burial, ceremonial laying of wreaths, presence of an honorary guard, or gun salute. Nor shall there be an official eulogy on behalf of the IDF. Clearly, the bottom line of all the above is that the IDF code does not provide (at this time) for recognition of the dignity and religious choices of Jewish families who would prefer secular or non-Orthodox funerals, and requires of them to opt for a non-military cemetery and give up the military honors that are accorded to soldiers who fell in the line of duty. Nor is there an explicit provision for the Olim soldiers who are not halakhically Jewish to be buried alongside their fallen comrades. In both instances, it would appear that families are forced to fight for their departed at the most vulnerable and hardest time - between their children's deaths and their funerals. Moreover, past experience shows that these families’ wishes may not be carried out, but they would rather face pressure than comply with the religious coercive norms of yesteryear.

Turning to the government and military authorities in early August 2015, Hiddush stressed that the Basic Law of Human Dignity explicitly provides that “the rights according to this Basic Law of those in the IDF's, police's, prison authority's, or other state security agencies' service shall not be limited or conditioned, other than in accordance with law, and in a manner which does not exceed the essence, the nature and that which is required by the [security] service.”

Moreover, former Supreme Court Chief Justice Professor Barak has interpreted this constitutional provision, stating that “there is no quarrel as to the human rights protected under the Basic Law – these are also the rights of a soldier. The uniform does not separate between the soldier and constitutional human rights... nevertheless, the military framework is unique. This uniqueness may justify acknowledging the possibility of a more encompassing limitation on the human rights of a soldier than that of a civilian. Both sides of the coin - recognition of the human rights of soldiers and the ability to limit the human rights of soldiers - are anchored in the Basic Law of Human dignity and liberty... the scope of the doubt will therefore be whether the limitation on the human rights of the soldier does not exceed that which is required by the essence and nature of the service. The question is - is the infringement of the human rights of the soldier proportionate, given the nature of the military service, and the IDF's goals?”

Can anyone seriously consider that this is REQUIRED by the nature and the essence of the military service?

This approach has been further reaffirmed in subsequent Supreme Court decisions, and the question that Hiddush raised in our letter was - can anyone seriously consider that requiring a religious Orthodox military funeral is a sine qua non for conducting a military funeral and honoring the memory and service of fallen soldiers with ceremonial military honors that have nothing to do with religion? Can anyone seriously consider that this is REQUIRED by the nature and the essence of the military service, and can anyone claim with integrity that such policy reflects a proportionate infringement of basic liberties and human dignity in general, and religious freedom in particular?

We further stressed repeated affirmation by the Supreme Court of the importance of religious freedom and the prohibition regarding limiting such freedom, other than if authorized explicitly by Knesset legislation. Furthermore, a relevant IDF publication states that “officers shall do all that is required in order to ensure that military service will not stand in contradiction with the values, faith, and lifestyle of those serving in it.” We naturally agree with this principle, but it seems that IDF authorities view such consideration of the values and lifestyle of its service men and women primarily in order to safeguard the religious lifestyle of Orthodox soldiers, not secular and non-Orthodox soldiers, nor does it sufficiently respect their values, beliefs, and lifestyles. Hiddush’s communication with the IDF and government authorities specifically asked for clarification of the rules regarding secular or religious, non-Orthodox funeral ceremonies... and the standing regulations regarding the burial of fallen soldiers who are members of Jewish families, but are not halakhically Jewish. We suggested that an appropriate way of resolving these matters may be to follow the principles outlined in the 1996 Law (the right for alternative civil burial) even though it does not explicitly refer to military cemeteries. Namely, to designate civil sections within the existing military cemeteries, in which full military funerals can be conducted that would not be governed by the Orthodox IDF Rabbinate.

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