The Desecration of Graves in Eretz Yisrael: The Struggle to Honor the Dead and Preserve Our Historical Legacy
Rabbi Yitzchok Breitowitz
The Desecration of Graves in Eretz Yisrael: The Struggle to Honor the Dead and Preserve Our Historical Legacy
Rabbi Yitzchok Breitowitz
Shortly after World War I, Rabbi Yechiel Yaakov Weinberg, one of the gedolai haposkim of the preceding generation, was asked about the halachic permissibility of disinterring the remains of Jews buried in Poland for reburial in Germany. (In the aftermath of that war, there were virtually no Jews left in the original community and there was great concern that the Jewish cemetery would be desecrated). He prefaced his intricate and classic halachic analysis with the following words that deserve to be quoted at length:
"The removal of bones from one gravesite to another . . . is a matter that our rabbis and decisors in all generations have treated with great severity for we find that Chazal were very insistent on the proper respect to be paid to the dead . . . [Rabbi Weinberg proceeds to cite a number of statements in Chazal which compare desecration or humiliation of the dead to a form of murder.] [T]he soul of a Jew feels great anguish [mitza'eret harbai] over the pain and humiliation of a corpse and [this sense of anguish] is deeply embedded in the very roots of our holy faith as the author of the Kol Bo elaborates with wondrous words [Rabbi Weinberg proceeds to quote the Kol Bo who states that the treatment of a corpse with respect and dignity is an affirmation of belief in the body's ultimate resurrection upon techiyat hametim; conversely, treating a corpse disrespectfully implies a belief that death is final and irreversible. Rabbi Weinberg then continues]: "And therefore we observe that time after time when a question concerning the disinterment of bones came before the great teachers [gedolai hamorim], they would apply themselves to this halacha with great gravity and seriousness and they would preoccupy themselves in the clarification and meticulous examination of all possibilities [b'biror u'vlibun ha'din micol tzad] and they would not rush to permit even under circumstances where the basis for leniency was clear and obvious. It is well known how the gedolai hador were filled with fear and trembling when they had to decide whether to permit the disinterment of the pure body of the Gaon Rabbi Mordechai Benet from Lichtenstaut to Prague . . ."1
Kavod hamet, showing proper respect to the dead, has always been a deeply-rooted tradition within the Jewish people. In halacha, this concept finds its expression in laws against autopsy;2 in the requirement of a speedy burial;3 in the waiver of various rabbinic restrictions on Shabbat and Yom Tov to insure proper care of the dead;4 in the rituals of tahara (bathing the body) and tachrichim (dressing it in shrouds);5 in various laws concerning the kavod (respect) that must be shown in a beit hakevarot (cemetery) and what activities therein are prohibited;6 in various practices that are banned because of l'oeg l'rosh ("ridiculing the helpless");7 and finally, in the laws limiting the removal and excavation of corpses or bones.8 By and large, the belief that the physical repository of the Divine soul should be accorded dignity and respect has been widely shared even among Jews who were not otherwise observant of halacha. To this day, the Israeli army will go to great efforts to retrieve the final remains of its fallen soldiers. Superimposed over the awesome grief of the Holocaust is the additional sadness - often expressed - that many of our kedoshim were never brought to kever Yisrael (Jewish burial). In recent years, the sentiments of the organized Jewish community regarding the preservation of cemeteries have been expressed to and respected by Germany, Poland, and Egypt, communities that have not exhibited particular concern for the Jews in the past.
And yet as is so often the case, we the Jewish people are our worst enemy. The very activity which, if undertaken by others would elicit the sharpest of protest, is taking place on our land by our people. The relatively few who actively try to stop this desecration are derided as fanatics and extremists who glorify the dead over the "needs" of the living though those "needs" may be no more significant than the construction of an underground parking garage.
The problem of bones being found at construction sites has always existed but its prevalence greatly increased after 1967 with the dramatic proliferation of development in and around Jerusalem. The Asra Kadisha (the Committee for the Preservation of Gravesites), established under the leadership of Rabbi Yitzchak Ze'ev Soloveitchik (the Brisker Rav), Rabbi Eliezer Yehuda Finkel (Rosh Yeshiva of Mir), and Rabbi Yaakov Yisrael Kanievsky (the Steipler), came into being as a response to major excavations at Beit Shearim in 1957-1959. Over the past thirty years, this organization, comprised almost exclusively of Chareidim, has organized protests and demonstrations at a number of archaeological and construction sites including French Hill, Jaffa, Modein, and most recently, at a newly-discovered Hasmonean burial ground.9 Some of these demonstrations have resulted in pushing, shoving, rock throwing, some arrests, and allegations of police brutality, as well as chillul HaShem. Due to the composition of the demonstrators (largely-Chareidi) and to the occasional excesses in their tactics, many identify those gravesite desecrations as merely a "Chareidi" issue which can then be safely dismissed or ignored as are a variety of other issues significant to that community. It must be emphasized, however, that while the Religious Zionist camp may be less vocal and public in its protests, a number of its leading halachic authorities, such as Israeli Chief Rabbis Lau and Bakshi-Doron and Chief Rabbi Kulitz of Jerusalem,10 have joined the Asra Kadisa (in principle, if not in tactics) by unequivocally condemning these gravesite desecrations as serious violations of halacha. Many other rabbanim have expressed their concerns privately. The unprecedented scope of these excavations should be of great concern to every Jew faithful to the dictates of his/her religion or, for that matter, even to a non-religious Jew committed to the history of our people.
Indeed, if there is any chance at all to induce the Israeli government to impose stricter controls or restrictions on what is presently a virtual carte blanche to indiscriminately excavate any ancient sites for any purpose, it is essential that it perceive the issue as being more than a problem that bothers only a small segment of the ultra Orthodox. To their credit, both the Orthodox Union and the National Council of Young Israel as well as Agudath Israel have expressed their concerns to the Israeli government. Another organization that has been in the forefront of this struggle is the Conference of Academicians for the Protection of Jewish Cemeteries (CAPJC), an ad hoc coalition of academics headed by Dr. Bernard Fryschman. Perhaps even more significant, these organizations have received the backing of a member of Congress to whom the Israeli government is likely to pay careful attention, Benjamin A. Gilman, Chairman of the House Committee on International Relations and a long-time friend of the Orthodox community. In a letter to the late Prime Minister Rabin, Congressman Gilman noted the "growing concerns of many in the American Jewish community regarding the exhumation of bones at so many sites throughout Israel" and called on the Prime Minister to share his thoughts as to how the problems and tensions can be alleviated. Just this past Kislev, pursuant to a call of many of the gedolim of Eretz Yisrael, an estimated crowd of 50,000 people gathered peaceably in Kikar Shabbat to pray and protest the excavations in Modein. The gathering culminated with a mass reading of the final chapter of Eicha as thousands sat on the ground to express their grief.
After years of indifference if not hostility on the part of the Israeli government, these concerted efforts (combining prayer, demonstrations, political pressure, and discrete negotiation) have finally begun to bear fruit. Prime Minister Peres recently announced a proposal to suspend archaeological digs at any site in which Jewish bodies are found.11 This proposal, however, is bitterly opposed by the Israeli Antiquities Authority as well as significant groups in academia, archaeology, and real estate development, all of whom fear that their own bailiwicks will be unduly curtained, and whether it will become the law of the land is very much up in the air.
Moreover, as important and appreciated as the Prime Minister's support undoubtedly is, it must be recognized that a satisfactory resolution of the conflicting interests at stake - commercial, archaeological, and religious-depends far more on cooperation, good will, mutual respect, and keeping the lines of communiction open than it does on the formal protections of the law. Unfortunately, in the heated, polarized, divisive atmosphere of Israeli society (an atomosphere that has only grown more divisive in the aftermath of the Rabin assassination), these qualities are in lamentably short supply. In truth, like almost everything else in Israel, even the ancient remains of the dead become enlisted as involuntary pawns in competing political struggles and opposing world views and the ultimate impact of the Peres proposal on government bureaucracies and commercial development remains to be seen. The one point that is certain, however, is that the Orthodox community here and abroad must continue to communicate to the Israeli government that nivul hamet (desecration of the dead) is indeed an issue of significant "mainstream" concern.
It should also be noted that the issue is not merely the excavation and relocation of bones to alternative burial sites; it has been reported that in a number of cases, bones have simply been scattered or dumped, an unpardonable desecration of kavod hamet which cannot be allowed to occur under any circumstances.
The Current Status of Israeli Law
Section 172 of the Penal Law already prohibits entry onto a gravesite and excavation of remains "without permission" where such excavation is likely to offend religious sensibilities and Asra Kadisha has strenuously argued that the indiscriminate digging up of ancient gravesites is illegal under this statute. At least until the Peres announcement, however, it had been the Israeli government's position that the Antiquities Authority was authorized to grant such permission through its licensing procedure. In effect, this created a Catch-22; any excavation which had been duly licensed under the Antiquities Act - and such permits have never been hard to obtain - was by definition done "with permission" and could not be attacked through the Penal Code.
Interestingly, the Asra Kadisha maintains that this apparent loophole was the result of a mistranslation.12 Under the British Mandate, Section 148 of the Criminal Law prohibited "the commission of any trespass" in a cemetery. When this law was enacted by the Israeli government and translated into Hebrew, "commits any trespass" became "entering without permission," paving the way for the IAA to grant such permission via a permit, effectively allowing activities that were illegal under Mandatory Law. Indeed, according to Eliezer Dembitz of the Ministry of Justice, an expert on legal translation, the Hebrew translation of "b'li reshut" ("without permission") for "trespass" was a mistake.13 Attempts to amend the present statute to more closely track its Mandatory predecessor were attempted in 1981 but they were not successful.
The Peres proposal would effectively close this particular loophole by denying the IAA authority to issue such licenses but, as noted, the fate of this proposal remains to be seen.
The excavation of sites containing human bones or corpses raises a number of discrete though interrelated halachic problems: (1) the general prohibition against disinterring the dead (pinui met v'atzamot); (2) the proper procedure for disinterment and reburial where pinui is permitted; (3) the prohibition against deriving benefit (issur ha'naeh) from a met or kever; (4) restrictions on what activities are permitted in a beit hakevarot; (5) the problem of determining whether bones are those of a Jewish or non-Jewish met and what assumptions are to be made in cases of doubt. Obviously, space limitations make it impossible to fully address each of these issues; only the briefest of treatments can be provided. Hopefully, these references will be sufficient to enable to reader to see why some halachic input is essential.
A. The Prohibition of Excavating a Grave:
Generally speaking, except in unusual or extraordinary circumstances, halacha sharply condemns the excavation and removal of corpses from their gravesites even when they will be reburied elsewhere (or indeed in the same place).14 The overwhelming consensus of opinion is that this prohibition applies to bones as well as intact cadavers.15
There are two basic approaches as to the source of this prohibition. Some poskim view the excavation of remains as an act of desecration and humiliation of the dead (nivul u'bizayon hamet) akin to autopsies, cremation, and the like.16 Other poskim stress that when remains are disturbed, the neshamot of the metim are filled with terror and trepidation (charada) since they believe they are being summoned to Divine judgment.17 Both of these explanations presuppose that the body or more accurately the soul that inhabited that body in its lifetime possesses a certain measure of awareness and can experience suffering and agitation when its remains are tampered with.18
Later authorities have suggested some additional considerations: (1) removal of a met from its burial site is a form of theft (gezel) in depriving the met of its "home", particularly if the gravesite was paid for;19 (2) if the met was buried in proximity to other family members, its removal deprives the met of the "pleasure" it gets from being in kever avot (arev hu l'adam she'yehay nach aitzel avotav - "it is pleasant for a person to rest near his ancestors");20 (3) wholesale excavation could easily cause the intermingling of bones and remains from different graves which is a distinct form of bizayon hamet where the body no longer possesses its separate kever.21
Whatever the reason for the prohibition, the exceptions to it are few. One is permitted to excavate and remove remains (1) if they were buried there without the permission of the landowner;22 (2) if the grave and remains are likely to be damaged by water or sewage backups, vandalism, etc. and there are no alternatives to removal that could solve the problem;23 (3) if the positioning of a grave causes damage to other graves;24 or (4) if the person was buried in one place with the specific intention (t'nai) of later removing his remains to a different site.25 Disinterment is also permitted in order to bring a met to Eretz Yisrael or to kever avot (burial plot of his ancestors).26 Some poskim, thought not all, are willing to permit removal not only to place where family members are buried but to places where surviving children and relatives can come to pray or visit.27 Needless to say, none of these dispensations applies to construction sites or archeological digs.
There is, however, an additional exception that may be invoked. Kever hamazik et harabim mutar l'panoto - a grave that damages or interferes with the rights of the public may be removed.28 The halachic imperatives of kavod hamet must yield when they unduly restrict the rights of the public to access and use of property. The poskim have made clear that the law permitting relocation applies not only to a single grave but to a cemetery as well.29
Obviously, a critical halachic issue is going to be the definition of nezek harabim (damage or detriment to the public). Some cases may be relatively clear cut. Assume, for example, that due to the current political situation there is the need to construct new access roads linking various settlements to Jerusalem in order to avoid dangerous passage through PLO - controlled territory. To the extent the only feasible route would have to run through a cemetery, disinterment might well be allowed since the only alternative would be cutting off the settlements or subjecting them to physical danger. (Even here, one would have to consider the possibility of alternative routes-cost, efficiency etc. or of construction over the graves rather than unearthing them).
But what of the excavation of sites that may yield valuable archaeological information? Can it be said that the denial of access to the site thereby depriving the public of knowledge constitutes a cognizable nezek? Is ignorance damage? Or what about construction? Granted that new apartment buildings and underground garages may benefit significant numbers of people (though the primary beneficiaries seem to be private investors rather than the general public) but in the absence of a severe housing shortage and given the existence of alternative sites, could the cessation of such construction be regarded as injurious to the public? Is inconvenience a nezek l'rabim? Does expense factor into the calculation and is there a difference whether the expense is public or private? Assume, for example, that construction has progressed a great deal of the way and then kevarim are discovered. Dismantling a project once commenced may be prohibitively expensive. Does halacha consider this expense a relevant extenuating circumstance? (In a case involving the excavation of a met, R. David Friedman ruled that a completed house over a gravesite must be dismantled and the body reinterred.30 That case, however, involved a deliberate removal of the corpse and the intentional commencement of building on the site. It does not address the dilemma of the good-faith developer who finds bones once the project is well underway.) I will not attempt to answer these questions other than to note that the halachic definition of nezek harabim will often be the single most crucial determinant in the permissibility of removing and relocating remains; whether or not this nezek exists cannot be addressed in the abstract but requires a careful analysis of the benefits, burdens, and costs to the public in light of all the alternatives available. This itself necessitates collaborative efforts between poskim, engineers, archaeologists, government officials, architects, city planners and the like. Moreover, as noted before, public need might be served by construction above the gravesites without the need to exhume the bones.
In this regard, mention should be made of an important ruling by R. Shaul Yisraeli, the recently-deceased Rosh Yeshiva of Mercaz HaRav, that any activity or project which adds beauty [tiferet] to the land of Israel is treated as a public benefit.31 Its cessation or removal is conversely regarded as a nezek to the public and in order to avoid such cessation, bones can therefore be removed. It is irrelevant whether the public need preceded the gravesite or the gravesite preceded the materialization of the public need - in either case, removal is halachically authorized. In some circles, R. Yisraeli's psak has been taken to provide a carte blanche for the indiscriminate exhumation of bones for virtually any type of construction activity on the grounds that the "needs" of the living take precedence over the needs of the dead and that the settlement and habitation of Eretz Yisrael is in itself a factor which adds tiferet. This school of thought regards all of the Asra Kadisha's protests as being over a non-issue. While R. Yisraeli's definition of nizka d'rabim is certainly quite broad and expansive, I am not sure if even he would regard one less parking garage as a nizka d'rabim. In any case, the overwhelming majority of rabbanim who have addressed this matter, including R. Yitzchak Kulitz (the Chief Rabbi of Jerusalem), have not been willing to go so far and would not permit the initiation of commercial development with the knowledge that bones are going to have to be removed. (What happens after the fact is a different story.)
B. The Proper Procedure for Disinterment and Reburial:
Even if pinui atzamot is halachically permissible for nezek l'rabim or otherwise or if the pinui is a fait accompli, the remains must be handled with respect and accorded proper dignity. To the extent ascertainable, bones from different bodies should not be intermingled and should be buried separately. The remains should be transported to burial as soon as possible and should not be kept for archeological inspection, museum collection and the like. Even R. Yisraeli who was quite lenient with respect to pinui atzamot emphasized the imperative of treating the atzamot properly once they were exhumed.32
A second halachic issue involves tefusa. According to Nazir 9:3 and Oholot 16:3, when a body is removed from the ground for reburial, one is obligated to remove with it all soil to a depth of three fingers. (This law does not apply where the body is encased in an intact coffin but only if it is buried directly in the ground). The conceptual basis for this requirement is uncertain: does the requirement rest on a presumption that bodily fluids and blood are likely to penetrate within a certain depth or is the requirement applicable irrespective of the presence of such fluids? Is the obligation of removal based on kavod hamet or on a more pragmatic concern for tumah - to allow kohanim to walk on the site? If the latter, is it the fluids that convey tumah or the dirt itself? Does it only apply in Eretz Yisrael? Does it apply to bones? What is more perplexing is the fact that although the Mishna's ruling is cited in Rambam, it is omitted in the Shulchan Aruch and its commentaries. Depending on how one resolves this omission, there may or may not be a din of tefusa where bones are removed from ancient gravesites.33
C. The Prohibition Against Deriving Benefit From a Grave (Issur Ha'naeh):
The Talmud in Sanhedrin 44b states that both a met and a kever binyan (a structure erected to house or bury a corpse) are issurei ha'naeh (one is not allowed to derive any personal benefit from them). Provided the burial was with the permission of the owner of the land, the issur ha'naeh remains even after the met is physically removed from the gravesite. The Gemara makes clear, however, that the issur ha'naeh does not apply to karka olom (the undisturbed soil that a met is buried in). Thus, it is permitted to take and use the dirt on the sides of an open grave or the dirt upon which the met rests. There is a major dispute among the rishonim regarding the status of dirt that was excavated to allow interment and then put back over the met. The view of Rosh is that the dispensation for karka olom applies even to the excavated dirt that is returned to the site. Rabbeinu Yeshaya rules that excavated dirt is analogous to new construction. Rema in Yore Deah 364:1 cites both views and it appears from a number of acharonim that the custom is to be strict. In effect, therefore, even if the met is removed (permissibly or not), there remain possibilities of issurei ha'naeh in the use of the site for construction or development that require careful halachic analysis.34
D. Laws of Kavod Applicable to Cemeteries:
Wholly part from the Torah prohibition against deriving benefit from a kever (at least if it is "new construction"), there are a series of other laws - rabbinic in nature - that limit the types of activities in which one is allowed to engage in a beit hakevarot.35 According to Megilla 29a, one may not eat or drink in a cemetery, graze animals, use the area as a shortcut, etc. The acharonim attempt to explain the interrelationship between the issur ha'naeh d'oraita of the kever and the rabbinic restrictions pertaining to the beit hakevarot which at first glance seem to overlap and draw the following distinctions:36
Whether this superimposed layer of restriction (1) rests on the fact that a cemetery may have sanctity (kedusha) akin to a beit hakeneset (2) whether the restrictions are part of the general rules applicable to items set aside for mitzva observance or (3) whether they are simply another expression of kavod hamet,38 it is unquestionable that at least certain types of construction and development may fall under the rubric of kalut rosh even if the stricter prohibitions of issur ha'naeh could be successfully avoided. (A residence or a factory over a cemetery may not be kalut rosh; a football stadium might be.)
E. Jew v. Non-Jew:
Archaeologists, and occasionally some rabbis, have advanced the argument that in many cases bones that are found at construction sites are of non-Jewish origin, e.g., from the times of the Crusades and the like, and may thus be removed and disposed of with impunity. They further argue that based on the principle of rov (that when in doubt, all cases of unknown origin are assumed to come from the majority class), since there are many more non-Jews than Jews in the world all found bones should be assumed to be of non-Jewish origin unless there is direct evidence to the contrary. This position has been roundly rejected by the gedolai haposkim. Even assuming that the rules against pinui kever do not apply to the bones of non-Jews - which in itself is subject to controversy - in many cases it is crystal clear or at least highly probable that the excavated bones are those of Jews - either by markings on the graves (such as the recently discovered Hasmonean tombs) or by their proximity to well-established Jewish gravesites (such as a number of bones unearthed near the tomb of the Rambam in Tiberius). Thus, many of the archeological claims are simply disingenuous. Even if the matter would be a genuine 50-50 doubt, the dictates of kavod hamet would necessitate stringency.39 Moreover, as the great R. Yechezkel Abramsky noted almost 40 years ago, reliance on the principle of rov is misplaced and indeed cuts the other way.40 While a majority of the world population may be non-Jewish, a majority of the bodies buried in Eretz Yisrael over thousands of years may certainly be assumed to be Jewish. As such, the principle of rov, rather than allowing indiscriminate excavation, operates to prohibit it.
The reader might be tempted to ask that, in view of all the other problems the Jewish community and Eretz Yisrael face, why should our energies be focused on this one? After all, should not the needs of the living be our foremost concern? There are a number of responses. First, one problem does not displace another. Our obligation as Jews is to protest evil and desecration in any guise that it appears. It is not necessarily our role to prejudge which aveirot are too insignificant to be concerned about. Indeed, the obligation to try to stop the indiscriminate excavation of human remains is especially strong because the prospects of success are greater than they are on other issues of religious conflict since kavod hamet is an emotion deeply ingrained in Jews of all persuasions. Second, in describing the mitzva to bury the dead quickly, the Torah writes, "For he that is hung is a curse unto G-d." (Deuteronomy 21:23). G-d Himself is described as feeling pain, distress, and humiliation when the body of a human being made in His image is desecrated or treated with disrespect. If, on some level, the Shechina itself is being trampled on, it is certainly incumbent upon us to do our part to prevent this chillul kvod Shomayim (desecration of the glory of Heaven).
Third, there are linkages in the spiritual world whose connections can only be dimly perceived. The Shvut Yaakov writes that the desecration of metim elicits Divine wrath on the living and may be the cause of many afflictions and tragedies.41 It is not for this author to pass judgment but certainly at a time of great trial for Klal Yisrael and Eretz Yisrael, when the lives of so many Jews and the very existence of the state hang in the balance, is it not logical to utilize all avenues that we can to protect ourselves and our land from Divine wrath and to elicit G-d's mercy?
Fourth, the Chatam Sofer noted that when Jews treat their dead cavalierly (in a way that even the nations of the world do not), those nations will have no compunction in desecrating and demolishing Jewish graves and perhaps even Jewish lives.42 "If the Jews don't care about their own, why should we?" is a refrain that comes back to haunt us. Indeed, a number of rabbonim have expressed concern that the indiscriminate excavation of remains taking place in Eretz Yisrael makes it increasingly difficult to negotiate for favorable treatment for Jewish cemeteries in other countries. Viewed from the opposite but equally valid perspective, if the nations of the world show greater concern for metai Yisrael than the Jewish people in their own land, this in itself creates a chillul HaShem (desecration of G-d's name) reflecting poorly on the sensitivity and spirituality of G-d's people which in turn casts aspersions on the Torah and Jewish religion.43
Finally, if all of the above fail to convince, consider the following statement by a prominent Rosh Yeshiva who, by and large, does not support the Asra Kadisha but nevertheless declared:
Unlike other ancient religions, Judaism never developed a cult of the dead. The corpse must be accorded kavod only because it was once the repository of the Divine soul which animated it from within. Perhaps it is our lack of sensitivity in recognizing the tzelem Elokim (Divine image) in life that precludes our sensing the degradation of the tzelem in the removal of remains. If our fellow man counts for little when he's alive, his cadaver will be worth even less. In effect, therefore, our "tolerance" may be yet another symptom of the divisiveness, polarization, and sinat chinam that plagues this generation to no end, a cancer that has recently taken the life of one Jew and has disturbed the eternal rest of many others. Until we see the G-dliness in each other, we will be unable to view the body as the repository of something that is holy and Divine, and thereby worthy of respect. Hopefully, as we grow in the first direction, we will be successful in dealing with the second.
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