Organization: Bar-Ilan University Computing Center, Israel
Date: Thu, 28 Jan 1993 13:15:18 IST
From: Shaul Wallach <F66204@BARILVM.BITNET>
Newsgroups: soc.culture.jewish
Subject: Jewish Burial Cave in Jerusalem Destroyed

    The Israeli Supreme Court issued yesterday a landmark
decision permitting the destruction of a Jewish burial cave
dating from the Second Temple period in the French Hill
neighborhood of northern Jerusalem. The cave is one of
several burial caves uncovered in the course of construction
of a new highway interchange designed to relieve traffic
congestion between the new northern neighborhoods and the
center of the city. Controversy over the proposed construction
between Jewish religious groups seeking to preserve the burial
caves, and the municipality and the Antiquities Authority who
have sought to excavate the site, has led to several violent
confrontations between Orthodox protesters and the police.
Jerusalem's Chief Rabbi Yizhaq Quliz had previously issued a
ruling that removal of bones and ossuaries from the caves is
strictly forbidden by Halacha.

    In order to understand yesterday's court decision, some
legal background is desirable. The Israeli Antiquities Law,
as amended in 5738/1978, gives the following definitions of
objects that qualify as "antiquities":

  "(1) An object, whether mobile or fixed, which was made by
       man before year 1700 of the common era, including
       anything which was added to it afterwards and which
       is an inseparable part of it;

   (2) An object, as said in item (1), which was made by man
       from year 1700 of the common era, and is of historical
       value and the Minister has declared that it is an
       antiquity;

   (3) Zoological and botanical remains from before year 1300
       of the common era;"

The "Minister" as defined by the law is the Minister of Education
and Culture.

    Category (3) of "antiquities" defined above excludes human
bones, as a result of an amendment passed in 1978 at the initiative
of Agudat Yisrael. The purpose of this amendment was to exclude
human bones from this category of antiquities. Ossuaries and
gravestones, however, are not strictly excluded by the wording
of the law.

    Section 29(a) of the law prohibits construction in an antiquities
site without written permission from the Director of the Antiquities
Authority. In particular, section 29(c) provides that

    "In the case of an antiquity site that serves a religious need
    or is dedicated to a religious purpose, the Director shall not
    grant permission for digging or for any of the acts specified
    in subsection (a) except with permission of a committee of
    ministers composed of the Minister as chairman, the Minister
    of Religions and the Minister of Justice."

    Desecration of graves is prohibited, however, by section 172
of the Penal Law (5737/1977), which reads:

    "A person who enters without permission a place of worship or
    burial or a place which has been reserved for funeral needs or
    preservation of the bones of a dead person, or treats the dead
    without respect, or causes a disturbance to people who have
    gathered for a funeral, all with intent to injure the feelings
    of a man or to insult his religion, or if he knows that the act
    is likely to injure the feelings of a man or insult his religion,
    his sentence is - three years imprisonment."

Section 174 similarly prohibits destruction of public buildings or
monuments. The behavior of the Orthodox after each desecration of
a cemetery in Israel is evidence that such desecration is indeed
injurious to religious feelings.

    Reburial of the dead is regulated by the Public Health Regulations
(Reburial) of 1941. Section 3 reads:

    "It is forbidden to remove a corpse from a grave for any purpose
    whatsoever, and it is forbidden to rebury a corpse, and it is
    forbidden to open a grave or catacombs to bury other corpses
    unless written permission has first been received from a government
    doctor, this permission will be given free."

    The Penal Law cited above mentions burial alongside religious
worship. Sections 172 and 174 of this law fall into the chapter
forbidding injury to religion. Moreover, burial is explicitly
recognized as a religious need, since it is controlled by regulations
governing religious communities. Thus, David Ben-Gurion, as acting
Minister of Religions, issued a regulation in 1958 requiring burial
societies to receive licenses from the Minister of Religions, and
this arrangement has been in force ever since. A similar regulation
issued in 1967 by the Minister of Religions established a Council of
Jewish Cemeteries in Jerusalem, including representatives from the local
rabbinate and burial societies, whose purposes included "To erect,
maintain, to administer and develop cemeteries as well as to safeguard
cemeteries" in Jerusalem and outside. Thus preservation of Jewish
cemeteries in Jerusalem is legally recognized as a religious need.

    Against this background we can understand the surprise and shock
of the Orthodox community after yesterday's Supreme Court decision
permitting the Antiquities Authority to destroy the burial cave.
Referring to the language of section 29(c) of the Antiquities Law,
the court categorically rejected the claim of the religious groups
that the caves "serve a religious need or are dedicated to a religious
purpose". Furthermore, it held that the Antiquities Authority was
entitled to use its own judgment in granting permission to excavate
the caves and was not bound by the decisions of the committee of
ministers (which had been formed to propose alternative solutions
for building the highway) which, according to the court, were
merely recommendations.

    Secular circles rejoiced with news of the court's decision,
saying that it showed that "the law" would decide, not the rabbis.
However, in view of the background presented above, it is quite
debatable whether the court itself acted according to the letter
and spirit of the law. The court reserved release of a detailed
explanation for its decision until a later date. Meanwhile, extreme
Orthodox groups, who rioted again after the decision, promised that
Jerusalem would not be quiet until the bones and ossuaries were
returned to the caves.

Shalom,

Shaul Wallach
Newsgroups: soc.culture.jewish