October 25, 2021
Polish/Jewish Relations

Exhumation in Judaism: Theory and Practice

 

 A chapter of the introduction to the upcoming book Jedwabne, Historia Prawdziwa, by Tomasz Sommer, Marek Jan Chodakiewicz and Ewa Stankiewicz

 

To exhume the victims constitutes one of the most important, cardinal keys for determining who perpetrated the mass murder in Jedwabne. No full exhumation has taken place, however. Only a preliminary one did; it was never completed. Polish authorities as well as native and foreign elites have stressed that the exhumation was halted out of respect for Judaic law, which forbids the desacralization of corpses.

Regrettably, an exhumation in Jedwabne remains the only method for discovering the archeological facts about the crime. Even Jan Tomasz Gross concurs.[1]  At least that was how he answered a question from Polonian activist Gordon Black at a conference at the University of California, Berkeley, in 2003.

We should pause at this juncture to explain the theological and legal context cited by Jewish believers of various denominations. Their variety of approaches directly pertains to the question of the exhumation in Jedwabne. Further, we shall explicate the Jewish cultural background pertaining to the case.[2]

In a publication of the Orthodox Rabbinical Council of America, Rabbi Joseph A. Polak, who serves also as a professor of public health at Boston University, wrote unequivocally about the exhumation in Jedwabne: “The tradition, by and large, believes that it is not only appropriate but also obligatory to reinter someone buried in an inappropriate grave. Drawing on pivotal responses ranging from antiquity through modern times, I hope to demonstrate that these considerations clearly apply to the martyrs of Jedwabne, and that any ruling prohibiting exhumation and reinterment in Jedwabne misrepresents the tradition.”[3]

Notwithstanding, the preliminary exhumation at Jedwabne, conducted by Professor Andrzej Kola, was interrupted by Minister of Justice Lech Kaczyński, owing to pressure from “Jewish circles.” The latter objected to the undertaking for “religious reasons.” However, there are many strains in Judaism; not every single one rejects exhumation. Even Orthodox Jews allow for exceptions.

Further, many Jews happen to be secular, and even atheist. They view their Jewishness either as an ethno-nationalist or an ethno-cultural label. Religious considerations do not apply to them. On the contrary, these persons often stress that they adhere to positive law, created by humans, and not natural law derived from God, which they do not believe in.

Exhumations and their lack

One can multiply examples on both the religious and secular sides. For example, in 1985 a scandal broke out in Hamburg, where leftists objected to the construction of the “capitalist” shopping center Mercado. Because the city fathers rejected their objections, the progressives discovered that the construction of the mall had been planned on the very site of an old Jewish cemetery which had been vandalized and profaned by the Nazis.

Tipped off by the leftists, Ortodox believers arrived from Israel to protest the construction, even clashing aggressively with police. The case dragged on until a leading Israeli rabbi issued a ruling that the bodies must not be disturbed, but that the shopping mall could be built upon the cemetery provided that appropriate plaques appear on the walls of the new construction. Naturally, the investors and the city had to pay compensation, but the Mercado center finally opened up for business in 1995.

On the other hand, in the August 10, 1946, protocol addressing the exhumation of Jewish corpses from the village of Rzezawa (county of Bochnia), we read: “the total of 15 bodies was exhumed, including 7 women, four men and 4 children.” They had been murdered in September 1942. Some were identified by witnesses. Three members of the County Jewish Committee in Brzesk participated in the process. They initiated the exhumation and prompted the writing of the protocol. “The bodies were buried at the Jewish cemetery in Brzesko.” The victims, thus, were not only exhumed but also moved from the mass grave in Rzezawa to proper burial grounds in Brzesko.[4]

Similarly, on August 18, 1949, in Łomazy, representatives of the Jewish community from Wrocław undertook an exhumation and removal of about 1,800 of Jewish victims shot by the Germans in a mass execution. Historian Gabriel Finder provides more examples of similar exhumations.[5]

It is obvious that such procedures occurred routinely, even if there was reason to fear that the corpses would be destroyed or disturbed through the shifting of soil. It is not difficult to grasp the logic of providing a dignified burial for the victims in Jewish cemeteries, instead of leaving them in death pits prepared by their executioners. It is unclear, therefore, why an analogous precedent cannot be applied in Jedwabne. The Jewish graveyard there is barely a few score yards from the mass-murder site, where the barn had stood.

Also in Israel, bodies and even human fragments are frequently disturbed. This occurs during archeological excavations and police procedures at crime scenes (e.g., criminal or political murder sites). It is true that both activities upset the ultra-Orthodox, who object vehemently. Sometimes riots break out over such issues. But Israeli authorities can be very tough, and the police ruthlessly break up Orthodox pickets and blockades.

There is even an Orthodox, rabbinical Committee to Protect Graves – Asra Kadish. Concerning its activities vis-à-vis the State of Israel, Rabbi Yitzchok Breitowitz of the “National-Religious” camp asserts that “we the Jewish people are our worst enemy.[6] The rabbi thus criticizes Israeli archeologists, physicians, and policemen whose activities are not to the liking of the Orthodox. This is a problem concerning how much influence religion ought to have on affairs of state.

 

The Orthodox and the Secular

 

When the State of Israel was founded, it provided a new context for the continuation of religious and secular clashes of Jewry. Israel lacks a secular constitution. Instead, it maintains a compromise between both orientations. The compromise, however, favors the principle of Jewish religion as the foundation of Israeli law.

On the one hand, Zionism (except for the religious Zionists of the Mizrachi) has tended to reflect secularism and even militant atheism on its leftist side (in particular Poale Zion and similar parties). On the other hand, Judaism has been the standard of Jews for thousands of years. And the Orthodox, in particular the fundamentalist religious Agudath Israel party and its allies within the Religious Block, have declared that faithfulness to Yahve is the principal characteristic of being Jewish. They stress that the Old Testament defines Judaism, and that Judaism is at the essence of Jewishness.

Most secular parties have agreed to that formula: from the hard-right Zionist-Revisionists (today the Likud) to the far left Mapam (United Workers Party).

According to the liberal Jewish-American historian Howard M. Sachar, the first serious confrontation between the secular and religious orientations took place in 1956. A Reformed (leftist) rabbi from the United States resolved to build an “archeological school” in Jerusalem. But it turned out that there were also plans to construct a religious wing in which to conduct Reformed Judaic prayers. The Orthodox launched a sharp attack against this “heretical” project, which they termed an “obscene abomination in the eyes of the Lord.” They boycotted the project and withdrew from the city council.

An even greater scandal erupted when the city government of Jerusalem decided to build a public swimming pool. Moderates demanded a ban on Sabbath-day swimming. Men and women would require separate access. When this approach was rejected, the radicals stepped in, claiming that the swimming pool “denigrated” and “defiled” the sacred city of Jerusalem. Virulent press attacks preceded mass demonstrations, which flared up not only in Israel but wherever Jewish communities existed. For example, in June 1958 the Chasidim of Brooklyn picketed outside of the White House, demanding it withdraw support from Israel, which “was persecuting” them.

The State of Israel experiences similarly hysterical eruptions on a cyclical basis. Lately, the LGBTQ community has borne the brunt of religious anger. But, arguably, the greatest scandal ever concerned the handling of human bodies in Israel.[7]

Corpses, Forensic Examination, Exhumations

The Orthodox oppose forensic examinations and other post mortem procedures. Initially, Israeli medical schools were forbidden to perform them. In 1951, the Chief Rabbi of Israel, Yitzchak Herzog, agreed to forensic examination if the last will and testament of the deceased specified that his remains be donated to science.

In 1953, the Knesset passed the Act on Anatomy and Pathology, permitting forensic examination “to determine the cause of death.” This triggered a swelling wave of protest from religious Jews. The government tried to compromise. It allowed that if a person, before his death – or his family afterwards – disallowed such examination of the body, it must not take place. Exceptions would be permitted for extraordinary reasons and if the “public interest” was at stake. The compromise failed. According to Sachar, “Bands of yeshivah students intensified their protests, demonstrating outside hospitals, harassing individual physicians, breaking windows in their homes, painting swastikas on their doors, even physically assaulting them at times.”[8] The courts demonstrated great liberalism toward such Orthodox “bands.”

Forensic examination continues to be controversial. But it also serves as a major point of reference for the problem of exhumation. If one must not touch any dead body, then one must not exhume anything that may potentially contain a human corpse. For example, Israeli criminal law no. 172 regulates access to archeological digs. One may enter only with permission of state authorities. The Orthodox have objected. They remind us that, in British colonial times, any intrusion into a cemetery was considered criminal trespass.

In this sense, the Orthodox objection to any violation of the peace of a dead body or of any human remains applies also to attempts at exhumation. In every case where such undertakings are ordered, for either scholarly or criminal purposes, there can – and often does – occur a clash between the secular and the religious. But that does not always happen.

The Orthodox Interpretation

Kavod hamet means respect for the corpse, ensuring that the souls of deceased Jews will not suffer from the profanation of their bodies and bones. As a rule, Jewish religious Orthodoxy forbids the exhumation and transfer of remains. But it can make exceptions. First, the bodies and bones should be separated to the fullest degree possible so that the bodies can be extracted individually and “with appropriate respect.” Next, they must be reburied as soon as feasible. So dictates Jewish law – the Halakha.

In one of the most rigid interpretations, Rabbi Myron S. Geller stresses that Jewish halakic law bans the transfer of bodies to safeguard the “dignity of the dead.” But in some cases, bodies may be exhumed: to bury the remains in a family grave or transport them for burial in Israel; to remove a body from “someone else’s property”; to protect a body from “vandalism or natural calamity”; and for “public welfare.” It should be obvious that uncovering the truth about Jedwabne would resolve a painful and very longstanding controversy, and that an exhumation would therefore plainly qualify as an act undertaken on behalf of the “public welfare.” One might even argue – in accord with the directives of Rabbi Geller – that the bodies at issue in Jedwabne should be transferred to the nearby Jewish cemetery.[9]

Maurice Lamm, of the Orthodox organization Chabad, has provided detailed instructions regarding exhumation and reburial. The following are applicable to the case of Jedwabne: “If the deceased was not buried in his own gravesite”; and “If the grave was considered temporary, and expressly so stipulated when the deceased was originally interred.” It is certainly obvious that the victims of Jedwabne were not buried in their own graves. It is also reasonable to suppose that, in the case of mass murder, the victims’ grave might be considered by anyone (except usually the murderers) as temporary.”[10]

Of course, all of this is a question of interpretation, as is so often the case with Judaism.

Jewish Practice

The Orthodox institution Achzat Kever, led by Rabbi Michoel Fletcher, arranges for the transport of Jewish deceased for burial in Israel. Moreover, the institution advertises that “We also arrange exhumations anywhere in the world for the purpose of transferring the mortal remains to Israel.”[11] That means, theoretically at least, that Achzat Kever could exhume the bodies of the Jewish victims in Jedwabne in order to bring them to Israel for burial.

It is for other reasons that the Israeli Embassy in the US – invoking regulations of the Ministry of Health and permission from the Office of the Chief Rabbi – agrees to exhumation: “remains of persons of the Jewish faith may be disinterred a year from the date of burial.”[12] The cost of an exhumation can run as high as $2,000. A $250 certificate from the Ministry of Health must also be obtained before a corpse can be brought to the United States.

Professor David Reich is a geneticist at Harvard and a world-famous specialist in the field of “ancient DNA.” Even though he is a secular Jew, he respects his religious tradition. His work, by its very nature, consists of handling genetic material derived from the fragments of bones and human tissue, and less frequently well-preserved bodies. He participates routinely in procedures requiring the digging up of graves and the examination of bodies.

Reich experienced moral discomfort about that at one point. So he consulted his uncle, who happened to be an Orthodox rabbi, about whether it was right to pursue such a career.

The uncle was at a loss to find the right answer because he couldn’t locate a rabbinical verdict that would apply to ancient DNA. After a while, he responded: “All human graves are sacrosanct, but there are mitigating circumstances that make it permissible to open graves as long as there is potential to promote understanding, to break down barriers between people.” [13]

As we can see, there are legal bases in both religious Judaism and secular Israeli custom that would permit an exhumation in Jedwabne. Sadly however, the chief Jewish religious authorities in Poland decided to take another course. And they have stuck to that policy up to the present day.

But there is hope. Even Poland’s leading opponent of the exhumation, Rabbi Michael Schudrich, admits that, although it is usually forbidden to disturb bodies, permission may under certain conditions be obtained: “So, is there any situation or circumstances in which human remains may be removed? The answer is: Yes. The quick answer is no, because that is what we always say: ‘No you can’t.’ But in fact there are certain extraordinary exceptions, particularly if it is for the benefit of the deceased. If it is for the benefit of the person buried in the grave, whether in a cemetery or a mass grave, then it may be permitted to move the remains.”[14]

Regrettably, Rabbi Schudrich has not yet encountered a suitable reason to disinter and transfer the bodies in the Jedwabne mass murder case. However, in theory, he could be persuaded to compromise. Such is not the case with many Western scholars.

MJC, TS, ES

Warszawa-Washington, DC, 10 May 2021

 

[1]     Gross wrote: “I protested against this decision in an article published by Gazeta Wyborcza on 6 June 2001. At the time, Rabbi Baker, formerly from Jedwabne and now from Brooklyn, suggested to me that it would be a mitsvot to move the remains of “the Jedwabne martyrs” to a burial ground in Israel. A well-known Jewish scholar, Rabbi Joseph Polak, chairman of the Boston Beth Din’s Halacha Committee, published in the latest issue of Tradition (“the Cadillac of halakchic studies,” as he told me) a learned treatise demonstrating that, according to Jewish law, the remains of the Jews in Jedwabne should have been moved to a proper burial ground.” See Jan T. Gross, “A Response,” Slavic Review, Vol. 61, No. 3. (Autumn 2002): 483-489. See also Julius L. Baker and Jacob L. Baker, Yedwabne: History and Memorial Book (Jerusalem and New York: Yedwabner Societies in Israel and the United States of America, 1980), 88–89, 101, https://www.jewishgen.org/yizkor/jedwabne/Yedwabne.html.

[2]       Marek Jan Chodakiewicz, „Ekshumacja natychmiast!” Do Rzeczy, 18-24 March 2019, 54-56, https://www.dorzeczy.pl/tygodnik/97199/ekshumacja-natychmiast.html.

[3]     See Joseph A. Polak „Exhuming Their Neighbors: A Halakhic Inquiry,” Tradition, vol. 35, no. 4 (2001): 23-43 (quote at p. 2), https://traditiononline.org/exhuming-their-neighbors-a-halakhic-inquiry/.

[4] On exhumation of Jewish victims of Rzezawa in: „Protokół z przeprowadzonej ekshumacji zwłok Żydów ze wsi Rzezawa [powiat Bochnia],” 10 sierpnia 1946 r., Archiwum Żydowskiego Instytutu Historycznego w Warszawie, sygn. 301/2351.

[5]     Yitzhak Alperovitz and Simcha Apellbaum (ed.), Sefer Lomaz (Tel Aviv: Lomaz Societies in Israel and the United States, 1994), 60–63 (English section), translated as The Lomaz Book, https://www.jewishgen.org/yizkor/lomazy/lomazy.html. On the ubiquity of post-war exhumations, see Gabriel N. Finder, “Final Chapter: Portraying the Exhumation and Reburial of Polish Jewish Holocaust Victims in the Pages of Yizkor Books,” (in:) Human Remains and Identification: Mass Violence, Genocide and the ‘Forensic Turn,’ ed.  Élisabeth Anstett and Jean-Marc Dreyfus (Manchester: Manchester University Press, 2015), 34–58.

[6] Rabbi Yitzchok Breitowitz, „The Desecration of Graves in Eretz Yisrael: The Struggle to Honor the Dead and Preserve Our Historical Legacy,”, no date. [2010?] https://www.jlaw.com/Articles/heritage.html.

[7] Howard M. Sachar (A History of Israel: From the Rise of Zionism to Our Time, 2nd ed. (New York: Alfred A. Knopf, 1996), 924-927.

[8] See Howard M. Sachar (A History of Israel: From the Rise of Zionism to Our Time, 2nd ed. (New York: Alfred A. Knopf, 1996), 601.

[9] Rabbi Myron S. Geller, “Exhuming the Dead,” Responsa of The CJLS [The Committee on Jewish Law and Standards of the Rabbinical Assembly], 1991-2000 (1996),

https://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/19912000/geller_exhuming.pdf. The author represents Conservative Judaism, i.e., a liberal denomination.

[10]   Maurice Lamm, “The Grave in Judaism,” no date, http://www.chabad.org/library/article_cdo/aid/281579/jewish/The-Grave.htm.

[11]   http://www.israelburials.com/.

[12]   http://israel.usembassy.gov/disposition.html. The entry existed on June 28, 2017, but was later removed.

[13]   See David Reich, Who We Are and How We Got Here: Ancient DNA and the New Science of the Human Past (New York: Pantheon Books, 2018), 286.

[14]   See Michael Schudrich, “Jewish Law and Exhumation,” Killing Sites: Research and Remembrance, ed. International Holocaust Remembrance Alliance (Berlin: Metropol Verlag, 2015), 79-84 (quote on pp. 79-80),

https://www.holocaustremembrance.com/sites/default/files/ihra_publication_killing_sites_web_1.pdf.

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