Excavating mass grave (illustrative)
Excavating mass grave (illustrative) iStock
Dear Rabbi:

I wish to pose a halakhic question that has arisen in the course of my work.

Iin administrating a rental project which includes excavations on land belonging to the Israel Lands Authority. The project is being carried out in conjunction with the Housing Ministry as one of its housing projects.

It took many long years to obtain authorization to build in this area at the outskirts of Jerusalem, mainly because of America's ban on Jewish construction in the area during the Obama years. Thank God, the permit was granted and we began developing the site.

Suddenly, a surprising turnabout occurred:

While excavating for the underground parking lot, a burial cave/area was revealed that may have been used by Jews during the Second Temple period. The Antiquities Authority is supposed to dig and remove the findings with respect and care so as to rebury them somewhere else.

As far as we know, the entrepreneur checked out the possibility of incorporating the cave in the project or moving the building, a step which necessitates revising the plans and is not viable.

We did not begin to build in a place with graves on purpose, and were shocked to find the burial cave while excavating and building. Archaeologists are not certain they are Jewish graves.

There is a haredi group called Atra Kadisha, whose mission is protecting Jewish graves. They ordinarily request the building or road be moved so it will not be above the graves and act to guard the burial sites.

The entrepreneur signed a contract with the state for housing and the land belongs to the Land Authority. At issue is an underground parking lot for privately owned apartments. We have looked into substitute plans, but there is no way engineers can change the layout of the existing building plans, nor can the plans be redone.

This would mean a two year delay in obtaining new permits, changes in apartment purchasers, broken contracts, and costs that are very hard to estimate. In addition, we would have to give up parking places, refrain from building some of the planned apartments, and pay damages. The entrepreneur is not willing to be squeezed dry financially and requested that the Antiquities Authority vacate the site ASAP. The Atra Kadisha often reacts with mass protests and violence in similar situations.

My questions:

1. Is it permissible to move the graves of Jews in order to settle the land?

2. Since I am mitzva observant, I find myself in a quandary. How should I behave? Should I help the process go forward?

I would be grateful for your response.

Rabbi's Response:

Shalom, and blessings to you

Halakhic analysis (sources at end of article):

As a rule, it is forbidden to disinter someone buried in one place and move him to another.

The main reasons for the prohibition are the fear of disfiguring the deceased's body – but only if there is still flesh on his bones – and because moving him causes dread of the Day of Judgment [1] In the Talmud, searching within graves is considered a punishment to buried parents because it is a sin committed by their live offspring [2]

The later rabbinic decisors were split (depending on which reason for the prohibition they follow) on whether the prohibition of moving graves is d'Orayta or d'Rabbanan.

There are instances when it is allowed to move a grave. One is a grave that "causes harm to the public," in which case one is allowed to move it because a man cannot forbid what is not his [3].

If the grave is not "causing harm to the public" (which might be due to ritual impurity, rank odor etc.) but only interferes with construction for the public, that is, with what is called "the needs of the public", there is a halakhic dispute regarding moving it. In practice, the halakha is that it can be relocated for "the needs of the public" just as it can because of "harm to the public" [4](

Halakhic decisors (Poskim) disagree on whether one must invest funds to change the route or plans and leave the grave in its original location (Responsa of Shivat Tzion 63) or whether relocating the grave is allowed in order to prevent excessive outlay of funds [5].

In the event that millions of shekels have already been invested in purchasing and excavations, in a case like yours, and when large sums of money may be lost if there is a two year delay, and large-scale additional funding will be needed, it seems that we can say that this is not only a case of "the needs of the public" but also of "harm to the public", so that the decision should be that relocating the grave is permissible.

When it comes to building luxuries (such as lawns) and not just housing, in the burial area, there is a dispute among Achronim (more recent rabbis – such as Rabbi Yisraeli zts"l who allowed it but whose decision was disputed by many). That is why in the area of the burial cave itself, only things that are necessary can be built and not decorative elements such as landscaping.

It seems to be that parking for a large number of vehicles is under the rubric of "needs of the public" and not for ornamental purposes, because without nearby parking facilities today, it is impossible to build, and the entire project is liable to fail.

After a grave is removed, the halakhic decision is that it is forbidden to use the structure around it (although the Raavad dissents from this opinion) but making use of the original land itself is allowed.[6].

The earth\dust with which the deceased was covered may not be made use of, according to some of the early rabbis (Rishonim) and the Rama agrees with that opinion.

An upper level of a cave that the ancients built by quarrying and adding materials is considered a building and not ground and its use is therefore forbidden. An underground cave in which only burial pits were dug is considered earth and can be used once the bones and the earth/dust covering them are removed.

A burial mound covering a grave is considered one of the deceased's needs according to the Beit Yosef Orach Chaim, therefore the use of the dirt above those graves is forbidden (for example, one cannot use it as sand used in building or to make mortar). In your case, however, these are very ancient graves, and any earth covering them is not the original earth, so all of it can be used (Rabbi Akiva Eiger decided this concerning the earth above an old grave, and was lenient even in the case where it is uncertain whether the new earth has entirely taken the place of the original). At any rate, you will not be using the dirt/dust but intend to remove the entire grave including the earth/dust above it to another cemetery.

Since this is a burial cave and not an individual's grave, one can say that it is halakhically a cemetery, because it is for more than one person. Therefore, it has sanctity, like that of a synagogue [7]. However, some say that there is no difference between an individual grave and one for many persons [8]. In addition, the Achronim did not agree on how much one should rely on archaeologists in differentiating between a Jewish and non-Jewish grave. The archaeologists themselves are somewhat unsure about this, so there are a number of doubts involved in the entire issue, meaning that one can be lenient and say there is no sanctity there.

Practical halakhic conclusion:

Since you wrote that this involves a large investment of the state and the purchasers, much suffering for the purchasers if the plans are changed, damages to be paid, an additional two years of work, harm to funding, eliminating several living units that have already been purchased, unsolved engineering problems as a result of changing the plans and moving a large parking area – all those factors make emptying the burial cave, its contents and dust/earth permissible and allow building roads, buildings and a large parking area on the site.

Not only is there no prohibition, it is actually a positive action, because who knows whether another American president will be elected overseas and prevent Jewish settlement in this location as his predecessor did? Then, G-d forbid, the area might remain desolate, while our enemies create facts on the ground by living there. That is why this construction is part of the mitzvah to conquer the land of Israel and settle it with Jews.

During the removal of the burial area and the graves, a Talmud Chacham should be present throughout and direct the relocation of the grave and of whatever is found in its proximity, to be sure every halakhic requirement is carried out. Make sure that the experts and the accompanying rabbi are satisfied that all the graves have been removed and there is no possibility that any grave was missed, because Cohanim have to be able to park and walk there (Note: Cohanim are not allowed to be in the presence of a dead body).

I wish to add that I discussed this halakhic decision with the Chief Rabbi of Jerusalem, HaGaon Rav Avraham Shtern Shlita. He agreed with the halakhic decision I wrote, and with its now being carried out

Sources:

[1] ש"ך יו"ד שסג

[2] יבמות סג

[3] סנהדרין מז, שו"ע יו"ד שסד

[4] פסקי רעק"א סימן מה

[5] חת"ס יו"ד שלד

[6] שו"ע שם בתחילת הסימן, ובש"ך ס"ק יב

[7] שלט"ג בסנהדרין שם על הרי"ף, והכריע כמותו בדעת כהן רא

[8] חוות בנימין כה, והחזו"א ביו"ד סימן רט

Rabbi Baruch Efrati studied at Merkaz HaRav yeshiva in Jerusalem and serves as a rabbi in Efrat. He is a prolific and much-read writer on Torah issues and heads the "Derech Emunah" (Way of Torah) movement of young Israeli Orthodox rabbis.