What the Law Says

050

The longstanding compromise between archaeology and faith, hammered out in the 1950s, is now defunct

For decades, archaeological excavations in Israel have conformed to a compromise worked out in the 1950s between the Ministry of Religious Affairs and the Ministry of Education and Culture, which oversees the Israel Antiquities Authority (IAA). These bodies agreed that the excavation of human remains is different from other kinds of excavations: Archaeologists must show proper “respect … in handling the bones of corpses,” and human bones must “be forwarded, after their examination, to the Ministry for Religious Affairs for burial” (July 22, 1994, directive of Israeli attorney general Michael Ben-Yair; italics added).

Recent clashes between archaeology and faith—leading to massive demonstrations, government intervention and the bafflement of the police—have put this practical compromise in jeopardy. This round of hostilities began with the excavation at French Hill in Jerusalem in late 1992. Jewish burial caves from the Second Temple period were uncovered during a highway construction project, and the IAA conducted a rescue excavation from September to December. After intense protests by ultra-Orthodox groups, the IAA’s right to excavate ancient tombs was brought before the Supreme Court.

In its brief, the IAA argued that the French Hill excavations had been conducted in strict accordance with the longstanding procedure set up in the 1950s. The Supreme Court agreed, explicitly upholding the earlier compromise:

“The decision of the Director [Amir Drori, of the IAA] contains an appropriate balance between the needs of archaeological investigation, the needs of the population, and considerations related to human dignity. Human bones found in this cave [at French Hill] will be forwarded to the Religious Affairs Ministry in accordance with the relevant existing procedure.”

Yet the controversy did not end there. Who was to determine whether human remains were involved in a dig? The religious authorities, or the archaeologists? Could human bones be moved from a site, and could they be examined? These ambiguities were especially troublesome for the police, who had to maintain order in the face of protests that often turned violent—including one in which about 140 men were arrested for trying to block trucks from clearing away debris at a dig in Jaffa.

Finally, Police Minister Moshe Shahal asked the attorney general for clarification.

Attorney General Michael Ben-Yair then issued a directive, in July 1994, that purports to address the concerns of all parties—religious groups, police and scientists. In fact, however, the directive strikes down the procedure that has guided archaeological activity for almost half a century, in which considerations related to human dignity are balanced against the needs of archaeological investigation.

Ben-Yair based his directive on the 1978 Antiquities Law (the so-called “dry-bones law”), which excludes human remains from the category of antiquities. For that reason, the directive states, it is illegal to excavate known burial sites, Jewish or non-Jewish. If human bones are discovered accidentally—say, in a rescue excavation—they must be immediately turned over to the Religious Affairs Ministry.

Who decides that bones found in an excavation site are human and not animal? The archaeologists, Ben-Yair says. But they are to decide “at the location [where the bones were found] and immediately.” The bones can only be moved from the site to a laboratory if further analysis is required to determine whether they are human.

As for the police, they are not to hold archaeologists who uncover human remains by accident criminally liable. Nor are the police to monitor excavations, confiscate bones or investigate complaints. Those are the IAA’s responsibilities. But the police “should assist, to the degree necessary, the execution and completion of the excavations.” This presumably means that the police are to ensure that legal digs can proceed in an orderly manner, without undue interference by protestors.

The message is clear: Ancient human remains are not proper objects for study. The old compromise—by which human bones were to be treated with dignity and were to 051be available for study—a procedure ratified by Israel’s highest court—is now defunct.

With Ben-Yair’s directive, the taboo on excavating Jewish grave sites now extends to all burials, not only Jewish but Christian, Arab, Roman, Phoenician, Stone Age—it doesn’t matter. The restrictions on moving bones from the site, moreover, mean that digs today must be better organized and equipped; physical anthropologists must constantly be on call, rushing to sites to cull whatever information they can in that small interval between the telephone call to the Ministry of Religious Affairs and the arrival of the bone collectors. In that interval, they study, measure and photograph the bones—looking for the signs of death, or disease, or any anomalies.

Archaeologists, too, must always be aware of the threat that a dig might be stopped at any moment. A proposed excavation site that turns out to contain graves becomes, at that point, forbidden ground (though a brief rescue operation might be permitted). What sort of chilling effect might this have on already-expensive expeditions?

Even among her neighbors, Israel’s new, restrictive policies make her a pariah in the archaeological world. In Egypt, ancient burial sites are frequently uncovered, as in the ongoing excavation of the tomb of Ramesses II’s sons, without protest or legal action. Turkey places no restrictions on the excavation of ancient burials, though recent ones are avoided. (Recent burials are universally avoided. In Israel’s 1978 Antiquities Law, the year 1300 is the threshold for excavating “zoological” remains—which under some interpretations include human remains.) In Jordan, archaeologists are forbidden from digging at Muslim grave sites, but no others are out of bounds. And in Cyprus, as the Cyprus Department of Antiquities told BAR, “there are no regulations against the excavation of human remains. Some concern has been expressed in cases of tombs falling within the Christian era, mainly by members of the church, but there has been no impact whatsoever on archaeological activity.”

Further afield, ancient burial sites are everywhere considered to be of legitimate archaeological interest. In the United Kingdom, for instance, Anglo Saxon and medieval grave sites are routinely excavated. In a rare case, archaeologists at Jewbury, in York, encountered protests from Jewish groups when they uncovered a medieval Jewish cemetery. The Home Office (the United Kingdom’s licensing authority) then ordered that the remains be reinterred. This decision, however, came months after the excavations had begun, giving archaeologists time to study the remains—and it is by no means the rule.

Perhaps the closest parallel to the Israeli situation is in the United States, where exhumation laws are becoming more restrictive, largely because of protests from Native American groups. The 1990 Native American Graves Protection and Repatriation Act requires all federally funded institutions to inventory their Indian skeletal remains, notify the descendants and return the remains if the descendants so desire. In a famous 1991 case, the Smithsonian was forced to return a huge hoard of bones—some of them 2,000 years old—to Larsen Bay, Alaska, for reburial. This policy is imposing an enormous burden on museums and severely reducing the materials physical anthropologists have to study. But the American law does recognize an important limitation: A relationship must be shown between the bones and those who want them back. And the American law does not prohibit the bones’ examination.

That is not so in Israel. Human bones, in Israel, are not antiquities and must be turned over to religious authorities “at the location and immediately,” according to Attorney General Ben-Yair’s directive. In practice, however, things are somewhat different; prehistoric remains are available for study—though archaeologists prefer not to talk about it openly, fearing that ultra-Orthodox extremists may then cast their net wider.

For the time being, one archaeologist said, we should be thankful that prehistoric bones can still be studied in the old way (in a laboratory). “Do you know why?” he asked. “Because the ultra-Orthodox don’t believe the earth existed then.”