Construction plans for the cemetery site
The German Rabbinical Conference intervenes
On October 28, 1661 Ashkenazi Jews from Hamburg bought a burial ground on Holstein territory in the Danish-ruled town of Ottensen. The cemetery had been established on open ground. In the course of the following decades the cemetery's location on the outskirts changed due to beginning settlement. In the Wilhelmine era it came to be located in the midst of an area of commercial and industrial use in the now Prussian town of Altona, which in 1937 was incorporated into the city of Hamburg. During the Second World War the Wehrmacht built an air raid shelter on the cemetery grounds, which destroyed a significant number of graves. In December 1942 the Reich Association of the Jews in Germany Reichsvereinigung der Juden in Deutschland, of which Hamburg’s Jewish congregation was a member by this time, was forced to transfer the property to the city as its new owner. In November 1942 the Jewish congregation had lost its independence completely, having already been incorporated into the Reich Association Reichsvereinigung in August. Already in the summer of 1945 the congregation, reorganizing itself, demanded restitution of the cemetery site. When the city rejected the claim, the congregation brought a lawsuit before Hamburg’s district court (court for restitution cases). The lawsuit was settled by a mutual agreement in 1950 / 51. The congregation and the Jewish Trust Corporation, who considered itself authorized as trustee of former Jewish assets, sold the property to the department store chain Hertie before it was restituted. A department store was eventually built on the site.
A completely new situation arose in 1990 and the following three years. The department store chain Hertie had closed the Ottensen store in 1988 and sold the property to the Hamburg property developing firm Büll & Lüdtke, who intended to demolish the existing buildings, including the air raid shelter, and erect a new shopping mall on the lot. The Altona district office in charge issued a preliminary notice in November 1990, authoritatively confirming the general admissibility of the construction project. By this time it had already become known publicly that the construction project on the site of the former Jewish cemetery was to go ahead. Whether the Jewish congregation was already aware of the construction plans in early 1990 is not clear. In March 1991 the property developer applied for a building permit for a new shopping mall. Specific information from Hamburg most likely reached Jews in Israel, England, and the U.S. by early summer 1991. Virtually at the same time, the first protests organized by Athra Kadisha, an international, very well-connected society of Hasidic Jews “for the preservation of Jewish holy sites,” took place. In August 1991 authorized demolition work began, starting the phase of “clearing the construction area,” in technical terms. In September 1991 about 30 Orthodox Jews from Amsterdam occupied the construction site. This attracted great attention not just in Germany, but also abroad. Athra Kadisha demanded the unconditional restitution of the former cemetery site. They argued that the sale of a Jewish cemetery was prohibited by religious law. The conflict now also took on an international dimension when both the minister of the interior and the foreign minister were urged by Jewish organizations in Israel, Canada, and the United States to intervene against the construction project. By summer 1991 city officials had to accept that they could no longer limit their treatment of this construction project to the legal aspects of building regulations alone.
Hamburg’s Jewish congregation now, too, began to realize that they were in political and internal trouble. For they now found themselves at the center of public attention, a development they had purposely sought to avoid in previous decades. In this situation the congregation sought help in order to overcome its isolation and the pressure to explain itself. Many people, including many from the Jewish community, asked how it had been possible that the site of a Jewish cemetery was sold and a commercial structure built on it. The congregation received support from a statement issued by the German Rabbinical Conference. This statement, issued in November 1991, describes a clear violation of Halakhic law and includes the demand that “everything humanly possible must be done in order to prevent the desecration of this cemetery and prohibit any construction work on this sacred ground.” Of course the rabbis knew that a violation of Halakhic law did not impact a property transfer based on official state law. Therefore their opinion should primarily be regarded as a moral appeal.
The city appeared politically clueless. It did not have an urban development plan for this part of Ottensen. It could have issued a redevelopment statute in the early 1980s already. This would have enabled it to exercise its legal option to buy and thus prevent construction on the site. None of this happened, however. Meanwhile the developer offered a buyback of the property for 30 million D-Mark. The Jewish community was unable to raise this sum. City officials initially remained silent on the matter before eventually offering a subsidy, which was easily done since it was impossible that either the congregation or the Central Council of Jews in Germany Zentralrat der Juden in Deutschland would be able to raise a substantial part of the buyback sum.
In early March 1992 about 100 to 150 Orthodox Jews from England, Belgium, Switzerland, and Israel occupied the construction site. A new legal matter had emerged, since the excavations violated the law against disturbing the dead. According to German criminal law, this is a statutory offense. The Office of the Public Prosecutor received a criminal complaint for disturbing the dead. Meanwhile, Hamburg’s administrative court temporarily halted construction. In this situation, the Hamburg chief rabbi, Dr. Nathan Peter Levinson, on April 1992 decided for an exhumation in accordance with Jewish rites. His Halakhic opinion also referred to Talmudic legal sources, but mainly to the possibility of a reinterment as stipulated in the Shulchan Aruch, a compilation of religious laws from the 16th century that is of the highest Halakhic authority. In the early 20th century, when a road widening was planned, Altona’s chief rabbi at the time, Dr. Meier Lerner, had decided for moving graves from the Ottensen cemetery in the same manner. When the Jewish cemetery at Grindel had to be cleared for the construction of new housing in 1936, chief rabbi Dr. Joseph Carlebach had also found reinterment admissible. Both chief rabbis thus considered reinterring the dead a “lesser evil” than if “for all future time people, animals, and vehicles of all kinds trample on” the graves, as the Hamburg chief rabbi Levinson wrote in his opinion, quoting from an earlier statement by Hamburg chief rabbi Dr. Samuel Spitzer. Yet he omitted one significant Halakhic aspect: the opinions written by Meier Lerner and Joseph Carlebach referred to municipal objectives, meaning those that were in the public interest. In the case of the Ottensen cemetery, however, the motives were exclusively financial. According to Halakhic law, financial gain must never be derived from a cemetery.
The suggestion made by Hamburg chief rabbi Nathan Peter Levinson in May 1992 failed due to opposition by Athra Kadisha, who rejected any exhumation as a violation of religious law. In the meantime, the front lines of the conflict had changed, for there also was clash within the Jewish community about the right way forward. For many on the non-Jewish side this was rather convenient as it meant that they were temporarily relieved of their moral responsibility for finding a solution to the conflict. Settling the conflict within the Jewish community required mediation by a respected Jewish figure of great religious reputation. Nobody was able to remember later on who had first suggested the Ashkenazi Orthodox chief rabbi of Jerusalem, Itzchak Kolitz. By early May 1992 the Jewish congregation and the Orthodox protesters had agreed on chief rabbi Kolitz “as referee.” After various preliminary discussions, Kolitz agreed to take on this role. He traveled to Hamburg and visited the remaining cemetery site, meaning what was left of it after the air raid shelter and the department store had been built. On May 21, 1992 he declared his decision in Jerusalem. Just as the statement by the German Rabbinical Conference and the opinion by Hamburg chief rabbi Levinson had done earlier, he criticized that the Hamburg congregation had sold the cemetery site at the time. Yet chief rabbi Kolitz did not see exhumation as a satisfactory solution and prohibited it. This contradicted the tradition that had developed in Hamburg’s congregation. He did not give a Halakhic justification. He also rejected another solution which had repeatedly been discussed, namely to take the remains and soil to Israel. Meanwhile he found construction admissible, including for commercial purposes, but he prohibited any further excavation. A permanent supervisor from Israel appointed by Kolitz was to monitor the entire process. Thus Kolitz’ word stood against that of the Hamburg chief rabbi. While the Jerusalem solution might have been contestable from a Halakhic point of view, it was ostensibly pragmatic. If the developer and the government authorities agreed, the conflict would be solved. This was a judgment within the Jewish community and not a rabbinical “opinion,” as it was later incorrectly described in a draft decision by the Hamburg Senate submitted to the City Assembly. During construction work it turned out that of the roughly 4,500 graves existing around the turn of the 20th century only about 400 to 500 graves could still be located. They remained in the ground and were covered by concrete “for all eternity.”
In August 1993 the public found out about the price the city of Hamburg had to pay for settling this political conflict. The Senate presented the compromise negotiated with the developer to the City Assembly. It was supposed to compensate the developer for the losses he had incurred due to agreeing not to excavate the site. The Senate had to admit that the developer had politically “fronted” the political cost of the withdrawal of the Athra Kadisha protesters and the arbitration by chief rabbi Kolitz. Both parties agreed that the compensation should be calculated at roughly 16.4 million D-Mark. The sum took into account two further properties in excellent locations sold to the developer at a generous price as well as the city's waiving of fees due. The document fails to mention that the developer had acquired the former cemetery site in 1990 for 14.2 million D-Mark and therefore might be said to have derived the greatest advantage from the conflict over the Jewish cemetery at Ottensen.
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Ina Lorenz (1940), Prof. Dr. phil. habil, deputy research director at the Institute for the History of the German Jews (IGdJ) until 2005 and professor at the Institute for Economic and Social History at Hamburg University. Her work focuses on German-Jewish history in the 19th and 20th century, as well as on social history of the Jewish comunity during National Socialism. She published several critical source editions on the history of the Jewish congregations in Hamburg, Altona and Wandsbek.
Ina Lorenz, The Case of the Jewish Cemetery in Ottensen (translated by Insa Kummer), in: Key Documents of German-Jewish History, September 04, 2018. <https://dx.doi.org/10.23691/jgo:article-249.en.v1> [April 01, 2023].