The report of the state commission of inquiry that dealt with the disappearance of children of new immigrants from Yemen during Israel’s early years is framed in legal language. The manner in which the commission’s members discussed the data they had is very similar to the style of writing used in legal judgments. It follows that any serious attempt to address the report must analyze it (in part) like any other legal text.
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- Will soon-to-be-released Israeli archive on missing Yemenite children reveal anything?
- Former Israeli Supreme Court justice Jacob Kedmi dies at 85
The panel, whose investigation went on between 1995 and 2001, was headed by Justice Jacob Kedmi, who died earlier this month. (The report, in Hebrew, is available online.) The introduction to the report states that between 1,500 and 5,000 children disappeared between 1948 and 1954. Complaints concerning 1,053 children were submitted to the three bodies that addressed the subject. (The Kedmi Commission was preceded by two earlier committees.) The great majority of those referred to Jews of Yemenite origin – about two-thirds of the cases about which complaints were filed, or a total of approximately 700 children.
Some 50,000 immigrants from Yemen arrived in Israel between 1948 and 1954 in Operation On Wings of Eagles (popularly known as Operation Magic Carpet). The vast majority of those who disappeared were infants. According to the statistical data, there were 5,824 immigrants from Yemen of the appropriate age (from birth to 4 years). Hence, of every eight infants, at least one disappeared. That astonishing picture would seem to call for a meticulous examination and a thorough investigation, not least because of the fact that about half of the disappearances occurred during the relatively brief period when the immigrant camps were operating (from the end of 1949 until mid-1950).
The main conclusion I reached, from an analysis of the report itself, based on the standard tools of analysis for a legal text, is that the commission’s work suffers from the most basic flaw (perhaps other than corruption) that can affect a commission of inquiry: an absence of all suspicion.
The most basic assumption in investigative work is that something is apparently wrong and that the matter needs to be probed fully, and that if there are guilty parties they must be found. It is possible for an investigation to determine, at its conclusion, that there was no basis for suspicion. But that is not the case with the affair under discussion here. The report leaves many weighty questions unresolved. The commission’s own description of its working method and its presuppositions show that both during the investigation, and even before it began, suspicion was not its guiding light. The strongest impression created by the report is that the members of the body were not intent on conducting an in-depth probe, but rather, on explaining and persuading the public that, actually, the situation was not all that bad. Thus the panel made do with a small team of one or two investigators.
Its report assumes throughout that the administrative work conducted during the period under investigation was sound and that the documentation – death and burial records – was reliable, serving as a self-fulfilling prophecy to prove the prior assumption. Despite the many contradictions and lacunae in the documentation from the period in which the children disappeared, the commission relies on it, reaching the conclusion that 93 percent of the children were missing because they had died.
However, if one takes seriously the allegations of improper administration – whether because of establishment-sponsored abduction or due “only” to establishment indifference to “ad hoc” abduction of infants for the purpose of adoption – reliance on the contemporaneous documentation is extremely problematic. Anyone capable of abduction, or of ignoring such an act, is certainly also capable of producing fraudulent documentation or of allowing it to be produced.
The members of the Kedmi Commission, however, are not suspicious even when they encounter warning lights, such as the destruction of burial records and their subsequent reconstruction. They have no idea who destroyed the records (or why) and who reconstructed them (or why), but nevertheless rely on the reconstructed ones.
The panel takes a very lenient approach to the serious failures and the grave acts that are elaborated (partially) in the report. Thus, even the destruction of archives under their very noses does not elicit any real suspicion from its members. When government officials don’t cooperate and don’t produce material that has been requested, this official body merely expresses regret – but does not wield the coercive powers it possesses as a state commission of inquiry.
In most of its letters of reply to the parents (collected in two thick volumes as annexes to the report), the commission states that the child in question died “with certainty” – even when contradictions appear in the “reliable” document concerning the date of death, cause of death and place of burial. Nor does the commission become suspicious when it emerges that some physicians engaged in arranging adoptions (meaning they had an interest). The same is true when a physician states on a death certificate that the child died and was buried. But what is a doctor doing in the cemetery?!
Similarly, the panel’s members show no signs of suspicion even at the fact that the 1960 population census lists many of these children under the rubric of “left” or “left the country.” Draft orders that some of the children received also set off no alarm bells. Rumors that circulated at the time, according to which Youth Aliyah, the official organization that dealt with orphans and children whose parents were unable to care for them, was an “address” where one could easily adopt a child, also failed to make the commission suspicious.
For some reason, the Kedmi Commission treats as reasonable the possibility that parents abandoned their children or could not identify them when returned from the hospitals. Did its members think that this could have happened to them, too?
Burdening the parents
The commission did not apprehend its task correctly: It behaved not like a body of inquiry but like a court of law. In that context, it placed the heavy burden of proof on the aged parents. It refrained from conducting comprehensive DNA tests, making do with the findings in one grave, in which a match was found between the DNA of the bones and the DNA of the family, in order to reject all the parents’ allegations. But it was not alleged that there were no children who died and were buried, nor are we talking about a law of nature that can be refuted by a single counter-example.
Another major flaw of the report is that it refers exclusively to the claim of establishment-sponsored abduction (and to intentional theft, which is similar in essence), and addresses most of its efforts toward an attempt to refute this. In the lexicon of criminal justice, both establishment-sponsored abduction and intentional theft alike are based on criminal intent: a desire for certain consequence to occur. Yet, criminal responsibility can be imputed in cases of “indifference,” “recklessness,” “turning a blind eye” and even in cases of “negligence” alone. Furthermore, this is certainly so in cases of administrative or civil responsibility, which are not based on intent. The report drawn up by this body flagrantly ignores the possibility of responsibility that is not based on intent. In this way, its members made life easy for themselves.
In addition, the report ignores the possibility of intentional abduction that was organized not by the establishment but by private individuals, with the establishment being indifferent or turning a blind eye to/allowing the phenomenon – or, at the least, being negligent.
The commission talks about “ad hoc placing [of children] for adoption” without sharply criticizing any such horrific phenomenon and without being suspicious about the supposed circumstances. Why didn’t anybody look for the parents? The commission accepts excuses like the hospitals were so busy dealing with patients that they didn’t get around to registering the children’s details. Were the clerks also treating the children medically?
The report suggests, furthermore, that the failures and the wrongful deeds were committed by institutions, but that not one of them was carried out by flesh-and-blood people who can be identified by name and be charged with personal responsibility – not necessarily criminal, given the passage of time. The members of the panel did not find any person responsible, only abstract entities which, for example, were involved in “not setting procedures to remain in contact,” or had to deal with the “absence of a central institution for reporting.”
For some reason, the commission prefers to blame the parents of the missing children, rather than clarifying the establishment’s responsibility for that situation in any serious way. Even though the statute of limitations for the criminal offenses has expired, it is of immense social, public and moral importance to uncover the truth, to apprise both the parents and the families of the children who disappeared and Israel’s citizens in general of that truth, and to draw all the lessons necessary to ensure that not even one similar case recurs here.
DNA testing – now
Even without the many pieces of data that are missing in the report, even if we make do with the minimal problems whose existence even the commission acknowledged, the picture that emerges is grave and requires the drawing of important lessons – something the Kedmi Commission does not do. It ignores the scale of the phenomenon. Even if “only” 69 children disappeared, as it found, that is a very large number. What would the response be today if even one single child disappeared?
In the 1960s, when Yossele Schumacher disappeared, all of Israel’s intelligence services were mobilized in the search for him. He was found abroad (the boy had been taken by his grandfather, who wanted him to have an ultra-Orthodox education) and brought back to Israel. Why did the disappearance of 1,000 children (according to the commission) or more (it’s known that not all the parents went appeared before the panel) not engender an investigation at the time?
According to the commission, 983 of the children whose parents said they had disappeared had died. Even in the 1950s, Israel was not a backward country in terms of health care. If so many infants died, who is responsible for the fact that they were not treated properly? Was this the result of medical negligence? And why were the parents not invited to the burial?
What can be done today? It’s not clear whether another commission of inquiry would be useful. It is an urgent basic necessity to make public the transcripts of the panel’s hearings and the documents that were available to it, even if that may turn out not to be very helpful, either. But the effort must be made.
The one effective tool that needs to be used is DNA testing. The state must take responsibility and provide every family that so wishes with a genetic comparison between the remains in the grave (if grave and remains are found) and samples from family members.
DNA testing could have been done at the time the commission held its hearings, in the late 1990s and the beginning of the 2000s. Now it is essential. Just as Israel invested millions in the search for Yossele Schumacher in the 1960s, and millions in the search for the sunken submarine Dakar, and just as it spends resources whenever someone goes missing, it is glaringly obvious that resources must be allocated to investigate the disappearance of at least 1,000 children.
I am not a historian. For those who seek a historical account of this affair, I can warmly recommend a soon-to-be-published study by the historian Dr. Nathan Shifriss. As a jurist, I analyzed the commission of inquiry’s report and found serious flaws in it. (I published a detailed critique of the report in 2002 in the journal Theory and Criticism – available online in Hebrew.)
The report is not reassuring. On the contrary: The more I read of it and its annexes – the letters to the parents – the more convinced I became that things were not managed properly.
My conjecture is that there were people who took advantage of the weakness of the immigrants from Yemen and abducted many children for sale or for adoption. People were quick to assert that the connections between infants and their parents had been severed, instead of searching for the parents properly and diligently.
The phenomenon of “ad hoc placing [of children] for adoption” was apparently a regular phenomenon. The authorities turned a blind eye – indifferently, recklessly, negligently – and that, too, is very grave. A racist approach appears to have existed holding that it was preferable for the children of the immigrants from Yemen to be raised in more established families. To admit this undermines the fine Zionist narrative we like to tell ourselves. But without an admission and a rectification of the tremendous wrong that was done to the children’s parents, we will not be able to be the kind of good society we aspire to be.
The parents are already old; some have died. We must wait no longer. All the material of the state commission of inquiry must be made public. Genetic comparisons must be undertaken immediately for every family that so wishes (the tests are no longer as expensive as they once were). A true investigation must be launched. And where there is no suspicion, there is no true investigation.
Boaz Sangero is a professor of law who teaches at the College of Law and Business, in Ramat Gan.