Whose Jerusalem ?
Whose Land ?
By Nadav Shragai - Ha'aretz 18 June 2000
Two weeks ago, public figures representing a wide political spectrum gathered for an extraordinary event. Shimon Peres and Ehud Olmert, Shaul Mofaz and Ariel Sharon, Meir Shamgar and Chief Rabbi Lau stood each in turn and read from the poetry of Uri Zvi Greenberg. They spoke about the poet and his legacy and recalled Greenberg's first speech in the Knesset, which he dedicated to the divided Jerusalem. Greenberg, who was an MK for the Herut party - the forerunner of the Likud - stressed the fact that the name Jerusalem referred to Jerusalem within the walls, "where the Temple Mount is located," and the part that is beyond the walls is referred to as the area that is merely adjacent to the city. Other public leaders and scholars also distinguished between the Old City, in which the Temple Mount and other holy area are found, and the other parts of Jerusalem.Adnan Abu Ouda, the chief of staff of the court of Jordan and close associate of the late King Hussein, proposed as early as April 1992 that Jerusalem within the walls be removed from all political sovereignty and that it be considered a holy site, to be administered by a joint council made up of Jews, Muslims and Christians. "There must be a clear distinction between the Old City within the walls, on the one hand, and the areas outside the walls, on the other," wrote Ouda. ".. The main holy sites of the three religions are clearly delineated, distinct and well known: the Church of the Holy Sepulchre for the Christians, the Western Wall for the Jews and the Temple Mount for the Muslims... The genuine and holy Jerusalem should not belong to any country or any religion. It should belong to the whole world and to the three religions, so that no country retains political sovereignty over it..." Abu Ouda went as far as to propose that the display of any national flag at all within the walls of the Old City be prohibited.
In the many meetings between Yitzhak Rabin and King Hussein, the term "God's sovereignty" was repeatedly used. Rabbi Menahem Fruman, a fervent supporter of interreligious dialogue, has for a number of years urged that the holy sites be defined as devoid of sovereignty and that they be placed under exclusively religious administration. Fruman is convinced that he has partners to this idea, even among Hamas. Ruth Lapidot, a professor of international law, has also suggested that the sovereignty of the Old City be suspended for an agreed-upon period, for up to 20 or 30 years, and that the area be considered as one without sovereignty. Lapidot suggests that the authority over that area be split: according to territory, religion, personnel and function.
The Old City is not large - only 871 dunam (218 acres) - and in addition to the holy sites, dozens of other holy places, synagogues, mosques, churches and monasteries can be found in the city and its environs (the Old City basin). Even the designation of a site as "holy" is ambiguous and is not officially anchored in law. About 210 dunams (52.5 acres) belong to the Waqf (Muslim religious trust), another 250 dunams (62.5 acres) is of Christian ownership - churches and monasteries, about 170 (42.5 acres) dunams belong to the state and another 240 (60 acres) is privately owned, mostly by Arabs.
In late 1998, 32,488 people lived in the Old City, of which about 70 percent were Muslim, about 20 percent Christians of various denominations and 8.5 percent Jews. The density of housing in the Old City is among the highest in Jerusalem and the standard of living is among the lowest in the city. Crime, poverty and drugs are widespread. Like in the other parts of East Jerusalem, there is a jungle of illegal construction, especially injurious to an area such as the Old City. Frequently, this construction destroys and changes the fabric of sites recommended for preservation. Such construction can be found in cellars, courtyards and in any imaginable place in order to meet the needs of the constantly growing population, and it is carried out by private individuals as well as by Christian and Muslim religious institutions. The Old City is also a major religious center for citizens of the Israel and inhabitants of the territories, and of course a magnet for tourists from all over the world.
The Israeli contingency plans for the final status settlement, in the Ministry of Foreign Affairs, the prime minister's office and in the IDF general staff designate most of the Old City as an area enjoying a special status. Some view the city as having Israeli sovereignty in the future too, while others view it has having shared sovereignty, especially with the Palestinians.
Meanwhile, no understanding has been reached with the Palestinians concerning the status of the Old City. The suggested alternatives, which are elaborated upon in great detail in various papers, are as follows: the designation of the Old City as a holy area, in which an administration made up of representatives of all the religions, the residents, the government and the Arab world would be established; an administration shared by representatives of all the quarters and religions; a division into a Jewish and Armenian administration and a Christian and Muslim administration, so that the Jewish and Armenian quarters would become part of the administration of the city center and the Christian and Muslim quarters part of the Sheikh Jarah administration; the establishment of a municipal corporation with representatives from each quarter; joining up with the administrative districts outside the walls, which would provide the Old City with community services; declaring the entire Old City as a national park; a dual level structure - representatives of the quarter would sit on a general steering committee for the Old City; another type of dual level structure - separate quarter administrations with a shared spiritual administration.
Israel is also willing to accept a political compromise on the Temple Mount, the site with the greatest potential for interreligious and interdenominational friction in Jerusalem, and perhaps in the entire world. Israel's willingness to reach a compromise is based on its recognition of the status quo. Israel is not the only landlord on the Temple Mount. Back in 1967, Moshe Dayan gave control of the site, the third most important site to Islam, over to the Waqf, firmly fixing the principle of freedom of access to all religious to the Temple Mount, but forbidding Jewish prayer or ritual on the site where the Jewish people's two Holy Temples once stood.
Dayan formulated a status quo on the Temple Mount, based on an aspiration to shield it from the forces of nationalism. He hoped that the Israeli-Arab conflict would remain on a national territorial level and that the potential for a conflict between Judaism and Islam could be eliminated. However, in recent years, there has been an erosion of the status quo by varied means, to the detriment of the Jewish side. In many respects, the Temple Mount has become exterritorial to the Israeli authorities, and Israeli sovereignty at the sight often appears virtual at best.
In accordance with decisions by the Israeli government (all governments), Jewish prayer on the Temple Mount is forbidden. But even though the High Court of Justice does not forbid prayer by individuals on the Temple Mount as long as their behavior does not involve any provocation, the police prevent such prayers from taking place. The police do not permit the entry of any Jewish religious artifacts to the Temple Mount, such as a prayer shawl or phylacteries, or even a Bible, prayer book, Book of Psalms or Jewish textbooks even resembling prayer books. The right of free access is not preserved as it was in the past either. Jews who appear to be religious or ultra-Orthodox are scrutinized very closely and are automatically suspected of planning to violate the prohibition against prayer by Jews at the site. While they may be allowed entry into the site, they are constantly accompanied on the Temple Mount by a police officer or Waqf representative.
Israeli law concerning the Temple Mount has in recent years become no more than a dead letter in its law books. While the High Court of Justice in fact ruled in 1996 that the planning, construction and antiquities laws apply to the Temple Mount, as do all the other laws of the State of Israel, this ruling is hardly apparent on the ground. The Waqf has not asked the city of Jerusalem in the past for building permits as required by law, nor does it do so in the present. Moreover, in recent years the number of cases in which the Waqf has exempted itself from unofficially coordinating its actions with the police are on the rise.
Last Tuesday, the police prevented the director of the supervision department in the Jerusalem municipality, Yisrael Ben Ari, from entering the Temple Mount, for procedural reasons, they claim. Ben Ari heard about two new brick buildings that the Waqf was constructing on the eastern part of the mount and he wanted to document the violation.
But the most blatant violation of the status quo on the mount so far since 1967 is the preparation the area known as Solomon's Stable for the construction of a mosque - the third on the Temple Mount and the first for the last thousand years. In addition, the huge underground area under the Al Aqsa mosque, known as "Ancient Al Aqsa," has been cleared for prayer. The fate of these two sites is currently under the influence of the Israeli Islamic Movement, which played a dominant role in the new construction. Minister for Jerusalem Affairs Haim Ramon is of the view that everything that has happened on the Temple Mount during the term of this government is the result of the shattering of the status quo by the Netanyahu government, forced as it was to accept the new construction because of the events surrounding the opening of the Hasmonean Tunnel.
Even the Antiquities Authority, which in the past supervised various works done on the mount, has kept its distance from it in recent years. Since the Hasmonean Tunnel riots, the Waqf has not permitted Antiquities Authorities official to tour the mount. Sometimes, they are forced to masquerade as Arabs in order to gain entry to the sites to which the Waqf has barred their entry. Even today, state declarations in court notwithstanding, the supervision of the Antiquities Authority on the mount is slack. It is dependent on the cooperation of the Waqf, which Minister Ramon defines as only "partial."
Four months ago, the Waqf made a mockery of the laws of the State of Israel. Waqf officials requested and received a permit to open an emergency exit in the new mosque in Solomon's Stables. In fact, the Waqf tried to break through four of the underground arches in the northern part of Solomon's Stables. To do so, it dug a huge hole 60 meters long and 25 meters wide in the earth of the Temple Mount. For the first time since 1967, a fleet of dozens of bulldozers and trucks was put to work on the Temple Mount, and 6,000 tons of earth from the mount was dug up and removed. Some of it was scattered at dumpsites. Some was dumped in the channel of the Kidron River. Antiquities dating back to a number of periods were tossed on garbage heaps. The Antiquities Authority managed to salvage but a small part of all these treasures.
The director of the Antiquities Authority, Amir Drori, called this an "archeological crime." Attorney General Elyakim Rubinstein termed it "kicking the history of the Jewish people." The "emergency exit" in fact proved to be a "monumental entry gate," in the words of Police Commander Yair Yitzhaki of the Jerusalem district.
The latest news from the Temple Mount shows that the area along the eastern wall of the Temple Mount, between Mercy (Golden) Gate and the arches the Waqf built on the northern side again looks like an enormous construction site, filled with bulldozers, trucks, paving material, scaffolding. And coins from the Temple Mount are on sale in the black market for antiquities.
In addition, security officials have recently passed on a detailed report to the political echelons concerning the plans of the Waqf and Israeli Islamic Movement for the Temple Mount. Some of these plans are known to the political echelons because the Waqf has asked for permits to carry them out, but some are not. The most disturbing information concerns a master plan, in which the Israeli Islamic Movement is involved, to erect yet a fourth mosque on the Temple Mount, along the eastern wall, a smaller version of the Ka'aba mosque in Mecca. The other plans include replacing the door of the Mugrabi gate with an iron gate and digging in the area nearby; digging in an extensive area along the eastern wall of the Temple Mount, digging in the area above the hand-washing facility in the area of Bab Al Houta; digging on the slope leading to the new gates constructed in Solomon's Stable to prevent the seepage of rainwater into the mosque and replacement of the old entrance into Solomon's Stables, from the direction of the Al Aqsa mosque, turning it into an emergency exit, after the new gate has been turned into the main entrance. If the Waqf carries out all these plans, the face of the mount will be completely changed, to say nothing of the irreversible damage to the antiquities on the site.
Two weeks ago, 200 persons from the full range of Israel's political spectrum published an open letter to the prime minister, appealing to him to prevent the destruction of antiquities on the Temple Mount. For one moment, Teddy Kolleck, Ehud Olmert, MKs from the National Religious Party and Meretz, writers from the right and the left united on a subject over which it is usually difficult to garner a consensus in Israeli society - the Temple Mount. "This archeological crime," the letter concerning the events in recent months on the mount, "is intolerable to any cultured person, regardless of his or her political identity or ideological position, and we oppose it, just as this type of systematic destruction would be unthinkable at any similarly important site in the world, such as the Acropolis in Athens or the Forum in Rome."
The security on the Temple Mount is no longer the exclusive bailiwick of the Israeli authorities either. The police maintain a presence located on the site, and the Shin Bet is active there too, so are the security mechanisms of the Palestinian Authority. Sometimes, Israel makes an unofficial appeal to the members of the Palestinian security forces on the mount in order to achieve peace and quiet and to prevent riots on Palestinian memorial days or on other sensitive dates.
The Palestinians behave as if the Temple Mount has already been officially handed over to them. Ministers in the government suggest that the current status quo on the Temple Mount be formally anchored in the final status settlement and to allow the Palestinians to fly their flag on their mosques. The overall security responsibility on the mountain, which in the past was the target of Israeli right-wing extremists, would remain in Israeli hands. For the time being, Prime Minister Ehud Barak has rejected these ideas. Israel's two chief rabbis requested during the term of Yitzhak Rabin's government that all agreements concerning the Temple Mount be coordinated with them, in view of the fact that it is the site most holy to Judaism.
Legal expert Dr. Shmuel Berkowitz, in a new book, "Wars on the Holy Sites," soon to be published, makes an interesting suggestion. Berkowitz suggests that the area of the mosques on the Temple Mount be granted the status of a Palestinian diplomatic legation and to designate the Temple Mount as the domicile of this legation. He notes that the territory of a diplomatic legation is not subject to the sovereignty of the country of origin, meaning that it is not extraterritorial. As a result, the Palestinians could be given a sovereign status on the Temple Mount without any part of it being transferred to foreign sovereignty.
In addition to questions involving the legal status and the flag issue on the Temple Mount, the Israeli teams are also looking for ways to officially include the Palestinians in the security arrangements in the Old City and the Temple Mount. According to a plan currently being examined in the Prime Minister's Office, Israel, by means of the IDF, the Border Police and the Police Department, will be responsible for the protection, security and policing of the Old City and the Temple Mount. The Palestinians, however, would recruit Palestinians carrying Israeli-Jerusalem identity cards who would work for them in the Old City. Additionally, a mechanism for cooperation and coordination with Palestinian security forces active in the area would be established. Another proposal: to include the Palestinians in the community policing efforts and the tourist police.
On the Temple Mount, the plan proposes that after the final status settlement is signed, Palestinian police officers would act within the Temple Mount compound alongside and instead of Waqf officials, under the responsibility of the Israeli Police. The external security circle, i.e. the walls of the compound, would be under combined Israeli-Palestinian security control.
The reality in Jerusalem and the possible alternatives for a settlement in the city enumerated in this article, are being discussed mainly in the unofficial channels between the Israelis and the Palestinians. There are deep disagreements between the sides, but not as much as in the past. If no agreement is reached, there will probably be an interim agreement but not a final status settlement.
The solutions currently being sketched out by politicians for Jerusalem are diplomatic ones. That is their advantage, but it is also their handicap, because Jerusalem is also part of an intense religious conflict. Islam considers Israeli rule of the city as something that defiles the Muslim nature of the city. The religious Orthodox Jewish establishment also has halakhic reservations concerning the Arab presence in the city. The secular Arab leadership draws the legitimacy for its struggle over Jerusalem from Islam, and the Israeli leadership bases its arguments for the city on Jewish tradition. It may, therefore, be a good idea to include moderate religious figures from both sides, alongside the politicians, in the negotiations on Jerusalem, in order to establish a stable settlement in the city