פגיעה במעמדו המשפטי של הר הבית – הכצעקתה?

The recent visit to the Temple Mount by a government minister raises again the question of the legal status of the Mount, the content and circumstances of the status quo, and the legal questions of Israeli and international law regarding visits there by Jews.

The Temple Mount is back in the headlines with the visit of National Security Minister Itamar Ben-Gvir. The world was abuzz, and fingers were pointed at Israel, blaming it for violating the status quo and international law. The issue was even brought before the UN Security Council for an emergency discussion.

That discussion may have ended without any additional development that should worry Israel, but that it was conducted in the first place should not be taken lightly.

Did the National Security minister’s visit violate the status quo?

Over the years, several ministers have visited the Temple Mount, among them Gilad Erdan, then Public Security minister (equivalent to today’s National Security Ministry), and Uri Ariel, then Agriculture minister. It is evident, therefore, that there is no merit to the claim that Ben-Gvir’s visit constitutes a change to the status quo. Israeli citizens, including Jewish citizens of Israel, are permitted on the site. That extends to ministers, even those who are politically controversial. Moreover, the visit itself cannot be considered a provocation, as visits are legal, acceptable, and frequent.

Israeli authorities periodically restricted Jewish visits to the site due to security concerns. Still, the High Court of Justice (HCJ) unequivocally recognized the fundamental legal right in several petitions brought over the years. With that said, there are certain restrictions on the visits of non-Muslims and their right to conduct religious rituals on the site due to the status quo set days after Jerusalem’s unification in 1967.

The Status Quo

Shortly after the Six Day War and the unification of Jerusalem, defense minister Moshe Dayan formed a new status quo of the site.

The main principles were:

• Through its Waqf, the Jordanian Sacred Properties Ministry would continue to manage the site.
• Jews would be allowed to enter the site but not to pray.
• Israeli law and sovereignty would apply.
• Israel and its police force would be in charge of securing the area.

The legal status of the status quo

Legislation

The status quo was never ratified in legislation. There are various references to it over the years by all branches of government, but not in a way that grants it an independent legal status.

Status quo means leaving things as they are. A status quo freezes a particular situation as it is inherently a compromise, assuming it is unsatisfactory to the parties involved. However, the assumption is that the benefits of the status quo are derived not from what it contains but from the dangers embodied in changing it.

A status quo cannot have a legal status, as its source and power are derived from the social/security situation. Thus, the discussion surrounding it can only exist on a political level.

The question periodically raised before the High Court on the Temple Mount’s status quo is whether the assumed danger of changing that status quo warrants the continual violation of non-Muslim rights on the Mount.

Case law

Many petitions were filed to the High Court over the years surrounding the issue of the Temple Mount, most of them dealing with the freedom to perform religious rituals, which is banned for non-Muslims at the site. While the court repeatedly ruled against the petitioners, it did accept that existing restrictions constituted discrimination against non-Muslims and a violation of their fundamental human rights. These rights include equality, freedom of religion, and movement. Ruling against these petitions, which were filed to compel the authorities to permit prayer for non-Muslims, were reasoned by accepting the authorities’ supposition that there is a genuine concern for a significant threat to public security. Expert opinions were brought to substantiate the claim that it is the authorities’ job and within their capabilities to deal with riots and disturbances, even if those emerge. Either way, their expertise is public order and not fortune-telling. The High Court ruled against these petitions, in effect asking the petitioners to swallow the bitter pill of the infringement on their rights for the greater good.[1]

The peace treaty between Israel and Jordan

In the treaty signed in October 1994, it was determined:

In this regard, in accordance with the Washington Declaration, Israel respects the present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem. When negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historic role in these shrines.

The Hashemites, who ruled the Hejaz from 1201 to 1925, held a particular role and title for many generations as guardians of Islam’s holiest places in Mecca and Medina. With Ibn Saud’s conquests in 1925, the Hashemites lost control of the area and their special status. The Hashemites’ special status concerning Jerusalem and the Muslim holy sites on the Temple Mount originated with Jordan’s illegal conquest of the West Bank in 1948 and their control over the Temple Mount until the Six Day War in 1967. Following its 19-year control over the Mount, Jordan claimed its special status over it. That may not equate with Mecca and Medina, but it does grant Jordan a unique position within the Muslim world.

In the peace agreement between Israel and Jordan in 1994, Jerusalem agreed to honor the status that had been maintained in the 27 years since the Six Day War. However, Jordan was not granted any legal status in that agreement, nor was the status quo mentioned or a commitment to maintaining it.

Kerry’s understandings 2015

Following the Temple Mount riots in October 2015, US secretary of state John Kerry brokered an understanding between Israel and Jordan. These understandings included a few principal clauses, but the important one here is the Israeli commitment to the continuation of the current policy on the Mount, which means the right of Muslims to pray and the rights of non-Muslims to visit but not to pray.

Those understandings constituted a change in the state of affairs, as until then, there was never an official statement regarding the Israeli commitment to the status quo. That is important for two reasons: first, it constitutes an agreement by both Jordan and the US for the right of non-Muslims to visit the site. Second, it recognizes the inherent discrimination in the status quo regarding religious rights.

That said, it is hard to see how it is within the power of those understandings to change the legal status of the Temple Mount or the fundamental human rights of those who wish to visit. As mentioned, even the Israeli High Court acknowledged those rights as a fundamental part of the basic human rights in the democratic State of Israel and saw fit to restrict those only based on current security concerns.

International Law (Fourth Geneva Convention)

Allegations against Israel for violating international law in the context of the Temple Mount are usually based on the false premise that this is an occupied territory under belligerent occupation. But even if, for the sake of argument, we accept this false premise. It is still impossible to resolve the relevant rules dealing with the responsibilities of the occupier toward the territory and its civilian population with demands to discriminate against a portion of the population, even if it is the majority population of the so-called occupying power.

The Geneva Convention has determined the obligations of the occupying power toward the occupied civilian population and its property to prevent violation of rights and exploitation. The Convention refers to the right to life, freedom of movement, property, due process, etc. The Convention, however, obviously does not warrant violating the civilian population’s civil rights by the occupying power but only demands the application of certain rights to the occupied population. International law enshrines equality and does not intend to promote discrimination. Therefore, no argument insisting on the infringement of the rights of visitors to any site based on their religious identity can be accepted. Discrimination upon entry to religious sites is unacceptable, certainly in the democratic world. In fact, except for Mecca, where non-Muslim visitors are entirely forbidden to visit, it is hard to think of one single example where a visitor is asked about his religion before entering a religious or public site.

Conclusion

Accordingly, there is no basis for the legal claims against Israel for violating the status quo or Israeli or international law due to infringement of Palestinian or Muslim rights on the Temple Mount or the status of the holy sites to Islam.

Indeed, the existing Israeli policy on the Temple Mount continuously infringes upon the rights of non-Muslims. Moreover, in addition to the Temple Mount being a religious site, it is also a historic, tourist, and educational site. The limited scope of visiting days and hours, and the restrictions on the freedom of movement of non-Muslims on the site, constitute an actual violation of international law.

The decisions made by various Israeli governments over the years regarding those restrictions derived from considerations of stability, security, and international relations and were issued despite the violations mentioned above of non-Muslim rights. While one can debate the wisdom or justice of these policies, there is no doubt that there is no basis for any legal argument against Jews visiting the Temple Mount, whether it is an anonymous civilian or a minister.

[1] See, for example, HCJ 5402/11, 8026/16, 4044/93, 2697/04

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