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Policy Papers #46 Jerusalem's Holy Places and the Peace Process Marshall J. Breger and Thomas A. Idinopulos ISBN: 0-944029-73-6 Published: 1998 Price: $19.95

Executive Summary

The status of Jerusalem as a city filled with shrines, monuments, and other areas sacred to the Jewish, Christian, and Muslim faiths presents several problems to policymakers intent on pursuing Arab-Israeli peace. This book reviews past and present policies for administering and protecting the holy places and offers ten lessons policymakers should consider in framing future policy toward the holy places.

Historic Treatment of the Holy Places

Historically, one of the primary problems Jerusalem's rulers have faced is the difficulty in separating secular issues and concerns from religious ones. The city is a patchwork of religious communities and subcommunities whose claims over status and property often conflict. Under Ottoman rule, from 1517 to 1917, a religious foundation, or waqf, administered the Islamic holy places, but the fate of Christian and Jewish sites depended on those communities' standing with the Turkish caliphate, or Sublime Porte. As for Christian sites, the Ottomans often played off the competition among the Roman Catholic, Greek, Russian, and Armenian Orthodox Churches and the countries that supported them. In 1852, the Sublime Porte responded to the internal Christian disputes by decreeing a "status quo" among the Churches. With the Congress of Berlin in 1878, the great European powers agreed that "no alteration can be made in the status quo in the holy places," a decision that held until the fall of the Ottoman Empire during World War I. Jerusalem's Jews, however, lacked Great Power patronage altogether. Poor and powerless, they generally suffered high taxes and indignities at the hands of the Ottomans.

Palestine was placed under British Mandatory rule following the war. A Supreme Muslim Council administered the Muslim holy places, thus replacing or controlling the existing waqfs. Although generally supporting the Roman Catholic Church's claims, the Mandatory also pledged to uphold the Ottoman "status quo" and to keep close control of the holy places by declaring as final the high commissioner's judgment on disputes over the holy places. Increasing strife between Arabs and Jews led a Royal Commission in 1937 to recommend the partition of Palestine and the creation of a corpus separatum that would comprise Jerusalem, Bethlehem, and other sacred sites. Although never carried out, this recommendation became the basis for the 1947 United Nations Partition Resolution on Palestine.

This too was never fully carried out, as the Arab-Israeli war of 1948 led to the creation of a Jewish state in Palestine, the annexation by Jordan of what was to have been an independent Arab state in Palestine, and the division of Jerusalem between Israel and Jordan. Under Jordanian rule between 1948 and 1967, east Jerusalem's holy places, including the Old City and its ancient Jewish quarter, returned to a form of Ottoman-style protection. Christian sites were administered under a system in which each Church was free to follow its own laws but competed against other Churches for its right to the holy places. In contrast, the Jordanians turned a blind eye to desecration and looting of Jewish cemeteries, synagogues, schools, and homes in the Old City.

Since 1967, Israel has had complete control of Jerusalem and all its holy places. The Protection of Holy Places Law, approved by the Knesset soon after the war, defined Israel's approach to the administration of all the holy places that came under its jurisdiction: Christian, Muslim, as well as Jewish. In contrast to Jordanian prohibitions on Jewish worship at the Western Wall, this law permitted unfettered Muslim prayer in the Haram al-Sharif (Temple Mount) and permitted Christian Churches to acquire land and homes in Jerusalem. Israel's Ministry of Religious Affairs has since maintained effective contacts with the Christian community and responded to Christian needs. Concerning the Muslim population, since 1948 the waqf has administered Muslim sites in west Jerusalem, and its authority was extended in 1967 to east Jerusalem as well. A new Supreme Muslim Council was founded to protect Muslim rights, and, in certain respects, the waqf has had more autonomy under the Israelis that it did under British Mandatory rule.

Religious Concerns

Each religious community has its own interests, concerns, and problems. The Christian community's primary concerns are the affirmation of its rights and the assurance of access, freedom of activity, and pilgrimage to the Christian holy places. The community has three main problems. First, it is fractured and has many, sometimes conflicting, subcommunities. Second, many Christian lay residents are Palestinian, while most of the clergy are foreign (often European), and the two groups have different interests and needs. Finally, the Christian population is declining and many in the community fear that they will will lose their ability to speak up for Christian concerns.

The Muslim community is divided as well, in that both Jordan and the Palestinian Authority (PA) claim authority over the holy places. Jordan has said it will relinquish custodianship of the holy sites to the appropriate authority when the "final status" of the city is determined in negotiations, but King Hussein has made known that he envisions a long-term role for the Hashemites in the holy places, going so far as to suggest that the sites should be "above the sovereign considerations of any state." Thus Jordan continues to pay the salaries of religious functionaries in Jerusalem and has paid for renovations to al-Aqsa, although it cut its funding for West Bank religious institutions in 1994. The PA at that time created and began funding its own waqf bureaucracy, leading to the odd situation in which Jerusalem has two different waqf administrations, one Palestinian and one Jordanian. Practically speaking, this has not caused problems, as the PA minister of waqf and religious affairs, who is also the Supreme Muslim Council president, is Shaykh Hassan Tahboub, formerly a Jordanian waqf official. In other areas tensions have arisen, however: The PA and Jordan have each appointed different (and competing) directors of the al-Aqsa mosque.

Of special interest to both Jews and Muslims is the Har HaBayit/Haram al-Sharif (the "Temple Mount" in Hebrew, "Noble Enclosure" in Arabic). This area is a particular challenge as both religions lay special claim to it. Jews revere it as the site of the two Temples, with the Western Wall at the base of Har HaBayit being all that remains of them. Muslims built two of Islam's most treasured monuments on the mount: the Dome of the Rock shrine, the site of Muhammad's heavenly ascent, and the al-Aqsa mosque. Until the mid-nineteenth century, non-Muslims were barred from the area. Since 1967, non-Muslims have been allowed entry except during periods of Muslim prayer. Israeli law concerning the Har HaBayit/Haram is subtle and complex, as the country claims sovereignty but allows the waqf de facto control over day-to-day activity, consistent with considerations of public order. Many breakdowns of public order are caused by some ultra-Orthodox Jewish groups claiming a legal right to visit and pray on the Temple Mount, and the High Court of Jerusalem has decided myriad cases on this issue. Legally, Jews are allowed to visit and even to pray, but practically speaking, if they show any evidence of prayer they are physically removed (which is often the cause of the disturbances of public order). This has led some Jews to question what kind of "rights" they have if their prerogatives are regularly denied. Yet, most haredi or ultra-Orthodox Jews do not believe Jews should be near the Temple Mount anyway, for fear of accidental desecration; they believe the reestablishment of prayer on the Temple Mount should be left to Messianic times.

Proposals for Administering Jerusalem and the Holy Places

More than sixty proposals for the solution of the Jerusalem problem have been made since the Sykes-Picot Agreement of 1916, each of which recommends guarantees for the security of the holy places. Generally, these proposals can be divided into two groups: those that propose that Jerusalem should remain undivided under Israeli sovereignty, and those that propose that the city should be physically or politically separated under dual or shared Israeli and Palestinian control.

Public opinion polls show that the Israeli people overwhelmingly favor the first kind of solution, often with some provision for the political representation of Arab Jerusalemites and the "Vaticanization" of the Muslim sites. The PA's current position falls into the second category: that Jerusalem be physically undivided but politically separated with dual or shared sovereignty. Yet the Old City, with its close neighborhoods and shrines, poses problems under this solution that are usually met by subproposals giving Jews control over the Jewish Quarter, Muslims control of the Muslim Quarter, and allowing Christians to decide between Jewish and Muslim sovereignty. These subproposals in turn face heavy criticism for their political utopianism.

Administrative solutions, which deal solely with the holy places and not questions of Jerusalem's sovereignty or political determination, are of three sorts. The first would create an interfaith committee of Muslim, Christian, and Jewish representatives to administer the holy sites; this solution is akin to League of Nations and UN proposals first for a special commission and later for a corpus separatum. The second solution would devolve control over a religion's holy sites, in a sort of "functional internationalization," to commit-tees comprising members of that faith. This is easier said than done, however. The third approach would leave the matter to various international guarantees such as the UN Educational, Scientific, and Cultural Organization (UNESCO) and Hague Conventions. As Israel already subscribes to many of these guarantees, reaffirming its commitment to the protection of the holy places and their respective religious communities' rights would be both a simple and unilateral matter.

Ten Lessons

According to the Oslo Accords, "Jerusalem" is an item in the agenda of Israeli-Palestinian final status talks. The administration of holy places is an important element within the overall set of Jerusalem-related issues. The legacy of Ottoman, British, Jordanian, and Israeli control of these sites over the past five centuries offers useful lessons to guide both the negotiations and the leaders of the various communities who determine the religious mosaic of Jerusalem on a daily basis.

1. Following the dictum that "good fences make good neighbors," the three religious communities' quarters, compounds, and neighborhoods should be respected as belonging to specific people following specific lifestyles.

2. Extending the "good fences" doctrine to Jerusalem's holy places, the guidelines governing control over and access to holy sites should be clear and well-understood by all communities.

3. Undergirding that same principle, symbolic rhetoric should not be allowed to get in the way of practical management of the holy places; to that end, functional sovereignty may be a particularly useful solution.

4. Freedom of worship is only abstract unless access is provided to holy places for worship; the issue is not who owns a site, but how the site can be administered to provide public access while respecting community traditions.

5. Mechanisms should be structured to allow Israeli rabbinical and political officials to meet with leaders of the major faiths on the basis of dignity and equality.

6. Israel need not and should not wait for a comprehensive settlement to move to improve its political and moral agenda regarding the holy places.

7. Waqf officials should refrain from using religious services on the Haram to incite violence. Also, religious leaders, especially those appointed by political authorities, have special responsibility to reject incitement and to promote intercommunal tolerance. In this respect, the PA should preclude any individual from concurrently holding the positions of the head of the Supreme Muslim Council and the PA minister of religious affairs.

8. The Christian communities need to clarify their goals and needs in a concrete manner to present a more united voice.

9. It is important to resist the hallowing of new "holy places" whenever possible, a lesson that is easy to state yet hard to follow.

10. Each religious group should try to clarify for itself and for the benefit of the other groups what it considers the "holy" boundaries of "its" Jerusalem.