A new status quo for Temple Mount

Achieving a remodeled status quo would require on the part of the Palestinian, Jordanian, and Israeli parties, support from the respective religious leaderships, and active, ongoing public encouragement through the media in order to counteract those elements that would inevitably seek to obstruct such a project.

By Alan Baker , ISRAEL HAYOM     05-08-2023 12:17

As appalled as one may feel by the questionable manner in which Minister for National Security Itamar Ben Gvir comports himself in his day-to-day activities and statements, there is one aspect upon which he is right.

This is his oft-repeated and legally-sound claim, from long before he became a minister, that the right of worship – including by Jews – is an internationally recognized universal right that should be applied equally, and without discrimination on Temple Mount, to worshippers of all religions.

Without wishing to impinge in any way on the recognized and accepted, historic prerogative of Muslims to pray at the Muslim sacred sites within the Temple Mount compound including the Al-Aqsa Mosque, it is nevertheless inconceivable in the modern age of accepted international norms and concepts of equality, human rights and freedom of religion and worship, that Jews should be prevented from exercising the right of worship at the very epicenter of the Jewish faith, within the same compound on Temple Mount, parallel to exercise or the same right by Muslims. Such discrimination runs counter to accepted norms of interreligious and intercultural dialogue, tolerance, understanding, and cooperation.

The problem centers around the age-old Ottoman “status quo” governing custodianship, worship, and visits to Temple Mount. This status quo formalized by Ottoman imperial decrees stemming from the 18th and 19th centuries, restricted prayer on the Mount by non-Muslims.

Such a discriminatory situation might indeed have been pertinent at the time of its practice inasmuch as it reflected the then-existing social hierarchy within Ottoman society that governed the area. In this social hierarchy, an institutionalized second-class status of dhimmi was applied to non-Muslim subjects, whether they be Jews, Christians, or other minority religions. This status quo, while limiting the rights of worship of non-Muslim subjects, was intended to protect them from forced conversion to Islam and to enable them to practice their religion in a limited manner within Ottoman Muslim society, subject to paying a special jizya tax. This also required non-Muslim subjects to distinguish themselves from their Muslim neighbors by dress and they were not permitted to build new churches or synagogues but only to repair old ones.

This anachronistic and blatantly discriminatory status quo was sustained and maintained by the British during their Mandate over Palestine, after the termination of the 600-year-old Ottoman Empire, and the prohibition on Jewish worship and restriction on entry by Jews reaffirmed.

In 1924, when the Ottoman Caliphate officially ended, custodianship over the Temple Mount was transferred by the British to the Supreme Muslim Council, considered the highest body in charge of Muslim community affairs in Mandatory Palestine, headed by Sharif Hussein Bin Ali, considered to be the “King of the Arabs”, the new Caliph of Muslims and protector of the city’s people and its holy sites.

This title of custodian passed to the consecutive rulers of Jordan, considered descendants of the Prophet Muhammad, who also retained the prohibition on Jewish worship.

After Israel attained control east Jerusalem during the “Six-Day War” in 1967, and with a view to avoiding possible interreligious disputes and violence, Israel acknowledged the status quo with Jordan’s continuing responsibility for administration and religious arrangements regarding Temple Mount, subject to Israel’s retention of overall responsibility for security and public order.

This modified version of the ancient status quo was bolstered by Israel, Jordan, and the United States in 1994 in the context of establishing peace between Israel and Jordan, and formalized in the Israel-Jordan Peace Treaty of October 26, 1994, where Israel committed to respecting “the present special role of the Hashemite Kingdom of Jordan in Muslim holy shrines in Jerusalem.”

In his formal recognition of Jerusalem as Israel’s capital city, dated December 6, 2017, US President Trump called on all parties “to maintain the status quo at Jerusalem’s holy sites, including the Temple Mount ……”

This call to maintain the status quo, elicited a series of predictable if superfluous responses by a choir composed of the United Nations, the European Union, European leaders, and Christian church leaders, all calling for respecting Jerusalem’s status quo according to the relevant UN resolutions regarding the city.

In a 1984 judgment by Israel’s Supreme Court regarding Jewish worship rights on Temple Mount, summarizing previous judgments on the same subject, then-Chief Justice Aharon Barak acknowledged the basic principles of freedom of worship and freedom of expression, but nevertheless held that:

“….every Jew has the right to enter the Temple Mount, to pray there, and to have communion with his Maker.  However, as with every human right, it is not absolute, but a relative right… Indeed, in a case where there is near certainty that injury may be caused to the public interest if a person’s rights of religious worship and freedom of expression would be realized, it is possible to limit the rights of the person in order to uphold the public interest.”

Indeed, in the present ambiance of heightened Muslim sensitivity, wild incitement, and extreme political manipulation, any realization of the rights of Jews to worship on the Temple Mount appears to be unrealistic. That being said, in the twenty-first century, the dichotomy between an ancient, discriminatory, and anachronistic status quo on the one hand, and the fundamental international right of worship for all, calls for a practical and honorable resolution that respects the rights of all.

Regrettably, whether out of political correctness vis-à-vis the Muslim world or fear of religious and social sensitivities, progressive, liberal, and democratic societies churches and other bodies in the international community, in a cynical demonstration of double standards, have chosen in a long series of international decisions and resolutions, to accept and acknowledge the continuing validity of this anachronistic status quo, despite its being wholly at odds with the developing 20th and 21st-century international notions of equality, human rights, and liberalism.

Such bodies chose to do so without realizing the inherent conflict between such a policy viewpoint and the current international practice that they systematically advocate in the field of human rights.

International norms and concepts of equality, human rights, freedom of religion and worship, interreligious and intercultural dialogue, tolerance, understanding, and cooperation have been drafted, codified, and unanimously accepted over the years through international covenants, treaties, and UN declarations and resolutions that have been universally accepted within the international community as part and parcel of what has become known as an established “culture of peace.”

Jerusalem’s Temple Mount remains an intractable, emotive, and volatile issue, constantly recreating cycles of violence. Israel, together with a responsible Palestinian leadership, and with the support of rational Arab states and the international community, if they genuinely seek to resolve the impasse, need, to address this issue in a pragmatic, realistic, and constructive manner.

Perhaps the first step needs to be acknowledgment and realization by all concerned, including the respective religious leaderships, that a vital prerequisite for any definitive resolution of the dispute between Arabs and Jews, is a logical and respectful remodeling of the antiquated status quo, to be based on present-day international values and standards of fairness, equity, equality, and mutual respect, while protecting basic religious sensitivities and procedures.

Such a new, remodeled status quo guaranteeing reciprocal recognition of religious rights could comprise the following principles:

· Recognition by each party of their ancient mutual ties to the Temple Mount; acknowledgment of the right to freedom of worship subject to respecting existing religious procedures; coordinated prayer arrangement enabling jointly administered and mutually secure worship at agreed locations and times, with special provisions for respective religious festivals; joint administrative body to coordinate and regulate day-to-day issues of access, visits, prayer, provision of services, resolution of problems, and cooperation with respective governmental and municipal bodies as well as with other religious bodies; joint security regime to regulate implementation and handle disruptive behavior, politically motivated violence, and day-to-day criminal issues; coordination on archaeological excavation and construction on the Temple Mount; international acceptance of and concurrence with such a remodeled status quo, including revocation of resolutions by UNESCO and other organizations incompatible with such a remodeled status quo; acceptance and recognition of the new status quo by world religious bodies and churches.

Achieving such a remodeled status quo would require on the part of the Palestinian, Jordanian, and Israeli parties, support from the respective religious leaderships, and active, ongoing public encouragement through the media in order to counteract those elements that would inevitably seek to obstruct such a project.

Acknowledgment by the parties involved – chiefly the Palestinians, Jordan, and Israel, but also by the United States, Europe, and moderate Muslim states, of the centrality of this factor in the Middle East reality, together with the realization of the dire and urgent need to resolve it, could contribute significantly to lessening tension and increasing mutual trust.

Accepting a new status quo would generate the dynamics that enable the resolution of many other, more pragmatic, and less passionate issues to build mutual trust and achieve a comprehensive peace in the region.

Alan Baker served as the legal advisor to Israel’s foreign ministry and Israel’s ambassador to Canada. He participated in the negotiation and drafting of the various peace treaties and other agreements between Israel and its neighbors. He presently directs the international law program at the Jerusalem Center for Public Affairs.
This article is an abbreviated version of a paper by Ambassador Baker published in Aug. 2022 by the Jerusalem Center for Public Affairs entitled “The Discriminatory “Status Quo” on Jerusalem’s Temple Mount: An International Law Viewpoint.”