The Israeli Relinquishment of the Temple Mount

Recently I took the position that we must choose our battles and that now was not the time to fight for the right to pray on the Temple Mount. A number of people wrote to me trying to get me to change my mind and sent me a number of articles in support of our right. I replied that none of these articles mention a commitment by Israel to allow the Waqf to determine who can pray there. Where upon he sent me Article 9 of the Peace Treaty between Jordan and Israel signed in 1994 which included the provision

“The parties will act together to promote interfaith relations among the three monotheistic religions with the aim of working towards religious understanding, moral commitment, freedom of religious worship, and tolerance and peace.

” So I dug further.

One lawyer wrote

:”Challenges have been brought in court against the prohibition of Jewish prayer and the courts have ruled that prayer is permissable but have allowed the police discretion to deny Jews that right in the interest of maintaining the peace. That, of course, means allowing masses of people behaving criminally to override the legal rights of others. It makes rule of law subject to the agreement of violent criminals. In any case, I know of not such formal relinquishment of Jewish right.”.

Arlene Kushner reminded me that the genesis of the prohibition originates with Moshe Dayan. So I dug further and came up with this JCPA acticle. It is the first of a number of articles explaining the Al-Aksa is in danger libel.

JCPA

Taking all this into account, the claim that the state and its institutions have formulated a plot to destroy the Temple Mount mosques, and establish the Third Temple in their stead, is absurd and invalid. The State of Israel has indeed adhered to the Jewish heritage, honors Jewish history, and sees itself as committed to its ancient roots, a context in which the Temple Mount and the Temple are central. Regarding the mount, however, this involves an ideological and spiritual heritage, not a practical one; a profound bond and commitment, but only on the level of consciousness. At the same time, the State of Israel does just about everything, in both its statements and its actions, to make clear that it has no intentions of building the Third Temple or destroying the Temple Mount mosques. All this has in no way prevented the many-faceted “Al-Aksa is in danger” libel from developing and taking hold of the imaginations and hearts of tens of millions of Muslims.

The most relevant factual basis for disproving the “Al-Aksa is in danger” libel is, as noted, the de facto Israeli relinquishment of the Temple Mount, for which I could find no precedent in any other country or religion. The birthfather of this relinquishment, which for years has been called “the status quo on the Temple Mount,” was Moshe Dayan, who served as Israeli defense minister during the Six-Day War. The thrilling liberation of the Western Wall and the Temple Mount was documented in detail in dozens of publications that appeared after the war. Even the cry of paratroop commander Mordechai Gur into his field radio – “The Temple Mount is in our hands!” – entered the pantheon of national symbols of the State of Israel. And yet, the reality that Israel devised on the Temple Mount, and the heavy limitations it imposed on itself there, were very far from the euphoria of the liberation itself and the overwhelming encounter with the place where the two Temples of the Jewish people had stood in the past, long the focal point of its spiritual life.

After the Six-Day War, the reality that Israel devised on the Temple Mount, and the heavy limitations it imposed on itself there, contravened in many ways everything that believing Jews pray for every day.

The reality that the State of Israel created at the site indeed contravened in many ways everything that believing Jews, keepers of the Torah and the commandments, pray for and mention in their prayers every day: “that the Temple be rebuilt speedily in our days….And there we will serve You in reverence, as in the days of old and as in former years.”(1)

Dayan’s first act on the Temple Mount, only a few hours after IDF Chief Rabbi Shlomo Goren blew the shofar and gave the Shehecheyanu blessing beside the Western Wall, was to immediately remove the Israeli flag that the paratroopers had raised on the mount.(2)

Dayan’s second act was to clear out the paratroop company that was supposed to remain permanently stationed in the northern part of the mount. Dayan rejected the insistent pleas of the head of Central Command, Uzi Narkiss, who tried to prevent him from taking this measure. Narkiss reminded Dayan that Jordan, too, had stationed a military contingent on the mount to maintain order, and that long ago the Romans had done the same, deploying a garrison force in the Antonia Fortress that Herod had built near the mount. But Dayan was not persuaded. He told Narkiss that it seemed to him the place would have to be left in the hands of the Muslim guards.(3)

Despite harsh criticism from religious and nationalist circles,(4) Dayan, just a few hours after his first public announcement to the Israeli people about the holy places and particularly the Temple Mount, succinctly stated: “We have returned to the holiest of our places, never to be parted from them again….We did not come to conquer the sacred sites of others or to restrict their religious rights, but rather to ensure the integrity of the city and to live in it with others in fraternity.”(5)

Here Dayan behaved as the successor of David Ben-Gurion, who already during the War of Independence in July 1948, when it appeared that the Jewish forces were about to conquer the Old City, ordered David Shaltiel, Haganah commander in Jerusalem, to “prepare a special force, loyal and disciplined…that will use without mercy a machinegun against any Jew who tries to rob or desecrate a holy place, Christian or Muslim.” Ben-Gurion also recommended that Shaltiel
mine the entrances to the holy places so as to prevent harm to them.(6)

Nineteen years later, a few hours after Dayan’s decision, he summoned Prime Minister Levi Eshkol and the heads of the religious communities, and promised them that the places that were holy to them would not be harmed. Eshkol, for his part, announced to the chief rabbis of Israel that they would be responsible for arrangements in the vicinity of the Western Wall, and promised the religious leaders of the Christian and Muslim communities that they would continue to determine the arrangements at the places holy to them: the Church of the Holy Sepulchre and the Temple Mount.

Moshe Dayan’s most significant act on the Temple Mount, which was widely criticized, was to forbid Jewish prayer there, unlike the arrangements at the Machpelah Cave in Hebron where there is also a functioning mosque.

Dayan’s most significant act on the Temple Mount, which sparked controversy over the years and was widely criticized, was to forbid Jewish prayer and worship there, unlike the arrangements that emerged at the Machpelah Cave in Hebron where there is also a functioning mosque.(7) Dayan decided to leave the mount and its management in the hands of the Muslim Wakf, while at the same time insisting that Jews would be able to visit it (but not pray at it!) without restriction. Dayan thought, and years later even committed the thought to writing, that since for Muslims the mount is a “Muslim prayer mosque” while for Jews it is no more than “a historical site of commemoration of the past…one should not hinder the Arabs from behaving there as they now do.”(8) The Israeli defense minister believed that Islam must be allowed to express its religious sovereignty – as opposed to national sovereignty – over the mount; that the Arab-Israeli conflict must be kept on the territorial-national level; and that the potential for a conflict between the Jewish religion and the Muslim religion must be removed. In granting Jews the right to visit the mount, Dayan sought to placate the Jewish demands for worship and sovereignty there. In giving religious sovereignty over the mount to the Muslims, he believed he was defusing the site as a center of Palestinian nationalism.(9)

The basic elements of the status quo that Dayan designed on the Temple Mount have remained the same up to the present. Despite countless attempts by Jews to pray on the mount, the state has upheld the prohibition on Jewish prayer there. According to the Protection of Holy Places Law (1967), the religious affairs minister is indeed authorized to exercise his power and lay down regulations for Jewish and Muslim prayer on the mount; but those who have held this post have avoided doing so, conforming with the governmental decree. The Supreme Court as well, to which Jews have appealed numerous times to change this policy and allow Jews to pray at their holiest of places, has backed the government’s policy for considerations of “maintaining order and public security.” The court has determined that the right to pray is not enforceable without regulations, and that implementing the right without such regulations would pose a grave danger to public peace.(10) In its ruling in the case of The Temple Mount Faithful(11) v. Tzahi Hanegbi (the internal security minister at the time),(12) the court clarified that
every Jew has the right to ascend the Temple Mount, to pray on it, and to commune with his Creator. That is part of the freedom of religious worship; that is part of the freedom of expression. At the same time, this right, like other basic rights, is not an absolute right, and in a place at which the likelihood of damage to the public peace and even to human life is almost certain – this can justify limiting the freedom of religious worship and also limiting the freedom of expression.(13)

June 1967. Defense Minister Moshe Dayan announces to the Wakf and the heads of the Supreme Muslim Council that they will be able to administer the compound themselves, while the Jews will be able to visit but not pray there. (courtesy of Schocken Books)

Even the rabbinical establishment has long assented to this policy de facto for its own reasons, which are rooted in Halakhah (Jewish religious law). The prohibition on Jews entering the Temple Mount is anchored in the Halakhic status of Jews in our times, who are regarded as “defiled by contact with the dead.”(14) At present, unlike in ancient times, there is no possibility of being purified from this defilement. Not all the rabbis have agreed with this prohibition, and recent years have seen a great increase in the number of rabbis who have changed their stance and permitted Jews to enter the mount. At the same time, the Israeli Chief Rabbinate, which is the decisive institutional actor when it comes to Halakhah, has so far stuck to its position that Jews may not enter the mount.(15) Almost all the adjudicators in the haredi (ultra-Orthodox) world think the same,(16) and so do many of the leading religious-Zionist adjudicators.

An even wider consensus is embodied in the almost comprehensive Halakhic ruling that it is forbidden at present to build the Third Temple, for which Jews yearn in their prayers. This opinion is common to both rabbis who now permit entry to the Temple Mount and those who prohibit it. The rabbis categorically forbid building the Temple, whether the proposal entails building it in place of the mosques or within the mount compound but without harming them. The possibility of building the Temple is negated for several reasons; the main ones are:

1. The view that building the Temple will be allowed only with the coming of the Messiah.

2. Many believe that the Third Temple will not be built in human times but will descend, complete, from the heavens.

3. A good many more view the contemporary generation as lacking a sufficient level of spirituality, purity, and maturity to be worthy of the Temple.

4. The Halakhic obstacle to the entry of Jews to the Mount, and the absence of the “red heifer,” whose ash, according to Jewish sources, served in ancient times to purify Jews defiled by death.

5. The fear of an interreligious clash between Islam and Judaism involving harm to Jews and Jewish religious targets all over the world.

Seemingly, the logic of many Halakhic adjudicators concerning the Temple Mount over the years was summed up by the former deputy president of the Israel Supreme Court, Menachem Elon, in his ruling on The Temple Mount Faithful v. the Attorney-General. Elon explained that “this special attitude in the world of Judaism, that the more sacred the place or the issue is, there is a special duty not to draw near to it or enter it, does not entail distancing or avoidance but, rather, nearness and veneration.” He also quoted statements in this spirit by Rabbi Avraham Yitzchak Hacohen Kook, who discussed the issue of the Temple and the Temple Mount at length.(17) Similar words were written more recently by Rabbi Shlomo Aviner, head of the Ateret Cohanim yeshiva, in his book Shalhevetya: “Our ownership and our belonging are revealed in the fact that we do not approach this place, and our national genius is evident in the fact that we show the whole world that: there is a place that we do not enter…the distance does not separate. On the contrary –
it connects.”(18)

For his part, Rabbi Yuval Sherlo, head of the hesder (combining military service and religious study) yeshiva in Petah Tikva and one of the leading rabbis of religious Zionism, takes a more complex position. Like hundreds of other Zionist rabbis, Sherlo advocates Jewish prayer on the Temple Mount(19) but does not countenance harming the mosques. He recognizes the value of the mount and is not prepared to relinquish the Jewish connection to it, while also appreciating the obstacles to fully realizing that connection. Sherlo is in favor of studying the issues of holiness and the Temple, and of “internalizing the constant feeling that something is lacking for us,” but he also emphasizes that “the building of the Temple begins at a different place” – from the standpoint of “I will build a Temple in my heart, a place for doing justice, charity, morality, and law between a man and his fellow and amending the world and society.”(20)

Over the years the State of Israel has adhered—mainly with the help of its security mechanisms, the Shin Bet (Israel Security Agency) and the police—to Dayan’s status quo. Furthermore, Israel initiated or accepted two major changes on the Temple Mount, to the benefit of the Muslim side.

First, notwithstanding Dayan’s original decision, for many years the police have not allowed free entry by Jews to the Temple Mount, even for mere visits. The police restrict the number of Jews, particularly religious Jews, who can enter. Only a few dozen religious Jews are allowed to be there at once, and they are shadowed by Wakf guards and policemen who keep an eye on them, check their belongings to make sure they have not “smuggled” onto the mount a tallit (prayer shawl), tefillin (phylacteries), or prayer book, while warily ascertaining that their lips are not moving in prayer.(21) Only after such a contingent of religious Jews has left is another group of a few dozen allowed to enter. The hours of entry for Jews to the mount are also restricted and meager, and in times of riots and tensions the site is closed to them altogether.(22)

Second, in the mid-1990s two large underground recesses on the Temple Mount were modified, greatly expanding the area available for Muslim prayer: the underground recess at the southeastern corner of the mount, which is called Solomon’s Stables (for the Muslims, the Al-Marwani Mosque), and the recess under the Al-Aksa Mosque, which is called Ancient Al-Aksa.

The archeological management of the Temple Mount is also carried out under difficult limitations. These stem from the Wakf’s position that it is the sovereign, the ruler, and the decision-maker for the site. The State of Israel shows deference toward this position even though officially it does not agree with it. For example, there were years in which archeological management was not permitted at all. Quite often, rehabilitation, renovation, and building work on the mount is performed (in coordination with the Israeli government) by foreign governments and bodies, such as Jordan or Egypt, while the State of Israel “tiptoes” around these projects. In the 1994 peace treaty with Jordan, the Israeli government also recognized Jordan’s future senior status regarding the Muslim holy places in Jerusalem including the mount (Al-Haram al-Sharif), at such time as peace treaties and final status agreements will be signed with the rest of the Arab world.

The fact that the official and actual policy of the State of Israel leaves the management of the Temple Mount in the hands of the Muslim Wakf is not recognized in the Muslim world today.

The fact that the official and actual policy of the State of Israel, as embodied in decisions of the Chief Rabbinical Council, the government, and the Supreme Court, leaves the management of the Temple Mount in the hands of the Muslim Wakf is not recognized in the Muslim world today. On the contrary, Palestinian and Muslim elements portray the activities of nongovernmental and nonmainstream Jewish elements, some of them extreme and marginal, who seek an immediate renewal of Temple worship and even the destruction of the mosques, as reflecting the official and actual position of the State of Israel.(23)

The reality, of course, is different. The State of Israel acts to foil such plans. Over the years extreme, nonofficial Jewish elements have tried to damage the Temple Mount and its mosques, and Muslim extremists have made use of it for purposes of terror and incitement. These attempts have been thwarted by the iron hand of the Israeli security authorities: the police, the Shin Bet, and the Mossad. It is only this overall security responsibility for the site that the State of Israel has maintained exclusively.(24) Nevertheless, all keys to the gates of the Temple Mount compound, except for the Mughrabi Gate (on its western side), are exclusively in the hands of the Wakf. Only the keys to the Mughrabi Gate are held jointly by the Wakf and Israel, with each side having a copy.

Israel has also passed the Protection of Holy Places Law. It stipulates that these places will be protected against desecration and any other harm, and against anything that could detract from the different religions’ freedom of access to these places, or injure feelings connected to them. The punishments for transgressors are severe: seven years in prison for whoever desecrates a holy place, five years in prison for “whosoever does anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.”