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PRACTICAL STATUS OF THE TEMPLE MOUNT
by Yehuda Etzion
(originally printed Yibane HaMikdash No. 109)
A. CURRENT STATUS
1. THE FACTS
The Islamic Waqaf has controlled the Temple Mount several years, and it is easy to understand his growing self confidence to actually instruct the police as to who can and who cannot enter and who is to be removed. The police always listen and only keep up the appearance that they are running the show. In practice the Israeli Police act as a "service police" to the Islamic Waqaf and act according to his will.
The accords signed between the Israeli government and the PLO have made the Waqaf and integral part of the Palestinian Authority. His boss, Hasan Tahbub, is the Palestinian Minister of Religion, and the P.A. has even appointed a new Mufti, Akrama Sabri, who has pushed out the Jordanian Mufti, and the Jordanian control as lessened. Recently, Arafat has announced that he will soon appoint Hamas supporters in the Waqaf's office.
A serious breach of the Oslo Accords has thus been committed. "Government offices" of the P.A. act in the heart of Jerusalem, in the offices at the Majlis Gate of the Temple Mount. The Israel government accepts this "as a matter of sensitivity", and the Supreme Court, as an institutional stance, refused to give an opinion.
To sum it up, the Temple Mount stands today as a mini Palestinian State within Israel with the support of Israeli government and its security forces.
The Freedom To Visit
At all the gates there are "joint guard posts" of Waqaf agents and the police. (Many of the police on the Temple Mount are also Arabs, neighbors and friends of the Waqaf.) Moslems are given free entrance from all gates and are generally not checked. Tourists generally only enter via the Mugrabi Gate and are given a "light inspection".
Religious Jews are never allowed to enter the other nine gates. There they are rigorously checked and asked to present their identity cards, and they wait, sometimes a long time, until the joint patrols are free to escort them. They are only allowed to enter as individuals or in pairs, and Jews can almost never walk in groups.
The police justify the tight guard for security reasons, as if they are guarding those entering. The real intention, however, is to ensure that they do no pray on the Temple Mount.
The hours the Mount is open of non-Moslem visitors are set by the Islamic Waqaf. While Moslems can enter any time, the Mount is open to Jews, with the above restrictions, only in the morning and two hours in the afternoon.
The Freedom to Worship
There is no freedom of worship on the Temple Mount. There is a vigorous suppression of any attempt by a Jew to pray. If one even mutters on his or her lips or stops walking to concentrate, he or she will be threatened and dragged away, in order to keep order and to tear the prayer. The Waqaf people will also yell at the policemen who will always deal with the "criminal" and kick him or her off the Mount and often arrest him or her. He or she will later have to stand trial for "Improper Conduct in a Public Area" and additional false accusations. Several of these worshipers are already in judicial proceedings.
Serious complaints have been filed and are documented with photographs. The Waqaf people are of course not dealt with, as they have immunity as sovereign rulers of the Temple Mount. Therefore, the violent behavior is "legitimate", even thought there excessive force has sent many people ascending the Temple Mount to intensive care in a hospital!
2. LAW AND GOVERNMENT
Although "Freedom of Worship" is not explicitly mentioned in either the Law of Protection of Holy Places in 1967 or the Basic Law "Jerusalem is the Capital of Israel", it is definitely implied. The Basic Law of "Human Dignity and Freedom" creates a legal status preventing the government from infringing on freedom of movement and freedom of worship.
Thank G-d, there is no law on the books explicitly forbidding prayer on the Temple Mount.
The Supreme Court has often ruled that the right to pray is a recognized, central, and important human right. Recently, (in a response to a query by the Temple Mount Faithful) they ruled that this right is a "right of first order, a LEGAL RIGHT". The trouble is that the Supreme Court has left the actualization of this right up to the discretion of those exercising authority, in this case the government and police, who "run away" from carrying out the law as if they are under fire...
The legal status remains cloudy. The government has the ability and the authority to immediately allow prayer. There is no need for any new legislation, but the government abstains fromr action and provides three justifications.
1. Fear of disrupting public tranquility by Moslem opposition.
2. A government decision from 1967 (no. 761) which prohibited Rav Goren from making a minyan.
3. A series of decisions which presumably uphold its authority.
This legal "cloud" causes almost daily confrontation between would-be worshipers and the police, who act brutally, even though there has been no legislation and no general government decision prohibiting Jews from praying on the Temple Mount.
Another issue is the legal authority of the Waqaf. He has no standing in the open territories of the Temple Mount, as opposed to the Islamic mosques. This is the position that the Supreme Court has decided in several rulings, and this is the position of the State of Israel and the Municipality of Jerusalem (in their affidavits to the Supreme Court).
The Waqaf himself, however, claims that the entire Temple Mount is an "Islamic mosque", and the police support this de-facto even though there is no legal backing for the Waqaf's position.
B. WHAT NEEDS TO BE DONE
Surprisingly, no new legislation is needed.
The government decision was ad-hoc, a one-time decision that forbade Rav Goren, by Moshe Dayan's request, to conduct services on the Temple Mount on the "Shabbat Nachamu" after the liberation of Jerusalem. In the protocol, it is well emphasized that this is not a permanent prohibition for Jews to pray on the Temple Mount, only in this specific situation. (The documentation of the cabinet meeting can be found in Nadav Shragai's book, "Har HaMeriva" pages 31, 37-38.)
A series of decisions by the Supreme Court provide an excellent base for a government decision to allow prayer. There are two sides to the coin. Just as previous governments have exercised their authority to forbid prayer, this government could exercise its authority and allow prayer. As we said, the legal foundation has already been laid by the Supreme Court, and all that is needed is to accept the challenge of ending the policy of evasion and oversight.
THEREFORE, THE MINISTER OF RELIGION IN THE NEW GOVERNMENT SHOULD DO TWO COMPLIMENTARY ACTIONS.
1. HE SHOULD INCLUDE THE TEMPLE MOUNT IN THE LIST OF HOLY PLACES ACCORDING TO THE "LAW OF HOLY PLACES". (Currently, other than the Western Wall, only grave sights are on the list.)
2. HE SHOULD TAKE THE NECESSARY STEPS TO ORGANIZE JEWISH PRAYER ON THE TEMPLE MOUNT.
The government's failure to do so has been used by the police as an excuse for the refusal to allow prayer, and the lack of action was of course part of their calculated policy.
2. IMMEDIATE CHANGE OF STATUS
It is clear that the police and GSS will scare the new government and Prime Minister with warnings of "boiling territory" and a "general Islamic uprising" against allowing Jewish prayer. The submission of the government all these years has increased the chutzpah of the Moslems, and they have complicated the situation more and more. I suggest a quick series of decisions, which will broadcast confidence and non-submission to panic. The security forces will have to adapt to the new government, and they will succeed.
Additionally, the police must be instructed to stop being the Waqaf's subjects, and to deal with all wildness and interference, and to implement the following policy:
1. Increase the hours that the Temple Mount is open to Jews.
2. Allow and secure Jewish groups to enter from all gates, even if they are wearing a kippa.
3. Remove the Waqaf's "guards" from all gates and place only policemen there. The Waqaf's people must only be allowed to continue to standing in the mosques and by their entrances.
4. Groups should be accompanied by police and not by the Waqaf's people.
5. Individual Jews wearing tallit and tefillin should be allowed to pray where they wish, except near the entrance to mosques, so as not to disturb the Moslems from entering and leaving.
6. Groups wishing to pray in a minyan (quorum of ten Jewish men) will be brought to a designated area. The recommended area is on the south- eastern section, near the HaShevatim Gate, near the Eastern Wall. This place will no interfere with Moslems from entering the Temple Mount, and it fits halachic (Jewish Law) specifications. (Rav Yitzchak Shilat's ruling in "Techumin", volume 7, "Building a Synagogue on the Temple Mount")
This arrangement of separate prayer areas will be essentially a copy of the separation-arrangement which was recently implemented in the Cave of the Patriarchs, recommended by the Shamgar Commission. Since the Temple Mount is much bigger than the Cave of the Patriarchs, it is technically easier to implement.
C. THE FUTURE
In this north-eastern area, building a synagogue should be considered, in order to enable reading the Torah and prayer also in the winter.
Since this article deals with immediate changes for the new government, there is no need to go into details about building a synagogue, and it will be left as a future goal.