The prolonged and tangled court proceedings began at the beginning of 2006, when the Al-Aqsa Corporation, founded by the northern branch of the Islamic Movement in Israel, filed a petition seeking to stop work at the site.

The president of the Supreme Court at the time, Justice Aharon Barak, issued an interim injunction and sent the sides to mediation, which ultimately failed.

In its petition, the Islamic Movement claimed that the cemetery was sacred and that building on it would be an affront to the sensitivities of the Muslim public in Israel. A large group of organizations that promote Jewish-Arab relations signed on as supporters of the petition. Approval of the museum’s construction, they said, was liable to trigger violence.

Among those who opposed the museum’s construction and submitted opinions to that effect to the High Court of Justice were Prof. Shimon Shamir, an expert on Middle Eastern affairs, Israel Prize laureate Prof. Yehoshua Ben-Arieh and the Arab affairs adviser under former Jerusalem mayor Teddy Kollek, Amir Cheshin.

Ben-Arieh had previously told Haaretz: “Building the museum will create an irreversible situation whose damage will be felt for generations − a basis for criticizing Israel’s attitude toward the cemeteries and holy sites of the members of other communities.”

The respondents to the petition, the Simon Wiesenthal Center and the SWC Museum Corporation − established by the center to advance the museum’s construction − enlisted a group of top-notch attorneys to defend the project, among them Eli Zohar and Renato Jarach.

They conducted a campaign on all fronts, enlisting experts on Islamic theology and on the Israeli public, and the services of two of the top PR offices in Israel. One of those involved was private investigator Meir Palevsky, who was tasked with following northern movement leader Sheikh Ra’ad Salah in order to try and anticipate his future actions.

Palevsky said that he signed a confidentiality agreement that does not allow him to talk about the matter.

The respondents vehemently rejected the petitioners’ arguments. To begin with, the center’s representatives maintained, the Islamic Movement should have acted much earlier, when the project was still in the planning and authorization stages. Second, they claimed that the cemetery’s sanctity had been declared null by Jerusalem’s Muslim religious authority back during the British Mandate period.

Both sides recruited experts on Islamic law theology to speak on the cemetery’s status. The SWC mobilized no less a personage than the late Haj Amin al-Husseini, the notorious grand mufti of Jerusalem during the Mandate era. The mufti, the center maintained, had authorized the construction of the Palace Hotel on the cemetery grounds in 1928.

The point the SWC lawyers were trying to make was that the petition against the museum was politically motivated and intended to excoriate the Zionist government, and that the cemetery no longer held any religious significance.

The unbending attitude of Salah, who spearheaded the petition, and his refusal to accede to any compromise proposals, helped the SWC’s argument that the petition was basically politically motivated.

“Since the petition is based wholly on the argument that the site is a cemetery, and since we have shown that the site in question is not a cemetery in any manner, not even according to Muslim law, these are sufficient grounds to reject the petition,” the SWC wrote in its submission to the court.

Another important argument put forward by the SWC was that it is unreasonable to think that today, after 40 years of the site’s having functioned as a parking lot, the cemetery could be reconstructed. It followed that the Islamic Movement’s demand was absurd, and nowhere more so than in Jerusalem, where numberless skeletons lie buried beneath the ground.

Subsequently, the SWC suggested three possible ways it might remove the remains from the museum site. The first sounded almost like something out of science fiction: digging around the skeletons, freezing the ground by introducing a special cooling agent into the soil and then reinterring each individual set of remains, together with the surrounding block of earth, in an alternate grave.

The second suggestion was to surround each skeleton with a wooden construction that would prevent it from breaking apart while it was being moved. The third and final idea was to simply dig out the skeletons and remove them in pieces for reburial.
The last idea was supported in an opinion submitted by archaeologist Dr. Alon Shavit, who would be leading the excavation project.

Dueling reports

The most important − and contentious − document submitted to the High Court was the opinion drawn up by the Israel Antiquities Authority concerning the condition of the site.
This document raises many questions about the the IAA’s conduct in the affair. After archaeologist Gideon Sulimani left the first stage of excavations, in 2005, he wrote a report in which he noted that the work at the site was far from complete. “The excavation was not completed in most of the excavation area, other than in parts of areas A1 and A2, and the area cannot be reconstructed without the completion of the excavations,” Sulimani wrote in the conclusion to his report, adding: “All told, about 250 remains of bodies were dug up from approximately 200 graves .... Another 200 graves were uncovered which were not excavated. Based on our understanding of the layers of burial, our assessment is that there are all told almost 1,000 graves in the area of the project.”
Instead of Sulimani’s report, the IAA submitted a “supplementary notice” that diverges greatly from the report, to put it mildly. The IAA notice played down the number of human remains at the site and of its overall archaeological importance, paving the way for the release of most of the area to the project’s developers, even though it had not been fully excavated.

The IAA − which by law can require a professional archaeological “rescue” excavation, at the developers’ expense, of a site where there are signs of antiquities − divided the area into a number of sections. The first section, according to the notice submitted to the High Court, was completely cleared; in the second section “only a few dozen graves remained,” the IAA report stated; and in the third section, known as the “purple area,” graves remained, “but the required scientific data were extracted and the area is released for construction on condition that there be no subterranean penetration.”

Sulimani maintains that the IAA submitted a false report to the court. The IAA says that the excavation was ultimately carried out in accordance with Sulimani’s original approach. According to Sulimani, many graves remained even in the areas that the IAA marked as having been completely excavated.

No one informed Sulimani about the change in the IAA’s position; he discovered it while reading the judgment on the Internet. “I was shocked to read it,” Sulimani said in a newspaper interview. “I feel that the IAA betrayed me, betrayed the profession. My feeling is that they threw out all the professional work that I and the excavators did in Mamilla.”
The Museum of Tolerance episode was only the first in a series of disputes between Sulimani and his superiors in the IAA, which ultimately led to his resignation. He is not currently working as an archaeologist.

Prof. Rafi Greenberg, from the Institute of Archaeology at Tel Aviv University, wrote a sharply worded report for the petitioners about the disparities between the Sulimani report and the supplementary notice submitted by the IAA. He noted, among other points, that the IAA notice contains “assertions which are on the face of it contrary to the facts” and “an assertion that conflicts with the accepted scientific criteria.”

According to Greenberg, “Most amazing of all is the normative approach of this document,” referring to the IAA notice to the court. “Effectively, the IAA representative changes his tune and speaks like a representative of the project initiators. It is not the duty of the IAA to see to the development of the country and the wellbeing of entrepreneurs. It does not have the right to forgo the respect due archaeology. By doing so it betrays its role and the trust of the public, which, through legislation, vested the IAA with the responsibility to preserve the historical assets of all the country’s residents.”

However, the court rejected the petitioners’ request to consider Greenberg’s opinion, as it was submitted late. The High Court judgment, which it released in October 2008, ascribes critical importance to the IAA report. It can be surmised from a reading of the judgment that if the IAA had submitted Sulimani’s report, the case may have had a different outcome.

Mistaken assumptions

The lengthy judgment, written by Justice Ayala Procaccia, addresses moral questions relating to the legal rights of the dead along with intriguing historical, theological and juridical issues.

Yet a year and a half after it was written, the judgment seems now to have been based on a number of mistaken assumptions. First, the justices had before them an incorrect picture of the state of the remains at the construction site. Procaccia repeatedly uses the term “remnants of tombs,” and it appears that, apart from the “purple area,” the court’s perception, in accordance with the picture presented by the IAA, was that there were hardly any human remains at the site.

Nowhere in the court’s decision is the possibility noted that there were still 1,000 remains of humans buried elsewhere on the site.

“This is a relatively small area in comparison with the total area of the planned structure, [so that] the infringement on the dignity of the dead in this case is of limited scope,” Procaccia wrote.

One element in the judgment that was subsequently rendered immaterial was the importance the court attached to the fact that the building was designed by Frank Gehry. “The design of the museum possesses its own distinctiveness. Designed by one of the greatest architects of our generation, Frank Gehry, it constitutes an artistic-architectural work with a value of its own,” the judgment states.

Accordingly, Procaccia rejected the possibility of modifying the structure to reduce the damage to the graves. Justices Edna Arbel and David Cheshin, the latter of whom held a temporary appointment on the court at the time, concurred with Procaccia in her final decision. Arbel agreed with the final decision, but contrary to its spirit, was critical of the project backers for what she described as their stubbornness.

“It is difficult not to wonder how it is that the bearers of the standard of tolerance did not have the prudence to assign the proper weight to the value of tolerance between peoples and between man and his fellows, together with other considerations and interests,” Arbel wrote, and chose to conclude with the quotations from Haim Gouri’s poem “Current Account”:

And once again, as always in the Land of Israel,
The stones remember.
The earth hides nothing.
The law runs its course.

In practice, the justices decided to allow construction on the majority of the area that had been designated for the museum. With regard to the “purple area,” the court instructed the SWC to carry out bone removal by means of one of the three methods it has proposed: freezing, with wooden frame or manually. They were told to minimize damage to the remains.

The project initiators chose the manual method, and testimonies of the excavators indicate that the directive not to harm the graves was prima facie not followed. The Islamic Movement and other organizations have persisted in their efforts to stop the project by legal means, including an attempt to demonstrate contempt of court and a petition alleging lack of integrity on the part of the IAA. Both attempts were rejected by the High Court.

The last of the human remains was removed in March 2009 and throughout the site the excavators reached bedrock, leaving only final tidying up of the site to be done before construction could commence.

At that stage Rabbi Hier visited the site, accompanied by a group of senior officials from the SWC and by archaeologists. Photographs show Hier, with the archaeologists and donors at his side, smiling − confident of himself and of the future of the museum. In one photo he is holding an ancient shard, in another the fragment of a coin.

But the bulldozers that were supposed to start digging the foundations for the structure failed to show up. And now, in the wake of Gehry’s departure, the SWC board of trustees has decided to redesign the Museum of Tolerance, “to better reflect today’s world economic realities,” as they note on their Web site.

The two and a half year delay caused by the High Court petitions, combined with the world financial crisis, disrupted the flow of donations to the project. The SWC is convinced that it will have no difficulty obtaining the construction permits that will be required for a new design.

Marvin Hier, for his part, continues to exude a sense of determination. “The project is moving forward; we have a fantastic site in the heart of Jerusalem and we can now refocus all of our energies on bringing to Jerusalem and the people of Israel a project of crucial significance to its future,” Hier stated after Gehry’s departure.

The SWC promises to name a new architect this summer, and says that this time it will be an Israeli. In the meantime, the next crisis lurks. The Finance Ministry and Supreme Court President Dorit Beinisch have agreed on the establishment of a new Jerusalem courts complex, planned for the site of the Experimental School, adjacent to the planned Museum of Tolerance. The new structure will house Jerusalem’s district, magistrate’s, transportation and juvenile courts.

According to all assessments, Muslim graves will be found beneath the school, and in particular beneath areas that have never been excavated, such as its athletic areas.
Ruth Cheshin, of the Jerusalem Foundation, who has many Jerusalem construction projects to her credit, wants to see a different future for the site.

“Frank Gehry’s departure is an opportunity to be rid of this project that no one needs,” she says. “It cries out to the heavens that a miracle occurred and Gehry is out of the picture. Is this what Jerusalem needs? Another museum? This city needs quiet, not museums.”