The Cemetery Has No Sanctity

Why is the Al Aqsa Society suddenly complaining about the establishment of the Museum of Tolerance on a Muslim burial site, when in 1964 the Sharia court of appeals ruled that the sanctity of the same site should be lifted to allow the Independence Park to be built there?

In an article called "The hypocrisy of tolerance," from February 9, Meron Benvenisti joined the Muslim chorus protesting against the construction of the Museum of Tolerance in the Mamilla Quarter in Jerusalem on the grounds that it is being built on a cemetery. Among other things, he determines that Muslim clergy arguments contradicting the Jewish-Israeli expert's ruling that the sanctity of the spot had been lifted, were "rejected with contempt."

I am the expert, and my opinion on behalf of the museum was delivered to the High Court of Justice in response to a petition by the Al Aqsa society against construction of the museum.

I did not contemptuously reject arguments by learned Muslim clergy, but actually relied on the actions and rulings of Haj Amin Husseini, the supreme Muslim authority at the time of the British Mandate, responsible for the management of the Islamic Waqf's property with regard to cemeteries. Indeed, there was a cemetery at the site but 75 years ago, its sanctification was lifted and purpose changed.

In 1927, the Supreme Muslim Council, headed by the mufti, built the Palace inside the cemetery. As Benvenisti himself wrote in his book City of Stone, the mufti ruled that there should be no more burials there, and even ordered skeletons found at the site moved to another burial ground.

According to the 14th century Muslim wise man, The Great Hanafi Faher al-din al-Zilai, "if the corpse has disintegrated and become soil - it is permissible to sow seeds and build on it."

The last great Hanafi, Mohammed Amin Ibn Abadein, who was mufti of Damascus in the 19th century, also ruled the same. That judgment set the position of the Hanafi school that determines Muslim law in the Land of Israel. An explicit expression of this appears in Ottoman law and is quoted in many Israeli legal rulings as the "determining ruling" in Muslim law.

True, according to a number of religious rulings by Sheikh Ahmed Natur, the current president of the Sharia court of appeals, it is impossible to remove the sanctity of a cemetery and change its purpose and they are eternally cemeteries, but those rulings don't fit with previous rulings. In any case, Sheikh Natur's rulings cannot change the fact that it has been decades since the site's sanctity was lifted, its purpose as a cemetery changed and the supreme religious Muslim authorities have allowed construction on it.

In 1946, the Supreme Muslim Council and the Supreme Arab Council decided to build the Arab league headquarters on the eastern flanks of the cemetery. Lacking resources, the plan was never fulfilled, but other public buildings did go up. In 1964, then-Jerusalem mayor Mordechai Ish-Shalom asked the Qadi of Jaffa and the chairman of the Sharia court of appeals, Sheikh Haher Hamad, to lift the sanctity of the cemetery in Mamilla to enable the city to establish a park there. The mayor proposed that part of the cemetery be preserved as an historic monument.

The Sharia court responded to the request and ruled that "the Mamilla Cemetery in Jerusalem is cemetery that is mondris" (abandoned), and that "its sanctity ceased to exist and since such sanctity is not eternal, and not like the sanctity of Muslim mosques - it is permissible to do on abandoned cemeteries what is allowed on any other land that never was a cemetery."

Nobody appealed the decision and it was final. In its wake, the city turned most of the area of the cemetery into a public park that became known as Independence Park. On its southern side, parallel to Rehov Agron, the city left part of the cemetery as it promised, and it exists there to this day. In the early 1970s, the city made the northern pat of the park into a public city parking lot, and that is where the Museum of Tolerance is being built.

Against this background, the opposition to the construction of the Museum of Tolerance on the cemetery is odd. If in 1964 the Sharia court of appeals ruled that Independence Park could be built in the area of the cemetery, why suddenly complain about the establishment of a museum on the site, 41 years later?

The write is a lawyer specializing in holy sites in Israel and the territories.