It is not every day that the justices of the High Court of Justice are called to hear petitions from a volunteer organization like the Committee to Prevent the Destruction of Antiquities on the Temple Mount, among whose members are three retired senior justices: former Supreme Court presidents Meir Shamgar and Moshe Landau and former Supreme Court Vice President Miriam Ben-Porat. The three made sure they were not listed personally as appellants. Nevertheless they belong to the committee, which is the primary appellant against the state in the complex and delicate matter of Muslim burials in one of the most sensitive places in Israel - the slopes of the southeastern wall of the Temple Mount (outside the bounds of the Mount).
The other 17 appellants, who are also committee members and who did not keep their names off the list, are from the elite of Israeli society. They include the writers A.B. Yehoshua and S. Yizhar; Prof. Avi Ravitzky; former Chief of Staff Dan Shomron and former Mossad chiefs Zvi Zamir and Yitzhak Hofi; archeologists Prof. Ehud Netzer, Prof. Roni Reich, Prof. Efraim Stern (the head of the Antiquities Authority's Archeology Council), Prof. Eliezer Oren (his deputy), Dr. Gabi Barkai and Dr. Eilat Mazar. This list of luminaries ends with attorney Dr. Shmuel Berkowitz, an internationally renowned expert on holy sites in Israel who even filed an appeal on behalf of the committee.
In the opinion of the archeologists who appealed to the court, the area that is the subject of the appeal - approximately 2,000 sq. meters that are part of the Ophel Road - contains the best-preserved ancient ruins in Israel. The original construction of the eastern wall of the Temple Mount from the period of King Herod has been preserved, along with even older construction: an ancient, vertical line clearly demarcates two types of construction near the juncture of the eastern and southern walls: the northern, apparently from the Hasmonean period, and the southern, from Herod's era.
Charles Warren, who over 140 years ago excavated vertical shafts and tunnels in the area, discovered that the cornerstones of the five lower support collars were built into a layer of red earth containing shards dating from the First Temple period. The first lamelekh ["to the king"] ring seals found in the Land of Israel were discovered in this red earth. These are official seals embossed on the handles of jugs from the time of King Hezekiah of Judea (late eighth century, B.C.E.). Near the corner of the walls of the Temple Mount, Warren also found the first clay vessel from the First Temple period that was discovered in Eretz Yisrael. During the period of Jordanian rule, archeologist Kathleen Kenyon and Father Roland De Vaux uncovered six support columns from the stones of the eastern wall that had been previously concealed. Barkai notes that in 1967 the Israeli government declared the area a national park in recognition of the importance of the shards there and that the area adjacent to the east of the southeastern wall of the Temple Mount is a key site for finding the ancient remnants of the Temple Mount.
"The continued construction of graves adjacent to and in the vicinity of the eastern wall hides the ancient and important shards and damages them," Barkai wrote. "It prevents an unmediated overview of the early remnants of building, among the most important ones in the world. More important, it blocks any possibility of future archeological excavations to uncover ancient ruins on the site." Barkai and his archeologist colleagues note that based on the information gathered by Warren, the site represents a rare point of contact between Second Temple period construction and earlier ruins from the First Temple period. They warn that Muslim burials at a site that never served as a cemetery may preclude any further excavation at the site, citing as a precedent the situation on the slopes of the southern wall and along the slopes of part of the western wall.
Mazar, Reich and Netzer signed their names to a similar opinion. The state, which approves the majority of works included in the appeal, refrained from enforcing the law at the site due to fears of "riots of one degree or another," as Jerusalem District Police commander Ilan Franco explained to the High Court. The Antiquities Authority has its hands tied in the area, since all of its activities there are subject to political directives.
The area in question is an 800-meter-long plot that abuts the eastern wall of the Temple Mount and is parallel to it. Two Muslim cemeteries occupy a 650-meter segment of it to the north and south of the Lions' Gate and the Golden Gate - al-Yussufiya and Bab al-Rahma, respectively. An old fence surrounds the southern edge of the Bab al-Rahma cemetery. The disputed area lies between this fence and the southeastern corner of the Temple Mount wall: it is approximately 80 meters by 25 meters. It is part of the Ophel Road, which never served previously as a cemetery. Muslim Arabs began several years ago burying their dead in this area, which is legally defined as an antiquities site and part of the national park. According to the police, 21 people have been buried there and another 39 graves have been dug. The police say there are an additional 35 burial plots that may or may not contain bodies. The committee, on the other hand, claims that only 15 people have been buried there so far, with another few dozen plots marked off and other plots with gravestones.
The committee's appeal was preceded by another appeal in the same matter, submitted by right-wing activist Aryeh Koenig. Koenig's own investigation revealed that the mukhtar of Silwan and two other men are offering burial plots to any buyer for NIS 2,500 each. He says the police are not preventing burial at the site, preferring instead to negotiate with the supposed owners of the plots to decrease the height of the tombstones.
Koenig submitted a deposition to the High Court declaring that he had personally purchased two plots in the cemetery from the Silwan mukhtar via an Arab intermediary.
The justices decided to combine Koenig's appeal with that of the committee. The committee, which is apolitical and whose stated objective is "a desire to prevent damage to the antiquities on the Temple Mount, which are a universal cultural and scientific asset and sacred to the three major religions," felt a certain discomfort with this imposed partnership, but in light of the "unprecedented importance of the matter," decided not to separate from the co-appellants.
Attorney Shmuel Berkowitz, the author of the book "Milhamot Hamekomot Hakedoshim," (The Wars over the Holy Places) who filed the petition, notes that all parties agreed that the occupied graves constitute only 1.5 percent of the area under review, "and it is inconceivable that a 2,000 sq. meter area would be given up because of some illegal graves in a 30 sq. meter area only." Berkowitz also notes that the Jerusalem municipality, which owns the area, issued an administrative demolition order for two burial structures at the site, but the police, apparently at the instruction of state officials, refrained from carrying it out.
The appeal has already achieved one significant result: the state promised the court that it would prevent burials in the new plots. Policemen have also been posted at the site. However, the state is unwilling to commit to preventing burial in the plots that have already been prepared.
Berkowitz cannot understand this: "If they prevent burials in existing structures there will be rioting but if they prevent new burials there won't be disturbances?" he asks rhetorically. Justice Elyakim Rubinstein raised a similar question. Attorney Yuval Roitman, the Deputy State Prosecutor, wants the High Court to leave the matter to the discretion of the political leadership. He pointed out to the judges that despite the fact that the area is located outside the Temple Mount, funerals there depart from the Temple Mount, "and the level of sensitivity there is very high."
"An interim order and enforcement actions derived from it entail a real risk to public order," says Roitman. In the state's written response to the High Court there is also a commitment to help the Jerusalem municipality "at the appropriate time" to implement the previously issued demolition orders.
Former Mossad chief Zvi Zamir is incensed by the "riots excuse": "There are quite a few precedents from recent years where the state used this explanation to evade its obligation to enforce the law. The State of Israel is today the ruler on the Mount and it is incumbent upon it to enforce the law there. This can be done wisely and without getting into a confrontation and escalation. It need not necessarily be with force, but it is impossible to act with abandon here and that is what has happened there in recent years too many times," Zamir said. "The desire to maintain quiet on the Temple Mount is understandable, and it must indeed remain a priority of the decision makers, but part of the quiet is built on upholding the law," Zamir continued. "This can be done with the necessary delicacy but also with the decisiveness that is required. The Temple Mount is important not only to us but to all religions and it is our obligation to act there when it is necessary." Similar statements were attached to the petition, from affidavits submitted in the past to the High Court by other security-minded people such as former committee member and current Mossad chief Meir Dagan; former minister of internal security Avigdor Kahalani and former senior Shin Bet official Yaakov Yaniv. They, and especially Kahalani, cited several cases where senior government officials rejected police recommendations to refrain from enforcing the law on the Temple Mount for fear of violent disturbances that in the end did not materialize. They also warn of adopting a pattern of behavior where mere threats from Muslims prevent the authorities from properly enforcing the law.
The matter of the Temple Mount, with all of its complexity, complications and sensitivities, has been perceived until now by the public as the concern of a few, primarily right-wing, religious people and a handful of fanatics, who are either naive or unstable, as the media often labels them. The committee's activities led to a new reality in the public sphere and in effect removed the matter of dealing with the Temple Mount and the surrounding areas from right-wing circles.
Thus, for example, the first open letter on the issue published several years ago was signed by 82 MKs from all Knesset factions, including Meretz. Later, they were joined by writers and even former Jerusalem mayor Teddy Kollek. The committee in effect used the courts to force the authorities to permit the examination of earth dug up from the Temple Mount and the removal from the site of a huge electric saw the Waqf Islamic Religious Trust used to cut ancient stones. It also hastened the repair of hazardous protrusions from the southern and eastern walls of the Temple Mount complex and led to the limiting of the amount of construction materials brought into the site, materials that were used for illegal construction. The writer S. Yizhar, one of the appellants, says that the importance of the appeal and the committee's activities lies in the fact that it is placing the matter on the agenda in order to force the authorities to deal with issues relating to the Temple Mount, which is a concern of all three major religions. The statements that were signed by public personalities such as Prof. Ravitzky and A.B. Yehoshua differ in essence from the wording used by the Temple Mount movements. The committee and its members refer to the need to prevent "archeological crimes, which are unacceptable to any cultured person, irrespective of political stands or ideological positions. This is the case, just as it would be inconceivable to engage in the systematic destruction of other equally important sites around the world, such as the Acropolis in Athens or the Forum in Rome." The High Court justices are exercising caution while also displaying a certain degree of support. They refused to issue an interim order, but they did issue an order nisi instructing the state to give its reasons for the following circumstances by the end of this month: why the graves in the Ophel Road that have been used should not be fenced off; why the empty graves in the area should not be razed immediately and all the signs indicating that certain plots on the route belong to Muslim families and will be used for burials in the future should not be removed; why the people who sold the plots and those who dug them and those who buried people in the Ophel complex should not be tried and why the authorities should not oversee the area and maintain it as a national park and antiquities site. They are also recommending that the authorities initiate a dialogue with the committee.