The Controversy of the Museum of Tolerance

Yitzhak Reiter maintains that the High Court has explicitly adopted a chauvinistic Jewish discourse that matches the goals of the Museum of Tolerance.

Mikom Mivtaho shel Allah?

(Allahs Safe Haven? The Controversy Surrounding the Mamilla Cemetery and the Museum of Tolerance: Contesting Domination over the Symbolic and Physical Landscapes), by Yitzhak Reiter

The Jerusalem Institute for Israel Studies (Hebrew, 238 pages)

The story of how a museum meant to inspire tolerance could be planned for construction over a historic Muslim cemetery – the subject of Yitzhak Reiters book – has aroused considerable public interest and has been discussed in a large number of newspaper articles, but the main facts are worth repeating here.

In 1999, the Los Angeles-based Simon Wiesenthal Center commissioned architect Frank Gehry to plan a Museum of Tolerance in Jerusalem that would, according to the center, be a harbinger of human tolerance among nations and between individuals.

The site designated for the museum lies in the northern section of the citys historic Mamilla cemetery, where a municipal parking lot had been operating. Gehry planned an innovative, sculptural museum in the signature style of other buildings he has designed all over the world. A building permit was issued in 2004 and the Wiesenthal Center began work on the foundations.

Hundreds of human skeletons were unearthed during excavations, and the Al-Aqsa Association, founded by the northern branch of Israels Islamic Movement, petitioned the High Court of Justice to issue an interim injunction suspending work on the site. Three families of East Jerusalem notables who said their relatives were buried in the cemetery added their names to the High Court petition, and went to the Muslim sharia (religious) court with a similar request. The sharia court ordered the suspension but the police did not enforce it, and the High Court disqualified the sharia court from dealing with the matter.

Among the Jewish population, dozens of academics and members of seven civil society organizations joined the fight against situating the museum in the cemetery, and presented the High Court with expert opinions (one of which was written by the author of this review). After a failed attempt at mediation, the High Court issued a ruling at the end of 2008 in favor of the Wiesenthal Center. Nonetheless, the public battle against the project continued, and included public statements by American rabbis, editorials in the American press and a resolution of the UN Council for Human Rights. At the same time, contributions to the project were falling off, and two years ago, Gehry withdrew his design. The Wiesenthal Center sought and received a different, more modest plan, from a local architectural firm, and though it too resigned from the project earlier this year, excavation work recently resumed after a lengthy hiatus.

Though Israelis like talking about the unification of Jerusalem – the city that is compact together (Psalms 122:3) – it is in fact a city torn into various sectors, and life in the capital is afflicted with many controversies. Only a few, however, seem to involve such a broad swath of complex issues as the arguments over the Museum of Tolerance. The legal and public discussions of the matter give rise to such questions as: How long are graves sacrosanct and who is qualified to remove them from this category? How much authority does the Muslim community have over its sacred properties and cemetery? Does the sharia court have judicial autonomy? Can the interpretation of Islamic law by Jewish scholars in the field supersede Muslim interpretations of it? How much aid is the Arab minority entitled to receive from the legal system in its struggle for rights? What are the historical borders of the Mamilla cemetery? Do the museums proposed architectural designs suit the urban fabric of Jerusalem? What right does an institution based abroad have to plant a building in Jerusalem when most of the citys inhabitants oppose the project? And should an argument such as the one surrounding the museum be settled by the judicial system or is it preferable to have it decided in the public arena?

Allahs Safe Haven? The Controversy Surrounding the Mamilla Cemetery and the Museum of Tolerance, by Yitzhak Reiter, a professor of conflict resolution at the Hebrew University of Jerusalem and an expert on the Middle East, Islam and Israeli Arabs, seeks to sort out these controversies and clarify the issues (it should be noted that the addition of maps would have made readers lives easier). It deals thoroughly and systematically with a complicated subject, while presenting fairly the arguments of both sides in the conflict.

Neglected cemetery

Reiter accepts the following claims made by the museums founders and supporters: The Muslim community had neglected the Mamilla cemetery for many years; the Al-Aqsa Association acted out of confrontational, political motives (which served only to weaken the legal fight against the museum); the existence of a parking lot on the site for two decades damages the case for opposing construction; the construction of the Palace Hotel in 1929 by the grand mufti of Jerusalem, Haj Amin al-Husseini, although technically outside the formal boundaries of the cemetery, created a precedent for ignoring the sanctity of the graves; and in Israel and Muslim countries, a norm exists for changing the designation of old cemeteries to allow for urban development.

But Reiter also offers a series of counterarguments, which coalesce into a harsh critique of the High Court decision to allow the museum to be built over the cemetery. Writing about the courts reliance on precedents set in Western courts on execution of development projects on cemetery land, Reiter argues: With all due respect, the question remains whether [the courts] examples are convincing and carry weight in the case of Mamilla.

Reiter shows that, unlike the situation in Mamilla, in none of the cases cited was the cemetery a large, historically important one, and none involved the removal of as many as 1,000 graves. Furthermore, in all of these cases, the permitted development was requires on those specific sites, unlike the museum project, which cannot be viewed as a vital enterprise, and which could be built elsewhere.

In effect, Reiter claims in his book, the High Court of Justice did not view the plot of land allotted for the museum as part of a historic cemetery with special status in Muslim eyes, as the resting place of renowned Muslim figures since the 12th century. The ruling, he notes, treated the land as though it were located outside the cemetery, as the Wiesenthal Center argued, and as if human bones were discovered there incidentally, once work began at the site, rather than as a religiously and formally sanctified place. Framing the matter this way, Reiter concludes, is what determined courts ruling approving the continued construction. A key question in the discussion of the legitimacy of building the museum in Mamilla was the position of Islamic law on construction in cemeteries. During the courts deliberations, it immediately transpired that there were opposing interpretations of the Islamic position, and the question was, which one the court would favor. After summarizing the interpretations presented in court and examining its ruling, Reiter comes to the conclusion that the court expressed a clear preference for that offered by Jewish Orientalists and chose to ignore the stance of the most senior authority in the sharia judicial system – the president of the Sharia Court of Appeals, an Israeli state institution.

Reiter soberly notes that when such a profound argument breaks out between various interpretations, the one that win outs will be the stance backed by governmental and political power. It is impossible to be mistaken about the balance of power in this story: On one side were the state and municipal authori ties, a rich and powerful Jewish-American institution and a battery of first-class lawyers; on the other side were an association suspected of subversion and which had been declared illegal, a few Palestinian families from East Jerusalem and their inexperienced legal representatives, and a bunch of academics and social activists who were not allowed to become parties to the legal process.

Minority and majority

The books central argument is that the entire story must be placed in the broader context of the politics-of-identity conducted between a majority and a minority. The court presented its verdict as balancing the considerations for stopping the building of the museum in Mamilla and what it termed the public interest; the latter was the deciding factor for the court. Reiter notes, however, that the court never touched on the question of who, in a sensitive city like Jerusalem, constituted that public whose interests had to be taken into account. Evidently, the court was not talking about the interests of the more than a third of the Jerusalem residents who are Palestinian, nor of the Jews who opposed the construction of the museum in the name of the universal value of human dignity.

Reiter holds that the judges, in their conception of the public interest, explicitly adopted a Judeo-nationalistic discourse that matches the aims of the museums founders for a building that would dominate its environment. The book presents this position in the context of what it describes as a formidable enterprise of obliteration and denial . . . mainly of the Arab and Islamic past in the process of molding the Israeli landscape.

The procedure in the High Court of Justice was, therefore, an expression of a conflict over the representation of the symbolic landscape of Jerusalem, with the Muslim petitioners striving to put a halt to the eradication of the historic Arab-Islamic character of the Israeli landscape and preserve the identifying symbols of their community. This natural aspiration, Reiter says, was simply ignored by the court. Only belatedly, he says, did the petitioners realize that the High Court of Justice, with its well-known liberal tendencies, is in the final analysis a Jewish and Zionist court and as such, its ruling in the Mamilla case gave more weight to values other than tolerance and liberalism.

The last word belongs to Knesset Speaker Reuven Rivlin, who is cited in the book as saying, Why, for heavens sake, must a house of tolerance be built right on a cemetery? ... To be intellectually honest, there is an inherent contradiction here. Indeed, a project for tolerance that is forced upon others with flagrant intolerance is a devious idea rejected by common sense in a way that renders superfluous all the learned deliberations of the court.
Shimon Shamir is professor emeritus of Middle Eastern history at Tel Aviv University. He served as Israels ambassador to Egypt and Jordan.