Tuesday, May 7, 2013
Tonight, on the Hebrew calendar, begins the 28th day of the month of Iyar, which is the 46th Anniversary of the reunification of our eternal capital city, Jerusalem, Yom Yerushalayim-Jerusalem Day. Therefore I wanted to discuss its status under International Law. Specifically, in regard to the Temple Mount, whose recapture inspired Lt. Gen. Mordechai 'Motta' Gur to cry out, "Har HaBayit BeYadaynu!" ("The Temple Mount is in Our Hands!")
Israel annexed East Jerusalem 33 years ago. But then the status of Israel's claims to the Temple Mount seemed on the surface to be in doubt, even after Jerusalem's reconquest, for in 1967, less than a month after it's capture, the keys to the Temple Mount were handed over to the Waqf. This was, however, a transfer of administrative control exclusively, but not of sovereignty. The transfer was conducted by the defense minister, not by a head of state, to an Arab organization, not with a government. Further, this took place prior to the Oslo Accords, and outside of them, yet no legally binding change to this administrative transfer has since occurred. The Clinton Parameters, the suggested split of Har HaBayit and the Western Wall, in the closing days of the Clinton Administration, were never accepted in a finalized peace deal.
East Jerusalem and the Temple Mount were not legally acquired by Jordan during and due to their offensive attack in the War of Independence. Jordan never exercised sovereignty over the region, under International Law, merely military occupation. Nor was Israel's offer of Judea and Samaria to avoid conflict prior to the War of Independence accepted by the Arabs, and thus no revision of the Mandate for Palestine took place.
What of the 1994 Israel-Jordan peace agreement that gave Jordan "preference" concerning the status of Muslim holy places in the Old City in any future peace agreements with the Palestinians? That means, they should have a voice in negotiations of the final status of Islamic holy places before the Palestinian Authority, but no legal claim against Israel's sovereignty was reestablished. And it does not mean it has rights to Jewish holy sites. After all, in 1988 Jordan relinquished any pseudo claims, by transferring it to the pseudo authority known as the PLO. Implicitly, when Jordan abandoned Judea and Samaria, to a non state ethnicity within the State of Israel, since a legal act of Cession can't take place without a recognized State involved, they effectively gave Judea and Samaria, assuming they had any legitimate claim at all, to Israel under International Law. It was only six years after the fact of their Cession of the West Bank that Jordan signed with Israel a right for "preference", which in that historical context clearly cannot mean an interpretation tantamount to a legal claim to the land. Merely a State sponsor for the Stateless Palestinian Arabs in Israel. This is a logical interpretation, as Jordan has the largest percentage population of Palestinian Arabs in the Middle East, and it would suit their political interest at home for the government of Jordan to be viewed as a champion of the rights of cousins of the majority of Jordan's population. So that clause from the Israel-Jordan peace agreement is a conditional one depending on what transpires during negotiations between Israel and the PLO. But this would assume that Jordan has a legal say in the matter, and they do not as they never legally acquired the land in the War of Independence. Thus you would have to make two separate illogical assumptions about Jordanian rights to Judea and Samaria to even consider this question. But sometimes it's important to address misconceptions in the media, and so I addressed this matter.
Thus our political dilemma now has a religious question, not a legal one between states, and we need to know the extent, if any, of the legal authority of the Moslem Waqf on the Temple Mount.
First of all, whenever there is a question of the rights of an organization, when in conflict with a government under International Law, the weight of the law sides with a State.
Religiously speaking, the Temple Mount has been reserved for this time in history according to the Bible. Before Islam was formed, it was already known and accepted that the location of the Temple Mount was reserved for the Third Temple. So the Jordanian Preference would only apply to other locations, not the Temple Mount, and in the case of the Temple Mount, arguably to the buildings there, but not to the land that those buildings are on, whose Jewish history predates Islamic history and whose prophets are revered by the very text of the Islamic Faith itself.
Implicitly, it could be argued, that according to the Israel-Jordan plan, the buildings of the Dome of the Rock and the Al Aqsa Mosque are not to be demolished by any Israeli government, but that does not necessarily preclude their physical removal from the Temple Mount and being relocated elsewhere. As this is a religious question, we should note that the eventual removal of the foreign buildings from the Temple Mount has been the running assumption from the days of the Prophets. The Waqf's authority was not engraved in stone in 1967 and is not guaranteed. Neither is it an arm of the government of Jordan. The Oslo Accords depended on this very fact to enable bilateral negotiations over the final status of Jerusalem, otherwise Jordanians would have sat in at every peace discussion, taken photos at every news conference. But no, the Jordanians were not invited, despite the clause of "Preference" in the 1994 Israel-Jordan peace agreement.
Any demand or decree from the Waqf, then, would have no legal bearing or limitation upon the State of Israel, should it decide to change the status of the Temple Mount at any time. The choice is Israel's alone to make.
Thus after all these years since Motta Gur's famous declaration, nothing has changed. "Har HaBayit BeYadaynu!" ("The Temple Mount is in Our Hands!") We have G-d to thank for that. Perhaps it's time for our government to acknowledge this?
Would that our political policies reflected our religious responsibilities so that freedom of religion is at long last fully restored to the Jewish People, by rebuilding our Holy Temple in its place, that very holy place as was chosen by Heaven itself. May it soon be so, by the grace of G-d.