Israeli Court Finds Muslim Council Destroyed Ancient Remains on Temple Mount

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In a hotly contested case, Israel’s Supreme Court has held that the Waqf, the Muslim religious trust, damaged and destroyed important archaeological remains on the Temple Mount in Jerusalem.^a The court nevertheless declined to issue any order against the Waqf or the government authorities, apparently because of the extreme religious and political sensitivity of the Temple Mount and the need to preserve public order.

The lawsuit was filed in Israel’s Supreme Court (which has original jurisdiction of such cases) in 1986, but the decision was not handed down until November 1993, reflecting the unusual difficulty the court had in arriving at its decision and the rationale for it.

The suit was brought by a tiny fringe organization, “The Temple Mount Faithful,” against the state attorney, the police commissioner, the mayor of Jerusalem, the director of the Antiquities Authority and the Waqf. The court was requested (1) to compel the state attorney and the Jerusalem municipality to file a criminal charge against the Waqf for building without a license and destroying archaeological remains and (2) to compel the director of the Antiquities Authority to require the removal of the illegal structures and to restore the archaeological remains to their previous condition.

The court found that the Waqf had violated the Antiquities Law of 1978 and the Planning and Building Law of 1965 by building over archaeological remains and covering them with dirt, and by planting olive trees whose roots could damage the archaeological remains below.

Many of the 35 (!) violations involved irreversible destruction of important archaeological remains. For example, the Waqf had destroyed the remains of a wall, built of huge hewn stones, which was thought to be part of the foundation of the eastern wall of the Second Temple. Other stones, thought to be part of the First or Second Temple, were covered with dirt; structures were built or trees planted on top. Crusader and Mameluke buildings were also damaged.

Dan Bahat, formerly employed by the Antiquities Authority and responsible for the Jerusalem area, testified that official supervision over the Temple Mount was unsatisfactory.

Even after the suit had been filed, the Waqf continued extensive building on the Temple Mount, the court acknowledged.

Although there had been unofficial cooperation between the Antiquities Authority and the Waqf, on several occasions the Waqf had ignored Antiquity Authority officials’ instructions not to build or cover archaeological remains.

The court concluded that the Israeli authorities had disregarded the Waqf’s violations more than was desirable. Some of these violations, the Court said, had caused irreversible damage.

The court concluded, however, by expressing its confidence that Israeli authorities would correct their past errors in the future.

In justification of its decision, the court noted that some of the violations had been committed many years before, in the 1970s and early 1980s. However, while some violations were indeed committed years ago, many others were committed shortly prior to the filing of this suit and additional violations were committed while the hearing was in progress.

As part of its rationale for denying relief despite the violations, the court mentioned what is perhaps the real reason for the rejection of the petition: the sensitive religious and political nature of the case and the need to preserve public order.

Foreign policy considerations also appear to have influenced the court, which apparently did not want to affect adversely the government’s effort to improve relations with the Muslim world, especially Israel’s neighbors.

One can perhaps be forgiven for wondering whether these political considerations should have been allowed to outweigh Israel’s obligations to protect the Holy Places.

Nevertheless, the Court’s decision may well encourage the Waqf to cooperate more closely with Israeli authorities in the future.

Another factor that appears to have affected the decision is, as the court noted, that Israeli authorities had never conducted an archaeological survey of the Temple Mount. In a box accompanying my earlier article in BAR regarding this case, the editor called on the Israel Antiquities Authority to conduct an archaeological survey of the Temple Mount. As he there stated, “A survey would not involve excavations, nor would it damage or change any existing installation or monument. A survey would involve only looking and recording—giving all who are interested in this holy site a precise picture of what is there, so as to better understand the ancient remains.”

Such a survey is unquestionably needed. We can only hope that it will be undertaken soon.

In a hotly contested case, Israel’s Supreme Court has held that the Waqf, the Muslim religious trust, damaged and destroyed important archaeological remains on the Temple Mount in Jerusalem.a The court nevertheless declined to issue any order against the Waqf or the government authorities, apparently because of the extreme religious and political sensitivity of the Temple Mount and the need to preserve public order. The lawsuit was filed in Israel’s Supreme Court (which has original jurisdiction of such cases) in 1986, but the decision was not handed down until November 1993, reflecting the unusual difficulty the court had in […]