Sunday, August 27, 2017

The Temple Mount Pre-Status Quo

In his 2014 study, Nadav Shragai begins his research on "The 'Status Quo' on the Temple Mount" with "The Birth of the Status Quo in 1967".  A second article also avoids any pre-1967 discussion of the status quo. Likewise, the article by Ruth Lapidot and Tomer Treger, "The Temple Mount: Israel's Commitment to Preserve the Status Quo" assumes 1967 as a starting point.

It is unfortunate, and even careless, to discuss and deliberate the Temple Mount status quo without reviewing the history of the concept of status quo at religious sites during the British Mandate administration of Palestine.

The British were required to appear annually before the League of Nations' Permanent Mandates Commission in Geneva and present a "Report of the Commission to the Council.   One book on this oversight institution is The Guardians: The League of Nations and the Crisis of Empire, by Susan Pedersen.

At its Eight Meeting, held on Friday, June 15th, 1928, at 4 p.m., one of the subjects was a Petition concerning the Incident at the Wailing Wall, Jerusalem which had occurred on September 24th, 1928.  That incident was at the root of the 1929 riots in Mandate Palestine when, during Yom Kippur services, the mechitza (partition screen), was removed, thus setting off a competition for the rights of the Jews to that site. I have also covered that here, noting the valiant attempt of Lieut.-Commander Joseph Montague Kenworthy, 10th Baron Strabolgi, a Liberal MP to press for Jewish rights at the Western Wall and highlighting the concern of "the infringements of the status quo by the Moslem religious authorities" there.

Here are the Commission's  members in 1937:

The Chairman, Pierre Orts (in the forefront to the left), explained that the Secretariat had received a considerable number of communications from various countries concerning that incident. One protest came in the form of a telegram from the Emir Chekib Arslam, a pan-Islamist against the alleged changes made by the Jewish population of Palestine as regarded the status quo, and demanded that the latter be maintained.

Here he is, second from the right, in Saudi Arabia in the early 1930s with, to his right, Mohammad Amin al-Husayni, the Grand Mufti of Jerusalem and Hashim al-Atassi, who later became president of Syria:

Note: the status quo is a central element in the Arab opposition to the Jewish National Home in Palestine.

The Commission would decide its attitude in regard to this matter, and, if it wished,

It could perhaps endorse the mandatory Power's view that, in removing the screen, it had merely acted in accordance with the terms of the mandate, and had preserved the status quo. The Commission could, he thought, at any rate express its regret at this occurrence [and] hope that the mandatory Power would be able to reconcile the parties, while being careful to respect the various rights involved. The Commission must be very careful not to involve itself in any legal debate, for the matter of the rights of the Wailing Wall was complicated and had given rise to many disputes.

One member, the Belgian Pierre Orts,  

wondered whether the agitation which had been aroused in connection with this incident was not a little artificial. The fact in itself did not seem to merit such a commotion. Had not the petitioners given way to the temptation to take advantage of the incident in order to press for a modification of the status quo

Lord Frederick Lugard said that 

there were two distinct issues in the petition. First, the improper use of the police and, secondly, an appeal to the Permanent Mandates Commission to use its good offices to secure for the Jews the free use of the Wailing Wall. As regarded the first point, the Jews had been duly warned but had not obeyed the order of the authorities, and this despite the fact that a previous warning had been issued in 1925. If the mandatory Power had failed to enforce its order and to preserve what were admittedly Moslem rights, Moslem riot might have occurred. With regard to the second issue, the Permanent Mandates Commission could not, of course, intervene as an advocate for the Jews, however much as it might sympathise in their distress at this incident. The Jews had admitted the Moslem rights for they had actually tried to buy the Moslems out and had failed to do so. They could not possibly think that the mandatory Power could expropriate the Moslems by force. 

The Dutchman Daniel François Willem Van Rees raised a point that since 

the petition stated that "the identical screen had been in use in the same position ten days previously, and without any complaint or protest having been communicated to any Jewish authority". This statement had not been contested by the Palestine Government.

In other words, there was no alteration of the status quo but quickly, the Swiss William Rappard explained that 

the screen, being small and portable, might on that occasion have been easily overlooked by the Moslems.

The Commission members reviewed documents and were aware that the British Government had shown
that, under the Turkish regime, the use of screens on the site in front of the Wailing Wall had been forbidden in 1912 [and it started in December 1911,

and was over by February] 

a veto which had undoubtedly been observed by the Jews who inhabited Palestine at that time. It seemed, however, that since then considerable changes had occurred in this country and that the local authorities showed more solicitude for the Jews than had been the case during the Ottoman rule. There had been in the meantime the Balfour Declaration, especially confirmed by the mandate for Palestine, which accorded to the Jews a special legal position and special legal conditions. In view of this great change, it would be asked if it were really inevitable on the day of the great pardon to have recourse to force in the Turkish way, instead of trying to lead the Arabs not to oppose the erection of the temporary and portable screen which would not have obstructed the right of way and which had been employed a few days previously, apparently, without provoking any protestations on the part of the Arabs. 

Echoing contemporary musings, Van Rees 

wondered whether these events could not have been prevented if a little more care had been exercised by that authority. 

Martial Henri Merlin, the French member, said that

for centuries, the Wailing Wall had formed part of a mosque, but was in reality the ruins of the Temple of Solomon. The Jews went there at regular periods to lament the past glories of Israel. The Wall, however, and the space in front of it were Wakf property.

In 1912, the Turkish Government had allowed the Jews to use the Wall for religious purposes, provided that no buildings or any material whatever were constructed or placed near it. If this injunction were broken in the slightest degree, the whole arrangement fell to the ground. Therefore, even the introduction of a portable screen had definitely interfered with the rights of the Moslems. Jerusalem was a city containing many fanatics, and incidents of a violent nature had, in consequence, been frequent...Any incident occurring on Wakf property might be considered by the Moslems to be an attempt at annexation. While the mandatory Power must endeavour in all cases to maintain the status quo, in doing so incidents might occur. The authorities should not, therefore, remain inactive, but should do their best to reconcile the conflicting parties by all possible means

All this was predicated on Article 14 and 15 of the 1922 Mandate decision:

Article 14

A special Commission shall be appointed by the Mandatory to study, define and determine the rights and claims in connection with the Holy Places and the rights and claims relating to the different religious communities in Palestine. The method of nomination, the composition and the functions of this Commission shall be submitted to the Council of the League for its approval, and the Commission shall not be appointed or enter upon its functions without the approval of the Council.

Article 15

The Mandatory shall see that complete freedom of conscience and the free exercise of all forms of worship, subject only to the maintenance of public order and morals, are ensured to all. No discrimination of any kind shall be made between the inhabitants of Palestine on the ground of race, religion or language.

This was not the first time the Commission dealt with this matter. At a meeting on Wednesday, June 23rd, 1926, at 10.30 a.m, an agenda item was "Incident at the Wailing Wall" and on p. 38, Chiyuki Yamanaka asked for details of "the incident with regard to the lamentations at the western temple wall". And
Colonel SYMES said that the Jews were accustomed to go to the western temple wall to bewail the fallen grandeur of Israel. The site, however, which they occupied for the purpose belonged to a Moslem Wakf, and, while the Jews were allowed to go there, they were not legally allowed to do anything which would give the impression that the site in question was their own property. All religious communities did their utmost to prevent each other from acquiring any legal right in the matter of property which they considered to belong to themselves. This being so, the Moslem who owned the site in question hadraised objections to the bringing of stools by the Jews to the site, for (they said) after stools would come benches, the benches would then be fixed, and before long the Jews would have established a legal claim to the site. However much sympathy the  Administration might feel for the Jews in question, its mandatory duty was to respect the status quo and therefore when stools were brought by the Jews on to the site in question the police had to remove them for the Jews were not legally within their rights. If the police had not taken away the stools a regrettable incident would have occurred similar to past incidents.

The question could only be settled by an agreement between the Moslems and the Jews and the Government would do its utmost to promote such an agreement.

In a missive from the World Zionist Organization, p. 48,  it was explained that the "incident"

occurred in Jerusalem on the Jewish Day of Atonement, when the police were sent by the district authorities to remove seats and benches placed at the Kothel Maaravi (the so-called Wailing Wall) for the use of aged and infirm worshippers during the continuous services held there, in accordance with immemorial custom, throughout the Past. No complaint is made of the conduct of the police, who carried out their instructions as considerately as possible, nor is it denied that those instructions may have been justified by the strict letter of the existing law. At the same time, the Executive feel bound to place on record the painful impression caused by this deplorable incident throughout the Jewish world. They earnestly hope that, through the good offices of the mandatory Power and the League of Nations, means may be found of putting an end, by common consent, to a state of affairs which it is impossible to regard without serious concern.

On November 12, 1926 the JTA published this item:

Petition to Reconstruct Solomon’s Temple Tabled by Mandates Commission

A petition that the League of Nations intervene with the Palestine government to allot a strip of land on Mount Moriah, Jerusalem, for the purpose of reconstructing Solomon’s Temple was tabled by the Permanent Mandates Commission at its session here yesterday.

The petition emanated from a group of individuals of the ultra-orthodox and Kabbalists in Jerusalem, headed by Rabbi Bresslauer.

Several petitions concerning Palestine. Syria and Southwest Africa were considered by the commission at yesterday’s session. The official communique issued by the Commission does not contain any particulars on the action taken.

This episode was researched by Dotan Goren for Yad Ben-Tzvi who identified the petitioner as David Hugo Militscher (who happened to be from the town of Breslau (Wrocław).  He was turned down.  Undoubtedly, however, with the Mufti's agents reading the Hebrew Palestinian press, this minor incident registered with him.

Returning to the matter of the status quo, this was dealt with by the Permanent Mandates Commission in its report of August 4, 1930:

which concludes

In its response, Gt. Britain maintained

placing blame on the Jews as per the minutes of its 10th meeting held on Friday, July 5th, 1929, at 4 p.m. (and also reported here):

[Leopoldo] Palacios [Moriniת the Spanish representative] recalled that during the examination of the last report he had raised before the accredited representative certain questions regarding the Holy Places...a short time later the unfortunate [1928] incident of the Wailing Wall occurred...The report stated (page 123) that the Administration had intervened to preserve the status quo. M. Palacios asked Sir John Chancellor to be good enough to give the Commission information regarding the present situation...

Sir John CHANCELLOR spoke as follows: I have this morning received the following telegram from the National Council of the Jews in Palestine (Waad Leumi):

    "Request that Mandates Commission should not proceed with our memorandum dated October 14th regarding Wailing Wall submitted through the mandatory Government to the League, pending submission of additional material. Organisation hopes memorandum may be held over for further consideration by the Commission."

I presume the Commission will not think it necessary for me to postpone anything I have to say on the subject.

...a white paper had been issued by His Majesty's Government in November. That was subsequent to the incident at the Wailing Wall on the Day of Atonement.

The Moslems were satisfied with the views expressed in the paper, which they interpreted as a decision that the Jews were not entitled under the status quo to bring benches and certain other appurtenances to the Wall. The head of the Moslem community recently came to me and asked that decisions contained in the white paper should be enforced. I replied that I was unable to accede to his request without the authority of the Secretary of State for the Colonies, with whom I was in communication on the subject.

On the plan which I have brought for the information of the Commission will be seen a blue flat wash which indicates the pavement on which the Jews stand to carry on their worship, and the blue vertical area is the lane by which they have access to the pavement in front of the Wall. Strictly speaking, that is the only part of the Wall in which the Jews are interested, the Wall being the outside boundary wall of the Moslem area -- the Haram-ash-Sharif. It should be made quite clear that the whole of that area, including the pavement and the adjacent buildings, belongs to the Moslem community. You will see on the plan adjacent to the pavement an enclosure containing houses. That belongs to the Moroccans and is Waqf property. It is a collection of mean hovels in which the Moroccans live. Although the Jews have right of access only to the area indicated by the blue flat wash, they claim the right to prevent the Mohammedans making any structural alterations to their property overlooking or in the neighbourhood of the Wall.

On the plan you will see a small wall painted in brown. Subsequent to the trouble last September, the Mohammedans heightened that wall. It is there that the Grand Mufti lives, and the object of heightening the Wall was to screen the ladies of his household from public view. The Secretary of State has ruled in regard to those matters that the Moslems must not alter their buildings in that locality in such a way as to cause disturbance to the Jews in carrying out their accustomed devotions. Anything in the way of erecting buildings in which there would be loud celebrations or other disturbance of the status quo would therefore be illegal. In accordance with that ruling, the heightening of the wall to give seclusion to the ladies of the Grand Mufti's family is regarded as legitimate.

About two months ago, the Jews complained to me that certain other alterations, against which they protested, were made in the neighbourhood of the Wall. These are shown at the right of the plan. I had, I believe, no legal right to interfere with this building, but I sent for the Grand Mufti and asked him to suspend the work until I could ascertain whether the proposed buildings would interfere with the rights now exercised by the Jews. The Grand Mufti consented to do so, but only as a personal favour to me, and not because he admitted that the Jews had any right to interfere with the construction of the buildings. Subsequently, I received instructions from the Secretary of State as regards the Jews' rights in the matter of the buildings in the neighbourhood of the Wall, and I came to the conclusion that the alterations proposed by the Grand Mufti were not of such a nature as to interfere with the rights of worship enjoyed by the Jews, and, before I left Jerusalem, I gave authority for the construction of the building to be continued.

The Commission will remember that last year it expressed the hope that it might be possible to bring about an agreement between the Jews and the Mohammedans in regard to this question.

Accordingly, when I went to Palestine last November, I lost no time in studying the question and I discussed the position with both the Jewish and Mohammedans leaders. The conclusion I came to was that there must not, in the first place, be any attempt to expropriate, in favour of the Jews, the area of the pavement in front of the Wall.

The Mohammedans are exceedingly suspicious of the motives of the Jews in respect of their rights at the Wailing Wall. They say that there is constant encroachment on the part of the Jews. The Grand Mufti maintained that, if the Moslems made any concession over and above the rights to which they were entitled under the status quo, the Jews would soon be building a synagogue overlooking the Wall. That is of course absurd, but his fears explain the uncompromising attitude which the Mohammedans have adopted in regard to this matter.

...My view was that the difficulty would be overcome if the Moslem authorities would consent to sell the enclosure to the Jews, who would be able to make there a courtyard surrounded by a loggia where they could say their prayers in peace and in dignified surroundings. I suggested this to the leading Jews in Palestine, and to Dr. Weizmann, who welcomed the suggestion. At the present time the Jews have, I understand, a sum of money at their disposal which would enable them to buy the area if the Mohammedans would consent to sell it.

I approached the Grand Mufti on the question, and asked him if he would be prepared to come to terms on that basis. I found the Grand Mufti, however, uncompromising on the subject. He said that the area in question was a Waqf property, and that it could not, therefore, be sold. I suggested that, if superior accommodation were provided for the Moroccans elsewhere in exchange at the expense of the Jews, he might transfer the property to me and I could hand it over to the Jews if he would prefer that to dealing with them directly. He answered that the Mohammedans' feelings were so excited on the question at present that if any such proposition, even from me, were made public it would arouse bitter religious feelings and perhaps cause a disturbance. There is therefore nothing that I can do in the matter until conditions are more favourable.

I explained the position to the Jewish leaders, and expressed the opinion that their best course of action was to be silent on this question and not to fill their newspapers with attacks on Government and the Moslem authorities. By so doing, the bitterness of feeling would die down and the confidence of the Mohammedans would be gradually re-established and an atmosphere would be created in which I might be able to intervene usefully. That being the present position, it became necessary to consider the question of giving decisions in harmony with the policy laid down in the white paper of last November. Both the Jews and the Moslem authorities, in interviewing me, claimed that they could show authority for the practices which the one party desired to carry out and which the other party desired to prevent. The Mohammedans maintained that the right to bring benches to the Wall, as the Jews were now doing, was a practice which had been prohibited by the Turks, and which in addition had twice been prohibited by the mandatory Government since it came into power. The Jews, on the other hand, contended that they had been bringing up benches to the Wall for a long time, and they produced photographs showing that benches were brought to the wall thirty or forty years ago. I showed these photographs to the Grand Mufti and his rejoinder was that anyone could take a photograph of benches put there at a time when the question of the Wailing Wall was not exciting general interest and that he did not therefore attach any importance to such photographs. He also produced a Turkish document in which the bringing of benches to the Wall was prohibited. I therefore asked both sides to produce their documentary authority for bringing benches to the Wall. The Mohammedans produced a copy of the Turkish Government's document to which I have referred above. This information was asked for last January, but I have received no communication from the Jews in support of their claim, and when the incident in connection with the structural alterations near the Wall arose in the middle of May last I asked the Grand Rabbinate to submit without further delay any documentary authority they might possess, as decisions on the question could not be much longer delayed. The head of the Zionist Executive came to see me in order to discuss the question, and I inferred from his conversation that there was no official document authorising the Jews to bring benches to the Wailing Wall.

I asked the Grand Mufti if he would consent to individual Jews being given a licence or a permit to bring up benches, in order that the old and infirm who prayed there could do so in comfort. He declined to consent to this.

...I should like to add that the Jews claim that they should be allowed to do the things which they have been doing in the past, whether they have documentary authority or not. I have been trying to obtain information from both parties that would enable the status quo to be determined. The Secretary of State has instructed me not to make any pronouncement in regard to the status quo without his authority. The Commission will realise that the position is a delicate one and that it is necessary to be exceedingly careful in giving any ruling on the subject.

M. RAPPARD congratulated the High Commissioner on the action that he had taken...Could the High Commissioner state whether both parties regarded the status quo as a legitimate basis for agreement on principle?

Sir John CHANCELLOR replied that the status quo, as they interpreted it, satisfied the Mohammedans, but that to the Jews it represented only a minimum claim. It was necessary, however, to have an authoritative ruling with regard to the status quo -- in the definition of which the two parties disagreed -- in order to enable him to enforce it. Delay was dangerous, for the Mohammedans were circulating certain rumours intended to give Mohammedan sanctity to a section of the Wall...

In the end, after publishing a little-known White Paper in November 1928 which basically asserted that the status quo, as established under the Turkish regime, was infringed by the Jewish worshippers at the Jewish Holy Site on September 24, the Day of Atonement, a post-1929 riots British-appointed "international commission" sealed the framework of the status quo.

And it is quite possible that the imprint of that status quo, along with the Christian version, was stuck in Moshe Dayan's and David Farhi's minds when they sat down with the Waqf reps a fortnight after the 1967 war on June 17 to seal the fate for many years of Jewish rights to the Temple Mount, not to mention the post-Al Aqsa fire situation and a return to the status quo ante of 1967.


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