By Nadav Shragai
Nadav Shragai is the author of At the Crossroads, the Story of the Tomb of Rachel (Jerusalem Studies, 2005); The Mount of Contention, the Struggle for the Temple Mount, Jews and Muslims, Religion and Politics since 1967 (Keter, 1995); and "Jerusalem is Not the Problem, It is the Solution," in Mister Prime Minister: Jerusalem, ed. Moshe Amirav (Carmel and the Florsheimer Institute, 2005). He has been writing for the Israeli daily newspaper Ha'aretz since 1983.
This article was originally published by the Jerusalem Center for Public Affairs, Jerusalem Issue Brief, Vol. 7, No. 32, 27 February 2008. It is reproduced at Zionism On The Web with permission of the publisher.
In the wake of the 1993 Oslo Accords, the Palestinian Authority (PA), through its Ministry of Religious Endowments (Waqf), systematically eroded the administrative role that had been assigned to the Hashemite Kingdom of Jordan as the caretaker of Muslim shrines on the Temple Mount in Jerusalem. In October 1994, the PA even appointed its own mufti for Jerusalem, who displaced Jordan's candidate.
Even though the Oslo Accords recognized Israel's jurisdiction over Jerusalem, pending any change reached through future permanent status negotiations, Israeli governments were extremely hesitant to confront the incremental but steady PA efforts to broaden religious control over Muslim holy sites in Jerusalem, especially on the Temple Mount. Furthermore, since the entire Israeli-Palestinian peace process had been launched under U.S. auspices, a full-scale clash over the Temple Mount could also lead to a U.S.-Israeli diplomatic crisis, which the governments in Jerusalem sought to avoid. These considerations continued to influence Israeli decision-making even after the outbreak of Palestinian violence in 2000, even though any expression of Palestinian governmental authority in Jerusalem was an outright violation of the Oslo Accords.
Is There Israeli Supervision on the Temple Mount?
In recent years, the Waqf has repeatedly challenged Israel by undertaking construction projects on the Temple Mount, many of which were unauthorized. Yet these initiatives have undermined the archaeological heritage on the Temple Mount, as well as the very stability of some of its structures. On May 18, 2004, the Internal Affairs and Environment Committee of the Israeli Knesset met to deliberate the danger of the possible collapse of the Temple Mount's eastern wall, some of whose foundation stones had weakened and cracked.
Yehoshua Dorfman, director of the Israel Antiquities Authority, and Micha Ben-Nun, director of the Licensing and Inspection Department of the Jerusalem municipality, told the committee that while they were both responsible for routine inspection and law enforcement on the Temple Mount, in practice they had been denied access to the Temple Mount and did not receive information about what occurred there.
Dorfman stated that, following a directive issued by the prime minister, the Antiquities Authority's inspection of the archaeological sites on the Temple Mount was partial, indirect and unofficial.1 "We receive all our information about what happens...from the Israeli police....We don't go there," he admitted. "We think we know what is going on as far as archaeology is concerned, but to say that I genuinely know...I wouldn't swear to it."2
Ben-Nun said that "while the Jerusalem municipality does have formal and statutory responsibility for the Temple Mount, in practice we have no access and no control over what happens there. Not only that, there is what we call the ‘deliberate interference' of those who are in charge of it, whether the police or whoever, to keep us away and to minimize our knowledge. None of the information we receive is official and we have no way of obtaining such information. If the eastern wall collapsed, no one would tell us. No one talks to us."3
No one familiar with what is really happening on the Temple Mount was surprised by what they said, but rather by the fact that for once someone actually had said it publicly. This situation has existed for years and is no different today. According to instructions from Israel's attorney general, the certified authorities must carry out routine inspections of the Temple Mount, but in reality their powers are limited. The Jerusalem municipality, the Israel Police, and the Antiquities Authority were instructed by the Attorney General to report "any serious infraction discovered in laws governing planning or the antiquities [themselves]." However, the attorney general forbade both the municipality and the authority from taking steps to enforce the law (including demolition or issuing a demolition order), to take testimony, carry out detentions, or issue indictments without prior coordination with his office.4 In that regard, he himself was subordinate to the prime minister, to whom he had to report before any steps could be taken on the Temple Mount.5
The law governing the Temple Mount is explicit regarding the full jurisdiction of Israeli law over the location. Legal expert Dr. Shmuel Berkowitz summarized the main points in his 2006 book:6
All the laws of Israel are valid for the Temple Mount, as it is located on ground that has been part of the State of Israel since the unification of Jerusalem and the enforcement of Israeli law over East Jerusalem, including the Law of Planning and Construction, 1965, and the Antiquities Law of 1978. As early as August 1967, the Temple Mount and the Western Wall were designated as antiquities, as part of the Old City of Jerusalem and its environs. According to Article 29(A) of the Antiquities Law, no action is to be carried out, including actions of construction, demolition, earthworks, and change or dismantling of an antiquity without authorization from the Antiquities Authority.
According to the law, "Archaeological activities at...sites, which are legally defined as holy sites, are not dependent on the sole discretion of the IAA Director-General. Any changes (e.g., excavation, construction, preservation of ancient walls, etc.) require approval of the Ministerial Committee for Holy Places, which consists of the Ministers of Justice, Education and Religious Affairs."7
However, the discrepancy between the letter of the law and what happens in practice is vast.
The dominant, decisive factor on the Temple Mount is the Israel Police. A high-ranking officer in the police once said:
On the Temple Mount there is a delicate relationship between the Waqf and other groups, on the one hand, and the State of Israel, on the other. It is a give and take situation, carrot and stick. As far as the Antiquities Law is concerned, sometimes we prefer to settle things quietly with Islamic groups through private arrangements that remain private. We pay a price for that, sometimes a high one. It is a known fact that antiquities are being damaged on the Temple Mount. The alternative is a riot every other day. Those in authority have to decide what they prefer, and we prefer quiet because, with all due respect to the antiquities, the top priority of the State of Israel on the Temple Mount is quiet, not riots, even if the antiquities pay the price. In theory, the laws of Israel govern the Temple Mount, but in reality, the various authorities are careful in their enforcement because religiously it is a very sensitive location.8
For the same reason, the Israel Supreme Court treats infractions of planning and construction with kid gloves, and does not compel the authorities to enforce the law. For years, the court has respected the sensitivity of the state towards the Temple Mount, and displayed understanding for the "considerations" it exercises. One after another, it has rejected appeals lodged by various Jewish groups claiming that the Temple Mount is of particular importance to them, regardless of whether they are the Temple Mount and Land of Israel Faithful movement or the far more widely accepted Committee for the Prevention of the Destruction of Antiquities on the Temple Mount. The result, in any case, is that the antiquities are repeatedly damaged, and Israeli law and sovereignty are repeatedly flouted.
In the early 1990s, the Antiquities Authority unofficially inspected the activities of the Waqf on the Temple Mount. Dr. Dan Bahat, who was the district archaeologist for Jerusalem for many years, reported on this inspection to the Supreme Court.9 One of the informal understandings between the Antiquities Authority archaeologists and the Waqf was that the Waqf would keep the authority informed of its plans, but nothing was ever done formally because officially the Waqf does not recognize the legitimacy of Israeli control of eastern Jerusalem.10 During those years, Antiquities Authority inspectors had a fairly free hand on the Temple Mount. They could walk around, enter where they pleased, and document and take photographs of what they saw.
In September 1996, the opening of the northern exit of the Hasmonean tunnel, an extension of the Western Wall tunnel, changed the situation completely. After the Western Wall tunnel riots,11 Antiquities Authority inspectors were limited to the trails reserved for tourists and were denied access to the rest of the Temple Mount. In other words, they were only granted partial access to the site and were forbidden to take photographs. Important underground sites were treated by the Waqf as its own property and were closed to Israeli inspectors, including Solomon's Stables, the old Al-Aqsa mosque and the Triangle Gate, and the area of the above-ground Golden Gate. With the outbreak of the Second Intifada in September 2000, even this partial access for authority inspectors ended as the Waqf cut off all Israeli entry into the Temple Mount.
Since September 1996, the Waqf has cooperated only with the Israel Police. Whenever the Antiquities Authority wants to examine a site on the Temple Mount, it has to coordinate its activities with the police, and the police do not always cooperate since their top priority is quiet, not antiquities. Sometimes, the inspectors have resorted to subterfuge by disguising themselves as policemen or tourists. In view of the damage done repeatedly to the antiquities, the Committee for the Prevention of Destruction of Antiquities on the Temple Mount was established early in 2000. Its membership includes author A.B. Yehoshua, former Supreme Court President Meir Shamgar, former State Comptroller Miriam Ben-Porat, former Tel Aviv Mayor Shlomo Lahat, the late Jerusalem Mayor Teddy Kollek, Meir Dagan (before he became head of the Mossad), and well-known archaeologists, scholars, and retired high-ranking army officers.
Damage Done to Temple Mount Antiquities in 1999
The damage done to the antiquities on the Temple Mount has been substantial. In the summer of 1999, the Waqf undertook renovations on the galleries beneath the Al-Aqsa Mosque, what is known as "old Al-Aqsa." They contained the "double passageway," the only passageway preserved in its entirety from the time of the Second Temple, from Hulda's Gates (blocked up today) in the southern wall of the Temple Mount to the square in front of the Temple, the main thoroughfare in ancient times. Four domes were preserved in the double passageway with inscriptions carved into the stone, work done by Jewish artisans 2,000 years ago.12
The Waqf excavated extensively and made irreversible changes, and the passageways became integral parts of a new mosque, Al-Aqsa al-Qadim.13 Members of the Antiquities Authority in 2000 called it "an archaeological distortion."14
In November 1999, the Waqf and the Israeli Islamic Movement dug an enormous pit southeast of the Temple Mount, 1,600 square meters in area and 15 meters deep.15 It exposed four ancient arches, four meters wide and ten meters high. The debris from the excavation was loaded onto 200 trucks which shuttled back and forth without interference, disposing of thousands of tons of earth rich in archaeological remains from all the periods of the Temple Mount. The earth was dumped into the Kidron Valley and the city garbage dump at El-Azaria, near Ma'ale Adumim.
The Waqf had received authorization for excavation at the Temple Mount's southeastern corner to construct an emergency exit for the new underground mosque (which had formerly been Solomon's Stables). Authorization was given to widen the mosque's main entrance to a maximum of two meters. The work was conditional on Antiquities Authority inspection, and included only two arches. The Waqf had no authorization to excavate to the depth and width actually completed. Supervision for the excavation was non-existent. Heavy equipment was used, including bulldozers, in violation of the accepted norms at archaeological sites, wiping out and removing entire strata. At the government meeting held to discuss the issue, Attorney General Elyakim Rubinstein called the Waqf excavation a swift kick aimed at the history of the Jewish people. Antiquities Authority director Amir Drori called it "an archaeological crime."16
More Damage in 2007
Serious damage was again done to antiquities on the Temple Mount in the summer of 2007. The Waqf requested authorization to dig a ditch dozens of meters long, eastward towards the hill on which the Dome of the Rock is built, to replace power lines. The work was carried out by small tractors and hydraulic shovels. Members of the Antiquities Authority occasionally visited the site but were of the opinion that the earth was ordinary soil and that there was no danger to archaeological remains. They paid no attention to the repeated warnings of members of the Committee for the Prevention of Destruction of Antiquities on the Temple Mount. The work was finished, the new electricity lines were laid, and the ditch was filled in.
Subsequently, the Antiquities Authority issue a formal statement which included details about a "sealed stratum of human activity," a layer of earth which, according to archaeological assessment, "has been preserved as a homogeneous whole, and even the pottery shards found there were broken in situ, and had remained without change since the days of the First Temple."17
The announcement caused a great deal of excitement in the archaeological communities in Israel and abroad. Although the announcement mentioned nothing about the discretion exercised by the Antiquities Authority, it was clear that a mistake had been made. Initially, the members of the authority thought there were no antiquities and allowed a tractor to be used. Some of them said informally that it was entirely possible that during the excavations other "sealed strata" had been damaged. Following the authority's announcement, the Knesset State Control Committee decided to turn the issue of the Waqf excavations on the Temple Mount over to the State Comptroller for examination, as well as the conduct of the authorities in Israel in their dealings with the Waqf.
Antiquities in the Rubble
It is only too evident that the on-going Waqf excavations on the Temple Mount, which are generally carried out without archaeological supervision of any kind, have severely damaged antiquities from many periods. Since 2004, archaeologist Dr. Gabi Barkai and Zachi Zweig have been sifting through the rubble the Waqf removed from the Temple Mount to the Kidron Valley eight years ago.
The project is being carried out in the Tzurim Valley, not far from the Mt. Scopus campus of the Hebrew University. The archaeologists in charge, aided by hundreds of volunteers, occasionally document new discoveries and publish pictures.18 An article appearing in Ariel contained information about finds described as "very small" because, during the excavation on the Temple Mount, the Waqf separated out the larger pieces from the rubble and reused the ancient building blocks, since the Waqf feared the police would prevent them from bringing new building materials to the site.
Among the small findings recovered were a few pre-historic flint implements, approximately ten thousand years old; many pot shards; about a thousand ancient coins; many varicolored items of jewelry made of various materials, including pendants, rings, bracelets, earrings and beads; decorations for clothing; amulets; ivory and bone dice and game pieces; ivory and mother-of-pearl furniture insets; icons and statuettes; stone and metal weights; weapons and ammunition such as arrow heads and musket balls; broken pieces of stone and glass utensils; stone and glass squares from floor and wall mosaics; decorated wall hangings and fragments of decorations from buildings; seals and seal impressions; and many other items.
The most ancient findings were glass fragments ten thousand years old. Only a few pottery shards and fragments of alabaster vessels were found belonging to the Canaanite and Jebusite periods (the early and late Bronze Age), but many items were found belonging to the late period of the Kings of Judea (8th and 7th centuries BCE), including stone weights for weighing silver. The most striking find was a seal impression with letters in the ancient Hebrew script of the last days of the First Temple.
One can only imagine what findings could have been rescued and researched if the pit dug by the Waqf on the Temple Mount down into Solomon's Stables had been excavated under archaeological supervision. For example, in October 2005, Hungarian archaeologist Tibor Grull reported on a find in the publication of the Albright Institute for Archaeological Research.19 In 2002, Grull visited the Temple Mount where he found part of a stone tablet, a fragment from a monumental Latin inscription which bore the name of Flavius Silva, Governor of the Province of Judea in 73-79 CE and the general who laid siege to Masada. The Waqf permitted Grull to photograph and document the find, which was part of the dedicatory inscription of a triumphal arch built by the Romans on the Temple Mount after the destruction of the Second Temple and the city. Members of the Waqf told Grull that the fragment came from the great pit dug in 1999. According to the Antiquities Authority, other finds have made their way to the black market.
Zweig has also examined photographs of the ditch dug by the Waqf in the summer of 2007. By August 2007, the ditch had reached a length of 350 meters and an average depth of about 1.2 meters. Twenty meters south of the eastern steps of the Dome of the Rock, a massive, ancient wall was uncovered which, according to expert opinion examining its location and size, could very well be the southern wall of both the Women's Court (Ezrat Nashim) and the Chamber of Oils (Lishkat Hashmanim) that were part of the Second Temple.20
Despite the many legal petitions filed, mainly by the Committee for the Prevention of Destruction of Antiquities on the Temple Mount, the Israel Supreme Court has not intervened, even though its members are well aware that Islamic groups continually violate the laws governing construction and antiquities. For example, the court rejected a petition filed by the Temple Mount Faithful, determining on January 1, 2000, that it could not rule because the issue was "clearly the job of the government," since it had implications for public peace and the general good.
For this reason, the court ruled that while there was nothing to prevent it from intervening in cases of illegal activity on the Temple Mount, such intervention would be the exception that proved the rule. There had to be a compelling reason for the court to take exception to its standard procedures and trespass on the territory of the executive authority.21 Nonetheless, current petitions still under review by the Supreme Court are seeking its intervention to prevent the use of tractors by the Waqf on the Temple Mount, and to prevent any construction work at night.
The Sharon government began to reassert Israel's rights on the Temple Mount by re-opening the area to all international visitors in August 2003. But in the last few years, the Waqf's abuse of the archaeological heritage of the Temple Mount has been resumed. The bottom line is that officially, the Temple Mount is subject to Israeli law, while, in reality, Israeli law is not consistently enforced there. The government, its various authorities, and the Supreme Court accept the situation because of what is known as "the deeply religious and sensitive nature of the site and fear for public peace if the law were enforced there as elsewhere."
The Waqf, the Islamic Movement, and various Islamic groups have exploited the situation and have seriously damaged Temple Mount antiquities. The Israel Police plays the dominant Israeli role and its activities are coordinated with the prime minister's office and the office of the attorney general, while the Israel Antiquities Authority and the Jerusalem municipality have only limited influence over what is done at the Temple Mount.
* * *
1. Shmuel Berkowitz, Ma nora ha-makom ha-ze, (How Awesome Is This Place) (Carta, 2006), p. 403.
2. Nadav Shragai, "Reshut ha-atikot matria" ("Director of the Antiquities Authority Issues a Warning"), Ha'aretz, May 19, 2004.
3. Announcement made by the committee spokeswoman on May 18, 2004, and minutes of the meeting. Also mentioned in Berkowitz.
4. Berkowitz, pp. 388-9; a document from the office of the attorney general is in the author's possession.
5. Report from an official in the attorney general's office to the Jerusalem municipality, 1993.
6. See also Nadav Shragai, Har Ha-meriva, Ha-maavak al Har Ha-bayit, Yehudim ve-Muslimim, Dat ve-Politica (The Mount of Contention, the Struggle for the Temple Mount, Jews and Muslims, Religion and Politics) (Keter, 1995), pp. 299-306.
7. Ibid., p. 387.
8. A private conversation with the author.
9. The author was present at the deliberation. See Shragai, Har Ha-meriva, p. 303.
10. The various announcements issued by the Waqf over the years are in the possession of the author and were reprinted in Shragai, Har Ha-meriva.
11. There were four days of fighting between Israel and the Palestinians on September 24-27, 1996, during which 14 Israeli soldiers and 69 Palestinians were killed, and hundreds wounded on both sides.
12. Reported by Drs. Eilat Mazar and Gabi Barkai, both members of the Committee for the Prevention of Destruction of Antiquities on the Temple Mount.
13. Berkowitz, p. 394.
14. Minutes of the Knesset State Control Committee, January 9, 2000.
15. The report is based on conversations between the author and high-ranking police officials, members of the Antiquities Authority, and members of the Jerusalem municipality. It is summarized in Berkowitz, p. 395.
16. Nadav Shragai, "Petzira be-Har Ha-bayit: be'ita be-historia ha-yehudit" ("Rubinstein: the Breach of the Temple Mount: a Swift Kick at Jewish History"), Ha'aretz, February 12, 1999.
17. The announcement was made to the press in October 2007 and concerned discoveries from the period of the First Temple.
18. Nadav Shragai, Ha'aretz, June 19, 2006, summary of article later printed in Ariel, "Sinun afar hasaf memtzaim Middle East-Bayit Rishon" ("Sifting through the rubble revealed findings from the time of the First Temple").
19. Nadav Shragai, "Luah even mantziah covesh Metzada...hitgala be-Har Ha-Bayit" ("A stone tablet immortalizing the conqueror of Masada, discovered on the Temple Mount"), Ha'aretz, November 1, 2006.
20. The Chamber of Oils was where oil and wine for Temple ceremonies was stored. For example, it stored the oil used for the Menorah of the Temple. For detailed photographs of 2007 damage to Temple Mount antiquities with Hebrew analysis, see http://www.echad.info/bait/hnewp29-8-07.htm
21. Israeli Court Rulings 94, p. 206, at the letters Aleph-Beit, and p. 203, Aleph-Vav. Also found in Berkowitz, p. 396.
(c) 2008, Nadav Shragai and the Jerusalem Center for Public Affairs, reproduced with permission at Zionism On The Web
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