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The Discriminatory “Status Quo” on Jerusalem’s Temple Mount: An International Law Viewpoint

 
Filed under: International Law, Jerusalem
Publication: Jerusalem Issue Briefs

The Discriminatory “Status Quo” on Jerusalem’s Temple Mount: An International Law Viewpoint
The narrow Western Wall prayer area (marked in yellow), where Waqf and British Mandate restrictions limited Jewish activity because of the “status quo.” (1931, with permission of the Zeppelin Museum)

Institute for Contemporary Affairs

Founded jointly with the Wechsler Family Foundation

Vol. 22, No. 18

  • Basic norms and values of religion inherent in the various biblical or other scriptures and sources would assume that the aim of any religion is for humankind to live at peace and in dignity and harmony with God and with humanity, and not serve as a source of constant and unending conflict.
  • A status quo that perpetuates an ancient and outdated social structure that no longer exists, that practices religious discrimination and denies or restricts rights of worship, is blatantly incompatible with accepted international norms and concepts of equality, human rights, freedom of religion and worship, interreligious and intercultural dialogue, tolerance, understanding, and cooperation.
  • One of the most striking examples of such a historical and irreversible “status quo” causing endless incitement to hatred, strife, and violence between religious faiths, communities, and states is Jerusalem’s Temple Mount.
  • Upholding and sustaining an antiquated, biased, second-class status for Jews, a remnant of the 18th-century Ottoman Empire, violates all accepted international human rights and nondiscrimination norms and should logically no longer be relevant or sustained in modern international society.
  • A new, remodeled status quo would need to guarantee reciprocal recognition of religious rights and observance of the components of the “culture of peace.”
  • Perhaps the first step needs to be acknowledgment and realization by all concerned, including the respective religious leaderships, that a vital prerequisite for any definitive resolution of the dispute between Arabs and Jews is a logical and respectful remodeling of the antiquated status quo to be based on present-day international values and standards of fairness, equity, equality, and mutual respect, while protecting basic religious sensitivities and procedures.

Religion, Peace, and the Status Quo

Basic norms and values of religion inherent in the various biblical or other scriptures and sources would assume that the aim of religion – all and any religion – is for humankind to live at peace and in dignity and harmony with God and with humanity and not serve as a source of constant and unending conflict.

However, from time immemorial, throughout history, and even to the present day, religion, religious practice, religious sites, and rights of worship have figured and continue to figure as significant and sometimes sole factors causing, affecting, and influencing internecine friction, international crises, and disputes throughout the world.

Thus, visions expressed in numerous international declarations, conventions, and resolutions calling for interreligious understanding and dialogue remain nothing more than a lofty ideal, inasmuch as it is religion itself and its associated issues of rights of worship and modes of practice that serve as the instigating or causative factor in local and international conflicts.

In many instances, ongoing religious practices and observances at major religious sites and shrines are based strictly and uncompromisingly on historical determinations, customs, and practices that have been given the revered and even irreversible and holy status of a “status quo.”

Such determinations, customs, and practices were developed and established to address the specific historical circumstances relevant at the time of their establishment. More often than not, such situations of “status quo” are inherently discriminatory and run counter to accepted norms and standards of interreligious tolerance and human rights.

Indeed, after hundreds of years, and given human development, they should no longer be considered relevant, pertinent, and practically applicable to current circumstances and situations. Their continued application serves as an inevitable cause of ongoing internecine strife.

The challenge confronting today’s international community in general, and individual states and religious communities in particular, in attempting to realize and implement modern-day norms of interreligious and intercultural dialogue and tolerance is to adapt those anarchistic and seemingly irreversible historical situations of “status quo” to present-day, universal humanitarian standards and values.

The question is whether such adaptation is practically attainable.

One of the most striking examples of such a historical and irreversible “status quo” causing endless incitement to hatred, strife, and violence between religious faiths, communities, and states is Jerusalem’s Temple Mount, which has weathered innumerable conflicts and holy wars from time immemorial between Christianity, Islam, and Judaism.

The Uniqueness of Jerusalem

Undoubtedly, with its long history and holy sites, Jerusalem represents one of the most complex, unique, passionate, and explosive issues that have, literally from time immemorial, beleaguered the world in general and the Middle East in particular.

Jerusalem and its holy sites have posed and continue to pose an intractable dilemma, whether one traces Jerusalem to biblical times or to the Christian Crusades of the 11th, 12th, and 13th centuries, in which European Christian states sought to secure control of those holy sites considered sacred by both Christians and Muslims. Disputes regarding control, governance, and daily maintenance on the Temple Mount have always existed and continue up to the present day.

Jews in prayer
Jews praying inside the Golden Gate (Shaar Harachamim), circa 1836, in this enlarged section from an illustration by David Roberts. (Imperial Ottoman Archives) Today, the chamber is used as a Muslim prayer area.1

The importance of Jerusalem and its holy sites extends beyond immediate questions of territorial control, legal and administrative authority, public order, or its substantial economic and touristic potential. Those questions have always verged on the fundamental relationships between the three monotheistic religions, Christianity, Islam, and Judaism, all of which hold Jerusalem and its holy sites to be a subject of direct interest to them and all of humanity.

The centrality of Jerusalem to world peace and tranquility extends beyond logic and even attains a spiritual level equal to the nature of the city itself.

In light of its unique complexities, it is questionable whether the Jerusalem issue will ever be permanently or definitively resolved or whether it will forever pose spiritual, theoretical, and practical dilemmas to anyone who has to deal with it.

The “Status Quo”

The current issues beleaguering any hope of achieving tranquility in Jerusalem are based on an age-old Ottoman “status quo” governing custodianship, worship, and visits to Jerusalem’s Temple Mount. This status quo was first established in 1757 and formalized by Ottoman imperial decrees (firmans) issued by Sultan Abdul Mejid in 1852 and 1856, freezing claims by religious communities in Jerusalem and Bethlehem to Christian holy places and forbidding any construction or alterations to their existing status.

The specific arrangements for worship and visits to the Temple Mount as part of the status quo, which restricted prayer by non-Muslims, might indeed have been pertinent at the time of their introduction in the 18th century since they reflected the then-existing social hierarchy within Ottoman society that governed the area.

In this social hierarchy, an institutionalized second-class status of dhimmi was applied to non-Muslim subjects, specifically to Jews, Christians, and other minority religions.2 While this status limited the rights of worship of non-Muslim subjects, it also protected them from forced conversion to Islam. It enabled them to practice their religion in a limited manner within Ottoman Muslim society, requiring payment of a special jizyah tax. Non-Muslim subjects were required to distinguish themselves from their Muslim neighbors by dress and were not permitted to build new churches or synagogues but only to repair old ones.3

The prohibition on Jews from ascending to the Temple Mount area had existed prior to the Ottoman rule during the Mameluke rule (1250–1516) and was maintained under the Ottomans (1516–1917). It received international acknowledgment at the end of the Crimean War at the 1856 Paris Conference, and following the Russo-Turkish War of 1877–78 in the 1878 Treaty of Berlin (between European powers and the Ottomans), Article 62 of which determined that: “it is well understood that no alterations can be made to the Status Quo in the Holy Places.”4

The same Article 62 extended that arrangement to include all—not only Christian—holy places, freezing claims by religious communities in Jerusalem and Bethlehem to Christian sacred sites and forbidding any construction or alterations to their existing status.

In his book The Eroding Status-Quo: Power Struggles on the Temple Mount, Prof. Yitzhak Reiter stresses the anachronistic nature of the status quo as the instrument used to regulate the governance and administration of the holy sites on the Temple Mount:

…the status-quo perpetuates the hegemony of entities whose political positions happened to be strong at a fleeting point in the past and discriminates against those who held a weaker position at that moment in history. Jews, for instance, were banned from the Temple Mount for centuries, despite the fact of the site’s primacy in Judaism.

What is called the “status-quo” for sites sacred to multiple faiths, therefore, is the prevailing situation at a particular time, determined by the opposing parties, who are careful not to institute any changes to the system or any of its component parts, such as arrangements for access (including visiting hours, number of visits, areas of visitation, and rules of conduct), control over the area, hours of prayer, ritual, ceremonies religious or otherwise, rules of dress and conduct, administrative regulations and management, the character of the site, and police and security protocols. Every change to any component of the status quo is a potential incendiary spark for violence on the part of the wounded partner, a catalyst for a counter-reaction against the other side.5

The oft-repeated and patently false accusation that “Al Aqsa is in danger” has become, over centuries, and continues to be the focal catchphrase and cause of Muslim incitement, hatred, and violence, principally directed against Jews. It is an integral component of the malady caused by the status quo, and it has been and continues to be utilized and periodically rehashed as a cynical means of inciting, maneuvering, and manipulating Muslim masses.6

Such incitement and tension remain, even at present, a major tool for those groups, organizations, and even states seeking to instigate unrest to further their own political strategies and tactical interests.

Immovable ladder
(2009 picture, seetheholyland.net/Flickr/CC BY-SA 2.0)
“The Immovable Ladder” at the Church of the Holy Sepulcher in Jerusalem
Outdated status quo: “The Immovable Ladder” at the Church of the Holy Sepulcher in Jerusalem has remained in the exact location on an outside ledge since the 18th century due to the “Status Quo.” Moving the ladder resulted in riots and brawls between Christian disciplines. (1895 picture, Jennie King Mellon Library/Flickr/CC BY 2.0)

A status quo that perpetuates an ancient and outdated social structure that no longer exists, that practices religious discrimination and denies or restricts rights of worship, should logically no longer be relevant and should not be maintained in modern international society. It is distinctly and blatantly incompatible with accepted international norms and concepts of equality, human rights, freedom of religion and worship, interreligious and intercultural dialogue, tolerance, understanding, and cooperation.

Retention and Continuation of the Status Quo

Following the defeat of the Ottomans and the partitioning of their empire after World War I, and with the establishment of the British Mandate (1920–1947), the British authorities in Palestine were given the responsibility for “preserving existing rights and securing free access to the Holy Places, religious buildings and sites and the free exercise of worship, while ensuring the requirements of public order and decorum.”7 Since this article also provided that “nothing in this mandate shall be construed as conferring upon the Mandatory authority to interfere with the fabric or management of purely Muslim sacred shrines,” the British upheld the status quo arrangement but determined in an official White Paper dated 1930 to retain Jewish prayer at the Western Wall in Jerusalem and at Rachel’s Tomb on the outskirts of Bethlehem, despite their being defined as the property of the Muslim Waqf.8

However, even with the termination of the Ottoman Empire, the ancient status quo and custodianship of the holy places on Jerusalem’s Temple Mount, despite its anachronistic and blatantly discriminatory nature, was nevertheless sustained and maintained.

Jewish worship continued to be prohibited, and entry by Jews into the Temple Mount area was restricted under the British Mandatory administration and by the respective Jordanian kings upon whom the custodianship of the holy sites was bestowed.

During the British Mandate, custodianship over the Temple Mount was transferred to the Supreme Muslim Council, considered the highest body in charge of Muslim community affairs in Mandatory Palestine.

Restrictions on visitors to the Temple Mount, 1921
The British Mandate Governor of Jerusalem published restrictions on visitors to the Temple Mount, in 1921. (Collection of Lenny Ben-David)

In 1924, when the Ottoman Caliphate officially ended, the Supreme Muslim Council bestowed the custodianship upon the new Caliph of Muslims and protector of the city’s people and its holy sites, Sharif Hussein Bin Ali, considered to be the “King of the Arabs.” This was formalized in a 1924 verbal agreement, which bestowed the title of custodian upon the consecutive rulers of Jordan, considered descendants of the Prophet Muhammad.9

Israel’s 1967 Retention of the Status Quo

In 1967, following Israel’s acquisition of control over the Temple Mount and to prevent possible interreligious disputes and violence, Israel decided to preserve the status quo regarding the Al-Aqsa compound. In so doing, Israel acknowledged Jordan’s continuing responsibility for administration and religious arrangements regarding the site, subject to Israel’s retention of responsibility for security and public order.

In a June 2017 article in The Atlantic, “The Astonishing Israeli Concession of 1967,” Israeli-American author and journalist Yossi Klein Halevi described the insistence of Israel’s Defense Minister Moshe Dayan that Israel’s flag be removed from the Dome of the Rock moments after it had been placed there during the 1967 fighting. Klein observed:

It is, in retrospect, an astonishing moment of religious restraint. The Jewish people had just returned to its holiest site, from which it had been denied access for centuries, only to effectively yield sovereignty at its moment of triumph. Shortly after the war, Dayan met with officials of the Muslim Waqf, who governed the holy site, and formally returned the Mount to their control. While Israeli soldiers would determine security and stand at the gates, the Waqf would determine who prayed at the site, an arrangement that would effectively bar non-Muslim prayer.10

In a 1984 judgment by Israel’s Supreme Court regarding Jewish worship rights on the site, summarizing previous judgments on the same subject, then-Chief Justice Aharon Barak held, inter alia, that:

The basic principle is that every Jew has the right to enter the Temple Mount, to pray there, and to have communion with his Maker. This is part of the religious freedom of worship, it is part of the freedom of expression. However, as with every human right, it is not absolute, but a relative right… Indeed, in a case where there is near certainty that injury may be caused to the public interest if a person’s rights of religious worship and freedom of expression would be realized, it is possible to limit the rights of the person in order to uphold the public interest.11

Israel-Jordan Peace Documents, 1994

The status quo was bolstered by Israel, Jordan, and the United States in two important documents in 1994 regarding the establishment of peace between Israel and Jordan – the Israel-Jordan “Washington Declaration” of August 5, 1994, witnessed by the United States,12 and the subsequent Israel-Jordan Peace Treaty of October 26, 1994,13 where, in both documents, Israel committed to respecting “the present special role of the Hashemite Kingdom of Jordan in Muslim holy shrines in Jerusalem.”

Jordanian-Palestinian “Agreement to Jointly Defend Al-Masjid Al-Aqsa,” 2013

In a 2013 agreement between the Palestinian leadership and Jordan’s King Abdullah II, which in effect replaced the former verbal agreement of 1924 between the then Supreme Muslim Council and the Hashemite dynasty, the two parties reaffirmed the Jordanian custodianship role in the holy places, while acknowledging the Palestinian claims to sovereignty in Jerusalem.14

This agreement has questionable legal standing and reflects, in effect, political wishful thinking on the part of the signatories. For a thorough analysis, see Prof. Ruth Lapidoth, “A Recent Agreement on the Holy Places in Jerusalem.”15

Kerry Understandings, 2015

Israel’s acknowledgment of the arrangements regarding the Temple Mount was subsequently reaffirmed in what became known as the “Kerry Understandings” reached in 2015 between then-U.S. Secretary of State John Kerry and the Israeli and Jordanian governments.

These understandings acknowledged Jordan’s special role in Jerusalem as defined in the Israel-Jordan Peace Treaty, including Jordan’s historic role as “guardian of the Islamic holy places” in Jerusalem. They reaffirmed the long-standing arrangements at the Al-Aqsa Mosque, allowing Muslims to pray there and non-Muslims only to visit the site.

Researcher and author Nadav Shragai observed that the significance of the Kerry Understandings was a formal acknowledgment by Israel, with U.S. and Jordan’s official confirmation, that Jews would be able only to visit the mount but would not be permitted to pray there, while only Muslims would pray there.

The Kerry understandings made what had been informal a bit more formal. Israel indirectly anchored the prohibition on Jewish prayer, which was portrayed for many years as a police injunction aimed at maintaining public order, into understandings with Jordan and Secretary of State Kerry. At the same time, although the Jewish state did not formally relinquish Jewish rights to pray on the Temple Mount in a binding, bilateral treaty, it appeared to forgo the exercise of that right for the foreseeable future.16

International Acceptance of the Status Quo

Western democracies, whether out of political correctness vis-à-vis the Muslim world or fear of religious and social sensitivities, chose to accept and acknowledge the continuing validity of this anachronistic status quo, despite its being wholly at odds with the developing 20th– and 21st-century international notions of equality, human rights, and liberalism.

Increasingly, progressive, liberal, and democratic societies and bodies in the international community, including the United States, the UK, and other European states, as well as international and regional organizations and bodies, have consistently overlooked and ignored the inherently discriminatory nature of the status quo, accepting and perpetuating it in a cynical demonstration of double standards. This is evident from a long series of international decisions and resolutions sustaining the status quo.

United Nations

In a UN Security Council public statement on September 17, 2015, following disturbances on the Temple Mount, the members of the council encouraged increased coordination between Israel and Jordan’s Waqf department and “urged that the status quo of the Haram al-Sharif should be maintained and visitors should be without fear of violence or intimidation.”17

UNESCO

On April 11, 2016, on the initiative of Algeria, Egypt, Lebanon, Morocco, Oman, Qatar, and Sudan, UNESCO’s Executive Board reaffirmed the “historic Status Quo” on Jerusalem’s Temple Mount. The decision was approved by 26 votes, with six states opposing (the United States, the UK, Germany, the Netherlands, the Czech Republic, and Estonia).18

European Union

The EU-Arab League “Sharm El-Sheikh Summit Declaration” of February 25, 2019, “recalled the importance of upholding the historic status quo for the holy sites in Jerusalem, including with regard to the Custodianship of the Hashemite Kingdom of Jordan.”19

Subsequently, in a blatant exhibition of political correctness and double standards, EU High Representative for Foreign Affairs and Security and Vice-President of the European Commission, Federica Mogherini, stated at a June 17, 2019, press conference in Luxembourg: “I would like to take this opportunity to thank once again – as we always do – His Majesty [King Abdullah II] and the Hashemite Kingdom of Jordan for the special role as Custodian of the Holy Sites. This is particularly important for the European Union, and we stand by Jordan in this important responsibility that His Majesty has.”20

United States

In the U.S. formal declaration dated December 6, 2017, recognizing Jerusalem as Israel’s capital city, President Trump called on all parties “to maintain the status quo at Jerusalem’s holy sites, including the Temple Mount, also known as Haram al-Sharif.”21

This declaration, despite its call to maintain the status quo, nevertheless elicited a series of predictable if superfluous responses by a choir composed of the United Nations, the European Union, European leaders, and Christian church leaders, all calling for respecting Jerusalem’s status quo according to the relevant UN resolutions regarding the city.22

It is indeed enlightening that those states, international organizations, and churches, in parroting their long-established political positions regarding Jerusalem and in glibly and automatically echoing their respect for the status quo, chose to do so without realizing the inherent conflict between such a policy viewpoint and current international practice that they systematically advocate in the field of human rights.

They choose to reaffirm a blatantly anachronistic and discriminatory status quo that violates accepted international human rights norms and principles, which, in all other contexts, are aggressively advocated and championed by those very same states, organizations, and churches.

International Norms of Human Rights and Nondiscrimination: Culture of Peace

International norms and concepts of equality, human rights, freedom of religion and worship, interreligious and intercultural dialogue, tolerance, understanding, and cooperation have been drafted, codified, and unanimously accepted over the years through international covenants, treaties, and UN declarations and resolutions that have been universally accepted within the international community as part and parcel of what has become known as an established “culture of peace.”

Such instruments include:

Universal Declaration of Human Rights (1948) – General Assembly Resolution 217A, Article 18:

Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.23

International Covenant on Civil and Political Rights (1966) – General Assembly Resolution 2200A (XXI), Article 18:

  1. Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice, and teaching.
  2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.24

UN General Assembly Resolution 58/128 of December 19, 2003, on the “Promotion of religious and cultural understanding, harmony and cooperation.”

This resolution underlined the “importance of promoting understanding, tolerance, and friendship among human beings in all their diversity of religion, belief, culture, and language.” It emphasized ”the need, at all levels of society and among nations, for…respect for diversity of culture and religion or belief, dialogue and understanding, which are important elements for peace.”

It called upon all states “to exert their utmost efforts to ensure that religious sites are fully respected and protected in compliance with their international obligations and in accordance with their national legislation, and to adopt adequate measures aimed at preventing acts or threats of damage to and destruction of these sites” and urged states to “respect different religions and beliefs and not to discriminate against persons professing other religions or beliefs.”25

UN General Assembly Resolution 59/23 of November 11, 2004, on the “Promotion of Interreligious Dialogue,” affirmed ”that mutual understanding and interreligious dialogue constitute important dimensions of the dialogue among civilizations and of the culture of peace.”26

UN General Assembly Resolution 59/199 of December 20, 2004, on the “Elimination of all Forms of Religious Intolerance,” which expressed alarm at the continued occurrence of intolerance and discrimination on the grounds of religion or belief, including acts of violence, intimidation, and coercion motivated by religious intolerance, and reaffirmed that “discrimination against human beings on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter.”

The resolution called upon states to “recognize the right of all persons to worship or assemble in connection with a religion or belief and to establish and maintain places for those purposes.”27

UN General Assembly Resolution 61/221of March 14, 2007, on “Promotion of interreligious and intercultural dialogue, understanding and cooperation for peace.” The resolution calls “to promote universal respect on matters of freedom of religion or belief and cultural diversity and to prevent instances of intolerance, discrimination, and incitement of hatred against members of any community or adherents of any religion or belief.”28

While such instruments comprising the “culture of peace” express noble hopes and honorable visions for all of humanity, and especially among the world’s religions, the realities of the international community, with day-to-day tensions, conflicts, and wars throughout the world, in effect undermine, sideline, and neutralize any apparent and even genuine sentiments and hopes inherent in the “culture of peace.”

Conclusion and Proposal

Clearly, a status quo that perpetuates an ancient and outdated social structure that no longer exists, that practices religious discrimination and denies or restricts rights of worship, should logically no longer be relevant and should not be maintained in modern international society. It is distinctly and blatantly incompatible with accepted international norms and concepts of equality, human rights, freedom of religion and worship, interreligious and intercultural dialogue, tolerance, understanding, and cooperation.

In light of what appears to be an intractable and emotive dilemma with little hope of achieving an acceptable and agreed resolution, the parties to the dispute, if they genuinely seek to resolve the impasse, need, together with the international community, to address it in a pragmatic, realistic, and constructive manner.

Perhaps the first step needs to be acknowledgment and realization by all concerned, including the respective religious leaderships, that a vital prerequisite for any definitive resolution of the dispute between Arabs and Jews is a logical and respectful remodeling of the antiquated status quo to be based on present-day international values and standards of fairness, equity, equality, and mutual respect while protecting basic religious sensitivities and procedures.29

Such a new, remodeled status quo would need to guarantee reciprocal recognition of religious rights and observance of the components of the “culture of peace.”

A remodeled status quo would comprise the following principles:

  • Reciprocal, principled recognition by each party of their ancient mutual ties to the Temple Mount.
  • Reciprocal acknowledgment of the right to freedom of worship as part of the internationally recognized “culture of peace,” subject to respecting existing religious procedures.
  • A coordinated prayer arrangement similar to that practiced in Hebron would enable jointly administered and mutually secure worship at agreed locations and times on the Temple Mount, with special provisions for respective religious festivals.
  • A joint security regime to regulate the implementation of the new, remodeled status quo, including dealing with disruptive behavior, politically motivated violence, and day-to-day criminal issues.
  • A joint administrative body to coordinate and regulate day-to-day issues of access, visits, prayer, provision of services, resolution of problems, and cooperation with respective governmental and municipal bodies as well as with other religious bodies.
  • Joint agreement on the regulation of any archaeological excavation and construction on the Temple Mount.
  • International acceptance of and concurrence with such a remodeled status quo, including revocation of resolutions by UNESCO and other organizations incompatible with such a remodeled status quo.
  • Acceptance and recognition of the new status quo by world religious bodies and churches.

Clearly, serious consideration of any possible remodeled status quo would require positive support, encouragement, and endorsement by all the interested and relevant actors, whether local or international.

It would require on the part of the Palestinian, Jordanian, and Israeli parties institutional support, support from the respective religious leaderships, and active, ongoing public encouragement through the media and among the respective communities, in order to counteract those elements that would inevitably seek to obstruct such a project.

Acknowledgment by the parties involved – chiefly the Palestinians, Jordan, and Israel, but also by the United States, Europe, and moderate Muslim states, especially the Gulf states – of the centrality of this factor in the Middle East reality, together with the realization of the dire and urgent need to resolve it, could contribute significantly to lessening tension and increasing mutual trust.

Accepting a new status quo would generate the dynamics that enable the resolution of many other, more pragmatic, and less passionate issues to build mutual trust and achieve a comprehensive peace in the region.

* * *

Notes

Photographs and illustrations curated by Lenny Ben-David.

1Imperial Ottoman Archives, from Lenny Ben-David’s collection.

2 https://www.newworldencyclopedia.org/entry/Dhimmi; https://rpl.hds.harvard.edu/faq/dhimmi#:~:text=A%20dhimmi%20refers%20to%20a,in%20return%20for%20specific%20taxes

3https://en.wikipedia.org/wiki/Dhimmi#Views_of_modern_Islamic_scholars_on_the_status_of_non-Muslims_in_an_Islamic_society

4 https://sourcebooks.fordham.edu/mod/1878berlin.asp

5 Yitzhak Reiter, The Eroding Status-Quo: Power Struggles on the Temple Mount, Jerusalem Institute for Policy Research, 2017, https://jerusaleminstitute.org.il/wp-content/uploads/2019/06/PUB_ERODINGSTATUSQUO-2017_eng.pdf

6 See Nadav Shragai, The “Al-Aksa Is in Danger” Libel: The History of a Lie, Jerusalem Center for Public Affairs, 2012, https://jcpa.org/al-aksa-is-in-danger-libel/

7 Article 13 of the League of Nations Mandate Instrument, https://www.un.org/unispal/document/auto-insert-183716/

8 Report of the Commission appointed by the British Government to determine the rights and claims of Moslems and Jews in connection with the Western or Wailing Wall at Jerusalem, December, 1930, https://www.un.org/unispal/document/auto-insert-183716/ ̶ opinions and conclusions, at p. 33.

9 For detailed descriptions of the historical evolvement of the custodianship over the holy sites in Jerusalem, see White Paper, published in 2020 by the Jordanian Royal Aal Al-Bayt Institute for Islamic Thought, The Hashemite custodianship of Jerusalem’s Islamic and Christian holy sites 1917–2020 CE, https://www.aalalbayt.org/wp-content/uploads/2020/07/WhitePaper_Jerusalem_3rdEd_web.pdf See also Mounir Marjieh, “Jerusalem’s Status Quo Agreement: History and Challenges to Its Viability,” June 7, 2022, Arab Center, Washington, DC, https://arabcenterdc.org/resource/jerusalems-status-quo-agreement-history-and-challenges-to-its-viability/

10 https://www.theatlantic.com/international/archive/2017/06/israel-paratroopers-temple-mount-1967/529365/ See also Nadav Shragai, “Protecting the Status of the Temple Mount in Jerusalem,” Jerusalem Center for Public Affairs, 2016, https://jcpa.org/pdf/Shragai_Status_web_covers_19jun2018.pdf

11 Israel Supreme Court HCJ 292/83, https://versa.cardozo.yu.edu/opinions/temple-mount-loyalists-society-v-police-commander-jerusalem-region See also Justice Stephen Adler, “The Temple Mount in Court: Will Israel’s Supreme Court Prevent the Destruction of Ancient Remains?” https://www.stephen-adler.com/jerusalem

12 https://peacemaker.un.org/sites/peacemaker.un.org/files/IL%20JO_940725_WashingtonDeclaration.pdf

13 Israel-Jordan Peace Treaty 1994, Art. 9, https://peacemaker.un.org/sites/peacemaker.un.org/files/IL%20JO_941026_PeaceTreatyIsraelJordan.pdf

14 https://ecf.org.il/media_items/1507 https://kingabdullah.jo/en/news/jordanian-palestinian-agreement-jointly-defend-al-masjid-al-aqsa

15 Israel Journal of Foreign Affairs 7 (2013): 61, https://www.tandfonline.com/toc/rifa20/7/3

16 Nadav Shragai, “To Pray or Not to Pray on the Temple Mount?” July 2021, https://jcpa.org/article/to-pray-or-not-to-pray-on-the-temple-mount See also Alan Baker, “Jordan and the Temple Mount,” Jerusalem Center for Public Affairs, May 2022, https://jcpa.org/article/jordan-and-the-temple-mount/#_edn6

17 https://press.un.org/en/2015/sc12052.doc.htm

18 UNESCO Executive Board 199EX/PX/DR.19.1.Rev, http://www.dci.plo.ps/en/article/4521/April-24,-2016—PNN-UNESCO-slams-Israeli-occupation-of-Palestinian-sites https://www.haaretz.com/israel-news/2016-10-18/ty-article/full-text-of-unescos-resolution-on-jerusalem/0000017f-e016-db22-a17f-fcb7ab8b0000

19 https://www.consilium.europa.eu/en/press/press-releases/2019/02/25/sharm-el-sheikh-summit-declaration/

20 https://www.aalalbayt.org/wp-content/uploads/2020/07/WhitePaper_Jerusalem_3rdEd_web.pdf, at p. 42.

21 https://il.usembassy.gov/statement-by-president-trump-on-jerusalem/

22 https://www.jordantimes.com/news/local/jordan-will-continue-protecting-holy-sites-jerusalem%C2%A0%E2%80%94-king https://www.vaticannews.va/en/pope/news/2017-12/pope-receives-king-abdullah-ii-of-jordan-in-audience.html https://www.eeas.europa.eu/node/36910_en See also Emergency Special session of the UN General Assembly Resolution A/ES-10/L.22, https://documents-dds-ny.un.org/doc/UNDOC/LTD/N17/452/13/PDF/N1745213.pdf?OpenElement

23 https://www.un.org/en/udhrbook/pdf/udhr_bookle

24 https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights Subparagraph 3 of this article, however, added a proviso that subjects the freedom to manifest one’s religion or beliefs to “such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

25 http://www.un-documents.net/a58r128.htm

26 http://www.un-documents.net/a59r23.htm

27 https://international.vlex.com/vid/res-59-199-resolucion-861184212

28 https://documents-dds-ny.un.org/doc/UNDOC/GEN/N06/507/63/PDF/N0650763.pdf?OpenElement

29 Remodeling the status quo has been the subject of various proposals over the years. See, for example, David E. Guinn, “Protecting Jerusalem’s Holy Sites: A Strategy for Negotiating a Sacred Peace,” https://epdf.tips/protecting-jerusalems-holy-sites-a-strategy-for-negotiating-a-sacred-peace.html and David Weinberg, “What Status Quo on the Temple Mount?” Begin-Sadat Center for Strategic Studies, 2017, https://www.jstor.org/stable/resrep04580#metadata_info_tab_contents