It’s time for a new ‘status quo’ on the Temple Mount

The current arrangement is anachronistic, discriminatory and contradicts today’s international norms.

Eid al-Adha prayers on the Temple Mount in Jerusalem's Old City, July 20, 2021. Photo by Jamal Awad/Flash90.
Eid al-Adha prayers on the Temple Mount in Jerusalem's Old City, July 20, 2021. Photo by Jamal Awad/Flash90.
Alan Baker (JCPA)
Alan Baker
Amb. Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs.

Religious practices and observances at major religious sites and shrines are often 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 usually developed in order to address the specific historical circumstances relevant at the time of their establishment. More often than not, however, they are inherently discriminatory and run counter to today’s accepted norms and standards of interreligious tolerance and human rights.

Today’s international community in general, and individual states and religious communities in particular, face the challenge of attempting to realize and implement modern-day norms of interreligious and intercultural dialogue and tolerance at such religious sites. This means that they must adapt a seemingly irreversible “status quo” to present-day universal humanitarian standards and values such as religious freedom.

The question is whether such adaptation is attainable in practice.

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

The current issues beleaguering any hope of achieving tranquility in Jerusalem are based on an age-old Ottoman status quo that governs custodianship, worship and visits to the 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. These decrees froze claims by religious communities in Jerusalem and Bethlehem to Christian holy places and forbad any alterations to their existing status. While this status quo may have been relevant and even “normal” under a Muslim regime that relegated Jews and Christians to the second-class status of dhimmis, it completely contradicts today’s international norms of religious freedom and non-discrimination.

The prohibition on Jews ascending to the Temple Mount had existed prior to Ottoman rule during the Mameluke era (1250–1516) and was maintained under Ottoman rule from 1516–1917. It was acknowledged by Western powers at the 1856 Paris Conference and in the 1878 Treaty of Berlin, article 62 of which stated, “It is well understood that no alterations can be made to the Status Quo in the Holy Places.”

After the defeat of the Ottomans in World War I, the partitioning of their empire and the establishment of the British Mandate for Palestine (1920–1947), this did not change. The mandate stated, in part, “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.” As a result, the British upheld the status quo arrangement.

During the Mandate era, custodianship over the Temple Mount was transferred to the Supreme Muslim Council, considered the highest governing authority of Muslim community affairs in Mandatory Palestine. In 1924, the Council bestowed custodianship of the holy sites upon the new Caliph of Muslims and protector of the city Sharif Hussein Bin Ali, considered the “King of the Arabs.” This was formalized in a 1924 verbal agreement, which bestowed the title of “custodian” upon the rulers of Jordan, considered descendants of the Prophet Muhammad.

In 1967, Israel acquired control over the Temple Mount and, to prevent possible interreligious disputes and violence, decided to preserve the status quo. 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.

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

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 Supreme Muslim Council and the Hashemite dynasty, the two parties reaffirmed Jordanian custodianship of the holy places, while acknowledging Palestinian claims to sovereignty in Jerusalem.

Israel’s acknowledgment of the arrangements regarding the Temple Mount was 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 also reaffirmed the status quo on the Temple Mount, which allows non-Muslims to visit but not to pray.

In other words, 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, even though it is wholly at odds with international norms of equality and human rights.

Progressive, liberal and democratic societies and international bodies—including the United States, the United Kingdom and other European states, as well as international and regional organizations like the United Nations—overlook and ignore the inherently discriminatory nature of the Temple Mount status quo, accepting and perpetuating it in a cynical demonstration of double standards.

It is indeed enlightening that these states, international organizations and churches choose to maintain their anachronistic position on the issue without realizing the inherent conflict between it and their own advocacy of human rights, which include strong protections of religious freedom. Instead, they choose to reaffirm a blatantly discriminatory status quo that violates accepted international norms and principles.

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

Such a new, 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, subject to respecting existing religious procedures.
  • A coordinated prayer arrangement similar to that practiced in Hebron, which would enable jointly administered and mutually secure worship on the Temple Mount at agreed locations and times, with special provisions for respective religious festivals.
  • A joint security regime to regulate the implementation of the new status quo and deal 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 disputes and cooperation with respective governmental, municipal and religious bodies.
  • Joint agreement on the regulation of any archaeological excavation and construction on the Mount.
  • International acceptance of and concurrence with such a remodeled status quo, including revocation of resolutions by UNESCO and other organizations that are incompatible with it.
  • Acceptance and recognition of the new status quo by world religious bodies and churches.

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

It would require the Palestinian, Jordanian and Israeli parties to give institutional support to the new arrangement. It must also be supported by 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 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 tensions 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 that could achieve a comprehensive peace in the region.

Amb. Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.

This is an edited version of an article first published by the Jerusalem Center for Public Affairs.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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