The lengthy history of Jerusalem is distinguished by diverse episodes of benevolent tolerance, and by many others of inhumane intolerance. For several lengthy periods, such as most of the 19th century, the holy city was generally characterized by a spirit of coexistence. On too many other occasions, it witnessed sectarian persecution and cruel massacres. Two of the most horrific of these episodes took place after Jerusalem was captured following a prolonged siege, once by the Persians in 614 CE, and again by the Crusaders in 1099. In both cases, thousands of the city’s residents were slaughtered by the victors. An area adjacent to the ancient Mamilla Pool west of the city walls of Jerusalem was the scene of the first of these massacres, and was the burial site of its victims. This place of carnage subsequently became the most reputed Muslim burial place in Palestine, the Maman Allah (Mamilla) Cemetery, which is our main topic for this evening.
This ancient history is relevant because it shows that the ongoing project to build what is described by its sponsor, the Simon Wiesenthal Center in Los Angeles, as a “Center for Human Dignity” on part of the Mamilla cemetery is not the first indignity that this venerable site has witnessed. This construction project has gone ahead in spite of repeated protests by Palestinians and Israelis, and two unsuccessful attempts to litigate against it in Israeli courts. The most recent effort to stop it was a petition presented in February 2010 to five United Nations bodies. This petition was signed by members of an ad hoc group of individuals composed of 60 descendants of Jerusalem families whose ancestors were buried in the Mamilla Cemetery (of whom I should add parenthetically in the interest of full disclosure that I am one). They were supported in this effort by the Center for Constitutional Rights in New York. My presentation this evening aims to lay out some of the historical background relating to this contested site, explain briefly how the most recent conflict over it has evolved, and to explore some of its implications.
The Mamilla cemetery was located well outside the walls of Jerusalem, as were all urban cemeteries in centuries past. The city has since expanded to include the cemetery, and the site is now in the middle of downtown Jerusalem. It seems at one stage to have been a Christian cemetery located around one of the ancient rock-hewn pools from which the city drew its water in ancient times, and from which the cemetery takes it name. In the wake of the Islamic conquest of Jerusalem from the Byzantines in 638 CE, according to tradition Mamilla is reputed to have become the burial place of several of the Prophet Muhammad’s Companions who died during or after the nascent Muslim state’s military campaigns in the region.
As Jerusalem became a focus of Muslim pilgrimage and learning in subsequent centuries, the Mamilla Cemetery became an important site of burial for pilgrims, holy men, scholars and urban dignitaries, as well as ordinary Jerusalemites. Among those historically attested to be buried there were numerous commanders and soldiers in Saladin’s army that retook the city from the Crusaders in 1187, including the ancestor of one of the 60 petitioners of February 2010. As is the case with many other religions, burial sites in Islam are supposed to be places of eternal rest. According to the unanimous opinion of Muslim scholars, disinterment of the dead is strictly forbidden, and the sanctity of cemeteries is considered to be eternal.
Nineteenth century engravings and early photographs show a variety of Islamic tombs and religious monuments on the site, many of which are still in existence. The limits of the cemetery were defined when it was enclosed by a wall by the Ottoman authorities in 1860. Those limits were not encroached upon for a century, through the Ottoman period, the British Mandate, and beyond the first decade of Israeli rule. The cemetery was declared an antiquities site by the British Mandatory government in 1944. Throughout this period, the cemetery was under the control of the local Muslim religious authorities, as is attested by a Mandatory government deed issued to them for the entire 33-acre plot in 1938. The cemetery was in continual use until the incorporation of the Western part of Jerusalem into Israel in 1948.
The indignities began soon afterwards. The authorities of the new Israeli state initially pledged to maintain the sanctity and integrity of the Mamilla Cemetery: Israel’s Religious Affairs Ministry in 1948 proclaimed it to be “one of the most prominent Muslim cemeteries…” adding that “Israel will always know to protect and respect this site.” Sixteen years later, in 1964, the cemetery was formally designated by Israel as an antiquities site. This designation proved meaningless, however, as in the same year a parking lot was built in the northern quadrant of the cemetery. A northwestern section was built upon thereafter, while in the 1960’s as well the western area of the cemetery was turned into what was called “Independence Park.” Needless to say, these encroachments on the cemetery constituted desecrations, and diminished its extent. But none of them involved extensive excavations, and thus the disturbance of graves in most cases was limited. Nevertheless, human remains were turned up during the paving of the parking lot in the 1960’s and during other similar, subsequent operations, sparking public protests. Before 1966 these were greatly muted, however, in consequence of the fact that Palestinian citizens of Israel were subject to military rule and to strict movement and other controls rigorously maintained by the Israeli General Security Service, the Shin Bet.
To understand how and why even these infringements were possible on such an ancient and important sacred site, it is necessary to explain the discriminatory treatment in Israeli law and practice of Muslim public waqf property (a waqf is a perpetual religious endowment), as distinguished from the property of Jewish and Christian public religious endowments. From the time of the establishment of the state of Israel, all Muslim public waqf property throughout the country [including mosques, cemeteries and holy sites and a vast amount of other property], which had previously been under the control of the Muslim religious authorities, came into the hands of the Israeli state’s Custodian of Absentee Property. These public religious endowments had been under communal control under the Ottomans and the British, as is the case with the property of all other faiths in Israel, and as is the case with public waqf property generally elsewhere in the world.
It is worth saying a few words about the Custodian of Absentee Property at this point. This unique institution of the Israeli government was specifically designed to despoil Palestinians – both those driven from their homes in 1948, and others remaining in Israel or who left subsequently – of their lands and other moveable and immovable goods. It is worth noting in this context that in 1948, Jewish land ownership amounted to less than 7% of the entirety of Mandatory Palestine. This explains the urgent need for such an institution, if most of the mainly Arab-owned land of Palestine before 1948 were thereafter to be transformed into the property of the state of Israel. Even given thorough ethnic cleansing, how otherwise would it have been possible to transform what before 1948 was a predominantly Arab land into what afterwards became a predominantly Jewish state? Most of the land in Israel today has been expropriated in this fashion. From the grasping hands of the Custodian, these properties have devolved over time into the control of the Israel Lands Authority, other state or para-state bodies like the Jewish National Fund, or private hands. Once taken over in this fashion, many of the properties originally under the control of the Islamic waqf authorities were put to secular uses, but many have been left abandoned or derelict. This has led to mosques and Muslim holy sites all over Israel, such as the 18th century mosque in Tiberias, being desecrated in a variety of ways over the years.
Precisely these things happened to the different parts of the Mamilla Cemetery, as we have already seen. But much worse was to come in 2002 when the northern section of the cemetery that in 1964 had been paved over and turned into a parking lot was granted to the Simon Wiesenthal Center for the building of its Center for Human Dignity. This project is meant to encompass over 10% of the total area of the original Cemetery, a total of about 3.5 acres. It was approved by the Jerusalem Municipality, to which control over the entire Cemetery had been transferred in 1992.
Given the appropriation of religious holdings such as Mamilla by various agencies of the Israeli state, it goes without saying that such sites could not be protected, preserved or restored by the appropriate religious authorities whose job this is. This is the case in spite of the fact that these authorities hold unassailable legal title to these properties, albeit title unrecognized by the biased and discriminatory legal system of the Israeli state. Thus before sections of the cemetery were earlier turned into a parking lot, a park, or other profane purposes starting in the 1960’s, they had been allowed to deteriorate significantly. This is what is currently happening to the remaining untouched area at the eastern end of the cemetery where numerous gravestones can still be seen. With the Muslim religious authorities forbidden from tending it, this remnant of the cemetery has become overgrown, gravestones have been knocked down by vandals, and it came to be known as a seedy, disreputable and dangerous area at night. But at least there, and in most other parts of what was once a 33 acre cemetery, in spite of these desecrations, most of the dead are allowed to rest in peace, even if under asphalt or with a park above them. This was not the case in the parcel we are focused on.
The saga of the specific indignities inflicted on this sacred site by the process of the Simon Wiesenthal Center’s building of its “Center for Human Dignity” is beyond ironic, given the high-sounding title of the institution slated to be built on top of part of the oldest Muslim cemetery in Jerusalem over the protest of the descendants of those buried there. It was thus in the name of “Human Dignity” that human remains in three or four layers of graves ranging from the 11th century to the 1930’s were initially disturbed, and have since been entirely removed. We know this through the reports and testimony of Gideon Suleimani, who was Director for the Jerusalem District for the Israel Antiquities Authority, and who served as Chief Excavator directing the archaeological survey which took place at the site. His partial investigations affected only about 400 of the many thousands of Muslim graves he estimated were on the site chosen for the Simon Wiesenthal Center’s project. Nevertheless, what he discovered during his excavation was what he described as “the cemetery of the residents of the vicinity – men, women and children, very crowded, very orderly, which shows that the society was very organized, with a great deal of mutual respect.” Headstones which Suleimani and his co-workers unearthed in his rushed excavations, some going back as far as 1278, indicated that the cemetery also contained, in his words, “militarily, religiously and politically elite Muslims.”
In light of these discoveries and the uproar they caused in the Israeli press and among Israeli academics, Israel’s Supreme Court temporarily halted all work on the site for over a year while it considered a suit filed in 2006 to force abandonment of the entire project. However, the Simon Wiesenthal Center eventually won its case in 2008, a judgment the Court refused to reconsider in 2009 in response to a second suit. The second court case highlighted the disturbing revelations in Suleimani’s formal report to the Israeli Antiquities Authority, revelations which had been ignored by the Authority itself, and by the Israeli Supreme Court in its decision a year earlier.
The Wiesenthal Center won its case with the connivance of senior officials of the Israeli Archaeological Authority by a process that Suleimani has stated in a sworn affidavit included the systematic falsification by his superiors of the reports oh his excavations that he had submitted. In these reports Suleimani insisted that construction could not and should not proceed without a thorough investigation of the entire site devoted to the Simon Wiesenthal project. Although this never happened, and he estimated that he was only allowed to survey 10% of that parcel, construction resumed in 2008. In the process, the thousands of un-exhumed graves that as a result of his incomplete excavations he believed lay under the site were destroyed. The human remains they contained were removed. Nearly three years later, the number, identity and location of those remains are a closely held secret. One can compare the near-silence that has enveloped this wholesale desecration of many thousands of graves with the huge uproar made in 1967 and ever since over the lamentable desecration by the Jordanian authorities of a few score graves in the ancient Jewish cemetery on the Mount of Olives.
The systematic discrimination by the Israeli state which I have already described as between Muslim public religious properties and those of other faiths applies to the remains of the dead as well. Suleimani stated in his sworn affidavit that
if the skeletons in question were Jewish, the story would have developed in a completely different direction. When the skeletons found are suspected to be Jewish, it is mandatory to notify the Ministry of Religions, and its representatives may discontinue the excavations. It appears to me that the Muslim dead have nobody to protect them.
Suleimani went on to call the assertions of the Israeli Archaeological Authority, on the basis of which the Israeli Supreme Court made its judgment in favor of the Simon Wiesenthal Center, “a factual and archaeological lie.” Further, the Israeli archaeologist accused the Israel Antiquities Authority of an “archaeological crime” which deprived its work of all “moral and professional validity.”
In view of these and other facts, and the arguments marshaled by legal representatives of the 60 Jerusalem complainants in their 2010 petition and in an addendum issued in June of the same year, the UN bodies to which they were submitted have begun to respond positively, albeit slowly, as is the way of the United Nations. The petitioners argued that actions of agencies of the state of Israel and of the Simon Wiesenthal Center violated customary international law in a variety of specific ways. They asked these instances to call for an immediate halt to all construction activity; that the disinterred remains be located and reburied under the supervision of the relevant Muslim authorities in Jerusalem; that the entire site be preserved as a historical Muslim cemetery under appropriate religious auspices; and that UNESCO ensure that the cemetery be protected as a cultural and religious heritage site of great value. The petition was directed to five United Nations officials – the UN High Commissioner for Human Rights, the Director General of UNESCO, two UN Special Rapporteurs, one on Freedom of Religion and the other on Racism, and the UN Expert for Cultural Rights – as well as the Swiss Government, in its capacity as depository of the 4th Geneva Convention. Under the UN Charter, none of these instances has the power to ensure that such things take place. Nor indeed can the UN General Assembly: only the Security Council can do that.
It is worth noting that in 1980, after deploring “the persistence of Israel in changing the physical character, demographic composition, institutional structure and the status of the Holy City of Jerusalem,” the Security Council in its resolution 476 affirmed that “all legislative and administrative measures and actions taken by Israel, the occupying Power, which purport to alter the character and status of the Holy City of Jerusalem have no legal validity and constitute a flagrant violation of the 4th Geneva Convention.” It is of interest that the wording of this resolution refers not to occupied Arab East Jerusalem, or to the Old City of Jerusalem. Instead, it refers to the entire “Holy City.” This is a reflection of the wording of a series of UN resolutions going back to the partition resolution of 1947 (UNGA 181) that called for the entirety of the city of Jerusalem, East and West, to have a separate international status. Israel’s admission to the United Nations in 1949 (under UN General Assembly resolution 273) was, unusually, conditional. It depended, among other things, on Israel making a commitment to abide by these provisions regarding Jerusalem. These and other resolutions have not been superseded (nor has Israel ever respected them), which is why Jerusalem is not recognized as Israel’s capital, or indeed as sovereign Israel territory, by the vast majority of countries of the world.
Given the decreasing willingness of US administrations in the decades since 1980 to hold Israel accountable for any of its actions – an unwillingness most recently seen in the United States’ Security Council veto in December 2010 – such a firm stand is unlikely to be taken again by the Council in the near future. Nevertheless, this 1980 Security Council resolution constitutes an important precedent regarding the entirety of “the Holy City of Jerusalem” by the highest decision-making body of the United Nations.
Moreover, the generally positive response thus far of the UN bodies which were petitioned in 2010, although it has been agonizingly slow, has encouraged the 60 petitioners, who have continued their efforts. In little over a year, a public campaign has developed out of the original petition, including the writing of scores of newspaper articles and TV and radio reports explaining the details of the case. This in turn has helped to convince some of the UN bodies being petitioned, as well as others, of the importance of this case, and of this approach as a legitimate means of recourse. The publicity around this issue was a key factor in the withdrawal from the project of Frank Gehry, the original architect chosen by the Simon Wiesenthal Center to design their Center for Human Dignity. Similarly, other celebrities have declined to participate in events organized by the Wiesenthal Center when its actions in the Mamilla case became known to them.
I went to Washington in May 2010 with the lawyer Michael Ratner, the President of the CCR, to inform officials of the US State Department about the petition and the addendum. We were asked whether this activity might lead to UN resolutions resulting in “the de-legitimization of Israel,” and whether that might not be considered to constitute what they called “lawfare.” Our response was that when Palestinians resort to violence to secure their rights or in resisting oppression and discrimination, they are condemned for “terrorism.” When they or others use non-violent, peaceful and legal means to oppose a manifest violation of international law such as this one, they are perversely accused of “lawfare.” Immediately after this response, the conversation took a decidedly more constructive turn.
Nevertheless, it must be asked in what sense can the actions of the Israeli state and the Simon Wiesenthal Center affecting the Mamilla Cemetery possibly be considered “legitimate”? Moreover, how could the legal petition of members of affected Jerusalem families about the desecration of the graves of their ancestors possibly do anything further to “delegitimize” these actions, which by any universal standards of justice are themselves illegitimate? In fact, if Israel is in fact being delegitimized, the party primarily responsible for this de-legitimization is the Israeli government itself, though its own actions, such as those just described.
It is a sign of the increasing degradation of American political discourse, and of the bankruptcy of United States diplomacy, that senior American officials use terms such as “lawfare” and “de-legitimization,” which have recently been generated by extreme right-wing legal circles in Israel and the United States, to defend any and all actions of the Israeli state against approaches based on international law. A recent address by an Assistant Secretary of State to the Israeli lobby’s “think-tank, the Washington Institute for Near East Policy, boasted of the extensive efforts of the administration to combat efforts to “delegitimize” Israel. Whatever perverse uses American diplomacy is being put to in the service of the immunity of Israel to international criticism, it is unconscionable that such terms be used to describe private legal efforts to mitigate profoundly unlawful and illegitimate acts such as those taking place in the Mamilla Cemetery to this day.
These are not isolated or random acts by Israel. They are part of a pattern of systematically discriminatory policies that have been implemented against Palestinians since 1948, and are still being implemented inside Israel proper and in the territories occupied in 1967. These policies have resulted in the expropriation of most of the over 93% of the property of Mandatory Palestine that in 1948 was privately owned by Arabs, or was publicly held, or was held as waqf.
The family petitioners in the Mamilla case have peacefully and legally opposed one such specific act which any sane observer will agree is a manifest affront to human dignity. This effort constitutes one step along a path that is beginning to be explored by others. Such legal and civil society efforts may grow more widespread and become more effective, now that the wave of peaceful protest, youth activism, and bottom-up civil society-based initiatives appears to be having a profound affect on Palestinians, after sweeping through much of the rest of the Arab world. One example of these initiatives was the organization of the May 15 Palestinian refugee march to the borders in the West Bank, Gaza Strip, Syria, Lebanon and Jordan to commemorate the Palestinian Nakba. This represents an eruption onto the Palestinian scene of new forces, largely independent of the discredited political factions that have long dominated Palestinian politics. And it represents the return of pivotal issues, like those of the refugees and Jerusalem, that have long been repressed and misinterpreted in the public discourse of the United States and Israel, even as the diplomacy of the two countries has for over two decades consistently postponed consideration of these two issues that are far more important than any others to the Palestinians and the Arab world.
A more democratic Arab world, should that be the outcome of the revolutionary events of the past six months, is likely to be far more supportive of the Palestinians than were the undemocratic regimes that until recently completely dominated the region. Most of these regimes lacked legitimacy with their own peoples and were so dependent in the United States as to be incapable of charting an independent foreign policy. In the future, as and when an independent foreign policy becomes possible for Arab governments that reflect their peoples’ wishes, it would probably first be put forward by the most important Arab country, Egypt, which has begun moving in this direction. This could produce innovative diplomacy to open up such repressed issues. It might also help end the logjam created by two decades of fruitless American-sponsored negotiations during which the Israeli occupation has only grown more entrenched, and the crisis in Palestine and the oppression of the Palestinians have only gotten worse.
This is all still in the future. The course and nature of the new Egyptian regime, and of the revolutions and uprisings elsewhere in the Arab world, are by no means settled yet, although things are undoubtedly changing, hopefully for the better, in the Arab world and among the Palestinian people. In the meantime, however, occupation, colonization, oppression and dispossession continue unabated in Palestine. So does the indignity of the building of a so-called “Center for Human Dignity” in the midst of the Mamilla Cemetery in the heart of the Holy City of Jerusalem, scene of so many indignities in the past.