by Mounir Marjieh that described the "status quo" on the Temple Mount, and of course accused Israel of violating it.
Since the 19th century, the Al-Aqsa compound has been governed by a Status Quo arrangement, a modus vivendi that prevents discord among conflicting parties. Accordingly, Al-Aqsa’s administration belongs to a Muslim institution, the Jerusalem Islamic Waqf, which is under the custodianship of the Hashemite Kingdom of Jordan. This custodianship has repeatedly been reaffirmed and recognized by the international community, including the United Nations, UNESCO, the Arab League, the European Union, Russia, and the United States, and was officially recognized in the 1994 peace treaty between Israel and Jordan.
Actually, Israel 's treaty with Jordan doesn't say anything about "custodianship," only that Israel will "respect" Jordan's "special role" in Muslim (not Christian) holy sites in Jerusalem. The language makes clear that Israel is the one that makes decisions, not Jordan. Furthermore, the language implies that Jews can pray in the Temple Mount by referring to " freedom of access to places of religious and historical significance" and "freedom of religious worship, and tolerance and peace."
Jordan's signature on the treaty makes it binding international law.
Now let's look at his description of what the status quo supposedly is, which seems a bit inconsistent and contradictory.
After many disputes among European states in the 19th century for control over various holy sites in Jerusalem, the Ottoman Empire issued a series of decrees to regulate the administration of Christian holy sites by determining the powers and rights of various denominations in these places. The most important of these decrees was an 1852 firman by the Ottoman Sultan Abdulmejid I, which preserved the possession and division of Christian holy sites in Jerusalem and Bethlehem, and forbade any alterations to the status of these sites. This arrangement became known as the Status Quo.
In 1878, the Status Quo was internationally recognized in the Treaty of Berlin, which was signed between European powers and the Ottoman Empire following the conclusion of the Russo-Turkish War of 1877–1878. Article 62 of the treaty stated that: “It is well understood that no alteration can be made to the status quo in the holy places.” Article 62 of the Berlin Treaty extended the Status Quo to include all holy places and not only Christian sites. The Status Quo arrangement is a unique and delicate legal system that contains a specific set of rights and obligations that were created over centuries of practice and are now considered binding international law. It therefore supersedes any and all aspects of domestic law.
The Treaty of Berlin does not refer to the firman in any way. It does mention a status quo, without giving details of what it is. However, it can easily be read to say that Jews have the absolute right to worship in their holy places, including the Temple Mount.
Article 62 says:
The Sublime Porte having expressed the intention to maintain the
principle of religious liberty, and give it the widest scope, the Contracting Parties take note of this spontaneous declaration.
In no part of the Ottoman Empire shall difference of religion be alleged
against any person as a ground for exclusion or incapacity as regards the
discharge of civil and political rights, admission to the public employments, functions and honours, or the exercise of the various professions
and industries.
All persons shall be admitted, without distinction of religion, to give
evidence before the tribunals.
The freedom and outward exercise of all forms of worship are assured
to all, and no hindrance shall be offered either to the hierarchical organization of the various communions or to their relations with their spiritual
chiefs. ...
The rights possessed by France are expressly reserved, and it is well understood that no alterations can be made in the status quo in the Holy Places.
So we have a contradiction: the Treaty of Berlin says it supports freedom of worship, but also the status quo must not be changed.
Whatever that is. (The placement of that phrase in a paragraph about France implies that the "status quo" comment is only referring to Christian holy places.)
The Ottomans banned all non-Muslims from the Temple Mount until the early part of the 19th century. Marjieh claims that the status quo was "created over centuries of practice and are now considered binding international law." But if it was created over centuries, and for most of that time non-Muslims could not ascend, doesn't that mean that the status quo allows non-Muslims to be banned forever?
Moreover, Marjieh adds another dimension to his definition of the status quo:
Until August 2000, and despite occasional breaches and escalations, the Status Quo functioned relatively smoothly, with the Jerusalem Islamic Waqf collecting small fees from non-Muslims and tourists, who were allowed to enter the holy site provided they followed the rules of the Waqf....
[Now,] Temple Mount groups and Israeli extremists enter from al-Magharbeh Gate as well, and the Waqf is prohibited from preventing them from entering the site. The Waqf can no longer prevent Israelis in military fatigues from entering, although this act is banned per the mosque’s regulations.
So now the Status Quo is defined not as "the conditions for centuries before the Treaty of Berlin" but as "whatever the Waqf decides it is." The Waqf used to ban Jews and Christians, then they allowed them for a fee, then they came up with a rule to exclude religious Jews (as Marjeih complains that cannot do under horrible Israeli law.)
According to this new theory, the Status Quo is subject to the whims of the most extremist Muslims in Jerusalem.
If it can change for any reason, it is not a status quo by definition.
However, as mentioned, both the Treaty of Berlin, and the Israel/Jordan peace treaty, as well as
numerous instruments of international law, guarantee freedom of worship for all. None of them say that you can define a space that has been historically the holiest spot on Judaism as an exclusively Muslim place of worship.
According to the Arab Center, the status quo means that the Muslims can make up any rules they want - and that this is international law. It doesn't take much to show that this argument is not only false but nonsensical and contrary to actual, signed international treaties and conventions - including the one they use as Exhibit A.
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Sunday, April 09, 2023
Elder of Ziyon
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