TEMPLE MOUNT NO LAND REGISTRY

Temple Mount - not listed in the Land Registry By Nadav Shragai

Tel Aviv architect Tuvia Sagiv, an amateur but well-known researcher of the history of the Temple Mount, no doubt did not imagine that his influence would go as far as the Oval Office of the president of the United States. However, according to Dr. Shmuel Berkovits, an attorney who has written a new book about the holy places, Sagiv is the source for former president Bill Clinton?s proposal to divide sovereignty over the Temple Mount vertically, from top to bottom.

At the end of December 2000, Clinton proposed that the Palestinians get the sovereignty over the level of the mosques while the Jews make do with sovereignty over the depths of the mount, the Western Wall and the Holy of Holies. Sagiv combed the Temple Mount with radar equipment and infra-red cameras that were operated from helicopters flying above and
alongside the site. Relying on these tests, he claimed that the Temple had lain at a depth of 16 meters below the water fountain between Al-Aqsa Mosque and the Dome of the Rock, and that what is known as the Western Wall is not the western wall of the temple but rather part of the wall that was built by the Emperor Adrianus around the Roman shrine that he built on the Temple Mount after the conquest of Jerusalem and its destruction in the second century.

Sagiv proposed breaking open a giant gate in the Western Wall through which Jews could go to reach the level of the Temple, under the level of mosques. Sagiv's revolutionary approach is not in keeping with accepted scholarly opinions. Most of the important archaeologists and rabbis to
this day believe that the Holy of Holies is not situated deep under the ground but rather at ground level as we know it at present, exactly at the spot where the rock is located in the Dome of the Rock. Berkovits, in his new book, How Dreadful is This Place, recounts the history of Sagiv's theory, which was submitted more than 10 years ago to Ariel Sharon when he was still an opposition member of the Knesset. At that time, Sagiv proposed to Sharon that it would be possible to solve the problems of Jews and Moslems praying on the Temple Mount by dividing the use of the site lengthwise rather than breadthwise. Some time later, the U.S. Embassy asked Sagiv to furnish them with an expository copy of his proposal, and in this way the idea made its way into the hands of Clinton.

In any event, Berkovits is of the opinion that even if Sagiv's idea were more acceptable, the Palestinians would never agree to Israeli sovereignty over the depths of the mount, both because of their historic fear that the Jews would undermine the foundations of the mosques and knock them down to rebuild the Temple, and because of their anxiety lest the Jews dig there and find the remnants of the Temple, proof that it existed on the Temple Mount, contrary to the Palestinians' claims about this.

"No holy buildings"

Holy sites are more or less Berkovits' profession. He is a world-renowned expert in the field, and he has been doing research for 25 years, as well as teaching and consulting on these topics. He is a member of the Jerusalem Institute of Israel Studies, serves as an adviser to the Armenian Christian community, to the Museum of Tolerance and the Diaspora Yeshiva. His doctoral thesis was put at the disposal of the Israeli team at the Camp David peace talks with Egypt in 1978 as the central reference document about the holy sites. His previous book, The Wars over the Holy Places, won first prize in 2001, in the field of Israeli security, from the Jaffee Center for Strategic Studies.

Academics and experts in international law will find a great deal of interest in the analyses and the legal innovations in his new book which deals with sanctity, politics and law in the holy places in Jerusalem and in Israel in general. He even received an enthusiastic foreword from the former president of the supreme court, Meir Shamgar. (The two sit together on the committee for prevention of the destruction of antiquities on the Temple Mount). But the general public will be more interested in those holy cows that Berkovits is not afraid to slaughter, and not always with academic caution.

The most obvious example is his attitude toward the affair of the burning of the synagogues at Gush Katif. Berkovits states: The Israeli government and the Israel Defense Forces are keeping secret the information, as if it was a military secret, that before the IDF withdrew from the Gaza Strip and northern Samaria, the army chaplaincy removed the sanctity of all the synagogues and religious study centers in the Gaza Strip so that the buildings which the Palestinians looted, burned and destroyed in the settlements that were evacuated were no longer synagogues but merely regular buildings. Berkovits says he posed a question to the army chaplaincy on this matter but received an evasive answer, and the military chaplains were prepared only informally to tell him of these developments.

In his book, Berkovits cites, for the first time, the full halakhic ruling written by Chief Rabbi Yona Metzger in which he gives the details of the required halakhic procedure to remove a synagogue's sanctity. The most substantive stage of this procedure comes when there is an act of sale, and the central role is supposed to be that of the chief chaplain of the IDF. In his halakhic opinion, Rabbi Metzger sats the state must assign its rights according to the property laws to the army chief rabbi, and he is the one who must later carry out the sale to the state treasury.

At the time of expropriation, Metzger instructed, the state must make a legal commitment to give something in return for the buildings whose sanctity has been removed, and for buildings that serve for other religious purposes (such as ritual baths). This commitment, he says, will serve as a payment for the sale and will lead to the implementation of the removal of the sanctity. Berkovits also refers to another, albeit less painful, sham, presented to the Israeli
public in 2001 : the negotiations in Taba between representatives from Israel and from the Palestinian Authority, which devoted a great deal of time then to the status of Jerusalem's Old City and the Temple Mount. The foreign minister at the time, Shlomo Ben-Ami, and Yossi Beilin, declared that there had been progress in all the issues and stated that we had never been so close as then to signing a peace agreement. The person who revealed that this was a bluff was none other than Ben-Ami himself.

The book quotes him as saying: It was a week before the elections and this is a legitimate act. It would have been stupid not to take advantage of it.The former prime minister, Ehud Barak, also refers to this display as groundless. Berkovits also does not hesitate to apparently contradict earlier publications about the Taba talks, such as that of Dr. Menahem Klein in his book Shattering a Taboo. Klein wrote in this book that, at the Taba talks, Israel agreed to place the neighborhoods close to the Old City (such as Silwan, a-Tur, Ras el-Amud, and Sheikh Jarrah) under Palestinian sovereignty, and that the Palestinians agreed that neighborhoods like
Gilo, East Talpiot, French Hill and Ramot would be part of Israel. Berkovits' book, How Dreadful is This Place offers a different version, that of attorney Gilad Sher, who headed the Israeli negotiating team to the talks. Sher contends that the sides did not really conduct negotiations and did not arrive at any real agreement on that at all. All the same, Berkovits points out that the very fact that the Israeli side agreed to the Clinton document (although with reservations) gives the impression as if there was some type of agreement.

The big denial

The book devotes space to the great show of denial the Muslims have initiated in the past few years about everything to do with the existence in the past of the Jewish Temple on the Temple Mount, and it brings examples to illustrate that this is not how things were in the past. A guide to the Temple Mount, put out by the Supreme Muslim Council in 1924, states explicitly that the identity of the Temple Mount as the site of the holy shrine of Solomon is beyond any kind of doubt. Berkovits' book also quotes texts from the Palestinian historian Aref al-Aref (1892-1973). Al-Aref was the partner of the Grand Mufti Haj Amin el-Husseini in the leadership of
the Palestinian National Movement at the beginning of the Mandatory period, and in his book, A Detailed History of Jerusalem, he writes: The Wailing Wall is the exterior wall of the temple that was reconstructed by Herod ... and the Jews visit there frequently and, on particular, on Tisha B'Av [the anniversary of the destruction of the Temple]. And when they visit the wall, they remember the glorious and unforgettable history and they begin to weep.

Berkovits returns to a finding he mentioned in the past and makes it more concrete - about claims that the Western Wall is holy to Islam because that is where Mohammed tied his winged horse, Al-Burak. Until the middle of the 19th century, various places in the Harm el-Sharif [as the Muslims call the Temple Mount] compound were mentioned as the place to which he tied his horse, sometimes the eastern wall, sometimes the southern wall, but never the Western wall. Berkovits assumes that the Muslims' eventual decision to choose the Western wall was a reaction to the fact that, at the beginning of the 19th century, the Jews started to bring chairs, tables and Torah scrolls with them when they came to pray in the plaza in front of the Western wall. He also cites a long list of proofs of the existence of the Temple on the Temple Mount.

Among the interesting details, and the lesser known ones, on this list are two Greek inscriptions from the Second Temple period that were found in the vicinity of the Lions' Gate that prohibit
the entry of foreigners beyond the barrier that surrounds the Temple, and threaten trespassers with the penalty of death in the following language: A foreign person shall not enter inside the partition that surrounds the Temple or to the court that surrounds it, and whoever is caught will pay with his life and his fate is death. Incidentally, a photograph of the inscriptions appears in the complete guide to the Temple Mount archaeological excavations that was published a few years ago by Dr. Eilat Mazar, and they are mentioned in the description of the Temple by Josephus in his book The Jewish War.

Berkovits, in his book, proposes a series of changes in Israeli legislation relating to holy sites, following the author's discovery that there is no definition of the term holy place. It also points to a hitherto unknown fact that could have far-reaching implications in the argument over the High Court of Justice's right to hear petitions about implementing the right of Jews to pray on the Temple Mount: In the most famous case on this subject, known as the High Court ruling on nationalist groups, the High Court ruled that Israeli courts do not have the authority to discuss whether the right to prayer can be implemented at holy sites altogether, and at the Temple Mount in particular. With this in mind, all the petitions dealing with the implementation of the Jews' right to pray at the Temple Mount over some 30 years have been rejected.

But in a different case, known as the High Court ruling on women at the Wall, the High Court ruled that it has the authority to discuss the right to pray at the Western Wall, and in this ruling it effectively overturned its own ruling in the case on the nationalist groups. In the last chapter, a fascinating issue is examined. It transpires that the Temple Mount and most of the Western Wall are not registered in any way in the Israel Land Registry ("Tabu") and the issue of who their earthly owners are, has not yet been decided. At the same time, and contrary to what is generally thought to be true, Israel has constantly refrained from expropriating the Western Wall so that this will not be interpreted as a relinquishment of the other walls of the Temple.

One part of the Western Wall was expropriated and registered in the Land Registry as property owned by the State of Israel. The area in question is between the southwestern corner of the Western Wall and as far as the Makhama building [deep beneath which lie the tunnels from the Second Temple period], along the entire height of the wall.