by Rashid Khalidi, Jadaliyya – 5 July 2011
When Palestinians resort to violence to secure their rights or to resist oppression and discrimination, they are routinely 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.”
The lengthy history of Jerusalem is distinguished by diverse episodes of both benevolent tolerance and inhumane intolerance. For several lengthy periods, such as most of the nineteenth century, a spirit of coexistence generally characterized the holy city. 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, the victors slaughtered thousands of the city’s residents. An area adjacent to the ancient Mamilla Pool west of the city walls of Jerusalem was the scene of the first of these massacres, as well as 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.
Thus the Los Angeles based Simon Wiesenthal Center’s ongoing project to build a “Center for Human Dignity,” or alternatively the “Museum of Tolerance, on part of the Mamilla cemetery is not the first indignity that this venerable site has witnessed. This construction project has continued in spite of repeated protests by Palestinians and Israelis, and two unsuccessful litigation attempts in Israeli courts. The most recent effort to halt the project 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 sixty descendants of Jerusalem families whose ancestors were buried in the Mamilla Cemetery (of whom I should add in the interest of full disclosure that I am one) who organized the “Campaign to Preserve Mamilla Jerusalem Cemetery.” The Center for Constitutional Rights in New York supported the petitioners’ efforts.
The Mamilla cemetery was located well outside the walls of Jerusalem, as were all urban cemeteries in centuries past. The city has since expanded, and the cemetery 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 sixty petitioners of February 2010. As is the case with most religions, burial sites in Islam are 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 eternal.
Nineteenth century engravings and early photographs show a variety of Islamic tombs and religious monuments, many of which are still in existence at the site. In 1860 the Ottoman authorities built a wall surrounding the cemetery, clearly defining its limits. It was not encroached upon for a century, throughout the Ottoman period, the British Mandate, and beyond the first decade of Israeli rule. The British Mandatory government declared the cemetery an antiquities site 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 thirty-three-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 thereafter. 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, Israel formally designated the cemetery as an antiquities site. This designation proved meaningless; that same year a parking lot was built in the northern quadrant of the cemetery. A northwestern section was built upon shortly thereafter. The western area of the cemetery was turned into an “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 1960s and during other similar, subsequent operations, sparking public protests. Before 1966 such protests were muted due to the strict surveillance and control that military rule imposed on Palestinian life in Israel.
These infringements on an ancient and important sacred site were made possible by the discriminatory treatment in Israeli law of Muslim public waqf [a perpetual religious endowment] property. Israeli law and practice treat Muslim public waqf property differently from that 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, holy sites, and a vast amount of other property), which had previously been under the control of the Muslim religious authorities, were taken over by 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 public religious endowments of all other faiths in Israel, and as is the case with Muslim public waqf property generally elsewhere in the world.
The Custodian of Absentee Property was a unique institution of the Israeli government specifically designed to despoil Palestinians – both those driven from their homes in 1948, and others remaining in Israel or who subsequently left– of their lands and other moveable and immovable goods. It is important to note in this context that in 1948, Jewish land ownership amounted to less than seven percent of the entirety of the land 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 methodical ethnic cleansing, how otherwise would it have been possible to transform what before 1948 was a predominantly Arab country 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 eighteenth century mosque in Tiberias, being desecrated in a variety of ways over the years.
Different parts of the Mamilla Cemetery have similarly been left abandoned or derelict. Given various Israeli state agencies’ appropriation of religious holdings such as Mamilla, it goes without saying that such sites could not be protected, preserved or restored by the appropriate religious authorities. This is despite the fact that these authorities hold unassailable legal title to these properties, a title that the discriminatory legal system of the Israeli state does not recognize. Thus before sections of the cemetery were earlier turned into a parking lot, a park, or other profane purposes starting in the 1960s, 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. Vandals have knocked down gravestones. The area came to be known as a seedy, disreputable, and dangerous place at night. The Jerusalem Municipality has repeatedly used earth-movers and other heavy equipment to remove both ancient grave markers and more recent ones restored by families or by private associations. The most recent episode of this sort took place on the night of June 25-26, 2011, when about 100 gravestones were destroyed by bulldozers. But at least there, and in most other parts of what was once a thirty-three acre cemetery, in spite of these ongoing desecrations, the remains of most of the dead are allowed to rest in peace beneath the ground, even if under asphalt or with a park above them.
The worst indignity 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/Museum of Tolerance.” This project is meant to encompass over ten percent of the entire area of the original cemetery, a total of about 3.5 acres. It was approved by the Jerusalem Municipality, to which control over the whole cemetery was transferred in 1992.
The Simon Wiesenthal Center’s “Center for Human Dignity” is now about to be built on top of part of the oldest Muslim cemetery in Jerusalem over the protests 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 twelfth century to the 1930s were initially disturbed, and have since been entirely removed. We know this through the reports and testimony of Gideon Suleimani, the former Director for the Jerusalem District for the Israel Antiquities Authority, who served as Chief Excavator directing the archaeological survey that 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, during his excavation he found “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 their 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. The Authority had ignored these revelations, as did 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 his superiors’ systematic falsification of his excavation reports. 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 ten percent of that parcel, construction resumed in 2008. In the process, the thousands of un-exhumed graves that 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. The near-silence that has enveloped this wholesale desecration of many thousands of Muslim graves serves as a stark comparison to the loud uproar over the Jordanian authorities’ lamentable desecration of a few score graves in the ancient Jewish cemetery on the Mount of Olives in 1967.
The Israeli state’s systematic discrimination against Muslim public religious awqaf properties and those of other faiths sadly also 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, as well as the petitioners’ arguments marshaled in 2010, UN bodies have begun responding positively, if predictably slowly. 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 Fourth Geneva Convention. The petitioners argued that the actions of both Israeli state agencies as well as the Simon Wiesenthal Center violated customary international law in a variety of specific ways. They asked the United Nations 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. Under the UN Charter, however, none of these UN instances has the power to ensure the implementation of these demands. Indeed not even the UN General Assembly can demand such action: the power to do so lies squarely with the Security Council.
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 Fourth Geneva Convention.” This resolution refers not only to occupied Arab East Jerusalem, or to the Old City of Jerusalem but rather to the entire “Holy City.” This distinction reflects the trajectory 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. Moreover, 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. To this day, in consequence neither the United Nations nor any of its member states recognize Jerusalem as Israel’s capital, or indeed as sovereign Israel territory. Israel has never abided by these binding international resolutions.
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,” including the Western part of the city, by the highest decision-making body of the United Nations.
Moreover, the generally positive response thus far of the UN bodies, although agonizingly slow, has encouraged the sixty 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 media reports explaining the details of the case. This in turn has helped to convince some of the petitioned UN bodies, 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 declined to participate in events organized by the Wiesenthal Center when they learned about the Mamilla case.
The petition is also important as an instance of new forms of community mobilization. In May 2010 representatives of the Campaign to Preserve Mamilla and the Center for Constitutional Rights went to Washington, DC to inform US State Department officials of the petition and its June 2010 addendum. The US officials promptly asked if this activity might lead to UN resolutions resulting in “the de-legitimization of Israel,” and whether this would in turn constitute what they called “lawfare.” The petitioners responded that when Palestinians resort to violence to secure their rights or to resist oppression and discrimination, they are routinely 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.
Regardless, it is useful to ponder these perverse claims. In what possible scenario could the actions undertaken by the Israeli state and the Simon Wiesenthal Center against the Mamilla Cemetery and the remains therein interred be “legitimate”? How in turn would it be possible for the legal petition of Jerusalem families protesting the desecration of the graves of their ancestors possibly do anything to further “delegitimize” these desecrations? If Israel is in fact being delegitimized, the party primarily responsible for this de-legitimization is the Israeli government itself, through its own actions. Indeed, Israel’s very obsession with what it calls “delegitimization” betrays its relentless effort to legitimize what is blatantly illegitimate.
It is a sign of the increasing degradation of American political discourse, and of the bankruptcy of United States diplomacy, that senior American officials trumpet terminology such as “lawfare” and “de-legitimization.” Generated by right-wing legal circles in Israel and the United States, these terms defend any and all actions of the Israeli state against approaches based on international law. An address on June 15, 2011, 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. It is a common perversion for American diplomacy to be used in the service of providing Israel with immunity from international criticism. Now, however, US officials are employing these morally and legally bankrupt but discursively powerful terms to dismiss a private legal effort to mitigate profoundly unlawful and illegitimate acts such as those taking place in the Mamilla Cemetery.
The continuous desecrations taking place in Mamilla are not isolated or random acts. 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 ninety-three percent of the property of Mandatory Palestine that in 1948 was privately owned by Arabs, publicly held, or held as public or private waqf. The family petitioners in the Mamilla case have peacefully and legally opposed one such specific act,which is a manifest affront to human dignity. This effort constitutes one step along a path that is beginning to be explored. Such legal and civil society efforts may grow more widespread and become more effective, now that the wave of peaceful protest, youth activism, and grassroots civil society-based initiatives appear to be gaining ground among 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 strategy is an eruption onto the scene of new forces, largely independent of the discredited political factions that have long dominated Palestinian politics. It represents the return of repressed, notably pivotal issues, such as refugees and Jerusalem. Public discourse in the United States and Israel have long obfuscated these two core issues, just as both countries have consistently postponed their diplomatic consideration for over two decades.
Change has finally begun in the entire Arab world, including among the Palestinian people. Those who have maintained the status quo in Palestine clearly fear that this change could produce innovative ways to bring the world to address sixty-three years of Palestinian dispossession and the systematic effacement of the Arab and Muslim heritage in Jerusalem. It might also help end the logjam created by two decades of fruitless American-sponsored negotiations during which Israeli occupation and colonization have only grown more entrenched. Until these things happen, or until powerful voices are raised to stop it, 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 threatens to add yet another layer of brazen indignity to a site that has witnessed many in its long and rich past.
This is an updated version of the Edward Said London Lecture, given at the British Museum on May 31, 2011. For more on the “Campaign to Preserve Mamilla Jerusalem Cemetery” and for the texts of the Petition and Addendum, see: www.mamillacampaign.org/
Rashid Khalidi, Edward Said Professor of Arab Studies at Columbia University, is the author, most recently, of The Iron Cage: The Story of the Palestinian Struggle for Statehood; he is also a member of the IOA Advisory Board.