Jerusalem Issue Brief
Institute for Contemporary Affairs
founded jointly at the Jerusalem Center for Public Affairs
with the Wechsler Family Foundation
Vol. 7, No. 32 27 February 2008

The Latest Damage to Antiquities on the Temple Mount

Nadav Shragai

In the summer of 1999, the Waqf undertook renovations on the galleries
beneath the Al-Aqsa Mosque, what is known as "old Al-Aqsa." They contained
the "double passageway," the only passageway preserved in its entirety from
the time of the Second Temple. Four domes were preserved in the double
passageway with inscriptions carved into the stone, work done by Jewish
artisans 2,000 years ago. The passageways became integral parts of a new
mosque, Al-Aqsa al-Qadim.

Serious damage was again done in the summer of 2007. The Waqf requested
authorization to dig a ditch dozens of meters long to replace power lines.
Subsequently, the Israel Antiquities Authority issued details about the
uncovering of a "sealed stratum of human activity," a layer of earth with
pottery shards found broken in situ, where they had remained without change
since the days of the First Temple. Twenty meters south of the eastern steps
of the Dome of the Rock, a massive, ancient wall was uncovered which,
according to expert opinion examining its location and size, could very well
be the southern wall of the Women's Court of the Second Temple.

Despite the many legal petitions filed, mainly by the Committee for the
Prevention of Destruction of Antiquities on the Temple Mount, the Israel
Supreme Court has not intervened, even though its members are well aware
that Islamic groups continually violate the laws governing construction and
antiquities. The Waqf, the Islamic Movement, and various Islamic groups have
exploited the situation and have seriously damaged Temple Mount antiquities.
The Israel Police plays the dominant Israeli role and its activities are
coordinated with the prime minister's office and the office of the attorney
general.

Since 2004, archaeologist Dr. Gabi Barkai and Zachi Zweig have been sifting
through the rubble the Waqf removed from the Temple Mount to the Kidron
Valley eight years ago. Among the ancient finds were many belonging to the
late period of the Kings of Judea (8th and 7th centuries BCE). The most
striking find was a seal impression with letters in the ancient Hebrew
script of the last days of the First Temple.

In 2002, Hungarian archaeologist Tibor Grull visited the Temple Mount where
he found part of a stone tablet, a fragment from a monumental Latin
inscription which bore the name of Flavius Silva, Governor of the Province
of Judea in 79-73 BCE and the general who laid siege to Masada.

In the wake of the 1993 Oslo Accords, the Palestinian Authority (PA),
through its Ministry of Religious Endowments (Waqf), systematically eroded
the administrative role that had been assigned to the Hashemite Kingdom of
Jordan as the caretaker of Muslim shrines on the Temple Mount in Jerusalem.
In October 1994, the PA even appointed its own mufti for Jerusalem, who
displaced Jordan's candidate.

Even though the Oslo Accords recognized Israel's jurisdiction over
Jerusalem, pending any change reached through future permanent status
negotiations, Israeli governments were extremely hesitant to confront the
incremental but steady PA efforts to broaden religious control over Muslim
holy sites in Jerusalem, especially on the Temple Mount. Furthermore, since
the entire Israeli-Palestinian peace process had been launched under U.S.
auspices, a full-scale clash over the Temple Mount could also lead to a
U.S.-Israeli diplomatic crisis, which the governments in Jerusalem sought to
avoid. These considerations continued to influence Israeli decision-making
even after the outbreak of Palestinian violence in 2000, even though any
expression of Palestinian governmental authority in Jerusalem was an
outright violation of the Oslo Accords.

Is There Israeli Supervision on the Temple Mount?

In recent years, the Waqf has repeatedly challenged Israel by undertaking
construction projects on the Temple Mount, many of which were unauthorized.
Yet these initiatives have undermined the archaeological heritage on the
Temple Mount, as well as the very stability of some of its structures. On
May 18, 2004, the Internal Affairs and Environment Committee of the Israeli
Knesset met to deliberate the danger of the possible collapse of the Temple
Mount's eastern wall, some of whose foundation stones had weakened and
cracked.

Yehoshua Dorfman, director of the Israel Antiquities Authority, and Micha
Ben-Nun, director of the Licensing and Inspection Department of the
Jerusalem municipality, told the committee that while they were both
responsible for routine inspection and law enforcement on the Temple Mount,
in practice they had been denied access to the Temple Mount and did not
receive information about what occurred there.

Dorfman stated that, following a directive issued by the prime minister, the
Antiquities Authority's inspection of the archaeological sites on the Temple
Mount was partial, indirect and unofficial.1 "We receive all our information
about what happens...from the Israeli police....We don't go there," he
admitted. "We think we know what is going on as far as archaeology is
concerned, but to say that I genuinely know...I wouldn't swear to it."2

Ben-Nun said that "while the Jerusalem municipality does have formal and
statutory responsibility for the Temple Mount, in practice we have no access
and no control over what happens there. Not only that, there is what we call
the 'deliberate interference' of those who are in charge of it, whether the
police or whoever, to keep us away and to minimize our knowledge. None of
the information we receive is official and we have no way of obtaining such
information. If the eastern wall collapsed, no one would tell us. No one
talks to us."3

No one familiar with what is really happening on the Temple Mount was
surprised by what they said, but rather by the fact that for once someone
actually had said it publicly. This situation has existed for years and is
no different today. According to instructions from Israel's attorney
general, the certified authorities must carry out routine inspections of the
Temple Mount, but in reality their powers are limited. The Jerusalem
municipality, the Israel Police, and the Antiquities Authority were
instructed by the Attorney General to report "any serious infraction
discovered in laws governing planning or the antiquities [themselves]."
However, the attorney general forbade both the municipality and the
authority from taking steps to enforce the law (including demolition or
issuing a demolition order), to take testimony, carry out detentions, or
issue indictments without prior coordination with his office.4 In that
regard, he himself was subordinate to the prime minister, to whom he had to
report before any steps could be taken on the Temple Mount.5

The law governing the Temple Mount is explicit regarding the full
jurisdiction of Israeli law over the location. Legal expert Dr. Shmuel
Berkowitz summarized the main points in his 2006 book:6

All the laws of Israel are valid for the Temple Mount, as it is located on
ground that has been part of the State of Israel since the unification of
Jerusalem and the enforcement of Israeli law over East Jerusalem, including
the Law of Planning and Construction, 1965, and the Antiquities Law of 1978.
As early as August 1967, the Temple Mount and the Western Wall were
designated as antiquities, as part of the Old City of Jerusalem and its
environs. According to Article 29(A) of the Antiquities Law, no action is to
be carried out, including actions of construction, demolition, earthworks,
and change or dismantling of an antiquity without authorization from the
Antiquities Authority.

According to the law, "Archaeological activities at...sites, which are
legally defined as holy sites, are not dependent on the sole discretion of
the IAA Director-General. Any changes (e.g., excavation, construction,
preservation of ancient walls, etc.) require approval of the Ministerial
Committee for Holy Places, which consists of the Ministers of Justice,
Education and Religious Affairs."7

However, the discrepancy between the letter of the law and what happens in
practice is vast.

The dominant, decisive factor on the Temple Mount is the Israel Police. A
high-ranking officer in the police once said:

On the Temple Mount there is a delicate relationship between the Waqf and
other groups, on the one hand, and the State of Israel, on the other. It is
a give and take situation, carrot and stick. As far as the Antiquities Law
is concerned, sometimes we prefer to settle things quietly with Islamic
groups through private arrangements that remain private. We pay a price for
that, sometimes a high one. It is a known fact that antiquities are being
damaged on the Temple Mount. The alternative is a riot every other day.
Those in authority have to decide what they prefer, and we prefer quiet
because, with all due respect to the antiquities, the top priority of the
State of Israel on the Temple Mount is quiet, not riots, even if the
antiquities pay the price. In theory, the laws of Israel govern the Temple
Mount, but in reality, the various authorities are careful in their
enforcement because religiously it is a very sensitive location.8

For the same reason, the Israel Supreme Court treats infractions of planning
and construction with kid gloves, and does not compel the authorities to
enforce the law. For years, the court has respected the sensitivity of the
state towards the Temple Mount, and displayed understanding for the
"considerations" it exercises. One after another, it has rejected appeals
lodged by various Jewish groups claiming that the Temple Mount is of
particular importance to them, regardless of whether they are the Temple
Mount and Land of Israel Faithful movement or the far more widely accepted
Committee for the Prevention of the Destruction of Antiquities on the Temple
Mount. The result, in any case, is that the antiquities are repeatedly
damaged, and Israeli law and sovereignty are repeatedly flouted.

In the early 1990s, the Antiquities Authority unofficially inspected the
activities of the Waqf on the Temple Mount. Dr. Dan Bahat, who was the
district archaeologist for Jerusalem for many years, reported on this
inspection to the Supreme Court.9 One of the informal understandings between
the Antiquities Authority archaeologists and the Waqf was that the Waqf
would keep the authority informed of its plans, but nothing was ever done
formally because officially the Waqf does not recognize the legitimacy of
Israeli control of eastern Jerusalem.10 During those years, Antiquities
Authority inspectors had a fairly free hand on the Temple Mount. They could
walk around, enter where they pleased, and document and take photographs of
what they saw.

In September 1996, the opening of the northern exit of the Hasmonean tunnel,
an extension of the Western Wall tunnel, changed the situation completely.
After the Western Wall tunnel riots,11 Antiquities Authority inspectors were
limited to the trails reserved for tourists and were denied access to the
rest of the Temple Mount. In other words, they were only granted partial
access to the site and were forbidden to take photographs. Important
underground sites were treated by the Waqf as its own property and were
closed to Israeli inspectors, including Solomon's Stables, the old Al-Aqsa
mosque and the Triangle Gate, and the area of the above-ground Golden Gate.
With the outbreak of the Second Intifada in September 2000, even this
partial access for authority inspectors ended as the Waqf cut off all
Israeli entry into the Temple Mount.

Since September 1996, the Waqf has cooperated only with the Israel Police.
Whenever the Antiquities Authority wants to examine a site on the Temple
Mount, it has to coordinate its activities with the police, and the police
do not always cooperate since their top priority is quiet, not antiquities.
Sometimes, the inspectors have resorted to subterfuge by disguising
themselves as policemen or tourists. In view of the damage done repeatedly
to the antiquities, the Committee for the Prevention of Destruction of
Antiquities on the Temple Mount was established early in 2000. Its
membership includes author A.B. Yehoshua, former Supreme Court President
Meir Shamgar, former State Comptroller Miriam Ben-Porat, former Tel Aviv
Mayor Shlomo Lahat, the late Jerusalem Mayor Teddy Kollek, Meir Dagan
(before he became head of the Mossad), and well-known archaeologists,
scholars, and retired high-ranking army officers.

Damage Done to Temple Mount Antiquities in 1999

The damage done to the antiquities on the Temple Mount has been substantial.
In the summer of 1999, the Waqf undertook renovations on the galleries
beneath the Al-Aqsa Mosque, what is known as "old Al-Aqsa." They contained
the "double passageway," the only passageway preserved in its entirety from
the time of the Second Temple, from Hulda's Gates (blocked up today) in the
southern wall of the Temple Mount to the square in front of the Temple, the
main thoroughfare in ancient times. Four domes were preserved in the double
passageway with inscriptions carved into the stone, work done by Jewish
artisans 2,000 years ago.12

The Waqf excavated extensively and made irreversible changes, and the
passageways became integral parts of a new mosque, Al-Aqsa al-Qadim.13
Members of the Antiquities Authority in 2000 called it "an archaeological
distortion."14

In November 1999, the Waqf and the Israeli Islamic Movement dug an enormous
pit southeast of the Temple Mount, 1,600 square meters in area and 15 meters
deep.15 It exposed four ancient arches, four meters wide and ten meters
high. The debris from the excavation was loaded onto 200 trucks which
shuttled back and forth without interference, disposing of thousands of tons
of earth rich in archaeological remains from all the periods of the Temple
Mount. The earth was dumped into the Kidron Valley and the city garbage dump
at El-Azaria, near Ma'ale Adumim.

The Waqf had received authorization for excavation at the Temple Mount's
southeastern corner to construct an emergency exit for the new underground
mosque (which had formerly been Solomon's Stables). Authorization was given
to widen the mosque's main entrance to a maximum of two meters. The work was
conditional on Antiquities Authority inspection, and included only two
arches. The Waqf had no authorization to excavate to the depth and width
actually completed. Supervision for the excavation was non-existent. Heavy
equipment was used, including bulldozers, in violation of the accepted norms
at archaeological sites, wiping out and removing entire strata. At the
government meeting held to discuss the issue, Attorney General Elyakim
Rubinstein called the Waqf excavation a swift kick aimed at the history of
the Jewish people. Antiquities Authority director Amir Drori called it "an
archaeological crime."16

More Damage in 2007

Serious damage was again done to antiquities on the Temple Mount in the
summer of 2007. The Waqf requested authorization to dig a ditch dozens of
meters long, eastward towards the hill on which the Dome of the Rock is
built, to replace power lines. The work was carried out by small tractors
and hydraulic shovels. Members of the Antiquities Authority occasionally
visited the site but were of the opinion that the earth was ordinary soil
and that there was no danger to archaeological remains. They paid no
attention to the repeated warnings of members of the Committee for the
Prevention of Destruction of Antiquities on the Temple Mount. The work was
finished, the new electricity lines were laid, and the ditch was filled in.

Subsequently, the Antiquities Authority issue a formal statement which
included details about a "sealed stratum of human activity," a layer of
earth which, according to archaeological assessment, "has been preserved as
a homogeneous whole, and even the pottery shards found there were broken in
situ, and had remained without change since the days of the First Temple."17

The announcement caused a great deal of excitement in the archaeological
communities in Israel and abroad. Although the announcement mentioned
nothing about the discretion exercised by the Antiquities Authority, it was
clear that a mistake had been made. Initially, the members of the authority
thought there were no antiquities and allowed a tractor to be used. Some of
them said informally that it was entirely possible that during the
excavations other "sealed strata" had been damaged. Following the
authority's announcement, the Knesset State Control Committee decided to
turn the issue of the Waqf excavations on the Temple Mount over to the State
Comptroller for examination, as well as the conduct of the authorities in
Israel in their dealings with the Waqf.

Antiquities in the Rubble

It is only too evident that the on-going Waqf excavations on the Temple
Mount, which are generally carried out without archaeological supervision of
any kind, have severely damaged antiquities from many periods. Since 2004,
archaeologist Dr. Gabi Barkai and Zachi Zweig have been sifting through the
rubble the Waqf removed from the Temple Mount to the Kidron Valley eight
years ago.

The project is being carried out in the Tzurim Valley, not far from the Mt.
Scopus campus of the Hebrew University. The archaeologists in charge, aided
by hundreds of volunteers, occasionally document new discoveries and publish
pictures.18 An article appearing in Ariel contained information about finds
described as "very small" because, during the excavation on the Temple
Mount, the Waqf separated out the larger pieces from the rubble and reused
the ancient building blocks, since the Waqf feared the police would prevent
them from bringing new building materials to the site.

Among the small findings recovered were a few pre-historic flint implements,
approximately ten thousand years old; many pot shards; about a thousand
ancient coins; many varicolored items of jewelry made of various materials,
including pendants, rings, bracelets, earrings and beads; decorations for
clothing; amulets; ivory and bone dice and game pieces; ivory and
mother-of-pearl furniture insets; icons and statuettes; stone and metal
weights; weapons and ammunition such as arrow heads and musket balls; broken
pieces of stone and glass utensils; stone and glass squares from floor and
wall mosaics; decorated wall hangings and fragments of decorations from
buildings; seals and seal impressions; and many other items.

The most ancient findings were glass fragments ten thousand years old. Only
a few pottery shards and fragments of alabaster vessels were found belonging
to the Canaanite and Jebusite periods (the early and late Bronze Age), but
many items were found belonging to the late period of the Kings of Judea
(8th and 7th centuries BCE), including stone weights for weighing silver.
The most striking find was a seal impression with letters in the ancient
Hebrew script of the last days of the First Temple.

One can only imagine what findings could have been rescued and researched if
the pit dug by the Waqf on the Temple Mount down into Solomon's Stables had
been excavated under archaeological supervision. For example, in October
2005, Hungarian archaeologist Tibor Grull reported on a find in the
publication of the Albright Institute for Archaeological Research.19 In
2002, Grull visited the Temple Mount where he found part of a stone tablet,
a fragment from a monumental Latin inscription which bore the name of
Flavius Silva, Governor of the Province of Judea in 79-73 BCE and the
general who laid siege to Masada. The Waqf permitted Grull to photograph and
document the find, which was part of the dedicatory inscription of a
triumphal arch built by the Romans on the Temple Mount after the destruction
of the Second Temple and the city. Members of the Waqf told Grull that the
fragment came from the great pit dug in 1999. According to the Antiquities
Authority, other finds have made their way to the black market.

Zweig has also examined photographs of the ditch dug by the Waqf in the
summer of 2007. By August 2007, the ditch had reached a length of 350 meters
and an average depth of about 1.2 meters. Twenty meters south of the eastern
steps of the Dome of the Rock, a massive, ancient wall was uncovered which,
according to expert opinion examining its location and size, could very well
be the southern wall of both the Women's Court (Ezrat Nashim) and the
Chamber of Oils (Lishkat Hashmanim) that were part of the Second Temple.20

Despite the many legal petitions filed, mainly by the Committee for the
Prevention of Destruction of Antiquities on the Temple Mount, the Israel
Supreme Court has not intervened, even though its members are well aware
that Islamic groups continually violate the laws governing construction and
antiquities. For example, the court rejected a petition filed by the Temple
Mount Faithful, determining on January 1, 2000, that it could not rule
because the issue was "clearly the job of the government," since it had
implications for public peace and the general good.

For this reason, the court ruled that while there was nothing to prevent it
from intervening in cases of illegal activity on the Temple Mount, such
intervention would be the exception that proved the rule. There had to be a
compelling reason for the court to take exception to its standard procedures
and trespass on the territory of the executive authority.21 Nonetheless,
current petitions still under review by the Supreme Court are seeking its
intervention to prevent the use of tractors by the Waqf on the Temple Mount,
and to prevent any construction work at night.

The Sharon government began to reassert Israel's rights on the Temple Mount
by re-opening the area to all international visitors in August 2003. But in
the last few years, the Waqf's abuse of the archaeological heritage of the
Temple Mount has been resumed. The bottom line is that officially, the
Temple Mount is subject to Israeli law, while, in reality, Israeli law is
not consistently enforced there. The government, its various authorities,
and the Supreme Court accept the situation because of what is known as "the
deeply religious and sensitive nature of the site and fear for public peace
if the law were enforced there as elsewhere."

The Waqf, the Islamic Movement, and various Islamic groups have exploited
the situation and have seriously damaged Temple Mount antiquities. The
Israel Police plays the dominant Israeli role and its activities are
coordinated with the prime minister's office and the office of the attorney
general, while the Israel Antiquities Authority and the Jerusalem
municipality have only limited influence over what is done at the Temple
Mount.

* * *

Notes

1. Shmuel Berkowitz, Ma nora ha-makom ha-ze, (How Awesome Is This Place)
(Carta, 2006), p. 403.
2. Nadav Shragai, "Reshut ha-atikot matria" ("Director of the Antiquities
Authority Issues a Warning"), Ha'aretz, May 19, 2004.
3. Announcement made by the committee spokeswoman on May 18, 2004, and
minutes of the meeting. Also mentioned in Berkowitz.
4. Berkowitz, pp. 388-9; a document from the office of the attorney general
is in the author's possession.
5. Report from an official in the attorney general's office to the Jerusalem
municipality, 1993.
6. See also Nadav Shragai, Har Ha-meriva, Ha-maavak al Har Ha-bayit, Yehudim
ve-Muslimim, Dat ve-Politica (The Mount of Contention, the Struggle for the
Temple Mount, Jews and Muslims, Religion and Politics) (Keter, 1995), pp.
299-306.
7. Ibid., p. 387.
8. A private conversation with the author.
9. The author was present at the deliberation. See Shragai, Har Ha-meriva,
p. 303.
10. The various announcements issued by the Waqf over the years are in the
possession of the author and were reprinted in Shragai, Har Ha-meriva.
11. There were four days of fighting between Israel and the Palestinians on
September 24-27, 1996, during which 14 Israeli soldiers and 69 Palestinians
were killed, and hundreds wounded on both sides.
12. Reported by Drs. Eilat Mazar and Gabi Barkai, both members of the
Committee for the Prevention of Destruction of Antiquities on the Temple
Mount.
13. Berkowitz, p. 394.
14. Minutes of the Knesset State Control Committee, January 9, 2000.
15. The report is based on conversations between the author and high-ranking
police officials, members of the Antiquities Authority, and members of the
Jerusalem municipality. It is summarized in Berkowitz, p. 395.
[1]6. Nadav Shragai, "Petzira be-Har Ha-bayit: be'ita be-historia
ha-yehudit" ("Rubinstein: the Breach of the Temple Mount: a Swift Kick at
Jewish History"), Ha'aretz, February 12, 1999.
17. The announcement was made to the press in October 2007 and concerned
discoveries from the period of the First Temple.
18. Nadav Shragai, Ha'aretz, June 19, 2006, summary of article later printed
in Ariel, "Sinun afar hasaf memtzaim Middle East-Bayit Rishon" ("Sifting
through the rubble revealed findings from the time of the First Temple").
19. Nadav Shragai, "Luah even mantziah covesh Metzada...hitgala be-Har
Ha-Bayit" ("A stone tablet immortalizing the conqueror of Masada, discovered
on the Temple Mount"), Ha'aretz, November 1, 2006.
20. The Chamber of Oils was where oil and wine for Temple ceremonies was
stored. For example, it stored the oil used for the Menorah of the Temple.
For detailed photographs of 2007 damage to Temple Mount antiquities with
Hebrew analysis, see http://www.echad.info/bait/hnewp29-8-07.htm
21. Israeli Court Rulings 94, p. 206, at the letters Aleph-Beit, and p. 203,
Aleph-Vav. Also found in Berkowitz, p. 396.

* * *

Nadav Shragai is the author of At the Crossroads, the Story of the Tomb of
Rachel (Jerusalem Studies, 2005); The Mount of Contention, the Struggle for
the Temple Mount, Jews and Muslims, Religion and Politics since 1967 (Keter,
1995); and "Jerusalem is Not the Problem, It is the Solution," in Mister
Prime Minister: Jerusalem, ed. Moshe Amirav (Carmel and the Florsheimer
Institute, 2005). He has been writing for the Israeli daily newspaper
Ha'aretz since 1983.

This Jerusalem Issue Brief is available online at:
http://www.jcpa.org

Dore Gold, Publisher; Yaacov Amidror, ICA Chairman; Dan Diker, ICA Director;
Mark Ami-El, Managing Editor. Jerusalem Center for Public Affairs
(Registered Amuta), 13 Tel-Hai St., Jerusalem, Israel; Tel. 972-2-561-9281,
Fax. 972-2-561-9112, Email: jcpa@netvision.net.il. In U.S.A.: Center for
Jewish Community Studies, 5800 Park Heights Ave., Baltimore, MD 21215; Tel.
410-664-5222; Fax 410-664-1228. Website: www.jcpa.org. © Copyright. The
opinions expressed herein do not necessarily reflect those of the Board of
Fellows of the Jerusalem Center for Public Affairs.

The Institute for Contemporary Affairs (ICA) is dedicated
to providing a forum for Israeli policy discussion and debate.

To subscribe to the Jerusalem Issue Brief list, please send a blank email
message to:
http://www.list-jcpa.org/brief-sub.html