Legal Affairs: More grave than it seems?

Petitioners to the High Court have agreed to postpone their hearing on a disputed cemetery, claiming that the state has begun to fulfill their demands.

By DAN IZENBERG
Earlier this week, the High Court of Justice was due to hold a hearing on two petitions filed three and four years ago against the construction of an illegal cemetery in a 2,000-square dunam plot of land at the southeastern end of the Old City of Jerusalem, just outside the wall. The legal action is obviously sensitive, since the petitions focus on an area considered holy by both Jews and Muslims, in fact part of a larger area - the Old City itself - which is probably the single most explosive issue dividing Israel and the Palestinians in their quest for peace. At the last minute, the hearing was postponed. Several people involved in the petitions, including some who usually talk freely and vociferously, were uncharacteristically close-mouthed about why. In half sentences and with very little elaboration, they told The Jerusalem Post that they were satisfied with the progress being made by the authorities - including the Israel Police, the Jerusalem Municipality, the Authority for the Preservation of Nature and National Parks and the Antiquities Authority - and were therefore prepared to hold off, at least for the time being. One of the petitions was filed by a group of writers, jurists, former military men and archaeologists who have banded together in a non-political organization called the Committee to Prevent the Destruction of Antiquities on the Temple Mount. Its members include A.B. Yehoshua, Prof. Avi Ravitzky, Shlomo Lahat, Gabriel Barkay, Meir Shamgar and Moshe Landau. They are represented by two lawyers who also belong to the committee, Shmuel Berkovich, an expert on holy sites, and Yisrael Caspi. The other petition was filed by right-wing political activist Aryeh King, a member of the Moledet Party. ACCORDING TO the law, the 80x25-meter plot of land in dispute has been declared a national park. In addition, it has been designated as public open space. Furthermore, it was expropriated by the Jerusalem Municipality in 1995. According to the outline plan for the Old City and its environs, all construction, including graves, is prohibited within 75 meters of the external wall surrounding it. Despite this fact, the petitioners charged that in recent years - they did not say exactly when the practice began - Palestinians have started digging graves, burying their dead and purchasing plots of land for graves. In some cases, the purchasers marked the boundaries of the empty grave plot with stones. In others, they put up stone plaques or signs declaring that they owned the land. In its petition, the Committee to Prevent the Destruction of Antiquities on the Temple Mount demanded that fences be erected around the existing graves, that burial structures be removed from the empty plots, that the signs and stone markers be removed, that Palestinians who sell the plots of land be put on trial and that the area be properly developed as a national park and antiquities site. According to the petitioners, the site contains the best preserved findings from the Second Temple structure. The wall itself includes sections of the outer, eastern Temple Mount wall dating back to the days of Herod. Twenty-six of the 46 meters of wall are currently below ground level. In one segment of the underground wall, close to the corner of the eastern and southern walls, there is a seam clearly differentiating between the rock building blocks of the Herodian and Maccabean periods. Furthermore, the bottom five layers of the Herodian blocks are embedded in earth which contains remnants from the First Temple, including royal seals branded into the handles of jars from the time of King Hezekiah, toward the end of the eighth century B.C.E. According to the petitioners, "The encroachment of graves prevents any possibility of future archaeological excavations to find ancient remnants at the site. According to the information gathered by [archaeologist Charles] Warren 140 years ago, this site is one of the rare meeting points between Second Temple construction with more ancient remnants from the First Temple. We must leave open the option of future archaeological examination and not block it with graves." King did not have much luck with his petition. In response to his demand to remove the graves, the state replied, "There is no justification for removing the existing graves. Furthermore, at this time there is no justification for preventing additional funerals in the area under discussion in graves or gravesites...The state also took into consideration the fact that according to police assessments, any action to prevent funerals in the cemetery, including the area under discussion, and even more so, any attempt to remove existing graves, could lead to severe disturbances, given the great sensitivity [of the area.]" The state also noted the position of the Antiquities Authority that "the graves did not do any serious damage to the antiquities and that we have here a continuous and natural extension of the already existing cemetery." A year later, on August 16, 2005, after at least two more burials took place at the site, the Committee to Prevent the Destruction of Antiquities on the Temple Mount also petitioned the High Court. THREE YEARS have elapsed since then, and little has happened on the judicial scene. Nevertheless, in its latest response to the petition, filed before this week's scheduled hearing, the state wrote that Preservation of Nature and National Parks Authority had filed a brief informing the court of "a plan for a garden which has been carried out...and that the Authority intends to carry out more gardening projects and to deal with another section of land included in the area under discussion in the petition. All this has been and will be done while paying attention to the special sensitivity of the site." King, Caspi, Berkovich, Mazar and Barkay all told the Post that they had agreed to postpone the hearing because the state was beginning to fulfill their demands, citing the Parks Authority document as proof. But when asked to specify what improvements had actually been made, the answers were laconic. Barkay said two of the empty grave sites had been covered up. King said the authorities had not allowed any more burials. It is not clear who among them, if any, had actually read the Parks Authority report. Indeed, it is possible that the report is being concealed from the public. It does not appear in the High Court file, which is open to the perusal of journalists. The petitioner's lawyers (including King, who is representing himself) said they did not have a copy. And until press time, the Parks Authority itself had not supplied a copy to the Post. The spokeswoman said she had to get permission from the legal representatives of the organization. By press time, there was still no response. Meanwhile, to the uninformed eye at least, not much seems to have changed at the site. The graves have not been removed, the plots marked by boundaries of stones, the plaques and signs all seem to be where they were. There is no sign of new gardening, and no indication that the Authority for the Preservation of Nature and National Parks has done anything at all to make its presence felt.