‘This morning, close to 9:40, the respondent was detained... after, during the
course of his visit...he began to pray... he was even seen and heard
praying... and this was against the regulations and instructions of the police
which he was aware of....”
This was the prosecution’s argument against
Likud activist Moshe Feiglin on Succot, when he and several others were arrested
over the course of the holiday for allegedly praying at the Temple
In court, Feiglin, as could be expected, criticized the lack of
publicized regulations regarding Jewish visits to the site and the prohibition
on Jewish prayer. He denied, however, that he had prayed out loud – saying he
only prayed in his heart. The judge accepted his version of events and ordered
that he be released without any conditions or fines.
While the judge’s
reluctance to punish a defendant accused of prayer is admirable, it is almost
unimaginable that in a civilized country founded on principles of liberalism,
democracy and Return to Zion, a court of law would entertain arguments on
whether a person was actually praying and therefore subject to penalty, or that
the state would accuse a defendant of the crime of prayer – not of directly
disturbing anyone with that prayer – but the mere act of prayer
But this is the Middle East, and the situation is said to be
complicated, especially when it comes to the issue of the Temple Mount. In one
of the earliest Supreme Court cases on the Temple Mount, in 1968, Judge Alfred
Vaknon wondered whether the issue had any parallel in the “history of our
country or the entire world.”
At its core, however, the issue is not that
complicated: A Muslim Arab population is ready to resort to violence of the most
extreme kind when anyone opposes it or offends its religious-cultural
And, as the events of the past decade, perhaps the past
year especially, have proven, this is not a unique situation, certainly not to
the region, but increasingly not to the rest of the world as well.
is unique in Israel is that even though this is occurring in the capital city
and at the holiest site for its people, Israel dares not confront those making
the threat of violence.
Instead, Israel has adopted a decades-long policy
whereby it passes on the restrictions demanded by the violent minority onto its
citizens. It thus subjects Jews who wish to visit the Temple Mount to lengthy
waits before entering the area and bars them from any outward sign of worship,
from bringing in religious effects, such as tefillin (phylacteries) a tallit
(prayer shawl) or prayer books, and from other religious actions. Violation of
these rules can lead to being ejected, arrested, fined and/or banned from the
As then-public security minister Avi Dichter explained in a 2008
letter to Knesset Members Uri Ariel and Aryeh Eldad, who wished to visit the
Temple Mount, while “[i]t is not possible to arrest a person for conversing with
his maker... it is possible to carry out an arrest for expressions of outward
and demonstrative signs.”
In other words, if it can be discerned that you
are praying then you can be arrested and subjected to prosecution.
is despite Israeli law, which states that, “The Holy Places shall be
protected... from anything likely to violate the freedom of access of the
members of the different religions to the places sacred to them” (Protection of
the Holy Places Law, 1967).
JEWISH TEMPLE Mount activists claim that
Israeli policy toward the site is bound up with the vitality of the Jewish
state: Israel’s hold on the geographical and historical heart of the country –
Judea and Samaria; its willingness to fight terrorism; and its confidence in the
justice of its cause, both internally and before the international
They are correct.
Dating back to the Mandate, Arab and
Muslim opposition to Jewish prayer at Jerusalem’s holy places went hand-in-hand
with opposition to Zionism. At that time it was not the Temple Mount that was
the flashpoint, but the Kotel, the Western Wall, whose importance stems from it
being a remnant of the Temple compound.
The Arabs were determined not to
allow Jews access to the area and protested their holding prayers there, setting
up of a mechitza (divider between men and women during prayer) and benches
there. In August 1929, they ultimately resorted to violence, rioting and killing
133 Jews and injuring 339 more.
The British (Shaw) commission of inquiry
into the riots sympathetically noted the “Arab feeling of animosity and
hostility towards the Jews consequent upon the disappointment of their political
and national aspirations” as a cause for the murderous
Afterwards, the British said they would continue to allow Jews’
access to the site, but would not permit anything which would disturb the
“status quo,” such as erecting a divider to separate men and women during
Like the British during the Mandate, Israel today fears “altering
the status quo at the site” by allowing Jewish prayer as that may “serve as a
provocation, resulting in disorder, with a near certain likelihood of subsequent
bloodshed,” as Dichter explained in 2008.
The Supreme Court has largely
accepted that rationale, holding that Jewish rights are to be balanced against
the threat to public order, especially when there is a “near certainty” of
violence. In making that assessment, the court has noted that while the police
must not “recoil from using force” against criminals, “the force available to
the police is not unlimited.” (See e.g., HCJ 83/292 Temple Mount Faithful v.
Jerusalem District Police Commander).
While taking police resources into
account on a particular occasion is sound policy, the court has ignored the
state’s obligation to adopt a larger policy to secure public order and the free
access of citizens to holy places without harassment.
In practice, the
state’s rationale means that if a certain level of violence is threatened by
those who oppose Jewish claims and the sovereignty and the existence of the
Jewish state, their demands are to be met, while the rights of peaceful
citizens, set in law, are cast aside.
This is not only legal confirmation
of the “heckler’s veto” or the Muslim mob’s veto, but also of the anti-Semite’s
It is a veto over Jewish religious rights, and the Jewish
historical connection to and restored sovereignty in this country. The state of
Israel should not be confirming or appeasing it, but fighting it with all of its
might, so that the Jewish people can be a free people in their homeland,
including their holiest site, the Temple Mount.
The writer is executive
director of Likud Anglos.
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