Building was stopped after construction workers discovered graves and skeletons were discovered on the building site.
By DAN IZENBERGconstruction 88(photo credit: )
At the end of a hearing lasting almost seven hours, the High Court of Justice on Wednesday ordered both the state and the Jerusalem Municipality to present documents proving ownership of the land upon which the Simon Wiesenthal Center wants to build its Museum of Tolerance.
The museum is slated to be built on part of a 130-dunam (32 acre) plot of land in downtown Jerusalem that served as the city's main Muslim cemetery for hundreds of years. Building was stopped after construction workers discovered graves and skeletons were discovered on the building site and the Al-Aksa Foundation petitioned the High Court of Justice to cancel the project.
In the meantime, three families who maintain that their ancestors are buried in the cemetery asked the Muslim Shariya Court to cancel any transaction that harms the cemetery. The court acceded to the request.
The families, represented by attorney Durgham Saif, of the Nazareth-based Karamah Organization for Human Rights, also asked the police to order a halt to construction.
The state appealed to the Shariya court of appeals, claiming that the lower Shariya court was unauthorized to issue such a ruling. In the meantime, Saif also petitioned the High Court to order the police to issue the warrant.
Both the petitioners and the respondents, which include the Jerusalem Municipality, the Israel Lands Authority, the Simon Wiesenthal Center, the Museum of Tolerance, agree that after the 1948 War of Independence the cemetery came under the administration of the Custodian of Abandoned Property, an office established to administer all property belonging to Palestinians who were not living in Israeli territory at the end of the war.
The respondents maintain that eventually, the cemetery was handed over to the government, which then gave it to the municipality. During the early 1970s, the municipality built a parking lot on the part of the cemetery now earmarked for the museum.
According to Saif, the Israeli authorities did not have the right to give away any part of the cemetery. He cited a 1951 government resolution stating that the custodian could not give away Muslim holy sites and specifically referring to mosques and cemeteries.
The state maintains that a Muslim kadi (Islamic judge), in response to a question by municipal authorities in 1964, issued a religious ruling that the cemetery was no longer a holy site. Based on that ruling, Israeli authorities argue, they were entitled to give away the plot of land.
The petitioners maintain that the kadi was corrupt and that his ruling was unauthorized. Saif has also asked the Shariya court for a ruling to that effect.
According to Saif, the state did not have the right to take possession of the cemetery and give it to the city. The city, in turn, did not have the right to give it to the Wiesenthal Center.
In response to these arguments, the court, headed by Justice Ayala Procaccia, gave the state and the city 15 days to prove that they owned the plot of land. It allowed the petitioners 30 more days to respond to the material that the state and the city would provide.
Saif also asked the High Court to suspend its deliberations until the Shariya court of appeals hears the state's appeal against the lower Shariya court ruling that the cemetery is a holy site and that nothing must be done to harm it. Saif said the High Court should allow the Shariya court to conclude its deliberations on the state's appeal and hand down its ruling before taking up the case.
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