Photo Credit: Emad Hajjaj/Twitter
Jordanian cartoonist showing a resolute Jordanian grasping Palestine and a Jordanian flag

The Muslim Holy month of Ramadan witnessed a series of public riots and disturbances on the Temple Mount, and specifically around the Al-Aqsa Mosque, orchestrated and organized following considerable incitement by the Hamas leadership in Gaza as well as by the leaders of the Northern Branch of the Israeli Islamic Movement.

These included daily acts of provocation and violence by Palestinian youths who entrenched themselves within the Al-Aqsa Mosque, stockpiled huge amounts of rocks, projectiles, firebombs, metal bars, and fireworks. They also erected obstacles and barriers, all intended for use against non-Muslim visitors to the mount, against Jews praying at the Western Wall, and against Israeli police fulfilling Israel’s responsibility to ensure public order and security.

Palestinian rioters throw a Molotov cocktail from inside Al-Aqsa Mosque
Palestinian rioters throw a Molotov cocktail from inside Al-Aqsa Mosque on the Temple Mount, April 20, 2022 (MFA Twitter screenshot, used in accordance with Clause 27a of the Copyright Law)1
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The emotive nature and sensitivity of anything connected to the Temple Mount, in general, and the Al-Aqsa Mosque, in particular, and the potential for massive incitement to violence by those intent on instigating such violence, have been a familiar and regular phenomenon for tens, if not hundreds of years. Commonly voiced buzzwords and mantras by those intent on sparking conflagration on the Temple Mount, almost since time immemorial, have included allegations of “an assault on Al-Aqsa,” an “invasion of Al-Aqsa,” and most frequently of all, the accusation that “Al-Aqsa is in danger.”2

Such irresponsible and deliberately disseminated canards have, over the years, predictably led to violent riots and damage as well as extensive casualties including fatalities.

Despite the fact that such rioting is deliberately generated by a relatively small number of Palestinian activists, its intent and practical effect is to impede and disrupt the enjoyment of the right of worship by hundreds and thousands of worshippers. Invariably, smart-phone cameras are used by the rioters as a means of documenting the events in a slanted manner and by exaggerating and distorting the facts for the press and social media.

Historic Practice

While Israel has exercised sovereignty and overall control of the area of the holy sites in Jerusalem since 1967, the day-to-day administration and organization of visiting and worshipping within the Al-Aqsa Mosque has historically been the responsibility of the Jordanian Waqf, a branch of Jordan’s Ministry of Awqaf Islamic Affairs and Holy Places.3

As such, and pursuant to the Israel-Jordan peace treaty of October 26, 1994, in which Israel declared that it “respects the present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem,”4 Jordan continues, through the Waqf, its historic role in the Al-Aqsa Mosque area, subject to arrangements reached with Israel regarding rights of visit and worship and security.

This arrangement provided that the Jordanian Waqf would continue to administer the site as it had done prior to 1967, and would henceforth be responsible for the religious and civil arrangements at the site including visits by Jews and non-Muslims, all subject to Israeli security supervision and presence.5

This arrangement was subsequently reaffirmed in what became known as the “Kerry Understandings” reached in 2015 between then-U.S. Secretary of State John Kerry with the Israeli and Jordanian governments.

The Kerry Understandings acknowledged Jordan’s special role in Jerusalem as defined in the Israel-Jordan peace treaty, including Jordan’s historic role as “Guardian of the Islamic holy places” in Jerusalem, and reaffirmed the long-standing arrangements regarding prayer in the Al-Aqsa Mosque allowing Muslims to pray there and non-Muslims only to visit the site.6

Further acknowledgment of the 1994 peace treaty’s provisions was incorporated into a UN Security Council statement on September 17, 2015, issued following similar disturbances on the Temple Mount, in which the council noted “the importance of the special role of Jordan, as confirmed in the 1994 peace treaty between Jordan and Israel, and encouraged increased coordination between Israel and Jordan’s Awqaf department.”7

Recent Jordanian Actions and Statements

The most recent Ramadan disturbances have given rise to a number of statements and actions by senior Jordanian personalities, expressing both support and encouragement for the continuing violence, as well as voicing threats against Israel and calls to change the present arrangements regarding the Temple Mount.

Such enhanced Jordanian activism raises questions about Jordan’s commitments in the 1994 peace treaty with Israel, both regarding its role in the Muslim holy places in Jerusalem and its solemn commitment to respect the terms of the treaty and to refrain from incitement.

In Article 9 of the Israel-Jordan peace treaty, Israel declared that it “respects the present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem.”

While the peace treaty does not define the term “present special role…in Muslim holy shrines,” it goes on to refer to the “Jordanian historic role in these shrines” and to Israel’s declared intention, when permanent-status negotiations take place, to give “high priority” to such a Jordanian role.

The text of this provision originated in the trilateral U.S.-Jordan-Israel “Washington Declaration,” adopted on July 25, 1994, three months prior to the peace treaty. In this declaration Jordan and Israel formally terminated the state of war between them and agreed to the provisions regarding Jordan’s historic role in the holy shrines in Jerusalem.8

Accepted rules of treaty interpretation as set out in the international customary laws of treaties require that parties interpret their agreements “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Similarly, the parties are obliged to perform their treaty obligations in good faith and refrain from defeating the object and purpose of the treaty.9

The term “[Jordan’s] present special role” in Article 9 of the peace treaty distinctly referred to the situation recognized and acknowledged by both parties, which existed at the time of its signature in 1994. This situation had become known as the “status quo” that had been accepted, and has prevailed since 1967.

Since Jordan had agreed to this text and to its inclusion in the 1994 peace treaty and in light of the fact that Jordan subsequently ratified the treaty following approval by its national legislative authorities, it must be assumed that Jordan thereby acknowledged and committed itself to Israel’s overall authority, including security responsibility, over the Temple Mount, subject to Israel’s recognition and acknowledgment of the special role of Jordan as set out in the arrangements comprising the 1967 status quo.

In light of the prevailing legal situation as encapsulated in the peace treaty, recent reports by various news outlets of a new Jordanian initiative, transmitted to the U.S. administration, to remove Israel’s control over the Temple Mount and “to return to the historic status quo,” including the transfer of security responsibility from Israel to the Waqf as well as the authority to approve non-Muslim visits to the Temple Mount, would appear to be at stark variance with Jordan’s peace treaty obligations.10

This is all the more evident in light of the obligation in the same Article 9 of the Peace Treaty, according to which Jordan and Israel agreed to:

…provide freedom of access to places of religious and historical significance [paragraph 1] [and to] act together to promote interfaith relations among the three monotheistic religions, with the aim of working towards religious understanding, moral commitment, freedom of religious worship, and tolerance and peace.11

Jordanian Public Statements

Statements by senior Jordanian personalities expressing support and encouragement for the Al-Aqsa rioters would appear to be at variance with this and other provisions of the peace treaty.

Bitter criticism by Jordan’s King Abdullah of Israel’s attempts to quell the rioting and violence emanating from the mosque and calls for the Israeli government to respect “the historical and legal status quo” would appear to go beyond the commitments in Article 9 of the peace treaty, as well as Jordan’s commitments to mutual understanding and good-neighborly relations.

Similarly, Jordan’s Prime Minister Bisher al-Khasawneh, in addressing the Jordanian parliament, used particularly hostile language to condemn “Zionist sympathizers” and Israel’s “occupation government,” hailing the Palestinian rioters and accusing Israel of violating the status quo:

I salute every Palestinian, and all the employees of the Jordanian Islamic Waqf, who proudly stand like minarets, hurling their stones in a volley of clay at the Zionist sympathizers defiling the Al-Aqsa Mosque under the protection of the Israeli occupation government.12

Such an official parliamentary statement by Jordan’s prime minister appears to be at variance with Jordan’s solemn commitment set out in Article 11 of the peace treaty entitled “Mutual Understanding and Good Neighborly Relations.” According to this provision, the parties undertook to “seek to foster mutual understanding and tolerance based on shared historic values” and “to abstain from hostile or discriminatory propaganda against each other, and to take all possible legal and administrative measures to prevent the dissemination of such propaganda by any organization or individual present in the territory of either Party.”13

Conclusion

The 1994 Israel-Jordan peace treaty heralded a new, solid, and stable arrangement of bon-voisinage (or good-neighborly relations) between the two countries, which has, for almost 30 years, been maintained and enhanced.

While both countries have, from the start of their relationship, been fully aware of the emotive and sensitive nature of the holy sites in Jerusalem, as well as their historic religious significance, both parties have made every effort to prevent and to avoid tensions, and to ensure that the holy sites are managed for the benefit of all visitors and worshippers. To that end, the 1994 peace treaty acknowledged the special and historic role of Jordan in managing the sites.

It is hoped that Jordan will ensure its continued respect for the agreed commitments in the peace treaty and will refrain from actions and statements that undermine such commitments.

* * *

Notes

1 https://www.timesofisrael.com/some-clashes-reported-at-al-aqsa-ahead-of-planned-right-wing-march-in-jerusalem/

2 See Nadav Shragai, The “Al-Aksa Is in Danger” Libel: The History of a Lie, https://jcpa.org/al-aksa-is-in-danger-libel.

3 For a detailed exposition of the Hashemite claim to guardianship and protection of the Muslim holy places, see the Jordanian Foreign Ministry document: https://www.mfa.gov.jo/content/%D8%A7%D9%84%D9%82%D8%AF%D8%B3-%D9%88%D8%A7%D9%84%D9%88%D8%B5%D8%A7%D9%8A%D8%A9-%D8%A7%D9%84%D9%87%D8%A7%D8%B4%D9%85%D9%8A%D8%A9.

4 Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, October 26, 1994, https://www.un.org/unispal/document/auto-insert-179122.

5 For a detailed description of the status quo and the various changes that have been made since 1967, see Yitzhak Reiter, The Eroding Status-Quo Power Struggles on the Temple Mount (2017), https://jerusaleminstitute.org.il/wp-content/uploads/2019/06/PUB_ERODINGSTATUSQUO-2017_eng.pdf. See also Nadav Shragai, “The Status Quo on Jerusalem’s Temple Mount Has Greatly Changed since 1967” (2022), https://jcpa.org/article/the-status-quo-on-jerusalems-temple-mount-has-greatly-changed-since-1967.

6 See Nadav Shragai, “To Pray or Not to Pray on the Temple Mount?,” July 2021, https://jcpa.org/article/to-pray-or-not-to-pray-on-the-temple-mount.

7 UN Security Council document SC/12052-Pal/2196, https://www.un.org/press/en/2015/sc12052.doc.htm.

8 https://www.gov.il/en/Departments/General/the-washington-declaration.

9 Vienna Convention on the Law of Treaties 1969, Articles 18, 26, and 31, https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.

10 https://www.mako.co.il/news-military/2022_q2/Article-6184756b64a6081027.htm. See also https://www.haaretz.com/middle-east-news/jordan-pushing-to-restore-al-aqsa-status-quo-amid-jerusalem-tensions-sources-say-1.10767520 and https://www.middleeastmonitor.com/20220428-jordan-pushing-to-restore-jerusalem-mosque-status-quo-sources.

11 Peace Treaty, Article 9 entitled “Places of Historical and Religious Significance,” paragraphs 1 and 3.

12 https://www.timesofisrael.com/jordan-praises-palestinian-temple-mount-rioters-summons-israeli-envoy-for-rebuke.

13 https://www.un.org/unispal/document/auto-insert-179122.

 

{Reposted from JCPA site}

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Amb. Alan Baker is Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.