Findings of Commission: Wailing Wall is Moslem Property but Not Moslem Sagred Shrine: Commission Dec

The Wailing Wall as being an integral part of the Haram-esh-Sherif is manifestly Moslem property, but it is not a Moslem sacred shrine, and so far as it is known the pavement in front of the Wall has never been a place for Moslem prayers. This is one of the important findings in the Report of the Commission, consisting of M. Eliel Loefgren, M. Charles Barde, and M. C. J. Van Kempen, which was appointed by the British Government with the approval of the Council of the League of Nations to determine the rights and claims of Moslems and Jews in connection with the Western or Wailing Wall at Jerusalem, which has been published here to-day by His Majesty’s Stationery Office, a note at the end of the Report stating that “the Commission is unanimous in its pronouncements and decisions”.

The Commission does not consider that the pavement in front of the Wall can be regarded as a sacred place from a Moslem point of view, the Report declares. At the time of the Prophet it formed part of an open site and nothing in the evidence heard before the Commission goes to show that any special part of that area was of old marked out as sacred to the Moslems.

EVIDENCE OF REGULAR PILGRIMAGES OF JEWS TO RUINS OF TEMPLE FROM WHICH THEY BELIEVED DIVINE PRESENCE NEVER DEPARTED CAN BE TRACED BACK TO FOURTH CENTURY: LONG BEFORE WAILING WALL BECAME MOSLEM WAKF LAMENTATIONS AND PRAYERS OF JEWS WERE HEARD FROM PRECISELY SAME SPOT IN FRONT OF WALL AS AT PRESENT DAY.

The question as to what right the Jews can claim in a place that does not legally belong to them is a separate matter dealt with in another part of the Report, the Commissioners proceed, but it is proved by the evidence that the Western Wall of the Temple area for many centuries past was been an object of religious veneration to the Jews, and when there was nothing else left of the Temple itself, the regular pilgrimages of Jews to the ruins of the old Temple gave place to visits of the devotees to the only remains, the Wall, from which the Divine Presence was believed by them never to have departed. Evidence to that effect can be traced back to the Fourth Century; so that long before the Wailing Place became a Moslem Wakf the lamentations and prayers of the Jews were heard from precisely the same spot in front of the Wall as at the present day.

The Commission is therefore decidedly of the opinion that the place in question must be regarded as being a “religious site”, which is used as such exclusively by the adherents of the Mosaic creed, and consequently free access to the Place for devotional purposes is explicitly guaranteed to the Jews by Article 13 in the Mandate terms, which, inter alia, states: “All responsibility in connection with religious buildings or sites in Palestine, including that of securing free access to the religious buildings and sites is assumed by the Mandatory”. Irrespective of this guarantee given in the Mandate, the Commission holds that in support of the claim of the Jews to free access to the Place, there does exist a practice constituting a right ab antiquo.

PRESENT STATUS QUO AS FAR AS POSSIBLE TO BE PRESERVED: MOSLEMS MUST NOT CONSTRUCT REPAIR OR DEMOLISH ANY BUILDING ADJACENT TO WALL IMPAIRING ACCESS OF JEWS OR DISTURBING JEWS DURING DEVOTIONAL VISITS IF IT CAN IN ANY WAY BE AVOIDED: GOVERNMENT TEMPORARY INSTRUCTIONS BECOME PERMANENT EXCEPT THAT ARK SCROLLS AND TABLE FOR READING MAY BE BROUGHT TO WALL ON DAYS CUSTOMARY: SHOFAR MUST NOT BE BLOWN BUT MOSLEMS MUST NOT CARRY OUT ZIKR CEREMONY CLOSE TO PAVEMENT DURING JEWISH DEVOTIONS OR ANMEY JEWS IN ANY OTHER WAY: ANIMALS MUST NOT BE DRIVEN ALONG PAVEMENT AT CERTAIN HOURS BUT RIGHT OF MOSLEMS TO PASS REMAINS INVIOLABLE: WALL IS HISTORICAL MONUMENT AND MAINTENANCE THEREFORE BELONGS TO ADMINISTRATION SUBJECT TO CONSULTATION WITH MOSLEM SUPREME COUNCIL AND PALESTINE RABBINICAL COUNCIL.

As regards the Haram area and the adjacent Wakf property in their relation to the Jewish devotions at the Western Wall, the Report continues, the Commission passes verdict that the present status quo of the Wall and of its immediate surroundings shall, as far as possible, be preserved, with a view to not causing any more serious disturbance in the Jews’ manner and practice of worship than has occurred in the past, or than may be inevitable by reason of changes in the prevailing conditions at the Wall. Consequently the Moslems shall be entitled in the Wakf properties adjacent to the

If the recently constructed door at the southern end of the Pavement is not to be closed for good, measures shall be taken of the same kind as at present in force to ensure its being kept locked from 5 p.m. on the Eve of the Sabbath and on Jewish holy days that are recognised as such by the Palestine Administration, and throughout such days until sunset.

The Commission also confirms the prohibition in the temporary rules against the driving of animals along the Pavement at certain hours.

For a voiding annoyance to the Jewish worshippers the Zikr ceremony shall not, during the usual hours of worship, be carried out so close to the Pavement as to cause annoyance.

The conclusions arrived at by the Commission on the basis of the reasoning and evidence may be summed up as follows:

To the Moslems belong the sole ownership of, and the sole proprietary right to, the Western Wall, seeing that it forms an integral part of the Haram-esh-Sherif area, which is a Wakf property. To the Moslems there also belongs the ownership of the Pavement in front of the Wall and of the adjacent so-called Moghrabi (Moroccan) Quarter opposite the Wall, inasmuch as the last-mentioned property was made Wakf under Moslem Sharia Law, it being dedicated to charitable purposes.

Such appurtenances of worship and/or such other objects as the Jews may be entitled to place near the Wall either in conformity with the provisions of this present Verdict or by agreement come to between the Parties shall under no circumstances be considered as, or have the effect of, establishing for them any sort of proprietary right to the Wall or to the adjacent Pavement.

On the other hand the Moslems shall be under the obligation not to construct or build any edifice or to demolish or repair any building within the Wakf property (Haram area and Moghrabi Quarter) adjacent to the Wall, in such a manner that the said work would encroach on the Pavement or impair the access of the Jews to the Wall or involve any disturbance to, or interference with, the Jews during the times of their devotional visits to the Wall, if it can in any way be avoided.

The Jews shall have free access to the Western Wall for the purpose of devotions at all times-subject to the explicit stipulations hereinafter to be mentioned, viz.,

(1) The temporary instructions issued by the Palestine Administration at the end of September, 1929, relative to “appurtenances of worship” are to be made permanent, subject, however, to the one modification that it shall be permissible to place near the Wall the Cabinet or Ark containing the Scroll or Scrolls of the Law and the Table on which the Ark stands and the Table on which the Scroll is laid when being read from, but only on the following occasions, viz., (a) at any special fast and assembly for public prayer that the Chief Rabbis of Jerusalem may order to be held in the consequence of some public distress or calamity, provided due notice shall have been given by them to the Administration; (b) on New Year’s Day and on the Day of Atonement, and also on any other special “holy days” that are recognised by the Government as such days on which it has been customary for the Ark containing the Scrolls of the Law to be brought to the Wall. Save as provided in the articles of this Verdict it shall not be permissible to have any appurtenances of worship in the vicinity of the Wall.

(2) No objection or obstacle shall be raised to the Jews, in their individual capacity, carrying with them to the Wall hand-books or other articles customarily used at their devotions either as a general thing or upon special occasions, nor to their wearing such garments as were of old used at their devotions. (3) The temporarily enacted prohibitions against the bringing to the Wall of benches, carpets, or mattings, chairs, curtains and screens, etc., and against the driving of animals at certain hours along the Pavement are to be made absolute, as is also the injunction as to keeping the door at the southern end of the Wall locked during certain hours. The right, however, for Moslems to go to and fro in an ordinary way along the Pavement shall be respected and remain inviolable as hitherto. (4) It shall be prohibited to bring to the Wall any tent or a curtain or any similar object with a view to placing it there-even though for a limited space of time.

(5) The Jews shall not be permitted to blow the ram’s horn (Shofar) near the Wall nor cause any other disturbance to the Moslems that is avoidable; the Moslems on the other hand shall not be permitted to carry out the Zikr ceremony close to the Pavement during the progress of the Jewish devotions or to cause annoyance to the Jews in any other way. (6) It is to be understood that the Administration shall be entitled to give such instructions as they may think fit respecting the dimensions of each of the objects that it is permissible for the Jews to bring to the Wall, respecting the particular days and hours above referred to, and also respecting other details that may be necessary for the adequate and complete carrying out of this present Verdict of the Commission.

(7) It shall be prohibited for any person or persons to make use of the place in front of the Wall or its surroundings for all political speeches or utterances or demonstrations of any kind whatever. (8) It shall be held to be a matter of common interest to Moslems and Jews alike that the Western Wall should not be disfigured by having any engravings or inscriptions placed upon it or by having nails or similar objects driven into it, and also that the Pavement in front of the Wall should be kept clean and be properly respected by Moslems and Jews alike; it is herewith declared to be the Moslems’ right and duty to have the Pavement cleaned and repaired, if and when that is necessary, upon due notice being given to the Administration. (9) Owing to the Wall’s character as an historical monument its fitting maintenance shall be entrusted to the Palestine Administration, so that any repairs to it that may be necessary shall be carried out by them and under their supervision though only after consultation with the Supreme Moslem Council and the Rabbinical Council for Palestine. (10) If any repairs to the Pavement that are necessary are not attended to by the Moslems in due time, the Palestine Administration shall take the necessary steps to have the work done. (11) The Chief Rabbis of Jerusalem shall be required to nominate one or more officials to be their authorised representative or representatives for receiving the instructions and other communications that will be issued from time to time by the Palestine Administration regarding the Western Wall, the Pavement in front of it, and the formalities to be observed with regard to the Jewish devotions near the Wall.

The Commission ventures to entertain the hope that, having regard to the actual position of affairs and of what is dependent thereupon, both Moslems and Jews will accept and respect the Commission’s Verdict with that earnest desire to attain mutual understanding that is so important a pre-requisite both for the furtherance of the common interest of the Parties in Palestine and for ensuring a peaceable development in the World at large.

PLACE WHERE MOHAMMED TETHERED HIS STEED EL BURAQ IS NOT SITUATED WITHIN PART OF WALL SKIRTING PAVEMENT OF WAILING WALL OF JEWS BUT FURTHER SOUTH AND ACCESS IS FROM HARAM AREA PROPER NOT FROM OUTSIDE: IF MEMORY OF MOHAMMED’S VISIT IS ENOUGH TO MAKE WALL SACRED TO MOSLEMS WHY SHOULD NOT RESPECT BE ATTACHED LIKEWISE TO VENERATION JEWS HAVE SHOWN FOR MANY CENTURIES TO SAME WALL WHICH THEY BELIEVE TO BE LAST REMAINS OF TEMPLE AND FILLED WITH DIVINE PRESENCE?

The evidence that was forthcoming in the matter goes to prove that from the Moslem point of view the pavement is chiefly looked upon as a passage existing for the benefit of the inhabitants of the private dwellings erected originally for the purpose of serving the needs of the Moroccan pilgrims, the Commissioners write in the course of their Report, in discussing the respective claims brought before them. The Moslem party contend that there does exist a reason for the sacredness of the place, which is that the exterior part of the Wall encloses a small Mosque set up on the precise spot where Mohammed, the Great Prophet, is believed to have tethered his steed El Buraq at the time of his visit to Jerusalem on his celestial journey. The Commission understands that it is the belief of the majority of Moslems that the Prophet’s steed was actually tethered at that precise spot. It is, however, to be observed that the said place is not situated within the part of the Wall which skirts along the Pavement of the Wailing Place of the Jews but in its extension to the south, and that the access to the small Buraq Mosque is from the Haram area proper and not from the outside.

It may be that the Zawiyah, which since 1929 has been located close to the pavement, was used for its present highest purpose previous to a long period of decay, but as regards the pavement itself it has been used by the Moslems from ancient times for entirely mundane purposes, and is so also at the present time. So far as is known, it has never been a place for Moslem prayers. Notwithstanding its use as a place of prayer by the Jews, it has always been a thoroughfare for Moghrabis, either on foot, or when driving camels or donkeys. The Commission is prepared to accept the statement of the Moslem side that the Wall as a whole, by reason of Mohammed’s visit with his steed called El Buraq, is sacred to the Moslems. But in the opinion of the Commission, this fact does not exclude the maintenance of the sanctity of the Wall to the Jews as well.

If the venerated memory of the Prophet’s visit-notwithstanding the fact that his steed El Buraq was tethered at a certain distance from the Wailing Place of the Jews has made the Western Wall sacred in its whole extent to the Moslems, why should not respect be attached likewise to the veneration that has for many centuries past been shown by the Jews towards the same Wall, which, according to their belief, represents the last remains of the old Temple, and which they believe to be filled with the Divine Presence?

JEWS PASSESS RIGHT SUI GENERIS AT WALL BASIS OF WHICH IS ANCIENT CUSTOM: IN PAST MOSLEMS PROHIBITED CHRISTIANS COMING NEAR WALL BUT ALLOWED IT TO JEWS AS SPECIAL FAVOUR: COMMISSION COMES TO CONCLUSION THAT FREE ACCESS OF JEWS FOR DEVOTIONAL PURPOSES BEEN RECOGNISED BY MOSLEMS THEMSELVES AS RIGHT AB ANTIQUO.

On the Arab side it has been vigorously contended that the Jews have only had access to the Wall accorded to them out of tolerance, the Commissioners proceed. That contention on the part of the Arabs would, at any rate, seem to justify the conclusion that the mere access of the Jews to the Wall has not been held by the Arabs as an infringement of the Moslem law, for if it had the visits would long ago have been prohibited. The Commission considers that in this instance there exists a right sui generis, the basis of which is an ancient custom that has arisen under the protection of one of those “tolerances” that are wont to serve as origins for what come to be legally valid customs. Even if no special statute can be adduced in support of the fact, yet it can hardly be denied that in Palestine established right and prevalent usage, more especially with regard to religious matters, have come very generally to recognise the principle that one party may have a limited right in the property of another. In the whole system of status quo, “tolerance” plays an important role for deciding what, at any given time may be considered to have grown into an “existing right”.

Why should there be this scrupulous application of a fixed status quo and why should there be this fear of the prejudice that is assumed to follow as an inevitable consequence of any act or omission that alters the actual existing state of things, if “tolerance” was not regarded as a possible basis for an altered legal position? As regards the right to pay visits and to perform certain religious acts there without any sort of claim to ownership, precedents are known to exist in respect to the Christian Holy Places and the origin of those rights is certainly based on old practice and not on any agreement traceable in documentary form.

In this connection the Commission draws special attention to the fact that during the previous regimes in the past such prohibitions as were sometimes proclaimed never touched upon the right of visiting as such, but were directed solely against such steps on the part of the Jews as were held by the Moslems to prejudice their proprietory right or as were considered as an extension of sanctions arising from previous practice in the neighbourhood of the Wall.

Since it has been emphasised from the Arab side that those visits were tolerated just as the visits of foreigners or others without any devotional purposes, it should be noted that during a very long period in the past Moslems prohibited Christians from coming near the Wall or its surroundings, but that this was allowed to the Jews as a special favour.

In the opinion of the Commission, there was only anxiety to prevent any future claim by the Jews to ownership or possession, but at the same time the long-standing practice in itself was expressly recognised. After considering the evidence produced by the Arab side, the Commission comes to the conclusion that the free access of the Jews to the place for devotional purposes has been recognised by the Moslems themselves as a right ab antiquo. The questions that have given rise to dispute in earlier times have been the character and the extension of the Jewish practice of carrying on devotions at the Wall.

IF WESTERN WALL AND PAVEMENT IN FRONT OF IT OUGHT TO BE PROTECTED IN RELIGIOUS INTEREST OF JEWS DUE CONSIDERATION OUGHT ALSO TO BE PAID BY JEWS TO THEIR HOSTS THE MOSLEMS: CONGREGATIONAL JEWISH WORSHIP WITH MINYAN AT WALL RECOGNISED BY COMMISSION.

On the strength of these considerations, the Report continues, the Commission finds that the place in question is a religious site, sacred to the Jews, and that they have a right to access to it for certain devotional purposes. However, the Jews also claim a right to decide, without any interference from others in what form and to what extent their devotions at the Wall are to be held. Their argument is that by the explicit terms of the Mandate they are guaranteed “free exercise of worship”, from which should follow the right to arrange their prayers according to their own rites and to bring to the Wall all the appurtenances they deem fit. They hold that even if in ancient times their worship had the character of individual prayers and lamentations, the development in later times of their prayers into a congregational and organised service has as a rule been allowed to continue without interruption. Any interference on the part of the Moslems with the ritual of the Jews was also in principle forbidden by the Firmans produced. On the Jewish side it is also contended that the real status quo had for a considerable time been in conformity with the present claims and that in such respects as the actual administrative prescriptions did not agree with the said claims, these regulations diverged from the existing rights of the Jews.

After having carefully considered these points of view, the Commission declares its opinion to be:

If the Western Wall and the pavement in front of it ought to be protected in the religious interest of the Jews, due consideration ought also to be paid by the Jews to their hosts, the Moslems, whose sacred shrines have been guaranteed immunity by the terms of the Mandate. Hence the Commission concludes that the established custom should be a proper basis for deciding the existing rights of the Jews at the Wall. It does not follow that the Commission must go back to the primitive forms which characterised the prayers and the conditions at the Wall at the earliest stages. On the other hand, the Commission thinks that usage, in order to serve as a basis for a real right, must be of fairly long standing.

EVEN CENTURIES AGO COLLECTIVE PRAYERS WERE HELD AT WALL.

It appears from the evidence that even centuries ago collective or “arranged” prayers were held at the Wall. The transformation from one form to another has been favoured by the Jewish ritual, which from ancient times required the presence of as many as ten persons (minyan) for holding a complete service, and allowed a minyan to exercise the same sort of worship in any place, just as in a synagogue. As a matter of course, one or more groups of such minyans were formed at the Wall, too, performing a more or less complete service, and at all events they often prayed collectively and not only individually. As men and women could not on account of the local conditions be separated from each other, as in synagogue, the women kept apart in a separate corner. The Jews brought with them, too, certain of the attributes that are usually employed at their service, and they appeared dressed in garments appropriate to their ritual.

It may be assumed that at certain times no objection was made to the Jews bringing benches, chairs, screens and similar appurtenances to the Wall, and that they have occasionally seen to the cleaning or repairing of the pavement. But by these facts it has not been proved that such an uncontested practice of long standing has existed in these respects, or that any legal claims can be based thereon. As regards the appurtenances of worship as dealt with in the temporary instructions 1929, it is of interest to note that to judge from the evidence, the Moslems did not make any explicit complaints against the bringing of such appurtenances to the place until a late stage in the controversy between Arabs and Jews.

IN LIMITING RIGHT OF JEWS TO BRING ARK AND SCROLLS TO WALL COMMISSION’S AIM NOT BEEN TO INTERFERE WITH JEWISH RITUAL BUT ONLY TO ENSURE AGAINST INOVATION THAT MIGHT BE USED TO SUPPORT PLEA THAT JEWS WERE FREE TO TRANSFORM PLACE INTO SYNAGOGUE: THAT EVENTUALITY MUST BE OBVIATED FOR INSURING MAINTENANCE OF PEACE AND ORDER.

The Commission notes that the reading of the Law from the Scrolls is requisite also for a complete service in a synagogue on Mondays, Thursdays and Saturdays. The bringing of the Scrolls of the Law and its appurtenances, however, is only permissible according to the present temporary regulations on the ordinary Sabbath days, from Friday evening until sunset on Saturday. The practice on which the regulations in this respect have been based is in all probability of a somewhat recent date, and it has not been shown to the satisfaction of the Commission that any continuous usage with respect to it existed before the War. It is true that some witnesses whose trustworthiness was in no way open to suspicion gave positive evidence that the objects in question were in use near the Wall during a certain period previous to the War. Other witnesses, however, who, so far as could be judged, were just as trustworthy deposed that although they were frequent resorters to the Wall they had not any conscious remembrance of having seen the Ark and the Scrolls near the Wall on any ordinary week-days or even on Saturdays, until the period subsequent to the War. In this respect the same reasoning holds good, as has been adduced by the Commission

In limiting the present right to the bringing of the Ark containing the Scrolls, the Commissioners declare, our desire and aim has not been to interfere in any way with the ritual of the Jewish devotions, but only to ensure that no objects that might possibly be taken to indicate some sort of possessory right for the Jews should be brought near the Wall unless it was justified by reason of long-continued practice. To the Commission this has appeared to be of very especial importance at this particular juncture. Any innovation that occurred might be made use of in support of the plea that the Jews were left free to transform the Place into a synagogue-and that eventuality must be obviated in the interests of formal justice and for the insuring of a maintenance of peace and order. It is presumably impossible to contest the fact that a regular bringing to the Wall of objects such as the Ark containing the Scrolls of the Law might give rise to a miscomprehension of that nature. Nor would that either seem to be called for, when due consideration is paid to the primary and traditional character and purpose of the Place.