Author, Alon Harel, (D.Phil. Oxford University) is Phillip P. Mizock & Estelle Mizock Chair in Administrative and Criminal Law at Hebrew University of Jerusalem. In 2014, Harel was Visiting Professor at the University of Chicago Law School. He specializes in political philosophy, jurisprudence, criminal law, constitutional law, and law and economics. He is a leading advocate of Israeli human rights in Israel. Harel is the founder and editor, with David Enoch, of the journal, Jerusalem Review of Legal Studies. He is the author of the monograph, Why Law Matters, Oxford Legal Philosophy (2014)
 

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Comments:

1.  Paul Parker (Baltzer Distinguished Professor of Religion and Chair of the Religious Studies Department at Elmhurst College, Illinois):

Religious freedom is so crucial that any genuine cry for it must be taken very seriously. Alon Harel’s April 9, 2015 appeal for the freedom of religion in Israel appears to be such a plea (Sightings, “Israel: Two Case Studies in Politics and Freedom of Religion”), but his call for a “pragmatic decision” to have a state imposed arrangement on al-Haram al Sharif/Temple Mount is troubling because it misrepresents Islam, assumes that the Jewish State of Israel has the right to occupy the State of Palestine, and assumes that the Jewish State of Israel has the authority to determine the religious practice of Muslims.

Harel, the Mizock Professor of Law at Hebrew University in Jerusalem, must surely know that nothing in Islam disallows Jews or Christians from praying on the Temple Mount/Haram al Sharif (or Noble Sanctuary in English). They have all prayed there previously and will again in the days to come—one hopes.

However, the first of the two core problems with Harel’s argument is not its misrepresentation of Islam, but the unquestioned assumption that the State of Israel has the legal authority to determine anything about the Noble Sanctuary/Temple Mount. The entire 35 acre holy site is inside the Old City which itself is in East Jerusalem, part of the West Bank of the State of Palestine. The religious conflict that Harel and we all deplore is embedded within the political conflict of Israel’s continued disregard for broad international agreement that its military occupation of Gaza and the West Bank of Palestine is illegal and must end. End the occupation and much of the conflict wilts away. 

The problem with Jews and Christians praying on the Temple Mount/Noble Sanctuary is not theological or religious but political. The Jewish State of Israel gives special rights and privileges to Jewish citizens that it withholds from non-Jewish citizens and from all Palestinians in the occupied State of Palestine. And the daily presence of the heavily armed Israeli National Police on the Noble Sanctuary/Temple Mount convincingly illustrates the kind of Jewish/Muslim arrangement that the Jewish State of Israel anticipates for Muslims.

An example of Jewish State of Israel imposing ‘religious freedom’ on holy sites is Rachel’s Tomb in the West Bank Palestinian town of Bethlehem. Israel built its eight-meter high wall deep into the West Bank (“wall” is the term used by the UN’s International Court of Justice) to isolate Rachel’s Tomb from Palestinian Muslims who now can only access the shrine with special government permits. What once was an interreligious holy site is now an exclusively Jewish shrine.

The second core problem with Harel’s essay is its assumption that the Jewish narrative is the only authoritative history. His article refers to the “Temple Mount” ten times, but never once to al-Haram al-Sharif or the Noble Sanctuary. The site is not only holy to Jews and Israel, but also to Muslims and Palestinians. The essay’s bias for Judaism and Israel signifies some of the basic problems with sharing the Temple Mount/Noble Sanctuary with Israeli Jews even those who champion human rights.

Such assumptions run throughout the essay: Should members of one religion (Judaism) really dictate the interreligious relationship with members of another religion (Islam) at a site considered sacred by both?

By following Harel’s recommendation to have the government and the courts impose the conditions of interfaith relations, would religious freedom from state control actually be more strongly secured? Aren’t state imposed conditions on the practice of religion the opposite of religious freedom? Although some might reply that Israel is not a special case, every religiously diverse state experiences the same tension, for example, France, India and the United States.

Moreover, religious freedom is impossible in a state that is militarily occupied (Palestine) and in a state (Israel) that legally discriminates against the adherents of non-majority religions. If one objects that these are not issues of religious freedom because to be a Jew is ethnic not religious, then one must deal with state sanctioned preferential treatment according to ethnicity rather than state sanctioned preferential treatment according to religion—both unattractive options.

The U.S. Office of International Religious Freedom, led by Ambassador at-Large David Saperstein, issues annual reports on religious freedom for every country. The latest report on Israel states, “Legal and policy restrictions on religious freedom continued.” While it is true that Israel’s Declaration of Establishment affirms equality and religious freedom for all citizens, Israel’s laws, judicial decisions, and social practices have consistently fallen short.

If Harel is really concerned about the freedom of religion, he could start by recommending that Israel: end its military occupation of Palestine; remove its troops and police from all holy sites; allow all Muslims to pray at Al Aqsa, not just those over the age of 50; not restrict Christian worship on Easter and Christmas; open Rachel’s Tomb to all devotees; stop paying Israeli rabbis and other religious leaders with public tax money; fund Christian schools at the same rate as Jewish schools, or don’t fund either; allow interreligious weddings; explicitly make religious discrimination illegal in Israel’s Basic Laws; and grant non-Jewish citizens of Israel the same civil rights as Jewish citizens in employment, education and housing. If Harel is really interested in the freedom of religion, he’s got plenty of work to do in the Jewish State of Israel.

Democracy is messy and dangerous, including the freedom of religion, but worth the risk.

Resources:

Adalah, the first Palestinian-Arab legal center in Israel, promotes and defend the human rights of Palestinian-Arab citizens of Israel and Palestinian. Two recent reports are the “Discriminatory Laws Database,” http://www.adalah.org/en/content/view/7771; and the “Inequality Report: The Palestinian Arab Minority in Israel,” March 2011, http://www.adalah.org/en/content/view/7404. 

B’Tselem, The Israeli Information Center for Human Rights in the Occupied Territories, publishes scores of reports on Israel’s belligerent occupation of Palestine, for example, http://www.btselem.org/topic/settlements

Nissim Leon, “Why religious Jews are divided over the Temple Mount,” +972, November 22, 2014. http://972mag.com/why-religious-jews-are-divided-over-the-temple-mount/99090/.

In UN Security Council Resolutions 242 (1967) and 338 (1973), the entire international community called Israel to relinquish the land it had conquered. The United Nations continues to affirm these Resolutions. http://www.un.org/Depts/dpi/palestine/ch3.pdf

Summary of the Advisory Opinion of 9 July 2004, International Court of Justice. http://www.icj-cij.org/docket/files/131/1677.pdf

The U.S. 2013 International Religious Freedom Report for 2013: Israel and The Occupied Territories. http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm#sectioniilegalpolicyframework. 

Image: Rachel's Tomb, formerly an interreligious site, is now an exclusively Jewish shrine divided into a men's and a women's section. Photo taken by Prof. Paul Parker and used with his permission.

2.  Alon Harel (responding to Paul Parker's comment above):

I am grateful to Professor Parker for his response to my comments. Many of Professor Parker's comments are valuable although irrelevant while some of his comments are inaccurate. Let me point out some inaccuracies and turn then to establish why most of his (sound) claims are irrelevant.

Professor Parker argues that: "nothing in Islam disallows Jews or Christians from praying on the Temple Mount/Haram al Sharif (or Noble Sanctuary in English). They have all prayed there previously and will again in the days to come—one hopes."

I am not an expert on Islam, so I will dare not make any assertions about Islam. But it is no secret that the Muslim leadership did its best to prevent prayers of Jews in the Wailing Wall (the western part of Temple Mount/Haram al Sharif). In September 1928 the British police removed forcefully a screen that was used to separate men and women during the prayer. The British acted on the request of the Supreme Muslim Council. In 1929 a large group of Arabs attacked the Wailing Wall and burnt prayer books. This riot spread and later on culminated in the brutal murder of the Jewish community in Hebron. The armistice agreement between Israel and Jordan from 1949 required "free access to the Holy Places and cultural institutions and use of the cemetery on the Mount of Olives." Needless to say that despite persistent requests from Israel Jordan failed to honor its obligations under this agreement. To the extent that Islam welcomes Jews to pray on Haram al Sharif, there is an unbridgeable gap between the theory and practice of Islam.

I agree with many of the concerns raised by Professor Parker with respect to Israel. I believe that I am as opposed to the occupation as he is; I condemn discrimination of Israeli Arabs which is unfortunately prevalent in Israel. I also condemn the absence of civil marriage in Israel and many other practices as vehemently as Professor Parker probably condemns wrongs committed by the US government. I fail however to see the relevance of these observations to the issue at stake. Professor Parker argues that Israel has no rights to make any determinations concerning Haram Al Sharif because it occupies it illegally. In other words under his view, Israel is not allowed to prevent Jews from praying in the mosques and disrupt Muslim prayers because it occupies illegally these mosques.

I find this view unintelligible. It is evident that as long as Israel occupies the territories it has the obligation to honor the rights of all and protect their religious freedoms. Professor Parker himself condemns the treatment of Muslims in Rachel's tomb. The fact that Israel occupies Rachel's tomb illegally does not detract from its duties to protect religious freedoms. Under the assumptions of Professor Parker the occupation and perhaps other wrongs committed by Israel exempt it from its duties to protect religious freedom. I, on the other hand believe that as long as Israel has control over the holy places it has the duty to protect religious freedoms. One wrong committed by Israel namely the occupation does not exempt it from its duties to prevent other wrongs such as restricting religious freedoms.