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									                            The "Architecture of Erasure"–Fantasy or Reality?


Raphael Israeli, Shmuel Berkovits, Jacques Neriah and Marvin Hier1


          Although cloaked as a scholarly work, replete with footnotes and citations, Professor

Saree Makdisi’s article, “The Architecture of Erasure,” is in reality a political diatribe, in which

he utilizes the Simon Wiesenthal Center’s Museum of Tolerance now under construction in West

Jerusalem, as a proxy for attacking the policies of the State of Israel toward its own Arab

citizens, as well as the Palestinian residents of the disputed West Bank. It is Makdisi’s thesis

that the Museum reflects Israel’s “uneasy” relationship with the Palestinian community and a

desire to keep the Palestinians in its midst out of sight and out of mind, in effect to “erase” their

presence and to disregard their history. Throughout his article, Makdisi implicitly assumes that

the Museum is de facto an instrument of Israeli governmental policy and he draws no meaningful

distinction between the Los Angeles-based Simon Wiesenthal Center, the sponsor of the

Museum project and the government of the State of Israel. Nor does he make any particular

effort to ensure the accuracy of the so-called “facts” upon which his argument is predicated.

While Makdisi's article is elegantly written, as one might expect from a prominent professor of

English Literature, the author is prone to speculation and outright fabrication and seems more

interested in promoting the Palestinian political agenda and discrediting Israel than ensuring a

fair and balanced presentation of this important project in the heart of the Israeli capital.


1
  Dr. Raphael Israeli is Professor of Islamic, Middle Eastern and Chinese History at Hebrew University, Jerusalem and a leading
authority on the Israeli-Palestinian conflict. Dr. Shmuel Berkovits, an Israeli lawyer and a lecturer in the Diplomacy and Security
Program of the Political Science Division at the University of Tel Aviv, is a leading expert on the historical, religious, legal and
political aspects of the Christian, Muslim and Jewish holy places in Israel. Dr. Jacques Neriah is the former Diplomatic and
Political adviser to the late Israeli Prime Minister Yitzhak Rabin and served as a member of the Israeli negotiating team for the
Oslo Accords. Rabbi Marvin Hier is the founder and Dean of the Simon Wiesenthal Center, Los Angles, California. The authors
are grateful to Aharon Layish, Michael Bodner, Moshe Lipschutz, Renato Yarach and Carl Tessler, who assisted with various
aspects of this article in their respective areas of expertise.
           Founded in 1977 and named after the famed Holocaust survivor and Nazi-hunter, Simon

Wiesenthal, the Simon Wiesenthal Center (the “SWC”) is an international, Jewish human rights

organization whose mission is to confront anti-Semitism, hate and terrorism, promote human

rights and dignity, stand with Israel, the national homeland of the Jewish People, defend the

safety of Jews worldwide and teach the lessons of the Holocaust to future generations. The

Simon Wiesenthal Center is an accredited NGO recognized by the United Nations, UNESCO,

the Council of Europe and other international authorities.2

           Professor Makdisi has endeavored to portray the SWC’s Museum project in Jerusalem as

the exemplar of all that he believes to be wrong with the State of Israel and its policies toward

the Palestinians. The SWC, however, is a private organization and is not in any way affiliated

with the government of Israel or any other country. It speaks only for itself and is accountable

only for its own actions.

           Under the leadership of its founder and Dean, Rabbi Marvin Hier, the SWC generally

supports the State of Israel and believes that it is an oasis of democracy and stability in a volatile

region of the world, populated largely by repressive authoritarian regimes. Like any other

democracy, however, including the United States, Israel is a work in progress. It is by no means

perfect and certainly, there is much to criticize. On the other hand, in 60 short years, Israel has

compiled an impressive record of achievement despite the ongoing real and serious threats to its

security and very existence.              Israel has developed a thriving modern economy, first class

universities and medical centers, an unrivaled free press and a legal system that has been

described as the “envy of the world, with a Supreme Court that stands at the pinnacle of



2
    Simon Wiesenthal Center website, http://www.wiesenthal.com.

                                                             2
democratic judiciaries, a court open to all with few, if any, restrictions on its jurisdiction.”3

Israeli Arabs are full-fledged citizens who enjoy the same legal rights as their Jewish countrymen

and it is fair to say that the Arab citizens of Israel enjoy far more civil rights and liberties than

the citizens of any Arab country.4

            But just as the SWC cannot take credit for Israel’s myriad accomplishments, it cannot be

held accountable for Israel’s shortcomings, be they real or imagined. Nor does it bear the burden

of defending Israel against the multiple charges leveled against it by Professor Makdisi. In

responding to Makdisi’s article, we will focus on the Museum project and the words and actions

of the SWC. Although we will endeavor to correct some of the more egregious factual errors

contained in Makdisi’s article, we will do so only to the extent that they portray the Museum of

Tolerance in a false light. The State of Israel can speak for itself. In this response to Professor

Makdisi’s article, we speak only for the SWC and the Museum of Tolerance.

            The Museum of Tolerance is the educational arm of the SWC. The Museum is dedicated

to promoting tolerance and mutual understanding through educational outreach, community

partnerships and social action. Since opening in Los Angeles in 1993, the Museum has hosted

nearly 5 million visitors. Each year, the Museum serves approximately 350,000 visitors,

including 130,000 elementary, middle school and high school students from diverse communities

throughout Southern California and beyond. The Museum's exhibitions, as well as its extensive

public programs, film series and special events, have focused on pressing social issues such as

civil rights, immigration, cultural diversity, the Holocaust, present day genocides, including

Darfur and the current threat of terrorism and crimes against humanity throughout the world.

3
    Alan Dershowitz, The Case Against Israel’s Enemies (NJ:Wiley, 2008), pp. 2-3.

4
    Raphael Israeli, Arabs in Israel: Friends or Foes (Ariel: Jerusalem, 2008), esp. Ch. 1.

                                                                   3
The Museum’s youth outreach programs address such critical issues as preventing youth

violence and hate crimes. The Museum is also a leading provider of anti-bias education and

professional development training–known as “Tools for Tolerance®"–to law enforcement

officers, criminal justice professionals, educators, service providers and other public and private

sector professionals in both the United States and abroad. Although the Museum of Tolerance is

apolitical, it does not shy away from controversy and provides a safe, neutral space for people on

opposing sides of an issue or conflict to come together and seek common ground.                                        The

Museum’s primary mission is to fight racism, prejudice and discrimination in all of its forms and

to promote civic discourse, social justice, tolerance and mutual understanding.5

         Encouraged by the initial success of its Los Angeles museum and by Teddy Kollek, the

legendary long-time mayor of Jerusalem, who visited the museum shortly after it opened in

1993, the SWC began to work on plans for a Center for Human Dignity–Museum of Tolerance

in Jerusalem (“MOT-J”). As explained by the Israeli Supreme Court in its October 2008

judgment rejecting various legal challenges to the project, the plan for the MOT-J is:

         “...based on the value of tolerance between nations and between human beings,
         and its purpose is to spread the idea of human dignity among the public, to
         educate people with regard to the values of mutual trust and fraternity in society,
         to further the purposes of education to respect the basic values of democracy, to
         bridge disputes between nations and between various population sectors, and to
         contribute to the deepening of human consciousness with regard to the value of
         peace and love in human life....The Museum of Tolerance should reflect the
         lessons of the past and assimilate these lessons into the values of tolerance and
         fraternity for the future. It is supposed to link the past, the present and the future
         by regarding the basic rights of the individual as the supreme value in human life
         and in the governments of peoples and states.”6


5
 See Museum of Tolerance website, http://www. museumoftolerance.com and SWC internal planning documents entitled "The
Museum of Tolerance" and "Museum of Tolerance Educational and Outreach Programs—Current and Future."

6
 Al-Aqsa Corporation for the Development of Properties of the Muslim Endowment Ltd., et al. v. Simon Wiesenthal Center
Museum Corporation, et al., (Israel Supreme Court sitting as the High Court of Justice)(Case Nos. HCJ 52/06, HCJ 1331/06 and
HCJ 1671/06)(Oct. 29, 2008)(“Supreme Court Judgment”), Clause 1.
                                                             4
           Initially, the SWC was interested in a potential building site in the French Hill

neighborhood in north Jerusalem. Although the relevant authorities responded favorably to the

idea of a Museum of Tolerance in the Israeli capital, the Israel Land Administration and

Jerusalem Municipality decided against the French Hill location. In 1998, they allocated land for

the project in the center of the city and the SWC acquired the necessary development rights at

great expense. The designated Museum site is located in West Jerusalem, at the intersection of

Hillel and Ben-Israel Streets, adjacent to Independence Park and the Mamilla Muslim cemetery.

The approximately 3-acre parcel had been used since the 1970's as a surface parking lot, a seven-

level deep underground parking structure with a pedestrian plaza on top (known as Cats Plaza)

and part of a public road (Menashe Ben Israel Street) which traverses Jerusalem’s Independence

Park.7 Over the years, underground electric and telephone lines and sewage and drainage pipes

have also been installed at the site.

           In its ruling, the Israeli Supreme Court noted the significance of the Museum’s location

in the center of Jerusalem:

           “The Museum of Tolerance was chosen to be built in the centre of Jerusalem and
           this was no coincidence. The choice of the location was the result of a national
           and municipal outlook that attributes special importance to this enterprise, a
           considerable part of which is due to the planned location of the building.
           Jerusalem, as the capital of Israel, constitutes a centre of interest for the whole
           world and for many visitors from all parts of the globe, who make pilgrimages to
           the city that is a spiritual and religious centre for the three main religions in the
           world. The location of the Museum of Tolerance in the heart of Jerusalem has a
           special meaning, which combines the cosmopolitan character of the city with the
           fact that it is a spiritual and religious centre that unites the peoples of the world.8


7
  Independence Park was built in the late 1960's, following a judgment of the Shari'a (Islamic) Law Court of Appeals approving
the project. Makdisi incorrectly states that it was established by city officials in 1992.


8
    Supreme Court Judgment, Clause 11.

                                                              5
               The Court also noted the urban planning aspects of the Museum’s location:

               [I]n recent years a special effort has been made to develop the centre of the city of
               Jerusalem by means of a master-plan that incorporates various plans that are
               designed to turn this area into a centre of cultural, spiritual, commercial and
               tourist interest, which will create a natural continuation between the old city and
               the new city.

               The purpose is to make the centre of the city of Jerusalem a centre worthy of the
               capital of Israel, which will serve as a source of interest and attraction to visitors
               from Israel and abroad, which will return life and excitement to the streets of the
               city centre, not only in the fields of commerce and business, but also in the fields
               of culture, entertainment, tourism and housing. Within this framework, the plan
               for the city centre involves, inter alia, the constructions of a light railway, the
               renewal and development of streets, building various public buildings, planting
               and cultivating gardens, encouraging young people to live in the area by giving
               grants, encouraging commercial building and creating a new traffic system for
               vehicles which will facilitate access to the centre of the city.

               The construction of the Museum of Tolerance at the centre of the city of
               Jerusalem therefore has special significance not only in view of the nature and
               purpose of the plan as a spiritual centre for spreading the awareness of tolerance
               between men, but also as an integral part of a master-plan to develop the centre of
               the capital.”9

               The SWC commissioned world renowned American architect Frank O. Gehry, whose

best known works include the Guggenheim Museum in Bilbao, Spain and Walt Disney Concert

Hall in Los Angeles, to design the Museum complex on the designated site in central Jerusalem.

Gehry’s design is sculptural in nature, integrating various geometric forms and complex spaces.

The titanium-clad Grand Hall–which encompasses a 360-degree space, five stories tall–is the

focal point of the design, with a museum gallery, conference center, education center, theater and

children’s museum–each a separate building in its own right–integrated into a harmonious

whole. In addition to modern materials such as swirling titanium and undulating glass, Gehry’s


9
    Op. Cit.



                                                         6
design incorporates Jerusalem stone and other traditional materials which tie it to its site and

nearby structures. As noted by the Supreme Court, “[t]he Museum project has a special character

of its own. It was planned by one of the greatest architects of our generation...and it constitutes

an architectural and artistic work of great value in its own right.”10

                             [Insert Color Photo of Museum—MoTJ-Night.jpg]

           A building permit was issued by the Municipality in October 2004. During the grading

and preparation of the building site, the Israel Antiquities Authority, a governmental agency,

performed exploratory excavations, as it is legally required to do at any construction site which

might potentially contain antiquities or other relics of archeological significance. In the course

of these excavations, the Authority's workers found human bones and the remains of ancient

graves in a small area of the compound. The Al-Aqsa Corporation for the Development of the

Muslim Endowment Ltd. (the “Al-Aqsa Corporation") thereupon filed a petition in the Israeli

Supreme Court, sitting as the High Court of Justice, seeking to enjoin the construction of the

Museum project on the grounds that it would constitute a violation and desecration of the ancient

Mamilla Cemetery, of which the Museum site was historically a part.11


10
     Supreme Court Judgment, Clause 240.


11
   In its petition, Al-Aqsa Corporation described itself as "a company that develops property belonging to a Muslim sacred trust
in Israel, which has set itself the task of preserving and maintaining Muslim and Christian holy sites in the State of Israel."
(Supreme Court Judgment, Clause 9). Significantly, however, "…on 14 August 2008 the Minister of Defense made an order
under regulation 84(1)(b) of the Emergency Defense Regulations, 1945, against the Al-Aqsa Corporation, on account of it being
a ‘prohibited association,’ and an order was made to seize its assets. The order was made against a background of information
that indicates the close connections between the Al-Aqsa Corporation and the Hamas organization." (Supreme Court Judgment,
Clause 252). Hamas, which has long been classified as a terrorist organization by the U.S. State Department, has been responsible
for numerous terrorist attacks against Israeli civilians and its charter expressly calls for the destruction of the State of Israel.
Although the SWC moved to dismiss Al-Aqsa's petition on the grounds that as an illegal organization, it lacks standing to seek
redress in the Israeli courts, the Court declined to do so because at the time that Al-Aqsa filed its petition, it had not yet been
declared a "prohibited association." The Court determined moreover, that it would be inappropriate to dismiss Al-Aqsa's petition,
because the issues raised therein presented matters of great public importance. (Supreme Court Judgment, Clauses 253-54).
Although the Court elected to address Al-Aqsa's petition on the merits, it ultimately rejected each and every claim asserted
therein. Interestingly, Al-Aqsa, whose leadership includes notorious haters of Israel such as Sheikh Ra'id Salah, head of the
Northern Section of the Islamist Movement in Israel, never went so far as to claim that the Museum project is part of the official
policy of the State of Israel to "erase" the Palestinian and Muslim legacy. In this respect, Makdisi goes far beyond anything
                                                                 7
           After completing its investigation, the Antiquities Authority determined that a small

portion of the Museum site, known as the “Purple Area,” comprising approximately 12 percent

of the site, contained the remnants of ancient graves. The Authority released the balance of the

site for construction, but determined that construction could proceed in the Purple Area only if

the ground is not penetrated and any necessary pilings are constructed under the Authority’s

supervision.12 A temporary injunction was entered by the Court, which effectively froze all

construction activity pending the outcome of the case. The Court then required the parties to

explore various technical solutions for proceeding with construction of the Museum without

damaging the remnants of any ancient graves buried beneath the Purple Area.


           The SWC proposed several innovative methods for removing the remains of the graves

"…in a professional, dignified and proper manner, in accordance with the rules of the Islamic

religion and under the supervision of Islamic religious leaders" and offered to pay the cost of

removing the remains and reinterring them at an alternative burial site. The SWC even offered

to pay the full cost of acquiring additional land or adapting an existing burial area for this

purpose.13 Alternatively, the SWC offered to eliminate the underground portions of the Museum

that were originally planned for the Purple Area—including a much needed underground car

park--and to relocate them to other portions of the site. Under this approach, all construction in

the Purple Area would have been limited to above-ground improvements built on a suspended

floor, thereby avoiding any need to excavate the area or to disturb any underlying graves.


raised in the court challenge to the Museum of Tolerance, thereby casting a dark cloud over the sincerity of his argument and
strongly suggesting that it is politically motivated.

12
     Supreme Court Judgment, Clause 13.


13
     Supreme Court Judgment, Clause 17.

                                                             8
Although such a major redesign of the project would have been extremely costly and would have

adversely impacted the effective functioning of the Museum facility by limiting vehicular access

to the underground portions of the Museum, the SWC was willing to incur the burden and

expense of these modifications in the interest of achieving an amicable resolution of the parties'

dispute. The SWC left the choice between the various options to the Al-Aqsa Corporation. The

petitioner, however, rejected each of the available alternatives and the Supreme Court proceeded

to determine its claims on the merits.14 After nearly three years of protracted litigation, in which

the Supreme Court conducted extensive hearings and reviewed voluminous written submissions

by the parties, the Court ultimately ruled in the SWC’s favor and lifted the temporary injunction.




           In a 101-page unanimous judgment issued October 29, 2008, authored by Presiding

Justice Ayala Procaccia,15 the Supreme Court permitted the Museum project to proceed at its

intended site provided that the graves in the Purple Area are relocated to an alternative cemetery

at the SWC's expense or a suspended floor is built above the Purple Area in order to create an air

space between the floor of the building and the surface of the land.16 The Court determined that

this approach struck an appropriate balance between need of the Museum project, on the one

hand, and the need to preserve the remains of the graves and to fulfill the duty of respecting the



14
   Supreme Court Judgment, Clauses 19, 22 and 23. In light of the Supreme Court's acknowledgment of the SWC's efforts to
reach an accommodation with the petitioner, including its willingness to make extensive and costly modifications to the design of
the museum, it is astonishing that Makdisi has the temerity to claim that "[t]he project leaders refused to consider any alteration
in the museum plan." As demonstrated above, nothing could be further from the truth.


15
   Justices Edna Arbel and David Cheshin joined in Presiding Justice Procaccia's opinion, both as to the result and
reasoning and added a few remarks and observations of their own in brief concurring opinions.

16
     Supreme Court Judgment, Clause 257.

                                                                9
dead, on the other hand. This, said the Court, constitutes the “least harmful measure” and

satisfies the requirement of “proportionality.”17

           The Court explained the unique challenges of meeting the needs of a modern society in

an ancient land:

           “Israel is a small strip of land, of great antiquity, with a history that extends over
           thousands of years. Naturally it contains large areas of land that may contain
           ancient remains and both visible and hidden graves. Antiquity sites, including
           sites with religious sanctity and cemeteries, enjoy special conservation
           arrangements within the framework of various acts of legislation, and there is a
           supervision mechanism that is intended to ensure protection for their integrity and
           dignity. With regard to the hidden sites, their discovery during ordinary planning
           development requires balances and adjustments in order to ensure, on the one
           hand, that the violation of sites of emotional, religious and historical value is
           minimized; on the other hand, it is necessary to seek to reduce the harm to the
           development and building impetus, which is one of the attributes of the life and
           existence of modern society in Israel. In the tension that exists between the needs
           of the living for development, building, progress and an increase in human
           welfare, on the one hand, and respect for the dead on hidden historical sites, on
           the other, the former value will tend to prevail, subject to the duty to adopt, in
           every case, measures that will reduce as much as possible the extent of the
           violation to the dignity of the dead.”18

           Although the Court acknowledged that there was a dispute between the parties "on the

question of the extent to which the Islamic religion allows…building and development on land

that has the remains of ancient graves underneath it, and to what extent it permits the removal of

such graves to alternative sites in order to allow development," the Court based its ruling on

secular legal principles and therefore did not have to resolve this religious conflict. The Court

specifically noted, however, that “there exists…a predominant stream in Islam, which seeks a

balance between old and new, and reality shows that even in Israel, various building and


17
     Supreme Court Judgment, Clause 235.


18
     Supreme Court Judgment, Clause 248(3).

                                                    10
development works have been carried out on Muslim burial sites in various parts of the country,

without any opposition on the part of the Muslim community.”19

           In reaching its decision, the Court observed that

           “We are speaking of the remains of [ancient] graves that were found under the
           ground and their presence on the site was not known to the public at all. As a
           result, the area was designated for decades for various development purposes, and
           the plans to build the Museum received final approval without there being any
           knowledge that there were remains of graves under the surface. Second, this site,
           because it was hidden, was not the focus of any regard by the public or the
           relevant religious community. It was not used as a site with any sanctity or
           religious or human value, and the various uses of it for a public car park and a
           road testify to the manner in which the public, including the Muslim community,
           regarded the aforesaid compound. A violation of such a compound cannot be
           compared to a violation of the nearby Mamilla cemetery, which is classified and
           designated as a cemetery from a planning perspective, and which the public
           regards as a site that has had emotional and religious value for many
           generations....In our case, the area of the Museum compound was separated from
           the Muslim Mamilla cemetery as long ago as the 1960's, and it was classified as
           an open public area. Thus the compound was severed from the area of the
           cemetery from a planning viewpoint, and it was made available for various kinds
           of planning activity. A multi-story [underground] car park was built on it, a road
           was paved on it, and [prior to 1948], plans were made [by the Muslim authorities]
           to construct multi-story buildings on it. For decades this area was not regarded
           as a cemetery by the general public or by the Muslim community, and throughout
           all the planning procedures that took place with regard to the compound over a
           period of decades, no one denied this position. Not only was the compound not
           identified as an area with religious sanctity nor was it the focus of any emotional
           regard [since there were no tombstones or other visible indicia that it was once
           part of a cemetery or that the remnants of ancient graves were located beneath the
           surface], but it was the subject of planning for various purposes throughout the
           decades, without any objection for reasons of the sanctity of the site." 20

           The Court noted that the municipal planning process for the Museum took several years

and that during that time, “[n]o objections were raised to the planning on the basis of the



19
     Supreme Court Judgment, Clause 245.


20
     Supreme Court Judgment (Clauses 248(2) and (4))(emphasis added).

                                                             11
possibility that remains of graves would be found in the area.”21 The SWC filed its planning

application in October 2001. It was approved in December 2002 and a building permit was

issued in October 2004.22 The Al-Aqsa Corporation, however, did not file its petition with the

Supreme Court until January 2006, after site preparation and infrastructure work had already

begun and the SWC had invested approximately $15 million in the project.23 “In these

circumstances,” said the Court, “we are speaking of an application for relief that is tainted by a

very serious delay ('laches'), and granting it would amount to a serious undermining of the

certainty and stability of planning and building procedure that are carried out in good faith, in

accordance with the planning procedures that are regulated in statute.”24

           The Court emphasized the fact that:

           “[t]he area in which the remains of graves were found under the ground,
           constitutes approximately 12% of the whole of the Museum compound that is
           planned for building. This is a relatively small area, in view of the total area of
           the planned building. The violation of the dignity of the dead in this case is of
           limited scope. No physical harm to the graves is expected; we are not speaking of
           an active cemetery, but of the remains of graves [approximately 300-400 years
           old] that were covered with earth for many years, on an area that was designated
           for various purposes and on which building and paving operations were carried
           out. We are speaking of graves and remains whose precise identity is unknown
           and of petitioners and a community that did not have any connection with this site
           and specific graves in it over the years....[Moreover, t]he absolute undertaking of
           the project owners to ensure that no harm is done to the graves, and to treat them,
           according to the alternative that is chosen, with maximum care and respect,
           significantly reduces the violation [of the dignity of the dead] involved in carrying
           out the plan on the Museum compound.”25

21
     Supreme Court Judgment, Clause 248(5).

22
  When the plan was "deposited" for public comment prior to approval, it was published in the local Hebrew and Arabic
newspapers. No objections were raised by anyone in the Muslim or Palestinian communities.

23
     Supreme Court Judgment, Clause 248(6).

24
     Supreme Court Judgment, Clause 248(5).

25
     Supreme Court Judgment, Clause 248(7).

                                                         12
           The Supreme Court left it up to the project owners, “...in coordination with and under the

supervision of the Antiquities Authority, as well as the Ministry of Religious Services,” to

determine “[t]he choice of the course of action and proper method of dealing with the remains of

the graves.”26 After due consideration, the SWC elected to relocate the graves to a nearby strip

of land that is adjacent to and will be incorporated into the Mamilla Cemetery.                                   All necessary

work has been completed under the supervision of the competent legal authorities in accordance

with the Court’s ruling.              After a hiatus of nearly three years and millions of dollars in

unanticipated expenses, construction of the Museum has finally resumed.

           Professor Makdisi’s attack on the MOT-J is predicated on the false assertion that the

Museum site is a Muslim cemetery. As demonstrated above, however, the site has been a public

car park (both a surface lot and multi-level underground parking garage) and paved public street

for more than three decades and has served the general public in this capacity without opposition

from the Muslim community.27 While the Museum compound and nearby Independence Park

were originally part of the historic Mamilla Cemetery, they were legally separated from the




26
     Supreme Court Judgment, Clause 257.


27
   As noted by the Supreme Court: "Details of the planning procedures on the museum compound from 1960 onward show that
for almost fifty years, the compound has not been part of the cemetery, both in the normative sense and in the practical sense, and
it was used for various public purposes. It was classified as an open public area and a road, an underground car park, two
buildings on top of the car park, and finally the Museum of Tolerance were planned for it. During all those years no one raised
any claim, on even one occasion, that the planning procedures violated the sanctity of the site, or that they were contrary to law as
a result of the historical and religious uniqueness of the site." (Supreme Court Judgment, Clause 124). Professor Makdisi cannot
reasonably accuse the SWC or the Israeli authorities of violating the sanctity of an alleged "cemetery" when no objection was
raised by the Al-Aqsa Corporation or any other representative of the Muslim community, either in the Supreme Court or during
the protracted land use planning proceedings regarding not only the Museum project but all prior public uses of the site over the
course of several decades. Surely, Professor Makdisi would acknowledge that as citizens of a democratic country, Arab Israelis
have not only legal rights, but the corresponding obligation to assert those rights in a timely manner through appropriate legal
proceedings. They cannot sit silently on their rights and fail to object to municipal planning activities over a period of many
years and then belatedly seek to derail a development project after the sponsor has invested considerable time, effort and financial
resources in good faith reliance on the integrity of the planning process.

                                                                13
cemetery more than 45 years ago, with the approval of the highest Muslim religious authorities.28

Under Islamic or Shari'a law, the operative principle is that an abandoned cemetery, where no

new burials have taken place for many years, or where the bodies buried there have fully

decomposed and have returned to the earth, may be deemed to have lost its sanctity and used for

secular purposes, such as agriculture or construction. In actual practice, there have been many

cases throughout Israel and other parts of the Middle East, where Muslim cemeteries have been

redeveloped for both public and private purposes with the full sanction of Muslim religious

authorities.      The development of the Museum site as a public car park and road was entirely

consistent with this practice. In his zeal to portray the Museum of Tolerance project as evidence

of Jewish and Israeli “intolerance” toward the Palestinian “other” and disregard for principles of

mutual respect and human dignity, Makdisi has conveniently ignored established principles of


28
   A small section in the eastern part of the cemetery remains intact, but it is not part of the Museum site. Makdisi is thus
completely wrong when he states that the Museum site “includes” the Mamilla cemetery. Exactly the opposite is true; the
Mamilla Cemetery originally included the Museum site, but the Museum site was severed from the cemetery many years ago and
has been used for completely secular purposes ever since. There were no visible graves on the site and the graves discovered
during construction of the Museum have been determined by the Antiquities Authority to be at least 300 years old. Makdisi is
also wrong when he characterizes the Mamilla Cemetery as “the largest and most important Muslim cemetery in all of Palestine.”
The Muslim Cemetery in the Bab el Zahra neighborhood of East Jerusalem is of at least equal importance, but Makdisi
conveniently neglects to mention that before the Six Day War, while East Jerusalem was still under Jordanian rule, the Muslim
Waqf, the religious authority in charge of sacred properties, systematically expropriated land from the cemetery grounds for the
construction of a building to house the Shari'a Law Court, a central bus station and various offices and shops. (See p. 18 below).
Makdisi also fails to inform his readers that the sanctity of the entire Mamilla Cemetery was lifted by the Mufti of Jerusalem and
the Supreme Muslim Council in 1927 in order to facilitate the development of a Muslim religious university on the cemetery
grounds (although ultimately only the Palace Hotel, originally designed as the university's "Lecturers' House", was actually built),
a ruling confirmed by the highest Muslim religious court in 1964, when the Municipality of Jerusalem sought and received
permission to develop Independence Park on the cemetery grounds. (See pp. 14 and 19-22 below). It is ironic that Makdisi
charges a Jewish organization such as the SWC with “desecrating” a Muslim cemetery, without so much as mentioning the
abhorrent Muslim treatment of Jewish cemeteries over the centuries. Thus, for example, the Jewish cemetery on the Mount of
Olives was badly desecrated by Jordanian forces after 1948, with some 38,000 tombstones being used for building apartments in
the Old City and for paving footpaths and latrine floors in Arab Legion army camps. (Raphael Israeli, Jerusalem Divided (Frank
Cass: London, 2003), pp. 201-226, esp. Ch. 7 and 10; Shmuel Berkovits, Wars of the Holy Places (Hed Arzi—Ma'ariv Library
and Jerusalem Institute: Jerusaelm, 2000), p. 271). In Hebron, from 1267 to 1967, no Jews were permitted to worship at the Cave
of Machpelah, the traditional burial ground of the Jewish patriarchs and matriarchs. After the Hebron massacre in 1929, the
ancient Jewish cemetery there was desecrated; tombstones were shattered and removed by Arabs for use at construction sites and
the cemetery grounds were used for growing vegetables. In 1953 moreover, the Jordanians violated the sanctity of the synagogue
in the old Jewish quarter of Hebron, robbed its contents and used it as a latrine, a barn for sheep and a dumping ground for
garbage. Just a few years ago, at the beginning of the Second Intifada, the Tomb of Joseph in Shechem (Nablus) was destroyed
by Palestinians. (See Raphael Israeli, Islamic Radicalism and Political Violence: The Templars of Islam and Sheikh Ra'id Salah
(Valentine Mitchell: London, 2008), pp. 79 and 157; S. Berkovits, Wars of the Holy Places, supra at p. 300). To the extent that
he purports to speak for the Muslim community, Makdisi is the proverbial "pot calling the kettle black."

                                                                14
Islamic law, the actual practice of Muslim religious authorities in permitting the redevelopment

of abandoned graveyards and the history of the Museum site itself which for many years, has

been used for completely secular purposes.

            Under Muslim religious law, a cemetery is regarded as a holy site and is under the

supervision of the Shari'a Courts, the Muslim religious courts. Population growth and the need

for additional land for development purposes, especially in urban areas, raised the question of the

duration of the sanctity of Muslim cemeteries. In other words, when, if at all, does the sanctity

of a cemetery expire, such that the land may be used for secular purposes, such as buildings,

roads and parking facilities.

            In the opinion of the Hanafi school of Muslim law, on which the Shari'a Courts in Israel

and all Arab countries that were within the Ottoman Empire have historically based their

decisions:29 “When the cemetery has not been used for one generation, or that the bones buried

there have already disintegrated and mixed in with the earth, it is possible to change its purpose

and turn it into agricultural land or to build upon it.”30 The origin of this ruling is in the religious

law issued by the noted Hanafi sage, Fakhr al-Din 'Uthman b. 'Ali al-Zayla'i (d. 1342 A.D.),

according to which: “If the deceased has disintegrated and turned into earth, another dead person

may be buried in his grave and it is permitted to plant seeds and build on top of him.”31




29
  See Yitzchak Rieter, The Muslim Wakf in Jerusalem in the Mandate Time, a doctoral dissertation submitted to the Hebrew
University of Jerusalem in 1991, p. 110; Y. Miron, The Muslim Law—A Comparative Look (Jerusalem 2001), pp. 45-46.

30
   Op. Cit.. See also, Z. Elzahili, Elpaka al-Islami Wadelta, Vol. 2, p. 1557; M. Duchan, Land Laws in the State of Israel
(Jerusalem 1983), pp. 85-86.

31
     See Zin ibn Ibrahim ibn Bachar, Elbahar Elraik (Beirut), Vol. 2, p. 210.

                                                                 15
Following this, the last great Hanafi religious authority, Muhammad Amin ibn 'Abidin, the Mufti

of Damascus (d. 1836), issued a similar ruling.32

            The Shari'a Law Courts in Israel have consistently ruled in this manner and have lifted

the sanctity of many ancient Muslim cemeteries in accordance with the opinions of the Hanafi

sages al-Zayla'i and Ibn 'Abidin. Thus, for example, the Qadi (Muslim religious judge) of Jaffa

(1948-1949) and later the President of the Shari'a Appeals Court (until 1963), Sheikh Tahir

Hammad, issued a fatwa (religious legal opinion) to the effect that if 36 years have passed since

the last deceased was buried in a given cemetery, the graves may be opened and the bones

relocated to another Muslim cemetery and buildings may be erected and roads paved on the

grounds of the first cemetery.33                   Similarly, as stated in a protocol of the Haifa Shari'a Court:

"Scholars will agree that if the dead has turned into dust...the ground may be used for seeding

and planting and building and any other form of use.”34 The general approach of Orthodox Islam


32
     i'bn Bachar, supra, Vol. 2, p. 233; see also, Vol. 1, pp. 628, 633.

33
   See Expert Opinion of Dr. Shmuel Berkovits, dated January 6, 2006, submitted to Israeli Supreme Court in the Museum of
Tolerance case (Case Nos. HCJ 52/06, HCJ 1331/06 and HCJ 1671/06), p. 4 and n. 9. In an unpublished verdict of the Haifa
Magistrate’s Court of Justice, Al-Madi v. The Mutawallis (Trustees) of the Istiqlal Wakf in Haifa (File No. 2289/81), the Court
quoted a verdict of the Haifa Shari'a Court as follows: “These are the Muslim Shari'a laws, according to which it was determined
that ‘if the deceased has become gangrenous and turned into ashes, it is permitted to bury someone in his place, or use these
grounds for planting and sowing seeds or it may be built upon or it may be put to other uses.’” The Magistrate’s Court noted that
the Shari'a Court had “reached this conclusion based on the opinion of the 'ulama' [Muslim religious jurists], which in turn is
based on the opinion of the majority of the Imams, that the period of thirty years and above of a cessation of burials suffices in
order to assume and conclude that the dead have already become gangrenous and turned into ashes.” (Clause 4, pp. 5-6 of the
aforesaid verdict).

34
   Protocol of the Haifa Shari'a Court, dated June 7, 1994 (File No. 85/94). It should be noted, however, that in the wake of the
First Intifada, Sheikh Ahmed Natur, then Qadi of Be'er Sheba and Jaffa and later President of the Shari'a Court of Appeals in
Israel, issued a religious legal opinion (fatwa) to the effect that that "the sanctity of the cemeteries is eternal and it is forbidden to
harm them in any way and under any circumstances" and "certainly not in order to erect factories, parks and buildings."
(Unpublished ruling issued September 5, 1989 in response to a question posed by the Muslim Committee of Jaffa as to the
Sanctity of the Sheikh Munis Cemetery). Sheikh Natur stated that his ruling is "in the interests of the nation" and characterized
the religious jurist al-Zayla'i's time-honored opinion to the contrary as “that of an individual” (as distinguished from the view of a
majority of religious jurists) and claimed that it “does not apply to cemeteries in the present reality." Op. Cit. (For a detailed
review of Sheikh Natur's fatwa, see S. Berkovits, How Awesome is this Place; Sanctity, Politics and Law in Jerusalem and the
Holy Places (Carta: Jerusalem, 2006, pp. 233-34, 237-239). According to Wahba al-Zuhayli, a prominent scholar of Muslim law,
however, al-Zayla'i’s opinion regarding Muslim cemeteries, is not that of an individual, but represents the position of the Hanafi
school of thought which, as stated above, is the dominant school of thought in Muslim law in Israel. (Wahba al-Zuhayli, The
Muslim Law and its Basics, Damascus, 1997, Vol. 2, p. 1557). It should be noted moreover that like all fatwas, Sheikh Natur's
ruling was issued on his own individual authority as an Islamic scholar and is not a binding judgment of the Shari'a Court.
                                                                    16
has been to presume that the dead bodies have decomposed and returned to the earth after a

specified period of time (the length of which depends on the characteristics of the local soils

which, in Israel, is usually 36 years) has elapsed since the last burial took place. A cemetery

which satisfies this condition is classified as mundarisa ("wiped out") and “...may be ploughed

over , built upon, and used for any purpose,” so long as the public interest (maslahat al-'amma)

so requires.35         This has been the position of the Shari'a Courts in Israel, both before and after

Israeli statehood in 1948 and under Jordanian rule in East Jerusalem and the West Bank before

the Six Day War in 1967. In literally dozens of cases, Muslim religious courts have permitted

building and development in former cemeteries.36 For example:

            1. During the 1950's and 1960's, under Jordanian rule, residential buildings, shops and a

            building that serves as the office of the Shari'a Court were erected in the “Bab al-Zahra


Natur's references to the "interests of the nation" and the "present reality" smack of Palestinian national aspirations and suggest
that his fatwa may be based more on political considerations than on the faithful interpretation of Islamic law.

35
   See Expert Opinion of Professor Aharon Layish, dated January 5, 2006, submitted to Israeli Supreme Court in the Museum of
Tolerance case (Case Nos. HCJ 52/06, HCJ 1331/06 and HCJ 1671/06), pp.3- 4). In support of this proposition, Professor
Layish, an expert on Muslim jurisprudence, cites a 1964 opinion of Sheikh Tahir Hammad (undated letter by Hammad to the
Secretary of the Muslim Board of Jaffa in response to a letter dated April 9, 1961, Annex 2 to Layish Expert Opinion), who
served as Qadi of the Shari'a court in Jaffa and President of the Shari'a Court of Appeal until the mid-1960's and was regarded by
his contemporaries as one of the preeminent authorities in Shari'a law. Hammad was asked to comment on fatwas issued by
Sheikh Tahir al-Tabari, Qadi of Nazareth (and former Mufti of Tiberias), Sheikh Musa al-Tabari, Qadi of Acre and Sheikh Hasan
Amin al-Habash, Quadi of the "Triangle" region, which permit, in reliance on the doctrine of public interest, the digging up of
graves and removal of the mortal remains. These fatwas also permit the grave site to be plowed over and built upon, even
without removing the mortal remains, so long as the corpse has decomposed and become dust, regardless of whether or not the
cemetery is mundarisa. Hammad opined that these fatwas are in conformity with Shari'a law as manifested in treatises of two
well-known Hanafi jurists whose scholarship and legal authority are widely acknowledged: Muhammad ibn 'Abidin's Hashiyat
Sharh al-Durr al-mukhtar and 'Uthman b. 'Ali al-Zayla'i's Matn al-Kanz. A similar fatwa was issued by Sheikh Tawfiq 'Asaliyya,
a retired Qadi of Jaffa and President of the Shari'a Court of Appeal. (Shari'a Court of Jaffa, undated fatwa, Annex 5 to Layish
Expert Opinion). 'Asaliyya was asked to issue a legal opinion declaring the Ijlil al-Gharbiyya cemetery near Herzlia mundarisa
on the grounds that burials in that cemetery stopped "long ago" and no further burials were permitted under state law. It was
further mentioned that there is "urgent need" (i.e., an expression of public interest) to remove the bones from the graves in order
to make it possible to broaden a nearby road. 'Asaliyya granted this request, citing al-Zayla'i for the proposition that: "If the
corpse of the deceased has been decomposed to the point of becoming dust, then it is permissible to …sow [the site of the grave]
and to build on it." The point of departure of all these rulings and the Hanafi authorities upon which they rely (al-Zayla'I and Ibn
'Abidin) with respect to digging up graves and relocating mortal remains to another cemetery, is the hardship caused by scarcity
of land, especially in big cities. The mitigation of this hardship, inspired by the doctrine of public interest (maslaha), begins with
permission to bury more than one corpse in a single grave and progresses to permission to relocate mortal remains (even before
they are decomposed) to another cemetery in order to facilitate the use of old cemeteries for purposes of agriculture and
construction.

36
     For detailed data, see S. Berkovits, How Awesome is this Place, supra at pp. 234-238.
                                                                 17
         cemetery along Saladin Street in East Jerusalem, near the Flower Gate. (See also, p. 7

         Neriah)

         2. In 1953, under Jordanian rule, the Central Bus Station in East Jerusalem was erected

         on the grounds of the Muslim cemetery opposite Nablus Gate. (See also Neriah 7-8)

         3. In 1967 graves were transferred from the Wakf Istiqlal Cemetery in Haifa to another

         Muslim cemetery in order to facilitate the leasing of the land to the Ministry of Housing

         for building purposes.

         4. In the 1980's and 1990's, areas in the Umm al-Fakhm Cemetery were destroyed for the

         purpose of paving roads and other construction activities.

         5. In the late 1990's, a section of the cemetery in Kafr Kassem was destroyed in order to

         construct a soccer field. (Neriah 10)

         6. In 1998, the Tayyibe Municipality destroyed the grounds of the Firdusiyya Cemetery

         and divided into lots for the purpose of building houses.37

         The redevelopment of ancient Muslim cemeteries in not unique to Israel, but is common

in Muslim countries as well. In the mid-20th century, for example, numerous graves were

transferred from the Muslim cemetery in the Ramail neighborhood located south of the port of

Beirut, for the purpose of erecting warehouses and residential buildings on the cemetery grounds.

Similarly, in the late 1990's, graves were vacated from the cemetery in Sidon, Lebanon and the

site was converted into a parking lot. In 2001, the Shari'a courts in Egypt permitted the removal

and relocation of over 1,000 graves from Muslim cemeteries, in order to construct a beltway



37
  For details of the six listed examples and numerous others, see Y. Rieter, The Muslim Wakf in Jerusalem, supra at pp. 98-101,
110-111; Expert Opinion of Dr. Jacques Neriah, submitted to Israeli Supreme Court in the Museum of Tolerance case (Case Nos.
HCJ 52/06, HCJ 1331/06 and HCJ 1671/06), pp. 7-17; Y. Shabi, "Islamic Land and Religious Land as a Tool in the Israeli-
Palestinian National Conflict," a doctoral dissertation presented to the Bar-Ilan University Senate in 2005, pp. 40-41.

                                                             18
around Cairo and to pave a new road in the Jamalia quarter of the city. Another example is the

Ras El Ein cemetery in Amman Jordan. In the mid-1990's, the Municipality of Amman acquired

the cemetery from the Ministry of Waqf and Islamic Sacred and built a new city hall over the

existing graves. Before that, the Waqf itself built an amusement park over the cemetery.38

          There can thus be no question that Shari'a law permits the redevelopment of Muslim

gravesites for various public purposes, such as constructing roads or buildings.                                     In actual

practice, both in Israel and throughout the Muslim world, such redevelopment is commonplace.

          The Mamilla Cemetery originally encompassed the entire grounds of the present

Independence Park, as well as the Museum site. In 1927, however, during the period of the

British Mandate, Hajj Amin el-Husseini, the Mufti of Jerusalem, the supreme religious authority

of the Muslims in Palestine and the President of the Supreme Muslim Council (the "SMC"),

which was in charge of all Muslim holy sites, including cemeteries, issued a religious ruling

forbidding any further burials in Mamilla, in order to convert the majority of the cemetery

grounds to commercial use.39 “The [proposed development] was motivated by purely economic

motives [and] the Muslim Council did not request permission from the Shari'a court to develop

the site...apparently because as Mufti of Jerusalem, Hajj Amin assumed that he was entitled to



38
  Op. Cit. See also, Appendix Z of the Supplementary Statement of the First and Second Respondents to the Petition for the
Grant of an Order Nisi in the Museum of Tolerance case (Case Nos. HCJ 52/06, HCJ 1331/06 and HCJ 1671/06).

39
   M. Benvenisti, City of the Dead (Keter: Jerusalem, 1990), p. 91. Makdisi incorrectly states that the Mamilla Cemetery was in
active use until 1948. Makdisi also claims that the cemetery was still being visited by the family members of those buried there,
something hard to believe given the fact that no one had been buried there since 1927. Significantly, no living relative of anyone
interred at Mamilla came forward to present evidence in the Supreme Court on this issue. Makdisi asserts that Mohammed
Hamdi Bader used to visit his grandfather’s grave in the Mamilla Cemetery. If true, the grave that Mr. Bader used to visit must
be located in the eastern part of the cemetery, which remains intact. Mr. Bader's grandfather couldn't possibly have been buried
at the museum site, because the only remaining graves there were underground, with no visible indication as to where they were
located or who was buried there and such had been the case for nearly 50 years. Moreover, the Antiquities Authority determined
that the remaining graves at the museum site were between 300 and 400 years old, which would presumably exclude Mr. Bader’s
grandfather. Obviously, the construction of the MOT-J will not in any way prevent Mr. Bader from continuing to visit his
grandfather’s grave.

                                                               19
decide this for himself.”40 The Mufti himself built the luxurious Palace Hotel on the grounds of

the cemetery.41 During the excavation of the foundations for the hotel, ancient graves that

contained skeletons were discovered, but the Mufti ordered them transferred to a special grave in

another section of the cemetery. The Mufti moreover, permitted his cousin Ibrahim El Husseini,

to use another section of the cemetery as a quarry.42

            Initially, the SMC intended to build a religious Muslim university on the entire area of

the cemetery and the building which became the Palace Hotel was originally intended to serve as

faculty housing for lecturers at the university. Due to lack of funding, however, the university

was never built and the Mufti turned the “Lecturers’ House” into a hotel.43

                              [Insert drawing of the proposed Muslim university
                             to be built on the grounds of the Mamilla Cemetery.]

            In 1936, the SMC determined that the Mamilla Cemetery had become mundarisa and

requested permission from the Jerusalem Municipality to separate the western section for the

construction of public buildings. In 1946, the SMC and the Supreme Arab Council decided to

40
     Expert Opinion of Professor Aharon Layish, supra at p. 7.

41
   According to Makdisi, the Palace Hotel was built adjacent to, but outside of the Mamilla cemetery. Muslim sources from the
Mandate period, however, clearly demonstrate that the hotel was built within the boundaries of the cemetery. In 1927, the Shari'a
Law Court in Jerusalem dealt with a petition objecting to the erection of the Palace Hotel on the grounds that it was located in the
Mamilla Cemetery. In responding to the petition, the Mufti and SMC did not deny that the hotel site was situated within the
cemetery, but argued that the cemetery was mundarisa and that it was permissible to build there. (Register of the Jerusalem
Shari'a Court (Segel Achkam), Vol. 444, p. 19/95, cited in Y. Rieter, The Muslim Waqf in Jerusalem, supra at pp. 299-300). In
1931, when the General Muslim Congress convened in Jerusalem, several activists published an open letter to the Congress
complaining about the construction of the Palace Hotel in the El-Calandria Cemetery, which was part of the Mamilla Cemetery.
In its reply, the SMC did not deny that the Place Hotel was being built within the boundaries of the cemetery, but asserted that it
was being built at the far end of the cemetery, away from any graves. (The open letter, the SMC's response and the authors'
reply, may be found in the national library of the Hebrew University in Givat Ram, under the signature: AP3130A. See also, Y.
Yehoshua, "The Condition of the Muslim Cemetery in Mamilla Twenty Years Ago," The Muslim Bulletin, April 1950, p. 15.). In
mid-2008, during the excavation of the foundation for a new hotel being erected in place of the Palace Hotel by the Regency
Company, dozens of remains of Muslim graves were discovered and were relocated to another Muslim cemetery by the Ministry
of Religious Affairs. (Conversation between co-author Dr. Shmuel Berkovits and Mr. John Zeligman, archeologist in charge of
the Jerusalem region of the Israel Antiquities Authority, on February 2, 2009).

42
     S. Berkovits: Wars of the Holy Places, p. 82, paragraph 6; B. Katinka, From Then Until Now (Jerusalem, 1961), pp. 257-263.

43
     Expert Opinion of Dr. Shmuel Berkovits, supra at p. 15 and Annex A .

                                                                 20
build the Arab League House on the eastern portion of the cemetery. Although the Arab League

House was never built, due to the lack of funds, the fact remains that when it suited the SMC’s

purposes, building construction was clearly permitted in the Mamilla cemetery and the Muslim

religious authorities had no compunctions about converting large sections of the cemetery to

other public uses.44

            In 1960, on the assumption that the Mamilla Cemetery was mundarisa, the Jerusalem

City Council decided to turn it into a public park and to preserve a small portion on the east side

of the cemetery as a memorial to the ancient burial ground. In 1964, the Mayor of Jerusalem,

Mr. M. Ish Shalom, petitioned the Shari'a Court of Appeals in Jaffa for permission to create the

park (now known as Independence Park) and for guidance as to how the remaining graves should

be treated in accordance with Islamic law.45

            By judgment dated June 7, 1964, the Shari'a Court of Appeals granted the Mayor’s

petition. Writing for the Court, its president, Sheikh Tahir Hammad, who “[a]t the time...was

regarded as the chief legal authority of the Muslim community of Israel,”46 stated as follows:

            I hereby rule that the Mamilla cemetery in Jerusalem, Bloc 30036, Lot 1 is a
            mundarisa cemetery pursuant to the Supreme Muslim Council’s ruling, and its
            holiness has ceased, since this holiness is not perpetual and is not like that of the
            Muslim mosques, and that it is permitted to do with a mundarisa cemetery the
            same things that are permitted to be done with any other land that was never a
            cemetery. Similarly, I hereby rule that the graves that are on the land [of this
            cemetery] and that are spread among the trees are to be moved far away....And I
            hereby find the public welfare in the Jerusalem Mayor’s decision ,which says that
            the eastern portion of the cemetery, approximately one dunam, should be left as a
            cemetery symbolic of this old cemetery. Similarly, I hereby decide to go there in
            order to supervise the goings on there from close by.47
44
     Op. Cit.

45
     Op. Cit. See also, Expert Opinion of Professor Aharon Layish, supra at p. 7 and Appendix 3.
46
     Expert Opinion of Professor Aharon Layish, supra at p. 2.

47
     Expert Opinion of Professor Aharon Layish, supra at p. 7 and Appendix 3.
                                                                 21
            Thus, in 1964, the Shari'a Court of Appeals, confirmed the SMC's 1927 ruling that the

entire Mamilla cemetery (i.e., all of Bloc 30036, Lot 1) was mundarisa and determined that it

had therefore lost its sanctity and could be used for any purpose as if it had never been a

cemetery. The Court expressly approved the use of the cemetery for a municipal park, as well as

the relocation of any remaining graves and the preservation of a small section—one dunam or

approximately a quarter of an acre in size--on the east side of the cemetery, as a “symbolic”

memorial to the ancient graveyard.

            It must be emphasized that this is a final, binding and non-appealable judgment by the

highest Muslim religious authority in Israel.                  Once the status of a cemetery has been changed

and its sanctity lifted, it is no longer regarded as a cemetery and it is permitted to build on the

cemetery grounds.48 That is the case with the Mamilla cemetery, whose sanctity was lifted by

the Mufti of Jerusalem in 1927, long before the construction of the municipal car park on the

northern boundary of Independence Park in the 1970's, or the approval of the Museum site at that

same location in 2002. It is thus clear that contrary to Makdisi’s contention, the MOT-J is not

being built on consecrated ground but rather on a small portion of an ancient cemetery which has

long since lost its sanctity and been converted to secular purposes. Makdisi’s claims to the

contrary are apparently politically motivated and have no basis in historical fact or Shari'a law.49




48
     Expert Opinion of Dr. Shmuel Berkovits, supra at p. 16.

49
   This is by no means the first time that Muslims have claimed a property in the Holy Land to be sacred not so much because of
their own religious needs, but out of a desire to prevent others from possessing it. In 1997, for example, the Muslim religious
authorities in Nazareth, declared “waqf” the plaza of the Basilica of the Annunciation, in order to prevent its opening for
Christian use. As was the case with the Museum site, this attempt was rejected by the courts. R. Israeli, Green Crescent Over
Nazareth: The Displacement of Christians by Muslims in the Holy Land (Frank Cass: London, 2003), esp. chapters 7 and 10, pp.
87 ff.



                                                               22
          Makdisi's characterization of the Mamilla cemetery as a "dispossessed people’s

graveyard," suggests that at one time the Palestinians actually had possession of the cemetery

and that they were somehow "dispossessed." According to Makdisi, however, the cemetery

"contain[s] the remains of companions of the Prophet Muhammad as well a warriors of Salah al-

Din’s (Saladin’s) army" and many of the Crusaders who fought against Saladin during the Third

Crusade, are believed to be buried there as well. Neither Saladin (who was of Kurdish origin and

later became the Sultan of Egypt) or the so-called "companions of the Prophet" (who lived in the

latter part of the 6th and early 7th centuries A.D.) were Palestinian and certainly, the Crusaders

were not Palestinians either.50 The Museum site itself has not been used as a cemetery for many

decades. But even the small section on the east side of Mamilla, which remains intact, can

hardly be described as an historically Palestinian graveyard.

          Following the Supreme Court's judgment allowing the Museum project to proceed, the

site was excavated by an archeological team led by the well-known archeologist Dr. Allon

Shavit, under the supervision of the Israeli Antiquities Authority. When the archeological

findings are released, Makdisi will undoubtedly be surprised to learn that during the excavations,

three aqueducts dating to the Iron Age (Hezekia's kingdom), the Hellenistic period and the

Herodian (Second Temple) period were uncovered.51 This clearly confirms that long before it

served as a Muslim cemetery, Mamilla was deeply, profoundly Jewish and was part and parcel of

the Jewish history of Jerusalem.


50
   Indeed, prior to 1948, the term "Palestinian" was generally used to refer to Jews living in what is now the State of Israel. The
term was not used to describe Arabs living in the area until after the War of Independence, when the Jewish residents became
known as Israelis. Prior to 1948, "Palestinian Arabs invariably referred to themselves as Arabs." Martin Sieff, The Politically
Incorrect Guide to the Middle East (Regnery: Washington, DC, 2008), pp. 106 and 108 (emphasis in the original).

51
   These findings have not yet been officially released, but co-author Dr. Jacques Neriah was at the museum site during the
period from November 2008 through April 2009 and personally witnessed the work of the archeological team.

                                                               23
          Equally unsupported is another underlying theme of Makdisi’s article, the implication

that the MOT-J project in general and its architectural design in particular somehow reflects

Israel’s official policy of “occupation” and to obliterate the Palestinian heritage. The SWC is a

private humanitarian organization and has no connection with the government of Israel or of any

other country for that matter.                To suggest that it is somehow an arm of the state and is

implementing government policy toward the Palestinians is completely unfounded and patently

absurd.       The word “occupation” moreover, is a politically charged term which many

international law experts believe has no application to the West Bank and East Jerusalem,

territories that were captured by Israel from Jordan in the 1967 Six Day War.52                                            Jordan

relinquished any claim to the West Bank in August 1988 and under the Oslo accords, the

Palestinians’ claims to the West Bank and East Jerusalem are subject to negotiation as part of a

final status agreement under the Oslo accords.53 But even assuming for the sake of argument

that the territories are “occupied,” that has absolutely nothing to do with the Museum site which

is located in undisputed West Jerusalem.54 Makdisi may not appreciate Frank Gehry’s modernist


52
   Jordan attacked Israel along the entire armistice line from its positions in the West Bank and East Jerusalem. Israel, exercising
its right of self-defense under international law, counter-attacked and captured the threatening positions. Before the Six Day
War, East Jerusalem was illegally occupied by Jordan, which seized it by force in May 1948 in direct violation of the United
Nations' partition resolution. No country, other than Pakistan (and not a single Arab state), ever recognized the legality of
Jordanian rule in East Jerusalem. See Y.Z. Blum, "The Missing Reversioner: Reflection on the Status of Judea and Samaria," 3
IS.L.Rev. 279, 289-91 (1968); J. Stone, No Peace—No War in the Middle East; Legal Problems of the First Year (Maitland:
Sydney, 1969), p. 39; M. Shamgar, "The Observance of International Law in the Administered Territories," 1 Israeli Yearbook of
Human Rights, p. 264 ff. (1971).

53
  Raphael Israeli, Jerusalem Divided (Frank Cass: London, 2003), pp. 201 ff. The terms of the Oslo Accords confirm Israel’s
acceptance of the Palestinians’ right to statehood, but leave the boundaries of a future Palestinian state to negotiation between the
parties. Significantly, however, the PLO has yet to amend its charter to explicitly recognize Israel’s right to exist and Hamas,
which has long been classified as a terrorist organization by the U.S. State Department, remains openly committed to Israel’s
destruction.

54
   The Palestinians claim only East Jerusalem as their capital and even the “Arab Initiative,” the proposal for ending the Israeli-
Arab conflict, adopted by all Muslim states other than Iran, including the 22 members of the Arab League, expressly recognize
West Jerusalem as the capital of Israel and propose the establishment of East Jerusalem as the capital of a new Palestinian state.
In his zeal to discredit the Museum project, Makdisi goes so far as to to suggest that “Ma’man Allah” (i.e., Mamilla) and “most
of the rest of Jerusalem (i.e., undisputed West Jerusalem) and the “rest of Palestine” (i.e., the State of Israel) is in reality
“occupied” territory which “fell to the Zionist militias that would coalesce into the Israeli army during the uprooting of Palestine
                                                                24
design for the Museum, but his claim that it seems to “consciously call forth” “the oppressive

concrete slabs of the separation wall that Israel has built on, in and around the West Bank and

East Jerusalem,” “consciously integrate all of the major elements of Israeli colonial architecture”

and “perfectly recapitulate[] the politics of exclusion that are evident throughout the occupied

territories,” seems a little “over the top,” and suggests the paranoia of a Palestinian apologist

who reflexively assumes, without any factual basis whatsoever, that any project in Israel that is

sponsored by a Jewish organization must be anti-Palestinian by definition.

          Makdisi’s forced comparison of the “Pillars of Tolerance,” the overlapping, titanium

clad, curved wall sections of the Museum’s Grand Hall, with the monolithic poured concrete slab

of the separation wall–two completely disparate structures–is mystifying at best.                                        What is

striking, however, is the complete lack of context for Makdisi’s condemnation of the wall as a

symbol of perceived Israeli “oppression.” Incredibly, Makdisi makes no mention of the fact that

Israel erected the 480 mile long separation barrier55 in response to terrorist attacks originating


in 1948.” In making this outlandish statement, Makdisi ignores the indisputable fact that on November 29, 1947, before Great
Britain gave up its mandate over “Palestine” (as the land between the Jordan River and the Mediterranean Sea was generally
known), the United Nations adopted Resolution No. 181 which partitioned Palestine into two separate states, one Arab and one
Jewish. The leadership of the Jewish people accepted the partition resolution, but just a day later, on November 30, 2009, gangs
of Palestinian Arabs began attacking the Jewish population in an unsuccessful attempt to prevent the founding of the Jewish state.
The establishment of the State of Israel was declared on May 14, 1948. The very next day, on May 15, 1948, the neighboring
Arab states (Jordan, Egypt, Syria, Iraq, Saudi Arabia and Lebanon) invaded Israel on all fronts in an attempt to block
implementation of the resolution, to destroy the newly created Jewish State and to establish a single Arab state in all of Palestine.
Invoking its right of self-defense under international law, Israel repulsed its enemies, albeit at a cost of 6,000 dead, a full one-
percent of its then population. During the course of the war, Jordan seized the entire West Bank and East Jerusalem (including
the historic Jewish Quarter of the Old City, as well as the Temple Mount and Western Wall, respectively the holiest and second
holiest sites in Judaism) and Israel captured West Jerusalem, which was a major Jewish population center. Fighting officially
ended in January 1949 and over the next several months, armistice agreements were signed with Egypt, Lebanon, Jordan and
Syria based on the frontlines as they existed at the end of hostilities. Nadav Safrand, ISRAEL: The Embattled Ally (Harvard:
Cambridge, 1978), Ch. 4, pp. 32-34. These lines are described in detail in the Armistice Agreement between Israel and Jordan.
(R. Israeli, Jerusalem Divided, supra at pp. 210-19). Israeli rule over those areas within the 1949 armistice lines (i.e., the pre-
1967 borders)--including West Jerusalem--is generally recognized by the international community. (S. Berkovits, How Awesome
is this Place, supra at pp. 50-54). It is only the West Bank and East Jerusalem, territories captured by Israel in the 1967 Six Day
War–another war of self-defense–that are in dispute and subject to negotiation between the parties as part of the final status talks
under the Oslo Accords. Makdisi’s claim that all of Israel is somehow “occupied” Palestinian territory is entirely without basis.
As for the notion that the Israelis “uproot[ed] all of Palestine,” the Arabs cannot reject the UN partition resolution, launch a war
of annihilation against Israel and when they lose the war, complain that they have somehow been “uprooted.”

55
  Along most of its route, the separation barrier is actually a fence. Less than 8 percent of the barrier will be consist of concrete
walls. “These short concrete sections are intended not only to stop terrorists from infiltrating, but also to block them from
                                                                25
from Palestinian neighborhoods in East Jerusalem and the West Bank.56                                         Nor does he

acknowledge the truth of the old adage that “good fences make good neighbors,” or its corollary,

“bad neighbors require good fences,”57 which is evidenced by the fact that since the separation

barrier has been erected, suicide bombings and other attacks from the Palestinian areas have been

dramatically reduced.58 The barrier may be perceived as “politically incorrect,” but given the

realities of Palestinian terrorism, it is an absolute necessity.59

            Makdisi’s suggestion that Frank Gehry “consciously” sought to evoke the separation

barrier in his design of the Museum, is chronologically impossible. Gehry was chosen to design

the Museum in 1999, long before the barrier was conceived or implemented in 2003. Nor did he

design the Museum knowing that ancient graves were located beneath the site. These graves

were not discovered until after construction began in 2005. All that Gehry knew at the time was

that he was designing a building on a site which had served as the city’s municipal car park for

several decades.




shooting at Israeli vehicles traveling on main highways alongside the pre-June 1967 line, at nearby Jewish residential areas, and
at other targets.” Israel Ministry of Foreign Affairs website, http://www.mfa.gov.il.

56
   From the beginning of the second Intifada in September 2000 through October 2007, more than 1,100 Israelis have been
murdered in attacks carried out by Palestinian terrorists. Thousands more Israelis have been injured, many maimed for life. The
terrorists infiltrated Israeli cities and towns and carried out attacks–often in the form of suicide bombings–on busses, in
restaurants, shopping malls, and even private homes. Op. cit.

57
    Facts and Logic About the Middle East website, "The Big Lie (ii) What About Those Arab 'Refugees'?",
http://www.factsandlogic.org.

58
     Israel Ministry of Foreign Affairs website, supra.

59
   Similarly, Makdisi portrays Israel’s system of security check-points and bypass roads in the West Bank as instruments of
“apartheid,” designed to “...render Palestinians invisible to Jewish colonists” and to “superimpose two separate political
geographies–one Jewish, one Palestinian–on the same physical landscape.” As with the separation barrier, Makdisi utterly fails to
acknowledge the pervasive Palestinian terrorism which made these security measures necessary in the first place. The very use
of the term “apartheid” smacks of bias and prejudice. Had Makdisi taken the trouble to compare the laws of apartheid in South
Africa, which compel the separation of races in transportation, assembly halls and social gatherings, with Israeli laws and
practices, he would have found no resemblance between them. In Israel, unlike South Africa during the Apartheid era, there are
no racial laws.

                                                              26
       Makdisi’s architectural critique of Gehry’s design is completely off the mark. Makdisi

characterizes the Grand Hall as “suggest[ing] castles, fortresses and watchtowers–and above all

walls.” He claims that “[t]his design is about location, surveillance, power and control, in other

words–not freedom.”

       Castles, fortresses and watchtowers are defensive structures, with openings generally

restricted to the upper levels. This serves the twin purpose of shielding the inhabitants from

attack and providing them with a commanding view of the surrounding area and potential

enemies. At the same time, this configuration prevents outsiders from observing the interior of

the structure. Unlike a castle, fortress or watchtower, however, the Museum’s Grand Hall is a

completely open circular space that can be seen from the exterior, but does not have a clear line

of sight to the outside. Although the Grand Hall is five-stories tall, it has only one functional

surface situated on the ground floor. The openings in the upper section are for illumination only

and cannot be used to look down or to impose control upon people outside the structure. The

interior of the Grand Hall does not in any way “command the entire visual field” as Makdisi

claims and his watchtower analogy is thus completely inapplicable.

      [Insert interior view of Grand Hall and Michael Bodner's line of sight diagram]

       It should be noted moreover, that in a castle, fortress or other defensive structure,

windows and other openings are typically the weak points in the protective layout. Therefore,

minimal openings scattered on a massive surface is part of the architectural language of a fortress

like structure. The result is an architectonic show of a monument, which radiates force and

strength. The mass is a physical expression which constitutes an important component of the

fortress typology. The vertical openings in the Grand Hall’s outer frame, however, are nearly



                                                27
continuous for the entire height of the structure; they break the outer frame into 16 fragments of

titanium, called “Pillars of Tolerance.” As a result, the architectonic show of the structure is not

a massive monumental body with few and scattered openings, mostly at the upper levels, but

rather overlapping slabs of walls placed at regular intervals with floor to ceiling glass in between.

In Gehry’s mind, the design, which is open on all sides, symbolizes the “living room” of

Jerusalem and is open to all kinds of people who can come from all directions.60 Only in

Makdisi’s paranoid imagination, is the open and welcoming design of the Grand Hall somehow

transformed into a “symbolic glass and steel ‘fortress’ [that] functions as an observation site

[and] perfectly recapitulates the politics of exclusion [which according to Makdisi] are evident

throughout the occupied territories.”61

           Nor is there any resemblance, in either configuration or materials between the exterior of

the Grand Hall and the separation wall between Israel proper and the disputed territories in the

West Bank and East Jerusalem. Whereas the wall is a monolithic slab of poured concrete, with a

uniform height and no windows or other penetrations, the Grand Hall consists of the overlapping

curved “Pillars of Tolerance,” with floor to ceiling glass openings in between. The Grand Hall

and the separation wall are completely different in every respect and any claimed resemblance is

entirely the product of Makdisi’s fertile imagination.62


60
     Museum of Tolerance website, supra.

61
   Once again, Makdisi seems to equate the Museum site in undisputed West Jerusalem, with the disputed territories of East
Jerusalem and the West Bank, an unreasonable and unfair comparison by any objective standard.

62
    Makdisi’s comparison of the planned “floating walls” of the Museum’s Visitor Center to the separation wall is equally
strained. In Gehry's design, the angled walls of the visitor center appear to be suspended in midair and tilt backward toward the
rest of the Museum complex, thereby inviting people to enter the Museum, rather than serving as a barrier to keep them out. The
floating walls are flanked on either side by glassed enclosures and front on an open plaza. (See rendering of Visitor's Center at p.
___ of Makdisi's article). There is absolutely no comparison with the flat, straight, closed appearance of the separation wall
which was designed for the sole purpose of creating a physical barrier between would be terrorists and their intended victims.



                                                                28
          Makdisi further contends that there is a “perfect symmetry” between the Museum project

and the City of David archeological park in the Bustan neighborhood of the Silwan District of

East Jerusalem. According to Makdisi, both projects are part of the “long-standing Israeli project

to Judaize and de-Arabize the city,” by “erasing” evidence of Palestinian presence.63 Makdisi

charges that the Municipality of Jerusalem turned over control of the archeological park to Elad,

a “secretive Zionist organization,” which has been working to establish a “Jewish colony in the

middle of the Palestinian neighborhood," with the cooperation of city officials who have

allegedly issued demolition orders for all Palestinian homes in the area.64 It is Makdisi’s

contention moreover, that the City of David is a “Disney-like sham” and that there is “no

evidence tying the site to [the ancient Israelite] King David.”

          Makdisi's claims are seriously suspect, inasmuch as archeological excavations in the City

of David, just outside the walls of the Old City, have reportedly unearthed the ruins of ancient

Jerusalem, dating back to the time of King David.65 Moreover, we are unaware of any facts

supporting an alleged "conspiracy" between Elad and Israeli governmental authorities. Having

said that, the SWC has no intention of getting drawn into an ancillary debate about the City of

63
   If Israel has actually attempted to “Judaize and de-Arabize the country,” as Makdisi claims, this policy has been an abysmal
failure inasmuch as 20 percent of the country's population and 35 percent of the population in the capital city of Jerusalem is
Arab. It should be noted moreover, that the Arab population in Israel has increased ten-fold since 1948, from 150,000 to over 1.5
million people. Raphael Israeli, Arabs in Israel: Friends or Foes?, supra at pp. 21 ff.

64
  Makdisi conveniently fails to mention that the only Palestinian homes slated for demolition are those that were erected illegally
without building permits.

65
   David, the second king of biblical Israel, established Jerusalem as his capital city in approximately 1004 BC, nearly 1600 years
before the birth of Mohammed in 570 AD. The historical connection between the kings of ancient Israel and the City of
Jerusalem has long been accepted by Muslim authorities. In describing the Temple Mount, the Supreme Muslim Council has
stated that its "identity with the site of Solomon's Temple is beyond dispute. This too, is the spot, according to the universal
belief, on which 'David built there an altar unto the Lord and offered burnt offerings and peace offerings.'" Supreme Moslem
Council, A Brief Guide to Al-Haram Al-Sharif, p. 4 (Jerusalem: 1924)(emphasis added)(the same statement appears verbatim in
the 1925 and 1953 editions of this publication). It is hardly surprising therefore, that ruins dating back to the time of King David
might be found in the City of David archeological park or elsewhere in Jerusalem. The archeological findings at the City of
David are reported on its website, http//www.cityofdavid.org.il.



                                                                29
David or Israeli governmental policy toward the Palestinians. Suffice it to say, there is no

connection whatsoever between the Museum project and the City of David. Nor is there any

connection between the SWC, Elad or the government of Israel. Although we have no reason to

believe Makdisi’s outrageous claims about Israeli policy in general or the City of David project

in particular, even assuming them to be true, they have absolutely nothing to do with the SWC or

the Museum of Tolerance, humanitarian organizations whose primary mission is to fight racism,

prejudice and discrimination in all of its forms and to promote civic discourse, social justice,

tolerance and mutual understanding. For Makdisi to so much as suggest that the SWC would be

party to an alleged scheme to “Judaize and de-Arabize” the city of Jerusalem, bespeaks his

complete and utter ignorance of the SWC and its work, even though he teaches at UCLA, just a

stone’s throw away from the SWC headquarters and the original Museum of Tolerance in Los

Angeles. If Makdisi would spend just a few hours visiting the Museum of Tolerance in his own

back yard, he would not be so quick to impugn the Center’s motives in creating a new Museum

in Jerusalem.

         Makdisi characterizes the Museum project as a “Museum of Zionism packaged as a

Museum of Tolerance.” He contends that the Museum reflects Jewish parochial values

masquerading as universal principles of tolerance and by so doing reflects “an act of exclusion

and erasure of the Palestinian Other [that] is so clean, pure and total that it is no longer

recognizable as such.” In fact, says Makdisi, “it is an act of erasure that...erases itself in turn.”

and reflects a “genuine blindness, an ability to understand, or even to recognize the other” and

which can be thought of as “a kind or racism.” 66



66
  In accusing the SWC of racism, Makdisi conveniently ignores the log history of depravation, massacres, forced conversions,
confiscation of property and outright expulsions that some one million Jews of Arab lands suffered over the generations. See,
                                                            30
           If Makdisi had only gotten his facts straight before leveling his scurrilous charges against

the SWC, he would have realized that the mission of the MOT-J is to:

           “...promote civility, mutual respect, and democratic practices among the diverse
           peoples of the Middle East as well as international visitors of all faiths and
           origins....to bridge divisions and strengthen relationships between neighbors and
           among faith communities....[to serve as] a clearinghouse for innovative ideas and
           nerve center for creative public exchange....[to] cultivate and promote the values,
           visions, and voices of the region’s multicultural, multi-faith, multi-generational
           population, champion[] equal opportunity and human rights, and advanc[e]
           political and educational reform in the Middle East.”67

           As aptly stated by the Israeli Supreme Court:

           The importance and benefit of realizing the plan to build the Museum of
           Tolerance in the centre of the city of Jerusalem are very great. The Museum of
           Tolerance embodies an ideal of establishing a spiritual centre that will spread a
           message of human tolerance between peoples, between sectors of the population
           and between man and his fellow-man….This centre is supposed to serve as an
           important focus of attention both in Israel and for the countries of the world. It is
           supposed to attract visitors from throughout Israel and from around the world,
           who will visit it and encounter the conceptual, architectural and artistic experience
           that it is intended to express. The location of the Museum in the centre of
           Jerusalem has special significance, since it is a city that has a special ethical
           significance for three religions and an ancient history, which is unique to human
           civilization. Moreover, the existence of a Museum of Tolerance in the capital of
           Israel against the background of the ongoing Israeli-Arab conflict has special
           weight in the context of the dynamics of dialogue and the mediation efforts
           between the opposing sides.68

           The Museum’s exhibitions will include two main components, an historical section and a

“social laboratory.” The historical section will consist of a 16,000 square foot multi-media

experience called “The Long Way Home: A People’s Journey to Freedom,” that “...will take


e.g., Bat Ye’or, The Dhimmi: Jews and Christians Under Islam (Farleigh Dickinson: NJ, 1985); Andy Bostom, The Legacy of
Jihad (Prometheus: NY, 2005); Raphael Israeli, Muslim Anti-Semitism in Christian Lands (Transaction: NJ, 2009). Once again,
this is the proverbial "pot calling the kettle black."


67
     "The Long Way Home: A Peoples Journey to Freedom," SWC internal planning document.

68
     Supreme Court Judgment, Clause 239.

                                                           31
visitors on a virtual journey through time and space to experience epochal moments in the

history of the Jews and, consequently, the development of modern civilization.”69

           As explained by the SWC’s own internal planning documents:

           “Properly conceived, Jewish history is a prism in which to view over 3,000 years
           of human experience and the shaping of civilizations. Athens and Jerusalem,
           Rome and Jerusalem, and Mecca and Jerusalem, have all been counterpoints for
           the evolution of the values of human dignity, cultural diversity and democracy
           that are the hard won fruits and crowning achievements of Western civilization.
           This exhibit will explore the interaction of the Jewish people in many times and
           places with non-Jews, particularly Christians and Muslims, in a complex interplay
           of conflict, co-existence, and tolerance.

           An educational experience utilizing Jewish history achieves these goals by
           emphasizing the universal lessons implicit in one people’s story. The exhibit
           offers a template with universal resonance for Christians, Muslims (secular and
           religious), and people of every culture and country....

           Jewish liberation struggles—from the Exodus from Egypt, to modern movements
           for Jewish emancipation, to the quest for a homeland—have a continuing positive
           fascination for struggling minorities and other diaspora peoples. Throughout
           history, Jews have been the proverbial ‘canaries in the coal mine.’ Their
           experiences of persecution and struggles for rights, have been at the root of the
           evolution of tolerance and democratic thinking and offered a template for both the
           responsibilities of dominant groups and the possibilities for minority group
           empowerment.

           The purpose of the project is to create a truly transformational learning experience
           for the diverse peoples of the Middle East....Among all the centers and think tanks
           in Israel and the Middle East that promote dialogue, peaceful coexistence and
           civic participation, the Center will make an entirely unique and critically
           important contribution with The Long Way Home: A People’s Journey to
           Freedom.

           This evocative and non-threatening multi-media installation will provide the
           context for historical debates, the multiple perspectives for authentic dialogue,
           and the emotional impact to inspire in every participant feelings of empathy and
           respect for one another. This foundational educational experience is the missing
           link in projects to advance inter-group relations and openness to a democratic way
           of life....



69
     "The Long Way Home: A Peoples Journey to Freedom," SWC internal planning document.
                                                           32
           The Long Way Home: A People’s Journey to Freedom draws on [the latest]
           research in learning retention as well as best practices in human relations training
           and conflict resolution work to create a highly interactive, multi-sensory
           experience that will transform its participants cognitively and emotionally. After
           experiencing the exhibit, they will question their assumptions and look at the
           peoples and politics of the Middle East in a new light.”70

           The Long Way Home: A People’s Journey to Freedom, will be complemented by the

Social Laboratory, which according to the SWC’s own internal planning documents, represents

“[a] thoroughly innovative approach to encourage democracy, promote regional stability and

combat the roots of extremism....[H]igh tech exhibits will engage participants in profound

experiential learning on issues of direct relevance to peoples of the Middle East, with the aim of

achieving several important goals in a variety of inter-related ways.” Among these goals are to

(i) “[p]romote democracy through educational exhibits and programs that model democratic

practices and foster civic engagement”; (ii) “[i]ncrease critical thinking skills and equip people

with analytical skills for a media saturated world” and (iii) “[c]onfront prejudice and

discrimination and promote mutual understanding and respect among diverse peoples of the

region.”71 “Ultimately, the aim is to move human rights out of the margins of public discourse

and make issues of human dignity a central preoccupation and set of guiding principles for all

sectors of civil and political society in the Middle East.” 72

           Makdisi, relying on language drawn from the MOT-J’s website, attempts to portray the

Social Laboratory as a program that is intended to find common ground and to promote

understanding only between and among different Jewish communities in Israel. He draws this



70
     Op. Cit.
71
     Op. Cit.
72
     Op. Cit.

                                                   33
conclusion from the following sentence which he quotes in his article: “Compelling high-tech

exhibits engage visitors in finding common ground and understanding between different

communities, including religious and secular, immigrants and veteran residents, and the poor and

affluent.” Even if this sentence could somehow be interpreted to limit the Social Laboratory to

an exclusively Jewish audience, this is obviously not the SWC’s intent, as clearly demonstrated

by the more detailed description of the Social Laboratory contained in the Center’s internal

planning documents, as quoted above.

       Although Makdisi is free to question whether the MOT-J will be able to achieve its

ambitious goals in the midst of the volatile and contentious Middle East, he certainly cannot

question its motives or the worthiness of its objectives. The SWC, the sponsor of the Museum

project, is a well established international human rights organization, with a proven track record

of success in promoting tolerance and mutual respect among people of different religious,

cultural, ethnic, racial and national backgrounds. Its Museum of Tolerance in Los Angeles is in

no way a parochial Jewish institution. Over ninety percent of the millions of visitors to the

Museum are not Jewish, but represent the richly diverse population of one of the most

multicultural and multiethnic cities in the world. Acclaimed Museum programs build bridges of

understanding between people of all ages, abilities, faiths, ethnicities, sexual orientations and

countries of origin. The Museum’s Tools for Tolerance® for Professionals programs have been

recognized by President Clinton’s “One America” Initiative on race and are heralded as best

practices nationally and internationally.   There is absolutely no reason to believe that the

Jerusalem branch of the Museum of Tolerance will be any less universalistic in its approach than

the main branch in Los Angeles. For Makdisi to claim that the SWC’s efforts to establish the



                                               34
MOT-J are motivated by “racism” and reflect a desire to “erase” the “Palestinian other” and to

promote Israeli “apartheid” is not only completely unfounded, but grossly insulting and should

not be countenanced by any person of good will.

       The Simon Wiesenthal Center looks forward to completing construction of the Center for

Human Dignity–Museum of Tolerance in Jerusalem and to establishing an institution that will be

a beacon of hope and understanding in a troubled region of the world. The success of the project

and fulfillment of its ambitious mission will be the ultimate refutation of Makdisi’s claims.




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