Many observers have objected to the Abraham Accords that were signed between Israel and various Arab states, each for their own reasons. I myself staunchly oppose these agreements because they were signed in a context of severe national setbacks. Some states signed them for little reason other than to please the hegemonic American power, which insists on integrating Israel into the Arab world through oppression and exploitation.
In this context, there is little point in researching and scrutinizing the deals’ benefits—if indeed they exist—or their many disadvantages. Instead, this study examines the Wadi Araba Treaty signed by Israel and Jordan on October 26, 1994. This was an international treaty that went through standard constitutional channels and was ratified by the passing of laws in both Jordan and Israel. It led to an exchange of ambassadors on December 11, 1994, and a copy of the agreement was provided to the secretary-general of the United Nations for registration, in accordance with Article 102 of the Charter of the United Nations. This gave the agreement legal status as a binding international treaty, meaning that any breach of its major obligations would entail international repercussions for the violating party.
The treaty is a recognition of the “Status Quo,” and accordingly, this discussion of the treaty’s provisions takes place without forgetting that East Jerusalem is considered an occupied territory in practice and under international law. Several international resolutions confirm this description, notably the ruling of the International Court of Justice in 2004, which considers it “occupied territory” where neither side may alter its status quo.
Before examining the provisions of the Wadi Araba Treaty, it is worth recalling former Jordanian King Hussein bin Talal’s speech on July 31, 1988, in which he announced the disengagement between the eastern and western banks of the Jordan River. Shortly afterwards, the Jordanian government issued “instructions” bringing this decision into effect, yet these were never published in Jordan’s official gazette or in any daily newspaper. To this day, the king’s speech remains a mere royal speech, and was never turned into law. Nor did the “instructions” take on any legal status. Still, mention of the speech is essential for the discussion that follows.
This study examines what became known as the “Hashemite custodianship” of Jerusalem’s Muslim holy sites. This expression did not appear in the treaty; instead, what appeared was “Jordan’s role” in those places. The question of Jordan’s role has gained in pertinence as Israeli extremists have overstepped the boundaries laid out in the 1994 treaty, and as their violations have become a source for tension and concern at both the official and popular levels in Jordan. It is thus useful to examine Jordan’s role and its limits in Jerusalem’s Muslim holy sites, to explore the restrictions placed on Israel under the treaty, and to suggest some options available to Jordan to resolve the current situation.
The Legality of Jordan’s Role at Jerusalem’s Holy Sites
Jordan’s administration and custodianship of Jerusalem’s Muslim holy sites draws its legal status from four major sources: 1) Israel’s recognition of the sites’ status and of the Jordanian role there since it occupied the city in June 1967; 2) the Washington Declaration; 3) the Wadi Araba Treaty; and 4) international recognition of Jordan’s role.
1) Official Israeli Recognition and Practices
From the start of its military occupation, Israel engaged in colonial practices in Jerusalem, from confiscating the keys of Bab al-Maghariba (the Dung Gate) on June 7, 1967 to totally bulldozing the Mughrabi Quarter (which is an Islamic Waqf, or religious endowment) and expelling all of its inhabitants, to taking control of the Tankiziyya Madrasa (religious school) at Bab al-Silsila (the Chain Gate). All of these are affiliated with the nearby Buraq Wall, known to Israelis as the Western Wall or Wailing Wall.
Despite all these illegal and illegitimate violations, Israel’s then Defense Minister Moshe Dayan promptly met prominent Muslim officials in Jerusalem, led by chief judge Abd al-Hamid al-Sayih, along with the city’s mufti and the head of the Waqf. He asked them to resume the usual Friday prayers and confirmed that Israeli forces would leave the area, but added that Israel was responsible for public security. He ordered the Israeli flag that had been placed at the top of the Dome of the Rock removed and announced to the notables that “we have no intention of administrating Muslim holy sites in Jerusalem, or interfering in religious life.” He added: “We recognize the right [of Muslims] to administer their holy sites.”
This announcement by a representative of the occupying authorities was an official recognition by the occupying state of the Status Quo of the holy sites and an acknowledgement that they were in the custody of his interlocutors. This policy has remained in place, and despite violations by settlers from time to time and occasional attempts by the occupying authorities to ignore their own official commitments, the Waqf has continued to administer and control Jerusalem’s Muslim holy sites from the start of the occupation up until 2000.
2) The Washington Declaration
On July 25, 1994, King Hussein and Israeli Prime Minister Yitzhak Rabin met on the White House lawn and signed the Washington Declaration in the presence of then US President Bill Clinton. At the signing ceremony, King Hussein announced the end of his country’s state of war with Israel. On his way back to Amman, he flew over Jerusalem. He then called Israeli President Ezer Weizman and Rabin, who informed him that the Israeli Knesset had overwhelmingly ratified the declaration, with 91 out of 120 members voting in favor.
The Washington Declaration broadly expressed the two countries’ desire to arrive at a just, comprehensive, and durable peace between the Arab states, the Palestinians, and Israel. To achieve that goal, the two sides laid out a timeline that included, among other things, an agreement to respect “the special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem,” which was later written into the Wadi Araba Treaty. The declaration thus represented an Israeli commitment, prior to the Wadi Araba Treaty, to respect the Jordanian role in the city.
3) The Wadi Araba Treaty
Article 9 of the Wadi Araba Treaty signed between Jordan and Israel reads:
- “Each party will provide freedom of access to places of religious and historical significance.
- In this regard, in accordance with the Washington Declaration, Israel respects the present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem. When negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historic role in these shrines.
- The Parties will act together to promote interfaith relations among the three monotheistic religions, with the aim of working towards religious understanding, moral commitment, freedom of religious worship, and tolerance and peace.”
The first item sets the general principle that each side must guarantee everyone’s freedom of access to places of religious and historical importance under the other side’s control. To the Israelis, this freedom includes the right to access sites east of the Jordan River if, for example, Israeli tourists wish to visit archaeological sites at Jerash or Petra. However, this right does not extend to religious and historical sites in the West Bank because Jordanian sovereignty, as a result of King Hussein’s speech in 1988, had become confined to areas east of the Jordan River. This means that Israelis do not have the right to access historical and religious sites in the West Bank, Jerusalem, or Gaza. In other words, Israelis could not visit the Church of the Nativity, for example, except with prior authorization from church authorities. Israelis also could not visit Hisham’s Palace in Ariha (Jericho) unless they have authorization from the Palestinian antiquities authority or the Palestinian Ministry of Culture. That said, as the occupying power in the West Bank, Israel has de facto access to all sites without permission; but it does not have legitimate sovereignty.
The second item of this article, on which this study hinges, begins with the phrase, “In this regard.” This introduces a transition from the general principle of freedom of access to specifics, namely to the assertion that Israel “respects the present special role” of Jordan at Jerusalem’s Muslim holy sites. The text gives “high priority” to Jordan’s “historical role” at these sites.
4) International Recognition of Jordan’s Role
Jordan’s role at Jerusalem’s Muslim holy sites has gained widespread international recognition, especially since the start of the occupation in 1967, when the Israeli authorities recognized said role, as demonstrated by Moshe Dayan’s statement above. The kingdom has continued to exercise this role since the signing of the 1994 Wadi Araba Treaty. Furthermore, Jordan’s current King Abdullah II and Palestinian President Mahmoud Abbas signed an agreement on March 31, 2013, confirming Palestinian recognition of Jordan’s custodianship over the Al-Aqsa Mosque compound. This was also later recognized by the Council of the Arab League, the Organization of Islamic Cooperation, the European Union, the United States, the Vatican, and representatives of various Christian denominations.
The Legal Debate
Taken together, these elements form the legal basis of the Jordanian position, which would support its legal case before any judicial authority. The following looks in more detail at this evidence, represented in Israel’s pledges and its recognition of the right of Muslims to administer their holy sites, as well as in Article 9 of the Wadi Araba Treaty.
1) Official Israeli Declarations
Moshe Dayan’s declaration that Israel had no intention of administering the Muslim holy sites was an official pledge by the highest actual authority in the occupied territories. This policy was in force between the start of the occupation and the year 2000, when occupation authorities broke their pledge and allowed then Likud Party leader Ariel Sharon to enter the Al-Aqsa Mosque compound.
It could be argued that Moshe Dayan’s pledge to Abd al-Hamid al-Sayih and his colleagues was merely a verbal promise that was not transcribed into a written and duly signed document, as is customary. However, international law recognizes the binding nature of verbal pledges. The case of a declaration by Nils Claus Ihlen provides a precedent that remains a recognized legal foundation for this principle. Ihlen, who was Norway’s foreign minister at the time, told his Danish counterpart on July 10, 1931 that Norway would not raise any objections to Denmark’s claim to eastern Greenland. While his declaration, made during negotiations between the two sides over rival claims for sovereignty over the island, was verbal, the Permanent Court of International Justice ruled in 1933 that it was binding on the Norwegian government. At any rate, Moshe Dayan himself later recorded his verbal pledge in his published memoirs.
2) Article 9 of the Wadi Araba Treaty
The second major legal basis for the Jordanian role at Jerusalem’s holy sites is Article 9 of the Wadi Araba Treaty, in particular its second paragraph. This clause contains two critical elements that form the basis for Israel’s responsibilities:
The First Element:
The text stipulates that Israel “respects” Jordan’s current role at Jerusalem’s Muslim holy sites. The term “respect” was not chosen arbitrarily, but rather implies a specific commitment, as the word rarely appears in international treaties; and when it does, it is in a specific context, although the duty to respect is a legal “commitment” in all circumstances.
Article I of the four Geneva Conventions signed in 1949 stipulates that signatories pledge to “respect” the agreement and ensure its “respect” under all circumstances. An official interpretation of this article has explained that this term was used to affirm that the agreement was not a commitment concluded on the basis of reciprocity, but rather a series of unilateral commitments before the world as represented by the other contracting parties. In other words, each state commits itself to respecting its commitments before itself, and before others.
It is well known that in international treaties, as in contracts at the national level, there is reciprocity of obligations between parties to an agreement. In rental contracts, for example, the lessee is obligated to pay rent, and in return the lessor is obligated to enable the lessee to benefit from the rented property. A construction firm may commit itself to building a factory to certain specifications in exchange for an investor paying the contractor’s fees. International treaties apply the same form of reciprocal obligations. The same can be applied to the Wadi Araba Treaty, which stipulates that the two signatories agreed to establish full diplomatic and consular relations and to exchange ambassadors, which means that Israel would open an embassy in Amman and appoint an ambassador there. It is hard to imagine Jordan agreeing to opening an embassy in Israel without the latter opening an embassy in Jordan. This is a requirement of reciprocity. However, legal obligations that are not conditioned upon reciprocity are exempted from this rule. Here the term “respect” is used, and it thus remains a legal obligation. Each state also remains obligated to respect it, even if another state or other state signatories to the treaty do not reciprocate. This is reflected in the first article of the Geneva Conventions.
The International Court of Justice has interpreted Article I of the Geneva Conventions as meaning that “every State party to the agreement, whether or not it is a party to a specific conflict, has the obligation to ensure compliance with the requirements” of the treaty. This is confirmation from the highest judicial authority in the world that “respect” implies an obligation on each state party to the treaty to abide by its provisions, regardless of whether that state is party to a specific conflict or not.
Another example of the use of the term “respect” is found in Article 1, Paragraph 3 of the International Covenant on Economic, Social and Cultural Rights, which obligates state signatories to respect the right of peoples to self-determination, including peoples inhabiting regions that do not yet have independence. The same text was repeated in Article 1 of the International Covenant on Civil and Political Rights, obliging state parties to respect the right of self-determination of peoples who have not yet achieved that right. That obligation of respect remains valid and binding on state parties regardless of whether other parties respect it or not. It is an obligation undertaken by the state party, and is not based on reciprocity.
A third example also supports this thesis. Article 4 of the Hague Convention for the Protection of Cultural Property (1954) stipulates that states must “respect cultural property situated within their own territory as well as within the territory of other” signatories. The treaty additionally lays out how states should practice this respect:
- Signatories must refrain “from any use of the property and its immediate surroundings or of the implements in use for its protection for purposes which are likely to expose it to destruction or damage.”
- State parties undertake to prevent and—if necessary—put a stop to any form of theft, pillage, misappropriation, or vandalism of cultural property.
- No signatory state may evade any of the obligations incumbent upon it by not taking necessary protection measures in cases of armed conflict.
- Parties to the treaty must help local authorities in the occupied state to protect and secure its cultural property.
These cases clearly show that “refraining” is a state practice reflecting a state’s respect for cultural property, demonstrated by not using it, by preserving it, and by preventing it from being plundered or destroyed. These models comprise a by no means exhaustive list of steps that reflect a state’s duty to respect its obligations. Other practices that could harm cultural properties can also be added. Thus, a state must behave in a way that reflects its duty of respect, which obliges it to protect those properties. Excavating under cultural property in ways that could threaten its safety, for example, or taking measures that could change its attributes, are breaches of international obligations.
Therefore, Article 9, Paragraph 2 of the Wadi Araba Treaty, which stipulates that Israel must “respect” Jordan’s current role at Jerusalem’s Muslim holy sites, amounts to an international obligation by Israel. Indeed, it is a special obligation that Israel must abide by and implement, even if Jordan does not comply with its own obligations. This is because the treaty stipulates that Israel, rather than Jordan, must respect the Jordanian role. It is a treaty obligation that is not conditioned on reciprocity. It bears mention that both Israel and Jordan are signatories to the aforementioned international conventions.
The Second Element
Israel committed to respecting Jordan’s “current role” at the time of the signing of the treaty. Therefore, the various aspects of Jordan’s role throughout the period leading up to the signing of the Wadi Araba Treaty require thorough examination, as the respect to which Israel committed itself, through Dayan’s declaration and as a pledge in an international treaty, covers Jordanian practices during this period. The importance of Jordan’s “current role” means that bypassing, limiting, or cancelling that role would amount to a violation of the principle of respect, i.e., a breach of an international obligation that necessarily entails an international responsibility on Israel.
So what did Jordan do at the Muslim holy sites in Jerusalem throughout the period leading up to the signing of the treaty? First, it must be recognized that Jordan administered these sites through the Jerusalem Waqf, and this is a historical role for the institution. Even after King Hussein announced Jordan’s disengagement from the West Bank, he preserved the role of the Jordanian endowments in continuing their custodianship over and administration of Jerusalem’s Muslim holy places. This was a role that Israel had officially recognized through Moshe Dayan. Jordan continues to appoint Waqf employees in Jerusalem, to terminate their employment when necessary, and to pay their salaries and benefits. When we talk about the Waqf, we are talking about the Jordanian state.
Adnan Ghaleb al-Husseini, who worked for the Waqf authorities in several positions from 1989 to 2007, says that Jordan was responsible for assigning the Jerusalem Waqf to take care of the management and maintenance tasks at the Al-Aqsa Mosque. The Waqf authorities, he said, were “responsible for allowing tourists into the mosque grounds, as part of a program called the Foreign Tourist Visit Program. Mosque guards would accompany the tourists in the courtyards, and the tourists paid the Waqf for tickets, generating revenues for the latter to help it defray the costs of maintaining the site. The Waqf would determine the appropriate dress for tourists, so if an immodestly-garbed tourist came, the Waqf would provide them with a decent cover until the end of the visit.” Al-Husseini also said that the Waqf was solely responsible for the upkeep of the mosque and all its facilities, without any involvement by the Israeli authorities. The Israeli police kept a presence outside the doors of the mosque for security reasons. The Waqf was responsible for opening and closing the gates to the mosque and looking after their keys, with the exception of Bab al-Maghariba, whose keys the occupation authorities confiscated by force at the start of the occupation.
Al-Husseini has said that the Waqf’s reaction to Ariel Sharon’s storming of the Al-Aqsa Mosque in 2000 was to close the site to tourist visits, as it had done when a fire broke out in the mosque in 1969. Then, it closed the doors to tourists of all religions and nationalities, partly in order to assert its own prerogative as the body responsible for Jerusalem’s Muslim holy sites. The Waqf’s adherence to its responsibility for the mosque is evident in its continued refusal to receive rent for property it fully owns but that is used by occupation authorities or the Jerusalem Municipality. Nor do Waqf officials apply for permits from the municipality for works and activities accompanying renovation operations, as was demonstrated in the restoration of the southern and eastern walls of the mosque.
Abdullah Al-Abadi, administrator for Jerusalem and the Al-Aqsa Mosque from 2005 to 2020, has confirmed the existence of many documents and correspondences with the Waqf that conclusively demonstrate Jordan and the Waqf’s role in protecting, managing, and respecting the holy places in Jerusalem during the period prior to the signing of the treaty, as well as in the time leading up to Sharon’s visit to the site in 2000 and the outbreak of the Second Intifada. These documents, which include correspondence with official Israeli bodies, confirm the Waqf’s authority over the Muslim holy sites of Jerusalem.
Visits by Israeli settlers to the Al-Aqsa Mosque compound had long taken place on an individual basis, and the Waqf had never closed the door to visits by Jews, provided they were conducted as tourist visits. But when these visitors began to arrive in groups under the protection of the occupation authorities, there began a dispute between the Waqf and the occupation authorities. This dispute has continued to develop and get more complicated, especially since heavily armed guards have started accompanying the visitors. Such violations have become increasingly frequent and have been conducted in ways that clash with the sanctity of the site. The visitors have started displaying Jewish religious signs, threatening the very nature of the sanctuary. Some settlers even began to threaten the mosque itself, claiming it is built on the site of the Second Temple (a claim made according to Jewish and Zionist belief) and carrying out prayers within the plaza.
The situation further escalated when the occupying Israeli Army started attacking Muslim worshipers and preventing others from reaching the site for traditional prayers during Ramadan. Israeli soldiers began entering the mosque with shoes on, showing a total lack of respect for the site, behavior that was sanctioned by the occupying authorities. All these measures amount to continual and systematic transgressions by Israel, in clear violation of the principle of “respect” stipulated in the Wadi Araba Treaty. In these cases, and after Israel persisted in showing disrespect and noncompliance with the established and recognized obligations between the two parties, Jordan had no option but to resort to Article 29 of the treaty, as all diplomatic communications had failed.
Dispute Resolution and the Applicable Legal Framework
Article 29 of the Wadi Araba Treaty specifies the following principles for resolving disputes:
- “Disputes arising out of the application or interpretation of this Treaty shall be resolved by negotiations.
- Any such disputes which cannot be settled by negotiations shall be resolved by conciliation or submitted to arbitration.”
Thus, it is clear that arbitration is a last resort for resolving disputes, after negotiations have been exhausted. It may not always be necessary to resort to conciliation when negotiations fail, as the treaty gives the complaining party the option of conciliation or arbitration, rather than making conciliation a mandatory intermediate stage. Additionally, Article 9 of the treaty does not specify the length of the period for negotiations before the plaintiff can go to conciliation or arbitration. Despite the fact that the period for negotiations has been exhausted many times over since 2000, it is incumbent upon Jordan, should it agree to arbitration, to officially notify Israel that talks would commence in a specific time. Notification would be given so that the Israeli side would know that Jordan is following the course specified in Article 29.
If the period for negotiations ends without a breakthrough, Jordan can advance to arbitration without going through conciliation, because the previous period has proven beyond a doubt that negotiations, mediation, and conciliation were completely exhausted and that the Israeli side has shown its disrespect for the holy sites by violating Dayan’s limits set after the military occupation. This proves that these practices are indeed Israeli state policy when a minister in the occupation government, such as Sharon, leads such violations.
Article 29 does not specify a place or timeframe for arbitration or set a number of arbitrators; but it is possible to use precedents and reasonable behavior and performance, and an approach that demonstrates goodwill. Arbitration can take a tripartite fashion (or even a quinquepartite, as happened in the Taba arbitration) and could take three years since documents related to the holy sites and Israeli practices prior to 2000 are available, and there is no need for field visits, as took place in Taba. As for a place for arbitration, custom and similar processes have tended to choose a neutral location, one that should be close to both Jordan and Israel, and that should be able to provide all sides with the necessary infrastructure for the arbitration process, including easy and uncomplicated access and widely available communications and transportation.
The main law applicable to the case would be the Wadi Araba Treaty, which is the legal basis for relations between the two signatories. It is possible to also use international legal opinions to interpret a particular text, or to suggest how it should be implemented. There is no doubt that a wealth of legal expertise can assist the arbitration committee in bringing the case to a just conclusion. The question before the committee would be the following: Do Israel’s current practices breach its commitment to “respect” Jordan’s “current role” at Jerusalem’s Muslim holy sites? As this study has argued, practices that were absent before 1994 but that Israel now applies or allows do indeed amount to a breach of the principle of “respect.”
Recommendations
It is clear that Israel’s violations, carried out haughtily and arrogantly by settlers under the protection of the state, have come to constitute a critical threat to the Muslim holy sites of Jerusalem. It is also clear that actions by settler groups demonstrate that their end goal is the temporal and spatial partition of the Al-Aqsa Mosque compound, as has happened with the Ibrahimi Mosque in al-Khalil (Hebron). Such a plan would wrest full control of the site away from the Waqf authorities, and could be a preface to the establishment of full Zionist control. Caution demands that we draw attention to the danger of hard-line religious Zionist groups that have been planning the destruction of the Al-Aqsa Mosque and the Dome of the Rock. Activist and researcher Mahmoud Muhareb has excelled in closely documenting these groups and their plans for destroying everything relating to the Muslim world. These organizations continue to work actively and enthusiastically.
The settlers’ course of action is briefly and clearly aimed at placing the Al-Aqsa Mosque at the heart of the conflict and weakening the hand of the Waqf. While Jordan carries out the task of supervising and administering these holy places on behalf of the Muslim world, with broad global backing, and while Israel has committed to Jordan in an international treaty to “respect” its “current role,” Amman has a duty to live up to international expectations.
Previous years have shown that Jordan’s soft approach has not received an adequate response from the Israeli side. Rather, there has been a notable uptick in the measures described above, which have increasingly taken forms that are highly provocative to public opinion across the Muslim world, as well as to international opinion. This is most striking in resolutions by the United Nations General Assembly, the UN Human Rights Council, UNESCO, and the reports of Human Rights Council-appointed special rapporteurs on the situation of human rights in the occupied Palestinian territories. Finally, it bears mentioning that if Egypt sought arbitration for the sake of one square kilometer in Taba, Jordan should make it a matter of priority to launch negotiations as a first step toward arbitration over one of the holiest sites in Islam.
The views expressed in this publication are the author’s own and do not necessarily reflect the position of Arab Center Washington DC, its staff, or its Board of Directors.
This article was first published in Arabic on June 14, 2023 by the Arab Center for Research and Policy Studies in Doha, Qatar.
Featured image credit: ACRPS
