The Simon Wiesenthal Center's Final Response

05.02.12 4:15 PM ET

Simply put, Professor Khalidi’s real problem is that he refuses to accept that the Supreme Court of Israel is unbiased.  Most people living in Israel—Jews, Christians and Muslims—know that the Court has always had a record of bending over backwards, especially in protection of minorities.  At the same time, it is important to remember that Sheik Raed Salah, a member of the Hamas-linked Northern Party, was the one who first brought the case to the Court. 

If, as Khalidi believes, the Court is biased, why would Sheik Salah have taken the case to the Court in the first place?  Why not go directly to the UN Human Rights Council?  Obviously, Salah must have considered the Court to be unbiased. But when they ruled against him, he and people like Professor Khalidi refused to accept it.

This then begs the following question: why would the Supreme Court of Israel take three years to study a case and then conclude unanimously that the Museum of Tolerance project should go forward?  Answer: because the evidence is overwhelming in its favor.  

Here are the relevant facts:  According to the Supreme Court unanimous ruling, “For almost 50 years, the compound has not been a part of the cemetery… and it was used for various public purposes.”  The Court also noted: “During all those years no one raised any claim, on even one occasion, that the planning procedures violated the sanctity of the site… For decades this area was not regarded as a cemetery by the general public or by the Muslim community… No one denied this position.” 

So then, if the Museum of Tolerance Jerusalem is being built on what was for half a century the municipal car park of the City of Jerusalem where every day, Muslims as well as Jews and Christians parked their cars, why would Muslims use this place to park their cars if it was a sacred Muslim cemetery? Even if Professor Khalidi was right that in the 1960’s the Muslims had no influence and couldn’t protest, still they could have chosen to park their cars elsewhere.

During the zoning process, before construction even began on our project, we were required to post ads in Hebrew and Arabic newspapers detailing the project and where it would be built.  Additionally, a model of the project was exhibited at Jerusalem’s City Hall and the public was invited to see it for themselves.  While Khalidi maintains that the Arab population did not have influence in the 1960s, even he would have to admit that following the two Intifadas, the Arab population, in 2004, surely held the power to complain. But still, when the Court examined the files, they did not find a single protest to the Municipality or to any of the other government bureaus against the project.  

There is overwhelming evidence that the Muslim Supreme Council planned not once, but at least twice, to use the cemetery grounds for large developments.  First, the Supreme Court had in its possession, detailed plans from 1931, plans sanctioned by the Supreme Muslim Council to build a Muslim university with multiple buildings on the Mamilla Cemetery (see photo above). 

Second are the plans from 1945.  It is the epitome of chutzpah to claim that the 1945-sanctioned Supreme Muslim Council plan to turn the entire Mamilla Cemetery into a business center, was not made up of “true” religious leaders.  In fact, the Supreme Muslim Council’s word was regarded by the British and later by the Israelis as final when it came to religious matters regarding Muslims.  Yet they were going dig up all the remains on the actual Mamilla Cemetery itself in order to build a commercial business center.  Anyone who doubts that should read the article on page two of the Thursday, November 22, 1945 edition of the Palestine Post.

Now to the crux of Khalidi’s point: He would have you believe that the Supreme Court of Israel ignored prima facie evidence from Gideon Sulimani, the former chief excavator for the Israel Land Authority when, in fact, nothing could be further from the truth. As the Supreme Court states clearly, “We have studied the parties’ arguments and also the extensive material annexed to them and we have not found that there is cause for our intervention. From studying the parties’ notices, it appears that back at the time of the first petition, the Court did have before it the report that was compiled by the former chief excavator, Mr. Sulimani, and also the Petitioners’ objections with regard to the reliability of the Antiquities Authority’s position. The Court was aware of the said objections, gave consideration to them in the first petition and was ultimately satisfied with the position of the Antiquities Authority. Such being the case, we have found no basis for the Petitioners’ allegation that the Antiquities Authority concealed details of the findings that had arisen from its excavations.”

They concluded as follows:

Finally we considered the question of whether the case of the Petitioners herein is such as to disclose cause for our intervention in the findings of the judgment in the first petition. As aforesaid, the judgment in the first petition comprehensively and thoroughly analysed the questions of fact and law associated with the Museum construction proceedings, and its conclusion was that the petition to cancel the Museum’s construction should be dismissed. The Petitioners herein pleaded that the Antiquities Authority had misled the Court in the hearings in the first petition and that there were flaws in its decision to release the area of the cemetery for construction. From the data adduced to us, we found that this plea by the Petitioners had already been raised in the first petition and had been dismissed by the Court. Since the judgment permitted the commencement of building work on the site involved in the petition, the First Respondent’s decision to release the land was clearly approved. Such being the case and having regard to the fact that the work of moving the tombs and interring the human remains as ordered in the judgment in the first petition has been completed, we are satisfied that it is inappropriate for us to intervene and that the petition should be dismissed.  Having reached that result… We have gained the impression that whilst the first petition was filed with the intention of raising factual and legal pleas against the venture and obtaining the Court’s decision, the filing of the petition herein was essentially intended to bring about a delay in the Museum’s construction, in such a way as amounts to an abuse of court proceedings.

Professor Khalidi, these are the real facts in this case and that is why the Museum of Tolerance Jerusalem is now under construction.