The Significance of #Jerusalem: A #Muslim Perspective

Vol.2 No.2 1995 / Our Jerusalem


The Significance of Jerusalem: A Muslim Perspective

The Palestinians must control Arab Jerusalem and Muslim religious sites.

     by Dr. Ziad Abu-Amr

 © 2012 Palestine-Israel Journal.

There is perhaps no other city in the world that has drawn the continued attention of the world community as much as the city of Jerusalem, espe¬cially among the adherents of the three monotheistic religions: Judaism, Christianity and Islam. The city’s religious centrality has generated its his¬torical and political importance, as well as its symbolic impact, but its reli¬gious position has also been at the root of a considerable controversy.
This controversy focuses on who has the greater attachment and entitlement to the city, and for whom Jerusalem has the greatest religious, cultural, historical and political importance:
“In all probability, one would never be able to gauge the degree of attachment that an individual community feels toward the city, for attachment is psychological and thus highly subjective.”1
While the Muslims, for example, especially Palestinian and Arab Islamists, recognize the religious significance of Jerusalem to Christians and Jews, they stress the Muslim character of the city and Muslim entitlement to it, and their attachment to Jerusalem constitutes part of their doctrinal views of the city.

Religious Prominence
Indeed, Jerusalem’s multifaceted meaning stands behind the interest of Muslims all over the world in the land of Palestine as a whole. The city has strong evocative and emotional associations and has its own place in the hearts of Muslims. It is considered the third-holiest city in Islam after Mecca and Medina in Saudi Arabia. It derives its religious prominence from being the first Qibla, the initial direction toward which the Prophet Muhammad and the early Muslim community turned their faces in prayer. The direction was changed a year and a half later to Mecca by “divine command.”
Jerusalem also derives significance from its association with Prophet Muhammad’s miraculous nocturnal journey to the city and then his ascen¬sion to Heaven. This event is mentioned in the Koran in the first verse of chapter 17, “Glory be to Him, who carried His servant by night from the Holy Mosque to the Further Mosque (al-Masjid al-Aqsa), the precincts of which We have blessed, that we might show him some of our signs.”2
In the nocturnal journey (al-lsra’wal Mi’raj), according to Muslim tra¬dition, Muhammad was transported one night on a winged horse from Mecca to Jerusalem where he led Abraham, Moses, and Jesus in a prayer. Afterwards, Muhammad ascended to heaven accompanied by the archangel Gabriel. In this journey of ascension, Muhammad passed through the seven heavens where he encountered earlier prophets. The Dome of the Rock is the site from which Muhammad ascended.
Although some critics argue that Muhammad’s journey was spiritual and not physical, this journey has a three-fold significance:
First, it linked the city of Jerusalem with Islam in its very early days in addition to the sura which refers to Jerusalem as the first Qibla. Second, it inspired the Muslims with a bulk of lore, so much so, that Muslims all over the world celebrate that occasion every year. Third, it ushered in a new era in the life of the city because, from then on, the Muslims con¬sidered it their holy duty to protect it from the encroachment of the Byzantines and the Persians who were non-Semitic people.3
In addition, it is believed that a Koranic verse (v. 44 of chapter 43) was revealed in Jerusalem: “Ask those of our messengers We sent before thee — Have We appointed apart from the All-Merciful, gods to be served?”4
Omar Ibn al-Khattab, the second Muslim caliph, accepted in person the capitulation of Jerusalem which was under Byzantine rule. Omar had also located the Rock, the place hallowed by the Prophet’s nocturnal journey, and before leaving Jerusalem, he built a mosque close to the Rock. Furthermore, a number of the Prophet’s companions visited the city and at least one of them resided and died in it.
From this humble beginning to the rise, some fifty years later, of great monuments of Muslim architecture, Jerusalem’s place as the third holy city in Islam was finally established. Its Roman name was dropped and it became al Bait al-Muqaddas (the Holy House), in apposition to al¬-Bait al-Haram (the Sacred House), the appellation of Mecca. A variant of the name was Bait al-Maqdis or simply al-Quds (the Holy City). Later still it became al-Quds ash-Sharif (the Holy and Noble City). 5
The religious significance of Jerusalem and its function as a source of reli¬gious legitimacy were also highlighted during both the Umayyad and Abbasid rule. Mu’awiyah, the first Umayyad caliph, for example, pro¬claimed himself caliph in Jerusalem, rather than in Damascus, his capital.
Under Mu’awiyah’s successor, Jerusalem became virtually the religious capital, since Mecca and Medina were in the hands of his rivals. Even when Mecca and Medina came under their control, the Umayyad caliphs contin¬ued to pay equal respect to Jerusalem. The Abbasid caliphs paid Jerusalem a similar regard, and the city remained equally significant to successive Muslim rulers, up to the Mamelukes and the Ottomans who also accorded. the city religious status equal to that of Mecca and Medina. But despite its religious significance, Jerusalem was never the capital of Islam. The selec¬tion of the seat of the Islamic Caliphate was a matter of strategy, otherwise Mecca should have been the choice. 6

The Religion of All Prophets
Historically speaking, Jerusalem has generally been the site for Muslim pil¬grimage, prayer, study or residence. Al-Aqsa Mosque was a particular seat of learning. Muslim scholars came to Jerusalem from distant lands. “Just as it is true to say that the first textbook in Islam was the Koran, so it is true to say that the first school was the mosque.7
Muslims believe in all the Jewish and Christian prophets and holy scrip¬tures. The Jewish and Christian legacies are an integral part of the Muslim legacy. Synagogues and churches are God’s shrines and their adherents are the people of the book, not heathens or unbelievers. But Muslims, on the other hand, believe that Islam, more than Judaism or Christianity, afforded the city the most tolerant period because of Islam’s nature being the religion of all prophets, from Abraham to Muhammad.8
The Muslims ruled Jerusalem for thirteen centuries from the middle of the seventh century (638 A.D.) to the beginning of the twentieth century (1917) with the exception of about 103 years of Crusader domination. The passage of time, and certain events, served to enhance Jerusalem’s position in the Muslim tradition and history. One such event is the fall of Jerusalem to the Crusaders in 1099 which interrupted the Muslim rule of the city. Palestinian and Arab Muslims dwell a great deal on this holy war waged by the Crusaders against non-Christians, Muslims and Jews. This war, in which all non-Christian inhabitants of Jerusalem were wiped out, their property looted, and their houses occupied, is considered one of the most significant events to have shaped the Muslim outlook towards the Christian/Western world as a whole. It has yet to be ascertained if any roots of the current wave of Islamic fundamentalism actually lie in the Crusader war which marked open hostility between the Muslim and Christian/Western worlds.
In 1187 Saladdin, a Muslim leader, reconquered and recovered Jerusalem. This recovery of Jerusalem “figures larger in Islamic history than its first acquisition by ‘Umar five and a half centuries before.” 9 The coincidence of Saladdin’s entry into the city with the anniversary of the Prophet’s nocturnal journey was regarded by Muslims as providential.
The current Israeli occupation of Jerusalem (since 1967) is viewed by Palestinians and Muslims equal in magnitude to the Crusades: “By occu¬pying Palestine, the modem Crusaders have earned the enmity of all Arabs; by seizing Jerusalem, that of all Muslims. Are the modem Crusaders bent on forcing history to repeat itself?” 10

The Occupation
Clear focus by Palestinian and Arab Islamists on Jerusalem began to take place after the Israeli occupation of the eastern part of the city in 1967. Vocal and repeated Muslim pronouncements on the city which stress its Arab and Islamic character came as a reaction to Israeli measures to Judaize the city and distort or wipe out its Arab and Islamic identity. They justifiably fear Jewish designs on East Jerusalem and the holy places in it, especially since Israel unilaterally annexed it after the 1967 war.
Since the rise of contemporary Arab and Palestinian fundamentalist movements, primarily as a reaction to certain political or socioeconomic factors, the holy city of Jerusalem has been a source of inspiration and mobilization to them. Therefore, the Jewish occupation of the city reminds the Islamists of Muslim and Arab weakness and of the need to rise and free Jerusalem from Jewish hegemony. It is infuriating to Arab and Palestinian fundamentalists to have their first Qibla and the third-holiest city in Islam under foreign, especially Jewish, control.
Politically, the city carries the same import to the various Palestinian political groups, secularists and Islamists alike. This fact is reflected in their various political discourse although there is no elaborate mention of Jerusalem in their respective national and political programs or charters. This stand emanates, of course, from the assumption that Jerusalem is an integral part of Palestine. Indeed, Jerusalem is the heart of Palestine. Its loss to a foreign enemy deprives the Palestinian Islamists of their unique posi¬tion as the custodians of the holy city, and their struggle to regain Jerusalem places them at center stage.
While the nationalists stress Jerusalem as the capital of the Palestinian state as inscribed in the Palestinian Declaration of Independence of 1988, the Islamists emphasize its religious nature and the fact that it is an inte¬gral part of Muslim Palestine. Genuine commitments to Jerusalem aside, there is no doubt that the various Palestinian political groups also invoke the name of the city for political reasons.
For example, the name of Jerusalem is frequently evoked in Palestinian Muslim fundamentalist literature. A leaflet issued by the Islamic Resistance Movement (Hamas) defines the status of Jerusalem and Palestine for Muslims in the following way:
Is there a spot after Mecca and Medina over which Muslim hearts hover more than Jerusalem, the first Muslim Qibla, to which worshippers come from all corners of the earth. The prayers on the land of al-Aqsa mosque equals five hundred prayers elsewhere except for the two holy mosques. Jerusalem is the cradle of religions and the shelter of prophets … The nocturnal journey was a blessing from God to the land of Palestine. This journey did not take place to any other capital or city in the world, but only to Jerusalem in order to make it the sister of Mecca in history, and in order for the Muslims to know that the concession of Jerusalem is just like conceding Mecca and Medina. 11
Like the Palestinian Islamic groups, Arab Islamic movements do consider Jerusalem, indeed the whole of Palestine, which derives its religious sig¬nificance from Jerusalem, a Muslim religious endowment (waqf). Muhammad Hamid Abu al-Nasr, the Supreme Guide of the Egyptian Muslim Brotherhood Society which delineates doctrinal attitudes for the Muslim Brotherhood Societies in Arab countries, including Hamas, states:
We have never bargained and we shall never bargain over the land of Palestine. Palestine, all of Palestine, belongs to all the Muslims. The link between Palestine and the Muslims is derived from their commitment to the doctrine and the shari’a … Therefore, bargaining over Palestine means bargaining over our faith, our shari’a and our holy shrines. It also means renouncing and disavowing our history, our martyrs, and our heroes … Relinquishing Palestine is an act of treason … Allah ruled that we should not relinquish our homelands to our enemies. He made it imperative for us to seek the means of power and strength, and to strug¬gle against the enemies in order to regain what was usurped from us. This is the verdict of Allah and we shall not violate His verdict… 12

Jerusalem’s Centrality to the Palestinians
Islamic scholars and authorities in other Arab states, described as moderate, reiterate similar positions on Palestine. The pronouncements of these schol¬ars and authorities play a role in defining the positions of their governments towards the Palestinian issue. Sheikh Abd-al-Aziz Bin Baz, the most promi¬nent religious scholar and authority in Saudi Arabia, argues that “the Palestinian problem is an Islamic problem first and last” and that the Muslims “must fight an Islamic jihad against the Jews until the land returns to its owners.”13
Because of its significance to Muslims and Islamists alike, Jerusalem assumes political significance to rulers and governments that wish to enhance their religious legitimacy. Reference to Jerusalem by PLO Chairman, Yasser Arafat, as the “capital of the Palestinian state,” the site of the al-Aqsa Mosque, and the seat of Muhammad’s nocturnal journey is a constant part of Arafat’s discourse on the Palestinian issue. Arafat is fully conscious of the centrality of Jerusalem to the Palestinian people and to the Palestinian Islamists in particular whose attitude can be particularly con¬straining to the PLO leadership. The charter of Hamas states:
The land of Palestine is an Islamic waqf for Muslim generations until the day of judgment. It is inadmissible to abandon it or a part of it, or to con¬cede it all or a part of it… Who has the right to decide on behalf of the Muslim generations from now until the day of judgement? 14
As in Arafat’s speeches, and even more so, Jerusalem is a fixed item in King Hussein’s speeches and statements, the reason being the King/s awareness of the place that Jerusalem occupies in the hearts and minds of his subjects, and his desire to stress his special link to the city as a descendant of the Prophet. Ever since Jerusalem and the rest of the West Bank were annexed to Jordan in 1950, the Hashemite regime took care of the city and of the holy places in it. Jordan has continued to administer and service the holy places in Jerusalem even after the Israeli occupation and annexation of the city.
Attempts by the Saudi monarch, King Fahd, to service the holy places in Jerusalem created open Jordanian anxiety. The regime of King Hussein saw these attempts as an impingement on Jordanian responsibilities. The competition over Jerusalem emanates from the historic and deep-seated suspicion between the Hashemites and the Saudi family.
Donations made by King Hassan of Morocco, on the other hand, to refurbish al-Aqsa Mosque did not arouse Jordanian concern. King Hassan, the Commander of the Faithful in his country, does not aspire to challenge the Jordanian special relationship to the city. His symbolic act was perhaps sufficient to convey a message and a reminder to his people that Jerusalem is present in his heart and mind.
The late Egyptian president, Anwar al-Sadat, conscious of the religious and symbolic significance of Jerusalem to Arabs and Muslims, including those in his country, went to al-Aqsa Mosque for prayer during his visit to Israel in 1977 in an attempt to mitigate political opposition to his visit. In fact, his assassina¬tion at the hands of Muslim militants in 1980 might be attributed to his failure to save Jerusalem from Jewish control, as the Egyptian-Israeli peace treaty did not address the issue of Jerusalem or challenge Israel’s annexation of the city.
Israeli measures in the city have acted as cause and catalyst, inflaming Muslim fundamentalist sentiments. Israel’s annexation of East Jerusalem after the 1967 war, and Israeli statements claim of the “united” city as the eternal capital of Israel fill Palestinian and Arab Islamists with anger and resentment.
Immediately after the occupation of the city, Israel destroyed the Maghariba quarter and evicted its Arab inhabitants. Israel transformed the quarter into an open square in front of the Wailing Wall for Jewish prayer. With the destruction of the quarter, two mosques, al-Buraq and al-Afdali, were also destroyed. In August 1968 a fire was set in the al-Aqsa Mosque, destroying its furniture, altar and some of its walls. The Muslims held Israel responsible and condemned it for complicity.
Al-Aqsa Mosque was also the object of repeated attempts of sabotage. In March 1980, explosives were found there, and in April 1982, an Israeli sol¬dier attacked the Dome of the Rock, killing two Palestinians and injuring forty-four others. In March 1983, a group of 46 Israelis brought explosives and placed them in the area underneath al-Aqsa Mosque; they were dis¬covered by the guards of the Mosque.
Extremist Jewish groups continue their encroachment on Muslim holy sites. One such extremist group, the Temple Mount Faithful, has repeated¬ly tried to enter al-Haram ash-Sharif to lay the cornerstone for building the Third [Jewish] Temple. During one attempt, on October 8, 1990, five thou¬sand Palestinians were on the site trying to prevent the group from enter¬ing al-Haram. A clash ensued between Palestinian and Israeli troops on the scene resulting in the death of 21 Palestinians and the injury of 150 others. Israeli excavation activities in the city are not perceived by Palestinian and Arab Islamists as innocent acts but as part of Israeli designs on the city.

No Political Solution Without Jerusalem
Jerusalem is part of the struggle for Palestine which ensued in the wake of the Balfour Declaration of 1917 and the British Mandate of 1922. When the United Nations Partition Plan of 1947 suggested the internationalization of Jerusalem, both the Jews and the Arabs in Palestine rejected the proposal, the Muslim rejection emanating from the view of Jerusalem as a Muslim religious endowment.
Exclusive claims to Jerusalem which are inscribed in holy scripts make compromise political solu¬tions to the problem of the city rather difficult. A per¬manent solution to the problem of Jerusalem is contingent on a solution to the question of Palestine, and vice versa. But no permanent solution to the Palestinian question is likely to take place without the resolution of the issue of Jerusalem. So far, Jerusalem remains one of the main obstacles to the realization of peace between the Palestinians and the Israelis.
The deliberate dismissal and postponement of the issue of Jerusalem might have been a primary reason for the strong Islamic opposition to the peace process. When the Palestinians went to the Madrid peace conference of October 1991, Jerusalem was not included among the documents of the conference, and Palestinians from East Jerusalem were not allowed to be members in the official delegation to the conference. In opposition to the Madrid peace conference, Arab and Palestinian Islamists hastened to take part in a con¬ference that was held in Teheran to condemn the Madrid conference and Arab and Palestinian participation in it.
Jerusalem was also absent from the Palestinian-Israeli agreement as illustrated in the Oslo Declaration of Principles, signed in Washington on September 13, 1993. Jerusalem was once again postponed to negotiations on the final status of the Occupied Palestinian Territories. The Oslo agreement was severely criticized by Arab and Palestinian Islamists. Islamic movements in Egypt, Jordan, Kuwait, the United Arab Emirates and elsewhere issued sep¬arate statements rejecting the agreement particularly because it failed to address the question of Jerusalem in addition to other issues. Palestinian Islamists issued statements to the same effect and vowed to continue the strug¬gle against Israeli occupation. Both Hamas and the Islamic Jihad attacked PLO Chairman, Yasser Arafat, personally and accused him of national treason.
Israel’s declared insistence on considering “united Jerusalem” as the eternal capital of Israel is likely to complicate efforts at finding a common denominator between the Palestinians and the Israelis regarding an accept¬able agreement on the city. In this sense, Jerusalem may continue to be an issue of severe contention between the two sides. The nature of the solu¬tion of the issue of Jerusalem is bound to condition the attitude of Palestinian and Arab Islamists toward an Arab-Israeli peace. If control over Arab Jerusalem, and definitely over Muslim religious sites, is not granted to the Palestinians, the Arabs, or the Muslims, the city will remain a source and symbol for Muslim resentment, indoctrination, mobilization and per¬haps agitation and struggle.
These ideas were first presented in a paper prepared for the Tantur Conference, May 29-June 1, 1994. 


1 Ibrahim Abu Lughod, “Jerusalem – Islamic Perspective II:’ in O. Kelly Ingram, ed., Jerusalem: Key to Peace in the Middle East (North Carolina: Triangle Friends of the Middle East, 1977), p. 53. 

2 A. L. Tibawi, “Jerusalem: Its Place in Islam and Arab History,” in Ibrahim Abu-Lughod, ed., The Arab-Israeli Confrontation of June, 1967: An Arab Perspective (Evanston: Northwest University Press, 1970), p. 12. 

3 Ishaq Musa Husaini, “Jerusalem in Islamic Perspective:’ in O. Kelly Ingram, Ibid., p. 41. 

4 Tibawi,op cit., p. 12. 

5 Ibid., p. 14. 

6 Husaini, op cit., p. 41. 

7 Tibawi,op cit., p. 18. 

8 Husaini,op cit., p. 39. 9. 

9 Tibawi,op cit., p. 21. 

10 Ibid., p. 48. 

11 The Islamic Resistance Movement (Hamas), “The Anniversary of the Nocturnal Journey Is an Escalation to the Blessed Resistance” (Al-Isra’ wal-Mi’raj Tas’id lil-Muqawama al¬Mubaraka), a leaflet issued on March 13, 1988. 

12 Muhammad Hamid Abu-al-Nasr, “Our Stand Toward the Settlement.” A statement from the Supreme Guide of the Muslim Brotherhood in Egypt, May 26, 1991.

13 James Piscatori, “Religion and Realpolitik: Islamic Responses to the Gulf War:’ in James Piscatori, Islamic Fundamentalism and the Gulf Crisis (Chicago: The American Academy of Arts and Sciences, 1991) p. 6, originally quoted from Abd-al-Aziz Bin Baz, Majmu’ Fatawa wa Maqalat Mutanawwi’a (Collection of Fatawas and Miscellaneous Articles) (Riyadh: al-Idara al-‘ Amma li’l- Tab’ wa’l Tarjama, 1408 A.H./1987), p. 271. 

14 Mithaq Harakat al-Muqawama al-Islamiyya (Hamas) [Charter of the Islamic Resistance Movement (Hamas)), August 18, 1988, p. 11.



Dr. Ziad Abu Amr (Arabicزياد أبو عمرو‎; born 1950) is a Palestinian politician, author, and member of the Palestinian Legislative Council. From 18 March 2007 to 17 June 2007, he was Foreign Minister of the Palestinian National Authority. On 6 June 2013, Ziad Abu-Amr was appointed as Deputy Prime Minister of the Palestinian Authority by President Mahmoud Abbas.[1]


Mosque Jerusalem 1





#Zionist #LandThievery #HistoricalRevisionism: Conflict over #Waqf property in #Jerusalem!

Vol. 3 (2015) pp. 97-110
Conflict over Waqf property in Jerusalem:
Disputed jurisdictions between civil and Shari’a courts | Haitam Suleiman | Vol. 3 (2015) | Editor-in-Chief Prof. Dr. Andrea Büchler, University of Zurich,

Switzerland Editorial Board
Prof. Dr. Bettina Dennerlein, University of Zurich, Switzerland
Assoc. Prof. Dr. Hossein Esmaeili, Flinders University, Adelaide, Australia
Prof. Dr. Clark B. Lombardi, Director of Islamic Legal Studies, University of Washington School of Law, USA
Prof. Dr. Gianluca Parolin, American University in Cairo, Egypt
Prof. Dr. Mathias Rohe, Friedrich-Alexander-Universität
Erlangen-Nürnberg, Germany
Dr. Eveline Schneider Kayasseh, University of Zurich,
Dr. Prakash A. Shah, Queen Mary, University of London, UK
Dr. Nadjma Yassari, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany
Vol. 3 (2015) | Published by
The Center for Islamic and Middle Eastern Legal Studies (CIMELS), University of Zurich, Zurich, Switzerland

Suggested citation style
Electronic Journal of Islamic and Middle Eastern Law
(EJIMEL), Vol. 3 (2015), pages,
ISSN 1664-5707

Conflict over Waqf property in Jerusalem:
Disputed jurisdictions between civil and Shari’a courts by Haitam Suleiman*
Table of Contents
I. Introduction: legal pluralism & disputes over waqf property …………………………….98
II. The Revival of waqf…………………………………………………………………………………………..98
III. Waqf in Palestine/Israel: special status …………………………………………………………..100
IV. Waqf land in Jerusalem: special status……………………………………………………………104
V. Conclusion……………………………………………………………………………………………………..108

Recent revisionist academic legal historians have relocated the Israeli national story within a colonial and
postcolonial narrative, and in a global context indigenous groups dispossessed from their communal and ancestral
lands are increasingly re-asserting claims to that land through legal and human rights challenges, deploying
international human rights law relating to rights to property and minority rights. Waqf property (held in charitable
trust for religious purposes) is an important element in Muslim societies, and has been subject to large-scale
transfer to Jewish control since the creation of the state of Israel in 1948 (‘redeemed’ for the Jewish people). The role of successive Absentee Property Laws in this confiscation derives from Ottoman land tenure, as modified during the British League of Nations Mandate over Palestine, and subsequently. The Israeli legal system has, devised and
utilised various modalities and mechanisms to systematically confiscate Palestinian land in general and more
specifically the waqf, while also re-establishing shari’a courts and replacing the shari’a court of appeal in Jerusalem.
Mutawallis (managers of waqf) have to undertake ‘forum shopping’ for search for the most suitable court (between
Israeli civil and shari’a courts and the Palestinian shari’a court) to get and enforce a favourable judgment, but the
new structures leave Palestinians with no legal authority over the administration of the waqf system. Recent legal
disputes over the status of certain mosques and cemeteries (as waqf properties), and the special situation of waqf property in Jerusalem Old City are examined as sites of Palestinian resistance.

* Haitam Suleiman is a Palestinian living in Israel and currently Assistant Professor in Law at al-Quds University,
Jerusalem. This paper is based upon his PhD from Anglia Ruskin University (2009) on Reviving the Waqf in Palestine/Israel.

Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
I. Introduction: legal pluralism & disputes over waqf property

This article explores the conflict over land in Israel/Palestine, within a context of postcolonial legal pluralism, with particular reference to Islamic property held for religious charitable
purposes (the waqf). Israel/Palestine inherits several legal traditions, offering often conflicting sources of legitimacy: Islamic, as applied by the Ottoman empire until 1918, and more recently
by Jordan in the West Bank and Egypt in Gaza; British colonial, under the League of Nations Mandate (1923-48); and post-1948 Israeli, with borrowings from United States and European jurisdictions. British colonialism’s role in building the Israeli state has been re-asserted by Shamir:

“Too little attention has also been given to the basic fact that the British, aided by all their colonial experience elsewhere, created and installed a functioning state in Palestine: a rather advanced web of administrative apparatuses and governmental departments, a sound infrastructure and, of course, a fully-developed, ready-to-use legal system”.
English-language literature on waqf in Israel/Palestine is limited, and relevant legislation and court rulings are often unpublished, or unavailable in English. This article is able to draw upon
field research undertaken by a Palestinian Arab living in Israel, Haitam Suleiman, with Arabic,
Hebrew and English language competence, and aware of nuances of language, even body language, and cultural background. Interviewees may have sought to mislead, where questions
dealt with controversial and sensitive issues, and officials may withhold information, while the field-work was risky and interrupted by the current conflict.

II. The Revival of waqf
Waqf [pl. awqaf] in Arabic means hold, confinement or prohibition, and in Islamic shari’a law is a juridical institution for the reservation of property for religious purposes. A waqf is
established by a living man or woman (the waqif = founder), who holds a certain revenue producing property and makes the (principal), inalienable in perpetuity, prohibited from sale, gift and inheritance. The property is placed under the stewardship of a fiduciary (wali or
mutawalli) who assures that the revenues pass to the intended beneficiaries (mustahiqeen).

Under Shari’a law, while sadaqa (charity) should reach only the poor and needy, waqf can be directed to both poor and rich; Sadaqa may be owned, sold, or granted, but the waqf is perpetual, with no intervention in ownership, and is confined to fixed property, or things that
have sustainable reserved revenues. There are three basic kinds of waqf. The first, the Khairy or charitable waqf, directs property revenues towards philanthropic goals. The second, the Ahli or family waqf, benefits family members, with the endower choosing what individuals and what lines of descent benefit; administrators are family members, and the revenue-bearing assets
1 RONEN SHAMIR, The Colonies of Law: Colonialism, Zionism and Law in Early Mandate Palestine, Cambridge 2000, at 11.
2 SIRAJ SAIT & HILARY LIM, Land, Law and Islam: Property and Human Rights in the Muslim World, London 2006. See also,
MUSTAFA AHMAD ZARGA, Ahkam al-awqaf, [Awqaf Rulings], Dar ‘Ammar 1998.
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
circulated indefinitely.

3 Finally, the Mushtarak or joint waqf, divided the revenues between
philanthropy and family.
Interestedly, given the contested state of waqf in Israel, the very first waqf was created by a Jewish convert to Islam who bequeathed his wealth to the Prophet for the benefit of the poor and needy. The juridical form of the waqf took shape in succeeding centuries and the jurist Abu
Yusuf (d. 798) asserted that a waqf was valid only if irrevocable and made in perpetuity. 4
Its perpetuity element distinguishes the waqf from the trusts and foundations found in Western legal systems, but it apparently influenced the early English trusts during the time of the crusades, when there was much population movement between Europe and the Holy Lands, including the Franciscan Friars. The University of Oxford in its early years may have been influenced by the waqf, with the 1264 Statutes of Merton College (significant in the founding of
the college system) showing Islamic influences.5
Awqaf flourished with the establishment of Muslim-ruled states, offering a means of diverting resources from consumption, and investing them in productive assets to provide either usufruct or revenues for future consumption by individuals or groups of individuals.6 Awqaf served many functions. They provided educational institutions with buildings, teaching materials, staff salaries, and scholarships for poor students, derived from the revenues of orchards and rental buildings, and independent of the state. They provided health services,
public kitchens, orphanages, environmental protection and animal care. Awqaf stimulated economic activity, providing shops at low rent, public water fountains, and accommodation for
commercial caravans. A range of public goods now provided by government agencies in the past came through private waqf, which have been called the most important and universal economic institution of Islamic society with reflective influence on the tax structure of the state, the redistribution of wealth in society and the urban fabric of Islamic cities.7 The waqf was an urban institution that shaped the civic space of Ottoman cities, 8 while waqf property was
estimated at over a third of the agricultural land in Turkey, Morocco, Egypt and Syria. In Recent times modern states in the Middle East however nationalized vast waqf properties,
while new municipal government services increasingly supplanted the waqf. Legislation brought waqf under greater regulation or absolute prohibition, and contributed to the
prevalence of secular law over shari’a principles, resulting in the stagnation of waqf. The family waqf was restricted, and some states forbade new creations, with the stipulations of waqf founders no longer treated as ‘sacred and inviolable’. The state claimed that the waqf was no
longer serving its original purposes, and it could administer them better. The eclipse of waqf has left a vacuum in the arena of public services; students, the sick, homeless, travellers, the 3 TIMUR KURAN, The Provision of Public Goods under Islamic Law: Origins, Contributions, and Limitation of the Waqf System, Law and Society Review, vol. 35, no. 4 (2001) 841-897, at 856.
4 PETER C. HENNIGAN, The Birth of a Legal Institution: The Formation of the Waqf in Third-Century A.H. Hanafi Legal
Discourse, London 2004.
5 MONICA M. GAUDIOSI, The influence of the Islamic Law of Waqf on the Development of the Trust in England: the Case of Merton College, 136 University of Pennsylvania Law Review (1988) 1231-1261.
6 MONZER KAHF, Financing the Development of Awqaf Property, Seminar Paper, IRTI, Kuala Lumpur, Malaysia, March 2-4, 1998.
7 FRANCIS EDWARD PETERS, Jerusalem and Mecca: The Typology of the Holy City in the Near East, New York 1986.
8 RICHARD VAN LEEUWEN, Waqfs and Urban Structures: The Case of Ottoman Damascus, Studies in Islamic Law and
Society, vol. 11, Leiden 1999.
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
poor and prisoners are only some of the vulnerable who have lost the protection of the waqf.
The waqf is, however, showing signs of reinvigoration, with Awqaf properties occupying a
growing share of the societal wealth of Muslim countries and those with significant Muslim
minorities. Since the oil crisis of the 1970s Islamic banking has developed new tools of finance,
and waqf has emerged as a non-profit ‘third’ sector, distinct from the profit-based private sector
and the official public sector. Its institutional protections are making it again a main actor in
the social and economic life of Muslims.
III. Waqf in Palestine/Israel: special status
As the waqf in main is a form of property or a land, therefore its legal influence should be
attributed to the conflict over the land, ‘generally’, in the Middle East. The literature indicates
that the waqf properties as the land in general were influenced by different and various means,
mechanisms and law from those who ruled Palestine in the last two centuries. Before one
proceeds to discuss the law of waqf in Palestine it is necessary to understand first the history of
the legal system in Palestine followed by discussing the land laws in Palestine as this will help
to comprehend the entire legal issues related to waqf law. Palestine is regarded a special case
with a different status at all levels. The legal position in Palestine is simultaneously both one of
the most complicated and most rare situations. The legal system in Palestine emerged in
unsteady circumstances due to the several powers that ruled Palestine through history. The
partition of Palestine led to the creation of complex and different law systems in the West
Bank, Gaza Strip and Jerusalem in addition to the parts of the country which were occupied in
1948. The legal system in Palestine was based on the principles of the Islamic shari’a law until
the end of the Ottoman rule in 1917. The British Mandate followed and remodelled the legal
system, along with the Ottoman law-making the British introduced the principles of the AngloSaxon
system, which is based on Common Law. While the West Bank with eastern Jerusalem
inclusive was under the rule of the Hashemite Kingdom of Jordan in 1948, and the Jordanian
legal system, which is influenced by many other systems prevailed. The Gaza Strip was under
the Egyptian administration where the joint legal system of the former British Mandate
prevailed. Later the Israeli occupation imposed its military law on the West Bank and the Gaza
Strip after the 1967 war and put eastern Jerusalem subject to the local law of the Israeli occupier
after annexing it in 1980. After the Oslo Accord, the Palestinian Authority was found and the
jurisdiction of the new authority was agreed upon. The Palestinian legislators then started to
unifying and harmonizing the diverse legal systems prevailing in the Palestinian territories.
Since 1994 unifying legislation has been enacted for both the West Bank and Gaza Strip.10
Most waqf properties in Israel was expropriated under the Absentee property Law, and it is one
of the most sensitive and complicated issues in the Palestinian-Israeli conflict. Israel claims 93
per cent of its territory as public domain for the Jewish faith, and the process has isolated and
contained the surviving Arab communities within Israel, while the rest of the Palestinian
people have been displaced to peripheral locations (Gaza, the West Bank), which Israel has
9 MONZER KAHF, Towards the Revival of Awqaf: A Few Fiqhi Issues to Reconsider, Presented at the Harvard Forum on
Islamic Finance and Economics, October 1, 1999. See also, SAIT & LIM, supra n. 2.
10 HAITAM SULEIMAN & ROBERT HOME, ‘God is an Absentee, too’: The Treatment of Waqf (Islamic Trust) Land in
Israel/Palestine, Journal of Legal Pluralism and Unofficial Law, (41:59; 2009), 49-65.
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held under military occupation since 1967 and also has control of most of the land. During the
period 1918-48 land dominated the efforts of the British Mandate. Among the first actions of
the occupying British were to close the Ottoman land registers, prohibit all land transactions
until a new registry was installed, and transfer much jurisdiction in land matters from Islamic
shari’a courts to new secular land courts. The British colonial regime therefore had occupied the
Palestinian legal systems.
The British established a Supreme Muslim Council in 1921, with a president and four members,
to manage Shari’a affairs in Palestine. Its waqf activities from 1921 to 1936 were impressive:12
 Twenty-one new mosques and three minarets built, and 313 mosques repaired (notably
the Al Aqsa mosque in Jerusalem).
 224 new properties built, and 300 repaired, including shops, houses, and the waqf
building (originally the Palace Hotel in Jerusalem, after 1948 used as Government
 draining swamps, planting trees on waqf lands, and enlarging waqf lands by the purchase
of about 25,000 dunums.
 maintaining schools and scholarships for Muslim students to universities in Egypt, Syria,
and Europe.
 establishing a Moslem orphanage, training midwives.
In 1948 waqf land was estimated to comprise a sixth of the country, but estimates are unreliable,
and the Israeli government does not disclose (and may not hold) data on the extent of waqf. In
1980 the Custodian of Absentee Property estimated that about 70 percent of the land of the
state of Israel might potentially have two claimants – an Arab and a Jew holding respectively a
British Mandate and an Israeli deed to the same property.13
The concept of absentee was recognised in Ottoman law, which distinguished different
categories of absenteeism, and absentee property was theoretically held in suspense or trust.14
After 1948 Israel applied the term to the Palestinians displaced from Israel (usually over
relatively short distances, into Arab-controlled territory).15 The new Israeli state reformulated
regulations devised in 1939 by the British for wartime conditions, as the 1949 Emergency
Regulations on Property of Absentees. A Custodian of Absentee Property was instituted,
similar to the preceding Mandate Custodian of Enemy Property. The first Emergency
Regulation (Absentees’ Property) Law 1948 was contained in the Absentees Property Law 1950.
Absentee land could be restored in only very restricted circumstances: if the absentee could
prove that it was ‘for fear that the enemies of Israel might cause him or her harm’ or ‘otherwise
11 JOHN STRAWSON, Reflections on Edward Said and the Legal Narratives of Palestine: Israeli Settlements and Palestinian
Self-determination, Penn State International Law Review vol. 20 (2002) 363-384.
12 MICHAEL DUMPER, Islam and Israel: Muslim Religious Endowments and the Jewish State, Washington DC 1994.
13 DUMPER, supra n. 12.
14 FREDERIC M. GOADBY & MOSES J. DOUKHAN, The Land Law of Palestine, Tel Aviv 1935.
15 SULEIMAN & HOME, supra n. 10.
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than by reason of fear of military operations’. The APL caused the confiscation of two million
dunams and given to the custodian, who later transferred the land to the development
authority. After the establishment of Israel in 1948, state-owned lands previously in the
possession of British Mandatory Authorities, and the property abandoned by Arab refugees
passed into the control of the new Israeli administration. Waqf ownership passed from Muslim
hands to the Custodian, who on behalf of the state could convey the properties to Jewish
hands, disregarding shari’a law. Israel did not distinguish between waqf property and any
other land, and the Custodian of Absentee claimed waqf property on the ground that the
Supreme Muslim Council became an ‘absentee’ because most of its members were refugees.
Thus the Custodian was a conduit through which land passed to the Israeli Development
Authority, and later the Land Authority, as a means of ‘laundering’ confiscated Palestinian
land. The Absentee Law 1950 prohibited the shari’a court from their rights to supervise the
awqaf properties. The Israeli high court held that the custodian was neither a trustee over the
‘absent’ property or for the original owners of the properties, nor responsible for their
management, and the absentee was not entitled to take legal action against the custodian.16 The
five Ottoman tenure types, which were as follows:
 Mulk land (fully-owned urban freehold property). The 7 per cent of the land of Israel still
in private ownership is mostly former mulk land, mostly located within Arab villages.
 Miri land. This had heritable use rights, and could revert to the state if not cultivated
after three years (mahlul), and then be auctioned to anyone prepared to cultivate it. Miri
land represented most of the cultivable land and, where not forfeited by the refugees of
1948, was mostly acquired by the Israeli state through various means, particularly strict
application of the three-year rule. Any land shown by aerial photography as not
cultivated for a sufficient period was forfeited, not back to the village but to the state, by
means of an official declaration in words: ‘I hereby declare that the area specified in the
appendix is government property’, the appendix being a rough boundary line on the
aerial photo. This declaration was sent to the village head and posted on the land
(usually left under a stone), or made orally. The onus of proof for any counter-claim then
fell to any prior owner, who had 45 days to commission a cadastral survey and lodge an
appeal, but many owners would be unaware of the declaration, and few could afford to
mount a defence, especially when they had little hope of success in court.17
 State land required for public purposes (in Turkish matruka, meaning withdrawn) and
registered with the state or local authority. This included military bases, roads, forest
land and public open spaces within villages.
 Dead land (mawat), i.e. uncultivated, unirrigated and vacant land, needing government
consent to bring into cultivation. Islamic law defined ‘dead land’ as sufficiently far from
an inhabited place (a distance regarded as in practice a mile and a half) that a human
voice could not be heard. Mawat included the Negev desert and the 3000 of
16 Court Case of Civil Appeal 58/54 Mahmud Habab v. Custodian of Absentee Property, (1956) 10 PD 912.
17 SANDY KEDAR, The Legal Transformation of Ethnic Geography: Israel Law and The Palestinian Landholder 1948-1967,
New York University Journal of International Law and Politics, vol. 33, no. 4 (2001) 945-949.
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mountain and desert east of Hebron, Jerusalem & Nablus. Article 6 of the Mandate made
it and matruka land available for Jewish settlement.
 Waqf land, held in trust for Muslim religious and charitable purposes. This was
confiscated by the state of Israel after 1948, when it comprised a sixth of the count.
A significant law in the confiscation of Palestinian lands, including waqf land, was another
modification of Mandate emergency regulations (a term carefully retained in its title: the
Emergency Regulations (Cultivation of Waste Lands) Law, amended in 1951. This law derived
legitimacy not only from Mandate law but also the Ottoman land code, which had provided
for special commissions to record abandoned villages and reclassify vacant land lying idle and
‘exposed to the sun’ (shamsieh) as state domain. Much of the land abandoned by the
Palestinians in 1948 was not recorded in the Ottoman or Mandate land registers, as many did
not register their land for fear of tax collectors and military conscription. While much urban
property was held freehold (mulk in the Ottoman system), agricultural land was classed as
Miri, in which formal and ultimate ownership was held by the State, and which if uncultivated
for three years could be reclaimed by the state. The Palestinians’ culture of the sacred waqf is
reflected in their treatment of waqf plots, often olive groves, cultivated by community
volunteers, who would afterwards meticulously clean from their clothes traces of the sacred
waqf soil. The 1951 Law, however, empowered the Ministry of Agriculture to declare lands as
‘waste’ lands (Article 2) and to take control of ‘uncultivated’ lands (Article 4). Such land could
thus be confiscated without having to confirm the absentee status of owners.
Another important law was the so-called 1965 amendment, described by Israeli scholars as a
‘reform’ of the waqf in Israel: the Absentees’ Property (Amendment No. 3) (Release and Use of
Endowment Property) Law 1965). In 1956 the Board of Trustees of the Muslim waqf, which by
then was made up of collaborators appointed by the government, who would sell or exchange
land with the ILA unaccountable to the Muslim community, leading to violence within the
community, including assassinations. The 1965 amendment represented a further stage in the
confiscation of any remaining Muslim awqaf. Authorising the transfer of waqf property to the
Custodian, denying the conditions that were attached when the property was endowed, and
ensuring that property confiscated from the waqf would not be returned, regardless of whether
the mutawalli or the beneficiary is ‘absentee’. The law empowered the Custodian to pass the
property to the Development Authority or to board of trustees, ostensibly to prevent its
neglect, but in practice to sell it for development, contradicting the fundamental perpetual
characteristic of waqf land. The Law freed the remaining waqf from restrictions under shari’a
law, and restricted the political use of funds generated from those awqaf. The amendment
granted the state a further tool to transfer the remaining waqf properties from Muslim hands to
the Jewish community through the use of Muslim ‘state appointees’ to a board of trustees. The
board fulfilled the wishes of the government that appointed them and they did not acquire
either any independence from the government or gain any credibility from the Muslim
community. Section 4 of the 1965 amended law puts all Muslim sacred places at risk, since the
custodian was authorised to sell them, and has no obligation to protect them. The effect of a
succession of Absentee Property Laws has precluded Muslims from protecting and
maintaining their sacred places, many mosques and cemeteries were subsequently transferred
by the custodian to the development authority, which sold on to Jewish investment companies,
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and in the end many mosques and cemeteries were converted into museums, cafes, restaurants
or even synagogues. The remaining mosques which have not been sold are deserted, and
cannot be maintained and used by Muslims who are denied access to them.
IV. Waqf land in Jerusalem: special status
The situation with waqf property is particularly complicated in Jerusalem, because of its special
status under international law. Waqf represents some 90 percent of property within the Old
City (both Islamic and Christian).18 During the Mandate the Palestinians used waqf properties
as a buffer against the sale of land to the Jews. Jordan continues to exercise its sovereignty and
law over waqf institutions in Jerusalem through the Ministry of Waqf in Amman, and, while
Jordanian law became obsolete with the establishment of the Palestinian Authority (PA) in the
West Bank and Gaza, it still forms the legal basis for some institutions in Jerusalem where the
PA is not allowed to function.19 Jordanian control allowed the decline of waqf until 1967: only
16 new awqf were founded in Jerusalem during the 19 years of Jordanian rule, compared with
90 under the first 23 years of Israeli occupation (1967-1990), giving the waqf a central position in
Palestinian society.20 Many Jerusalem residents rent from waqf institutions. Since 1967 rents
agreed under Jordanian rule are not recognised by Israeli law, and have not increased in line
with inflation, resulting in dilapidation of much waqf property in the Old City. Israel
maintained the sovereignty of Muslim institutions and the Waqf in East Jerusalem (including
the Old City) remains under the relevant authorities in Jordan. Individual waqf property is
recorded in the Shari’a Court in Jerusalem and in the Department of Islamic Awaqf, but the
extent of waqf property in the Old City is not publicly available. Cases decided by the Shari’a
Court in East Jerusalem on rent or tenancy issues could only be enforced by the civil courts,
which are Israeli and so not recognised by the Shari’a Court. The mutawalli of family waqf
cannot resolve waqf property disputes, because a Palestinian court decision cannot be enforced,
while they refuse to take action in the Israeli shari’a court because this would be recognizing its
jurisdiction over Jerusalem. As a result of this ‘void in legal authority’, the family waqf
managers and the Administration have had to rely on moral and community pressure to
enforce decisions. Investment in property and establishing new awqaf were neglected as a
result of the uncertainty and the ambiguity, leading to property blight in Jerusalem particularly
in the Old City.21 The Tenancy Protection Act of 1954 provides that a tenant cannot be evicted
either for non-payment of rent, alterations, or sub-letting if resident for more than fifteen years.
Additionally most leases allow a tenant to sub-let with mutawalli having no control over the
sub-letting but still responsible for upkeep. Rent increases were linked to the cost of living
index, but only for rents charged in Israeli shekels, while most properties in the Old City are
charged in Jordanian dinars, tenants can avoid rent increases with support from Israeli courts.
Therefore, some landlords had changed rents to Israeli shekels, seen as more stable than
Jordanian, but deflation of the Israeli currency devalued these rents, while Israeli law prohibits
18 SAMER BAGAEEN, Evaluating the Effects of Ownership and Use on the Condition of Property in the Old City of Jerusalem,
Housing Studies, vol. 21, no. 1 (2006) 135-150.
19 YITZHAK REITER, Islamic Institutions in Jerusalem: Palestinian Muslim Administration under Jordanian and Israeli Rule,
The Hague/London/Boston 1997, at 27-28.
20 YITZHAK REITER, Islamic Endowments in Jerusalem under British Mandate, London/Portland 1996.
21 DUMPER, supra n. 12.
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lease revisions or eviction of tenants.22 Commercial and cultural activities could flourish with
Palestinians avoiding the full control of Israel, but investment and development were
neglected because of legal uncertainties and ambiguities, as the field-work revealed. The Israeli
district court issued an initial decision allowing itself the right to review cases related to
Islamic Waqf property in Jerusalem but with the potential to be applied all over Palestine.
1. The battle in courts
In 1951 the Ministry of Religious Affairs and the Custodian agreed that the ministry would be
directly responsible for the management of sacred places, despite the fact that they are
considered as ‘absentee’ properties, approved by the government in 1952.
The Protection of Holy Places Law 1967 (Article 1) states that:
“The Holy Places shall be protected from destruction and any other violation
and from anything likely to violate the freedom of access of the members of
different religions to the places sacred to them or their feelings with regard to
those places”.
This guarantee was inserted to neutralize international public opinion, but there was no clear
definition of ‘sacred place’ in the Israeli legal system. Adjudication is still governed by a 1924
Mandate law, upheld by the Israel Supreme Court, with matters relating to religious rights in
the Holy Places (including disputes between denominations of the same religion, and between
religions) decided by the government, and not adjudicated in the courts. About a third of
Muslim waqf property, principally mosques and graveyards still in use, was not expropriated
after 1948, but various approaches have been deployed to obtain the rest. More confiscations of
mosques and cemeteries are occurring, contrary to Islamic law. In the beginning of the 1990’s,
the Islamic Movement in Israel started to survey the waqf properties, intending to protect and
develop them, and to prevent attempts by Israeli authorities to change their status and sell
them off through the state-appointed trustees. Among the disputes over waqf properties was
that involving the Muslim cemetery of Haifa, (Jamia’ al-estiqlal) used since the Mandate. In 1993
the shari’a court in Haifa confirmed an agreement between two mutawallis of the in Haifa and
an Israeli company regarding a deal to develop the site, but some months later one of the
signatory mutawallis applied to the shari’a court to cancel the agreement, since the same qadi
Zaki Midlij who permitted the agreement disowned it. The mutawalli then applied to the High
Court, relying on an additional statement of qadi Midlij, in which he claimed he had been coerced
under armed threat from the company’s lawyer. The police questioned the qadi, who was
convicted and resigned as a qadi of the shari’a court of appeal. The two parties agreed to
transfer the case to the civil court in Haifa, where it is still pending. The Adalah organisation
petitioned the Supreme Court in the name of Muslim religious leaders to demand legal
recognition for the Muslim Holy Places in Israel. A special committee was formed in 2000, to
investigate the situation of Arab holy sites, with representation from the Ministry of Religious
Affairs, the Ministry of National Infrastructures, the Israel Lands Administration, and the
22 Information from Field-work interviews undertaken by the present writer in 2008.
23 SHMUEL BERKOVITS, “How dreadful is this Place!” Holiness, Politics, and Justice in Jerusalem and the Holy Places in Israel,
Carta Jerusalem 2006.
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Regional Committee for Arab Local Councils. The committee prepared a plan for abandoned
non-Jewish holy sites, compiling a list of 53 Muslim holy sites and 58 abandoned Muslim
cemeteries, but the Ministry of Religious Affairs did not implement the committee’s
In Bhmr 1931/97 the Israeli civil court held that a mosque should be considered as a sacred
place only if the property itself is sacred (the use in itself being insufficient). In Islamic law,
however, a shari’a court qadi can confirm the sacred element: mosques and graveyards
remained sacred, even without a roof. The qadi of the shari’a Court of Appeal Ahmed Natur
issued a marsoom qadai (legal decree) attempting a tougher line, legally binding on all shari’a
qadis. With the Muslim waqf places, and the sacred specifically, gradually losing their status,
with abuse of waqf properties increasingly common, has become a routine practice, with
attempts to use the shari’a courts to release them. The qadi’s marsoom was for the ‘public benefit’
of Muslims in accordance with Islamic law, and he criticised the Israeli state for confiscating
awqaf properties. He proposed procedural steps to protect the remaining awqaf from abolition,
Qadi Natour states that the shari’a qadis are not allowed to deliver any fatwa which may permit
the use of sacred waqf properties or any other awqaf, for other purposes than declared in the
waqfiya. Even if the qadi tries to rely upon shari’a judgments, they may violate basic principles.
Mosques are sacred even when closed or deserted, ‘as long as one prayer was performed
there’. The qadi cannot issue or confirm agreements on waqf property where affecting sale, rent,
or substitution. Shari’a courts appointing mutawallis should call them to account every six
months, with reports kept in an official register available to the public (this procedure
important as before many fatwas and approvals went inadequately documented). The shari’a
courts should dismiss mutawalli who misappropriate their position and made no action to
protect the waqf. The shari’a courts are not allowed to appoint mutawallis without permission of
the shari’a court of appeal, choosing only those who have good character, history and no
criminal record. The Israeli Minister of Religious Affairs, however, by letter of 3 June 1996
rejected the marsoom, claiming that qadi Natour is not authorised to issue it. Qadi Natour
challenged the minister as improperly intervening in the judicial system, arguing that the
shari’a Court of Appeal had jurisdiction.
The case of the Beer el-Sabe ‘big mosque’ first mosque in the Naqab (Negev), it was founded in
1906, Arab Bedouin sheikhs contributing half of the funding. After 1948 the mosque was
confiscated and used as a court and prison until 1953, then as a museum until 1991, but has
since been neglected and unprotected, surrounded by restaurants and bars, a municipal
building and a public garden. In 2005, the Supreme Court of Israel sat to adjudicate on a
petition submitted by ADALAH.
24 In 2002, a request was made for the re-opening of the Big
Mosque in Beer el-Sabe (Beer Sheva) to allow Muslim residents and visitors of Beer el-Sabe to
pray in it. At the time Beer el-Sabe had some 259 synagogues for 180,000 Jewish residents (one
for every 700), while the 5,000 Muslims had no mosque, not to mention the 150,000 Muslims in
the surrounding Naqab. The petition was submitted by ADALAH on behalf of the Association
for Support and Defence of Bedouin Rights in Israel, the Islamic Committee in the Naqab, 23
Palestinian citizens of Israel, against the Municipality of Beer el-Sabe the Development
24 ADALAH, The Legal Centre for Arab Minority Rights in Israel, available at,
last accessed 1 August 2015.
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Authority, the Ministry of Religious Affairs, and the Minister of Science. ADALAH argued that
free access to the mosque was protected by the right to freedom of religion. The Israeli police
force claimed that reinstating the mosque would create inter-community conflict, and, the
municipality argued, would bring the ownership of all Muslim religious sites into dispute,
even the Temple Mount and Jerusalem. ADALAH argued that maintaining the status quo would
continue discrimination against Muslims, violating the right of freedom of worship. ADALAH
added that there was no presence or representation of any Muslims from Beer el-Sabe or
elsewhere on the Committee, and that, as it was formed by and constituted of members of
various governmental offices, who are essentially a party to the dispute with an interest in
maintaining the status quo, the Committee’s recommendations were neither just nor objective 25
Justices Procaccia, Hayut and Jubran ordered that the parties review their positions and within
sixty days reach an agreement to change the mosque to a cultural and social centre for use by
the Muslim community of Beer el-Sabe, except for the purpose of praying. In 2009 the Supreme
Court upholds the previous decisions to disallowing Muslims to use the building as a mosque.
In the case of 2289/81 involving the waqf Alestiqlal cemetery in Haifa, the Muslim community in
Haifa petitioned in the district court to prevent the mutawallis transferring the bones of the
Muslim dead elsewhere, and to develop the site. The court claimed that it had no jurisdiction,
but referred the case to the shari’a court, which allowed the transfer, asserting that the
sacredness of a cemetery lapses after 36 years of abandonment, contrary to most Islamic
scholarship. Similar approaches have been adopted in other cases. In 232/76 (Shukri v Sharia
Court- Bagats), the court upheld and reiterated the Alistiqlal judgment. The qadi Tawfiq Asaliya
in 1969 stated that after 36 years the status of the Salma cemetery in Jaffa changed to ‘outworn’,
but he reversed that decision in 1991, now claiming that ‘the sacredness of grave-yards is
eternal and this entitlement cannot be nullified as it belongs to Allah’, so no-one should
destroy graves there. The Ijzim cemetery raised similar issues recently, with demonstrations on
site. In 1949, a Jewish settlement was built on the lands of the Palestinian village Ijzim, whose
inhabitants fled after the 1948 war. In 2002 Jewish developers bought land there which
included a graveyard of Muslim and Christian Palestinians. In 2004, (the ‘Al-Aqsa institution
for the development of waqf properties) applied to the Israeli Supreme Court to stop
construction work because of the destruction of Muslim graves. The appeal relied upon the
2004 fatwa of qadi Ahmed Natour, stating that:
“the sacredness of grave-yards is eternal and no one is permitted to remove it…
insulting graves and the cemetery for the purpose of building a residential area as in
this case is forbidden…. the landscape of the grave-yard (even though it was not used
for long time) is still considered as waqf and it cannot be confiscated, nor it can be used
for other purposes” (translated from Arabic).26
The developers disputed that the land was a cemetery, arguing that the grave-yard recognised
by the authorities was at some distance, and that local Muslims did not regard it as such, but
admitted that graves had been discovered on the site, which the Ministry of Religious Affairs
barred from removal. In 2009 the Supreme Court rejected the petition and allowed construction
to continue. The Maamano-Allah Graveyard in West Jerusalem has been another recent
25 ADALAH, supra n. 24.
26 Available at, last accessed 10 August 2015.
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contested case. Dating from at least the 13th century, with Muslim tradition holding that
companions of the Prophet Muhammad are buried there, the cemetery was declared absentee
property in 1955 (with no publicity in Arabic as required under Israeli law), and over the next
30 years, the municipality of Jerusalem gradually acquired ownership, with objections being
filed but over-ruled. In 2004 the Simon Wiesenthal Centre began constructing a Museum of
Tolerance on part of the cemetery, with a much-publicized ground-breaking ceremony
attended by California Governor Arnold Schwarzenegger, the Israeli President and Vice Prime
Minister, the Mayor of Jerusalem, and dignitaries and guests from around the world. The
Centre aims to ‘fortify the value of tolerance between peoples and between man to man’. When
work uncovered human graves, the Al-Aqsa institution petitioned the Supreme Court for a
provisional injunction preventing construction, and the dispute was brought to the shari’a and
civil courts, who issued conflicting judgments. In 2009 the Israeli Supreme Court confirmed
that three Muslim cemeteries (MaamanoAllah, Ijzim & Alberwa) are confiscated to Jewish
developers, against Palestinian objections.
V. Conclusion
Whilst investigating the reasons for the waqf’s decline, a great many participants have shared
the view that there is a prevalent difficulty with regard to the enforcement of shari’a courts’
judgments and this has caused a very real problem; as one interviewee (mutawalli of durri waqf
in Jerusalem) observed “if you have a rent problem with a tenant, and you take a legal action
against him, the court decision hardly can be enforced.” Another example, a conflict of laws
exists at least in Jerusalem district, where both the Israeli and Jordanian laws are applied.
Moreover, one shari’a qadi pointed out “that there is a problem with court jurisdiction. He cited
an example, where his shari’a court should have decided in disputes on waqf cases, however,
his decision was not accepted and the case was raised to the civil courts.” As a result of the difficulty with regard to jurisdiction and enforcement, there is confusion for the mutawallis who
want to take legal action to protect the waqf. As one mutawalli added “you have to search for the proper court, so that you will be able to enforce the court decision. Often you need to choose between shari’a court (either the Palestinian or the Israeli) or civil courts (Israeli).”27
Furthermore, the results show that Israel through its land policy is still confiscating waqf properties, and preventing access to them. Some recent cases emphasises this point (i.e. Maamanollah & Ijzim cemeteries). The field-work revealed; contemporary techniques of management were commonly developed to improve the efficiency of collecting revenue, i.e. a family mutawalli of a huge waqf in Jerusalem is using a highly sophisticated computer program to divide the profits over the beneficiaries. By contrast one mutawalli observes “the corruption and maladministration led to conversion of some awqaf to privately owned property, this is of course due
to the absence of enforcement by the legal system that brings into account waqf players who misappropriate their position.” The field-work indicates that there is absence of definite figures on the extent of awqaf in Israel. The Israeli government is still holding the records which show the extent and quantity of awqaf at least inside Israel. The results from previous studies are based on insufficient data. It is noted that there was contradictory results. Moreover, the literature reveals that the historic role of the waqf is considered by Israel as a threat to its physical
27 The present writer interviewed Mutawalli (waqf manager) in 2008.
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Conflict over Waqf property in Jerusalem | by Haitam Suleiman
integrity. This assertion according to the field-work remains valid despite the physical occupation over the Palestinian community and the completion of its administrative and legal system. The results show that Israel still fully controls the waqf properties. There are different degrees of control; Israel controls waqf administration, in terms of payments of their salaries and appointment and the incumbents always have to demonstrate their loyalty to the Israeli state. The State has also re-established shari’a courts and replaced the shari’a court of appeal in Jerusalem. Such a new structure has left the Muslim qadis and officials with no legal authority over the administration of the waqf system; they were given only an advisory insignificant role.
The Ministry for Religious Affairs established a department to be responsible for the Palestinian religious community. Other communities in Israel were given a greater autonomy over the administration of their religious affairs, for instance the Absentee law exempted some of church properties from confiscation as for the Greek Orthodox Patriarchate was not considered an absentee as defined by the legislation, though in fact the patriarchate is located in Jordanian Jerusalem. The Druze were nevertheless given a relative independence over it waqf properties, the 1962 Druze Religious Courts Law had authority over personal status and endowment properties.
The main piece of legislation that has influenced the awqaf is the Absentee Law 1950 which gave rise to the confiscation of almost all waqf properties in Israel. The Third Amendment of the Absentee Property Law in 1965 described as a ‘reform’ of the waqf in Israel, has in fact, effectively implemented the priorities of the Israeli policy and completed its objective, namely, controlling the entire waqf system in Israel. The Amendment has freed the remaining waqf from the restrictions of shari’a law, i.e. sale; also, it restricted the political use of funds generated from those awqaf. Furthermore, the amendment granted the state a further tool to transfer the remaining waqf properties from Muslim hands to the Jewish community through the use of Muslim ‘state’s appointees’ board of trustees. The results show that due to the 1965 ‘reform’ many mosques and cemeteries were sold contrary to principles of shari’a law.
A modern, positivist ideology of law and the state supported the colonists/colonialists in dispossessing the colonised, and trapped the indigenous Palestinians in a world of
manipulated bureaucracy. The state of Israel came into existence in 1948 as the inheritor of a body of non-Jewish law derived from Ottoman law, as ‘enriched’ by British Mandate law. The court may intervene and issue a decision, potentially making all waqf property vulnerable to confiscation. Having driven out most of the Palestinians, it then modified the Mandate institution of the Custodian of Enemy Property, designed to hold such property in trust pending the end of hostilities, into the Custodian of Absentee Property, drawing upon the legal concept of ‘absentee’ in the Ottoman Land Code. The new state already had state and waste land transferred to it by the outgoing Mandate administration, and used its powers against absentee property to confiscate large tracts of land, both miri (or cultivated) land, taking over uncultivated or abandoned land under Ottoman provisions. It treated waqf land as little different from other absentee property, disregarding the perpetuity element conferred under shari’a law, although ‘holy’ and ‘sacred’ places were placed under special protection, and there were particular arrangements for the Old City of Jerusalem. For the Palestinians waqf property during the Mandate period had been used as a buffer against Jewish land acquisition, but this protection was gradually eroded. Palestinian attempts since the 1990s to revive waqf status and protect mosques and cemeteries from confiscation and change of use have generally been
Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)
Conflict over Waqf property in Jerusalem | by Haitam Suleiman
denied in Israeli courts, while shari’a court judgments over-ruled. As expressed by the director of Awqaf in Jerusalem, petitioning the Israeli court is ‘like walking into a dark tunnel. Nobody can tell what is waiting for him at the other end’. While the waqf has successfully functioned for long periods under different conditions; its modern decline seems predictable. The legal system in Israel is a fundamental component and its exceedingly overregulated rules alongside with obstacles of enforcement procedures, made any different outcome unfeasible to achieve without retaining waqf’s autonomy and independence. Beyond doubts, the decline is due to absence of shari’a law that can embrace success, development and reform of the waqf system.


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Electronic Journal of Islamic and Middle Eastern Law | Vol. 3 (2015)



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#Jurisprudence: #Hanafi Legal Theory in the #OttomanEmpire: The case of the Cash #Waqf!

| truthaholics


The study of Islamic law in the Ottoman Empire is a vibrant and dynamic field. After the Mongol invasions of the thirteenth century, the early Ottoman State was an important actor in the Muslim world, re-establishing Muslim sovereignty and intellectual life in Anatolia, the Levant, and Egypt, while simultaneously expanding Islam into a new frontier in the Balkans.

It is partly for this reason that we see numerous structural innovations in the application of Islamic law in the Ottoman state. Unlike previous polities, the Ottomans established a clear hierarchy of religious schools (madrasas) with standardized curriculums that corresponded with a hierarchy of teachers and judges. They also institutionalized the office of the mufti, which had previously been a position that was a generally unofficial position separate…

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Records of #Jerusalem deeds found in #Ottoman archives cause #Israel unease

Turkey has Jerusalem’s deedEditor | Yeni Şafak | 

Records of Jerusalem deeds found in Ottoman archives cause Israel unease. 

There are 171,306 deeds recorded in 46 registries of Jerusalem in Ottoman archive records. Of these, 133,365 are private property and 37,671 belong to foundations. In addition to this, Turkey’s archives also have records of Jerusalem between the hijri years 950 and 1917.

Among the records of private property were 139 deeds belonging to Sultan Abdul Hamid II, 137 of which were transferred to the treasury in the past. The remaining two are in Jerusalem’s Erihav region. The records show that there is a plot of land approximately 30,000 square meters in size that is recorded under the name of Sultan Abdul Hamid II.

The deeds proving that Palestine belongs to Palestinians were handed to Palestinian officials. Israel did not ask for deed records from Turkey. Had Israel requested these records, it would mean that Israel would be accepting that it is occupying Palestine.

A memorandum was signed between Palestine and Jordan. Procedures such as the maintenance and repair of foundations in Jerusalem were transferred to Jordan. Therefore, in 2016, upon the request of Jordan, Turkey provided copies of the deeds of foundations in Jerusalem to Jordan.


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Special measures in family proceedings: Part 2


Children and vulnerable witnesses: YJCEA 1999 Pt and ABE guidance

The first article in this series of two dealt with where special provision might be appropriate for children and vulnerable witnesses in family proceedings and how, procedurally, that might be dealt with. This article looks at the type of measure which the court might provide for such witnesses in family proceedings, and these are dealt with in common law and under statutory provision. As mentioned at the end of this article, the funding of assessment for, and operation of, such measures is not something the Lord Chancellor and his Ministry of Justice seems yet to have put its mind to.

As Lady Hale explained in R (D (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393 the existing common law remedies are, for the most part, summarised and authoritatively set out in Youth Justice and…

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Best evidence of vulnerable witnesses: Part 1


Intimidated witnesses in family proceedings

This first article (in a series of two) considers the evidence of any witness in family proceedings who diverges from the general procedural rules (as explained below) for evidence in family proceedings. It concerns evidence from:

  • witnesses and parties who are adult and of full capacity, but whose evidence may be in some way be ‘diminished by [their] vulnerability’ (Family Procedure Rules 2010 (FPR 2010) rr 3A.4(1) and 3A.5(1));
  • children who give evidence in their own or others’ cases (and see Children’s views and evidence , David Burrows (Bloomsbury Professional, 2017);
  • witnesses who are protected parties or otherwise lack mental capacity; and
  • witnesses with learning difficulties.

Each of these categories of witness may be entitled to special measures directed by the court. Such measures may also, in some cases, be one of  the ‘measures’ available after the court has made a participation direction…

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Government To Announce New Law Preventing Abusers From Cross Examining Victims in Family Courts

Researching Reform

A discussion in the House of Commons on Tuesday has revealed that the government will soon be announcing legislative proposals to prevent alleged and proven perpetrators of domestic violence from cross examining their partners in court. 

Criminal courts currently have legislation to prevent this from happening, but no such legal protections are offered in family courts. A sharp rise in litigants in person thanks to aggressive austerity measures, is partly responsible for an alarming new trend which features alleged abusers and proven offenders questioning their victims in court. The experience often re-traumatises vulnerable victims and can lead to severe mental health problems, with some victims even taking their own lives.

To date the only way a victim of domestic violence in The Family Court can prevent an abuser from cross examining them is by asking the judge to put Practice Direction 12J into effect, which invites the judge to step…

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When can a Closed Material Procedure be used?

“As Mr Eadie recognises, there is a paradox here. The effect of the extension of the JSA 2013 to proceedings such as these is that the executive, in the form of the prosecuting authorities, can be held to account by judicial process. What is described by the Claimants as an encroachment on their fundamental rights in fact enfranchises informed and detailed scrutiny by the Courts, which would otherwise be impossible.”

UK Human Rights Blog

padlockBelhaj and Boudchar v. Director of Public Prosecutions (Foreign Secretary intervening) [2017] EWHC 3056 (Admin) – read judgment here.

The Justice and Security Act 2013 introduced the idea of Closed Material Proceedings (CMP) to civil litigation in a significant way for the first time. This is a procedure (which had previously only used in a small number of specialist tribunals) whereby all or part of a claim can be heard in closed proceedings in order for the court to consider material which, if disclosed publicly, would risk harming national security. These hearings exclude even the claimant, who is represented instead by a Special Advocate who takes instructions and then is unable to speak to his or her client again once they have seen the sensitive material.

This system is obviously far from ideal. Indeed it is a major deviation from the usual (and very important) principle that justice must…

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I Am Your Resource

Dr. Craig Childress: Attachment Based "Parental Alienation" (AB-PA)

The world is changing.  The solution to “parental alienation” is coming.

There is a saying in early childhood mental health that we need to give a toddler a new food 11 times before the toddler accepts it.  The first ten times, it’s too “new” – nope, won’t try it.  But on the eleventh time it’s no longer a “new” food and the toddler will give it a try.

That’s where we are right now.  We’re introducing a new food (AB-PA) to the “toddlers” of professional psychology and the family courts.

The process that is creating the solution is all within the hands of the universe.  I can feel it on so many levels.  This is not about me.  I simply have a role to play.  My role is to be your resource.  But there are so many of us who each have our roles in bringing the attachment-related pathology of…

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Could Donald Trump be arrested for inciting hatred when he visits the UK?

No one should be above the law

The Secret Barrister

The nominal President of the United States has had quite a week. My personal highlight was his absent-mindedly tweeting a confession to obstruction of justice, and then wildly thrashing around looking for someone else to blame for penning a tweet which was written both under his own name and in his own, inimitable, grammar-hazing style. His personal lawyer, John Dowd, was designated as the fall-guy, and dutifully announced to the press as he stepped in front of the bus that he, a practising lawyer with no prior reported involvement with any of Trump’s Twitter activity, had decided to commandeer Trump’s account and tweet something both staggeringly incriminating and legally illiterate (“pled” receiving as many raised eyebrows the other side of the pond as over here), seemingly apropos of nothing. As acts of self-sacrifice go, it was very Dark Knight. John Dowd is very much the hero Trump desperately needs…

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