Report of the Commission Appointed by the British Mandatory Government
with the Approval of the Council of the League of Nations,
“to Determine the Rights and Claims of Moslems and Jews
in Connection with the Western or Wailing Wall at Jerusalem”
1 December 1930
The conclusions arrived at by the Commission on the basis of the reasoning and evidence adduced above, may be summed up as follows:
A. To the Moslems belong the sole ownership of, and the sole proprietary right to, the Western Wall, seeing that it forms an integral part of the Haram al-Sharif area, which is a Waqf property.
To the Moslems there also belongs the ownership of the Pavement in front of the Wall and of the adjacent so-called Moghrabi (Moroccan) Quarter opposite the Wall, inasmuch as the last-mentioned property was made Waqf under Moslem Sharia Law, it being dedicated to charitable purposes.
Such appurtenances of worship and/or such other objects as the Jews may be entitled to place near the Wall either in conformity with the provisions of this present Verdict or by agreement come to between the Parties shall under no circumstances be considered as, or have the effect of, establishing for them any sort of proprietary right to the adjacent Pavement.
On the other hand the Moslems shall be under the obligation not to construct or build any edifice or to demolish or repair any building within the Waqf property (Haram area and Moghrabi Quarter) adjacent to the Wall, in such a manner that the said work would encroach on the Pavement or impair the access of the Jews to the Wall or involve any disturbance to, or interference with, the Jews during the times of their devotional visits to the Wall, if it can in any way be avoided.
B. The Jews shall have free access to the Western Wall for the purpose of devotion at all times-subject to the explicit stipulations hereinafter to be mentioned, viz.,
(1) The temporary instructions issued by the Palestine Administration at the end of September, 1929, relative to "appurtenances of worship" 3 (see Section 2, a, b, c [of the instructions]), are to be made permanent, subject however to the one modification that it shall be permissible to place near the Wall the Cabinet or Ark containing the Scroll or Scrolls of the Law and the Table on which the Ark stands and the Table on which the Scroll is laid when being read from, but only on the following occasions, viz.,
(a) at any special fast and assembly for public prayer that the Chief Rabbis of Jerusalem may order to be held in the consequence of some public distress or calamity, provided due, notice shall have been given by them to the Administration;
(b) on New Year's Day and on the Day of Atonement, and also on any other “holy days” that are recognised by the Government as such days on which it has been customary for the Ark containing the Scrolls of the Law to be brought to the Wall.
Save as provided in the articles of this Verdict it shall not be permissible to have any appurtenances of worship in the vicinity of the Wall.
(2) No objection or obstacle shall be raised to the Jews, in their individual capacity, carrying with them to the Wall hand-books or other articles customarily used at their devotions either as a general thing or upon special occasions, nor to their wearing such garments as were of old used at their devotions.
(3) The temporarily enacted prohibitions against the bringing to the Wall of benches, carpets or mattings, chairs, curtains and screens, etc., and against the driving of animals at certain hours along the Pavement are to be made absolute, as is also the injunction as to keeping the door at the southern end of the Wall locked during certain hours. The right, however, for Moslems to go to and fro in an ordinary way along the Pavement shall be respected and remain inviolable as hitherto.
(4) It shall be prohibited to bring to the Wall any tent or a curtain or any similar object with a view to placing it there-even though for a limited space of time.
(5) The Jews shall not be permitted to blow the ram's horn (shofar) near the Wall nor cause any other disturbance to the Moslems that is avoidable; the Moslems on the other hand shall not be permitted to carry out the Zikr ceremony close to the Pavement during the progress of the Jewish devotions or to cause annoyance to the Jews in any other way.
(6) It is to be understood that the Administration shall be entitled to give such instructions as they may think fit respecting the dimensions of each of the objects that it is permissible for the Jews to bring to the Wall, respecting the particular days and hours above referred to, and also respecting other details that may be necessary for the adequate and complete carrying out of this present Verdict of the Commission.
(7) It shall be prohibited for any person or persons to make use of the place in front of the Wall or its surroundings for all political speeches or utterances or demonstrations of any kind whatever.
(8) It shall be held to be a matter of common interest to Moslems and Jews alike that the Western Wall should not be disfigured by having any engravings or inscriptions placed upon it or by having nails or similar objects driven into it, and also that the Pavement in front of the Wall should be kept clean and be properly respected by Moslems and Jews alike; it is herewith declared to be the Moslems’ right and duty to have the Pavement cleaned and repaired, if and when that is necessary, upon due notice being given- to the Administration.
(9) Owing to the Wall's character as an historical monument its fitting maintenance shall be entrusted to the Palestine Administration, so that any repairs to it that may be necessary shall be carried out by them and under their supervision though only after consultation with the Supreme Moslem Council and the Rabbinical Council for Palestine.
(10) If any repairs to the Pavement that are necessary are not attended to by the Moslems in due time, the Palestine Administration shall take the necessary steps to have the work done.
(11) The Chief Rabbis of Jerusalem shall be required to nominate one or more officials to be their authorized representative or representatives for receiving the instructions and other communications that will be issued from time to time by the Palestine Administration regarding the Western Wall, the Pavement in front of it, and the formalities to be observed with regard to the Jewish devotions near the Wall.
The contentious problem that the Commission has had to deal with does not owe its existence to two different conceptions regarding a standard of law that both the contending Parties recognize and accept. On the contrary it has arisen out of an existing incompatibility in actual principles of right and religious faith, and is all the more far-reaching in character from each of the Parties being of the firm conviction that the issue of the contention will affect interests that are, for them, of ideal moment and which they cannot forgo. In carrying out its task the Commission has furthermore had to take into consideration the circumstance that the contentious question has not been referred to it for settlement by the Parties themselves that are most nearly concerned in it.
That being so, the Commission recognizes, as has been already pointed out in the introduction to this pronouncement, that the ready willingness displayed by both Parties to assist the Commission in its inquiries on the spot has been of inestimable advantage to the Commissioners. That kindly attitude has indeed prompted the hope in the minds of the Commissioners that on the basis of this investigation the Parties might be able to arrive at an amicable agreement for settling their mutual differences, an outcome which in this instance would be far preferable to any settlement which is more or less forced upon them. It has not, however, up to the present. proved possible for any such agreement to be arrived at and consequently the Commission has had no other course open to it than to pronounce its Verdict. The contents of the Verdict have been drawn up exclusively on the basis of the opinion that the Commission has formed regarding the merits of the case, judged in the main from the same point of view as is reflected both in 'the present Mandate and in the administration of the earlier regime with regard to the relations to one another of differing creeds in Palestine.
In addition to what has been said earlier with regard thereto, it is fitting here to recall the fact that, in the Treaty between the European Great Powers and Turkey for the settlement of the affairs of the East, signed on 13th July, 1878, the Sublime Porte made a spontaneous declaration, in which there was expressed the intention to maintain the principle of religious liberty and to give it the widest scope (Article LXII).
In regard to the particular case that the Commission has been appointed to inquire into, this lofty principle cannot be put into practice, unless the adherents of the differing creeds are prepared, in observance of the rules set forth above, to show each other due consideration as regards the one Party in the exercise of their incontestable rights of ownership and possession, and as regards the other in the performance of their religious services on a ground which does not belong to them by right of possession.
The Commission ventures to entertain the hope that, having regard to the actual position of affairs and of what is dependent thereupon, both Moslems and Jews will accept and respect the Commission's Verdict with that earnest desire to attain mutual understanding that is so important a pre-requisite both for the furtherance of the common interest of the Parties in Palestine and for ensuring a peaceable development in the World at large.
In its pronouncements and decisions the Commission is unanimous.
C. J. VAN KEMPEN.
Source: at unispal.org.