Protecting Jerusalem's Holy Sites: A Strategy for Negotiating a Sacred Peace

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protecting jerusalem’s holy sites The holy sites in Jerusalem exist as objects of international veneration and sites of nationalist contest. They stand at the heart of the Israeli–Palestinian conflict, yet surprisingly, the many efforts to promote peace, mostly by those outside the Middle East, have ignored the problem. This book seeks to address this omission by focusing on proposals of development of a legal regime separable from the final peace negotiations not only to protect the holy sites but to promote peace by removing these particularly volatile icons from the field of conflict. Peace and the protection of the holy sites cannot occur without the consent and cooperation of those on the ground. This book supports local involvement by developing a comprehensive plan for how to negotiate: outlining the relevant history, highlighting issues of import, and identifying effective strategies for promoting negotiation. David E. Guinn was the Executive Director of the International Human Rights Law Institute at the DePaul University College of Law. He is a moral, political, and legal philosopher and lawyer with a broad and diverse range of scholarship. He has written extensively on issues of national and international religious freedom, pluralism, and law, writing, cowriting, and/or editing a number of books including Faith on Trial: Religious Freedom and the Theory of Deep Diversity (2002/2006), Religion and Civil Discourse (1997), and Religion and Law in the Global Village (1999).

international human rights law institute In 1990, the International Human Rights Law Institute was established within the DePaul University College of Law in response to sweeping global changes that created new opportunities to advance human rights and strengthen domestic and international legal institutions. The Institute is dedicated to developing and promoting human rights law and international criminal justice through fieldwork, research, documentation, publication, and advocacy.

Protecting Jerusalem’s Holy Sites A Strategy for Negotiating a Sacred Peace

David E. Guinn DePaul College of Law

cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge cb2 2ru, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521866620 © International Human Rights Law Institute 2006 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2006 isbn-13 isbn-10

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Contents

Project Staff 1

page vii

Introduction

1

part one. a troubled history 2

Historical Perspectives: Recognition of the Holy Sites and the Emergence of the Status Quo – 70 c.e. to the 1967 War

21

3

Israeli Policy on the Holy Sites: 1967–2002

39

4

Solutions Offered for the Issue of the Holy Sites

71

part two. points of contention – opportunities for change 5

The Multidimensional Problem

87

6

Principles to Praxis

93

7

Collaborative Structures/Confidence-Building Measures

107

8

Defining the Holy Sites

119

9

Politics and Administration: The Mechanics

145

part three. addressing change – negotiating peace 10

Structuring the Negotiation: A Plan of Action v

173

Contents

vi 11

Conclusion

189

appendix one. International Human Rights Law Institute: Principles Respecting the Holy Sites

191

appendix two. List of Participants: Chicago Consultation of the Jerusalem Holy Sites Project

197

Bibliography

203

annex. Protection of the Holy Places (No. 26), 5727–1967

217

Index

219

Project Staff

project directors

M. Cherif Bassiouni Yoram Dinstein research director

David E. Guinn researchers Amnon Ramon Iman Saca research assistants

Raquel Ornelas Jacob Ramer Jim Svajgl publications coordinator

Meredith Barges

vii

1 Introduction

The Israel–Palestinian conflict was born amidst the chaos of war, colonialism, and conflict. The European tumults of the turn of the twentieth century sowed the seeds of the Israeli state that came to fruition out of the horrors of World War II and the Holocaust with the Israeli War of Independence.1 While this new state answered one set of needs, providing Jews of the world with a national refuge from oppression, it came through the creation of another: the dispossession of Palestinians from their homes in Palestine.2 Born out of the force of arms, Israel has since been forced to survive by them as well through the numerous wars and conflicts that have dragged on year after year. It has long been recognized that peace can never come to the Middle East until the needs of both the Israeli and the Palestinian peoples are met.3 Proposals on how to accomplish this have surfaced from the very inception of the Israeli state, beginning before its founding4 and continuing through the promulgation of the Oslo Peace Accords5 and 1 2 3 4

5

See, e.g., Howard M. Sachar, A History of Israel: From the Rise of Zionism to Our Time (1996). See, e.g., Benny Morris, Righteous Victims: A History of The Zionist-Arab Conflict, 1881-1999 (1999). John V. Whitbeck, The Road to Peace Starts in Jerusalem: The “Condominium” Solution, 45 Cath. U. L. Rev. 781 (1996). Excerpts from the Report of the Palestine Royal Commission, 22 June 1937, in 3 The Arab–Israeli Conflict 150 (J.N. Moore ed., 1974) [hereinafter Peel Commission]; Future government of Palestine, G.A. Res. 181 (II), U.N. Doc. A/RES/181(II)(A+B), at 1 (1947) [hereinafter Partition Resolution]. Declaration of Principles on Interim Self-Government Arrangements (The Oslo Accords), U.N. GAOR, 48th Sess., Annex, at 4, U.N. Doc. A/48/486-S/26560 (1993).

1

2

Protecting Jerusalem’s Holy Sites

the Road Map.6 Most proposals, like those proffered by the United Nations, were developed by outsiders seeking to impose a solution upon the parties with a notable lack of effect. Yet the parties themselves have fared little better, as demonstrated in the demise of the Oslo Accords. Indeed, with the demise of Oslo and the increasing violence of the al-Aqsa Intifada, prospects for a peaceful solution for a time appeared to be waning. It was in this atmosphere that Professor M. Cherif Bassiouni and the International Human Rights Institute of the DePaul University College of Law (IHRLI) initiated the Holy Sites Project in the spring of 2002. Building upon their experience supporting a track-II negotiation on creating a weapons-of-mass-destruction-free zone in the Middle East involving representatives from Israel, Egypt, Jordan, and the United States,7 Professor Bassiouni and IHRLI appreciated the importance of creating forums of engagement with tightly focused objectives. Therefore, instead of attempting to confront and resolve all of the conflicts between Israelis and Palestinians as a means of creating a comprehensive framework for peace (the primary, unsuccessful tactic adopted in the past), IHRLI chose to limit its focus to one aspect of the peace process: the thorny problem of Jerusalem and the holy sites. While it was not the first group to consider the problems of Jerusalem and the holy sites, it was hoped that IHRLI’s experiences and the talents of those who would contribute to its work might lead to fruitful results through a blending of expertise in human rights, international law, and religion. For the most part, past efforts to develop proposals for peace were developed by secular leaders and thinkers.8 With the Holy Sites Project, IHRLI sought to join with Jewish, Christian, and Muslim religious leaders to draw upon the insights provided by their respective religious traditions and combine that wisdom with insights drawn from international law and IHRLI’s experience in political negotiation and the political process. 6

7 8

A Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli–Palestinian Conflict, Press Statement, Office of the Spokesman, U.S. Department of State (April 30, 2003), at http://www.state.gov/r/pa /prs/ps/2003/20062.htm (last visited June 16, 2004). See The Middle East Group of Experts project, at www.ihrli.org (last visited May 30, 2004). See Moshe Hirsch et al., Whither Jerusalem? (1995).

Introduction

3

In approaching the challenge of the holy sites, the project adopted two methods of action. First, it held a meeting of religious leaders from the three Abrahamic faiths as well as religiously engaged international human rights lawyers in Chicago. This was followed by an ongoing exchange of ideas through mail and the internet.9 IHRLI and the participants were conscious of the many failures of past peace efforts and, in particular, of the difficulties encountered by peace efforts that originated outside the area. Therefore, the goal of the meeting and followup discussion was to identify a series of principles that would be useful in providing assistance and in guiding the negotiations between Israelis and Palestinians that would ultimately be necessary to create a plan for peace.10 Those principles were drawn from the three religious traditions, Judaism, Christianity, and Islam, for whom Jerusalem is home to their holiest sites. Supplementing these religious insights were the contributions of legally trained and human rights oriented participants drawn from their work in international law and international human rights. Supplementing the creation of the Holy Sites Principles, the project commissioned two research papers: one examining the history of the holy sites and peace efforts in the region,11 and one assembling basic data about the holy sites.12 These two papers, along with the principles, provide the basis and support for proposals outlined in this report. Preliminary Considerations Project leaders, in developing the Holy Sites Project, adopted a number of approaches that would distinguish this project from past efforts at addressing the peace process and the holy sites. These distinctions and/or assumptions reflect not only the weaknesses of prior undertakings, but also incorporate insights drawn from outside the traditional dialogue over the Israeli–Palestinian conflict. In particular, the project elected to focus upon three features: 1) the religious aspects of the conflict; 2) the municipal administration of the city; and 3) the role that 9 11

See Appendix 2. Written by Amnon Ramon (July 2002).

10 12

See Appendix 1. Prepared by Iman Saca (Sept. 2002).

4

Protecting Jerusalem’s Holy Sites

international law and the international community can and should play in the process. Why start with Jerusalem and the holy sites? Historically, peace advocates and negotiators have treated religion as an obstacle to rapprochement and the holy sites as landmines in the road to peace.13 For example, many would trace the al-Aqsa Intifada back to Ariel Sharon’s provocative visit to the Temple Mount/Haram al-Sharif (home of the al Aqsa or ‘Dome of the Rock’ Mosque) on September 28, 2000.14 Conscious of the risk, he was accompanied by hundreds of Israeli troops. As expected, the visit was met with rock-throwing Palestinian protesters and police violence in response.15 Sharon’s visit was not the cause of the second Intifada, but the incitement. Not only did this holy site serve as the explosive primer for the Intifada, it has “become the symbol of every emotion of rage in both communities: rage at indignities, at theft, at murder, and at collective humiliation going back, in some cases, thousands of years.”16 At the same time, while religion clearly plays a role, “[m]any commentators have observed that the conflict over Israel/Palestine is not, essentially, a religious conflict.”17 It is primarily nationalistic. So why make religion and the holy sites the central focus? Two factors support this religious focus. First, while most commentators acknowledge the religious dimension of the Israeli–Palestinian conflict, few governmentally endorsed or independent non-governmental organization (NGO) peace efforts have addressed religion as a prominent player.18 Many commentators note that one of the features 13

14 15 17

18

See, e.g., Marc Gopin, New Modes of International Conflict Resolution: Shared Public Space and Peacemaking: New Visions of Place in Israel and Palestine, 26 Fletcher F. World Aff. 101, 107–108 (2002); David Smock, Building Interreligious Trust in a Climate of Fear: An Abrahamic Trialogue, United States Institute of Peace: 99 Special Report 9 (February 2003), at www.usip.org (last visited April 25, 2004). International Crisis Group, The Jerusalem Powder Keg, Middle East Report No. 44, 5 (August 2, 2005). 16 Gopin, note 13 supra, at 107. Id. at 108. Yehezkel Landau, Healing the Holy Land: Interreligious Peacebuilding in Israel/Palestine, United States Institute of Peace: 51 Peaceworks 11 (August 2003), at www.usip.org (last visited April 25, 2004). One exception is The Middle East Interfaith Summit, a gathering of religious leaders who issued the Alexandria Declaration of the Religious Leaders of the Holy Land on January 21, 2002, at http://www.coventry cathedral.org.uk/Press.html (last visited April 25, 2004).

Introduction

5

contributing to the failure of the Oslo peace process was its denial of a place for religion.19 The Oslo negotiations were dominated by secular political leaders and diplomats who viewed religion with suspicion, if not hostility.20 Yet, ignoring the religious dimension means that the tensions and conflicts present within the religious domain fester with no hope of resolution. “If religion does not become part of the solution, it will motivate hate.”21 Religious conflicts may only be resolved if they are explicitly addressed. Taking on the challenge of the holy sites demands such confrontation. Second, religion is not simply a challenge to be dealt with within the peace process. It offers advocates and the parties a powerful resource. The tragedy of the Israeli–Palestinian conflict has been the profound alienation between two people who are each historically grounded within the holy land – the growing disconnection with their sense of hope and humanity exhibited by many on both sides of this conflict.22 Peacemaking, in the face of such terrible conflict, demands the use of the language of faith addressing the needs of justice, human dignity, and hope for the oppressed.23 As argued by Alan Geyer, “Peacemaking . . . requires a variety of capacities for self-transcendence: transcendence of one’s own interests and perspectives for the sake of understanding the interests and perspectives of the other side, which calls for the virtue of empathy; transcendence of one’s pride and defensiveness, which inhibit the acknowledgment of injuries done to others – a capacity for repentance and perhaps restitution; transcendence of one’s own grievances and desire for vengeance over injuries inflicted by other – a capacity for forgiveness.”24 This is the language of faith. However, religion provides not only the language of reconciliation, it offers the resource of hope and passion. The challenge of peacemaking in the Middle East is not simply a matter of enacting laws or practicing politics – it is an act of faith; its success requires a commitment

19 20 21 22 23

See Gopin, note 13 supra, at 107–108; Smock, note 13 supra, at 9. Landau, note 17 supra, at 13. Rabbi Johnathan Sacks, quoted in Smock, note 13 supra, at 4. Conversation with M. Cherif Bassiouni, President of the International Human Rights Law Institute, DePaul University College of Law, in Chicago, Ill. (April 22, 2004). 24 Smock, note 13 supra, at 4. Cited in Smock, note 13 supra, at 9.

6

Protecting Jerusalem’s Holy Sites

to a new passion.25 While such tools as the rule of law offer some persuasive authority, even rule of law advocates acknowledge that law’s authority pales in the face of raw power.26 As suggested by Sheikh Muhammad Hashem Al-Bardadi, “True peace has to be grounded in faith. It goes beyond [any particular] tradition [. . .] to include all of humanity.”27 Faith “motivates people. The language of faith needs to be central [to the process of peace.]”28 In defining the project’s approach to the peace process as one focusing upon the holy sites and Jerusalem,29 the religious dimension of the former is obvious – but what about the latter? Some have suggested that problems of the holy sites and Jerusalem are separable – that one can develop methods of governing the holy sites that are satisfactory to all sides independent of the political resolution of the conflict over Jerusalem.30 Alternately, it has been suggested that describing the problem of Jerusalem as a religious problem is misleading – that the real controversy centers only upon the Walled City, less than one square kilometer out of the whole city.31 This alternative was rejected by the project’s leaders, as others have before them, for a number of reasons.32 First, and foremost, one cannot separate the holy sites from their place within the city of Jerusalem. Even the most fundamental concern over the holy sites, that of access by the faithful, depends upon issues of governance and control over the city. Asserting absolute freedom of worship within a holy site is meaningless if the faithful are denied access to the street where it is located, its neighborhood, or the city itself due to security concerns.33 More broadly, the holy sites cannot be protected nor can the 25 26 27 29

30 31 32 33

Nathaniel Berman, Legalizing Jerusalem or, of Law, Fantasy, and Faith, 45 Cath. U. L. Rev. 823, 831 (1996). John Quigley, Sovereignty in Jerusalem, 45 Cath. U. L. Rev. 765 (1996). 28 , Cited in Landau, note 17 supra, at 31. Smock, note 13 supra at 9. For practical reasons, the project recognizes that it may be appropriate and necessary within the ultimate system developed to protect the holy sites to extend that protection to sites outside of Jerusalem. Indeed, that may provide a necessary quid pro quo within the process of negotiation. Nonetheless, in terms of framing the issue, the holy sites and Jerusalem are inseparable. Elihu Lauterpacht, Jerusalem and the Holy Places 5 (1968). Adnan Abu Odeh, Religious Inclusion, Political Inclusion: Jerusalem as an Undivided Capital, 45 Cath. U. L. Rev. 687, 692–693 (1996). See, e.g., Marshall J. Breger and Thomas A. Idinopulos, Jerusalem’s Holy Places and The Peace Process 3 (1998). Id. at 71.

Introduction

7

needs of those believers on either side of the dispute be met unless a system is created not only to provide access to the holy sites but also to assure their protection and preservation through access to basic services such as electricity, water, trash removal, and police and fire protection.34 Finally, it is unclear that Jerusalem, the Holy City, does not in some sense qualify as a holy site in and of itself. Some have argued that the question of sovereignty over Jerusalem is fundamentally a “theological question.”35 For some, sovereignty over Jerusalem stands at the heart of Jewish identity and faith.36 Resolving the problem of the holy sites necessarily entails resolving the problem of the Holy City. Finally, the project recognized the importance of identifying not only the role of the international community in addressing the Israeli–Palestinian conflict, but its interest as well. While it is generally accepted as axiomatic that the international community is interested in world peace, as asserted, for instance, in the United Nations Charter,37 in practice, most people remain deeply suspicious about the motives of countries that concern themselves with the problems of others. In the Israeli–Palestinian conflict, the political stances of the European Union and many of its members that are critical of Israeli governmental policies are not simply viewed as objective positions – they have been attacked as expressions of European anti-Semitism.38 Similarly, United States intervention has regularly been attacked as based upon a pro-Israeli bias.39 Efforts to support the peace process by either Europe 34 36 37 38

39

35

See discussion infra Ch. 9. Whitbeck, note 3 supra, at 785. Saul B. Cohen, Jerusalem: Bridging the Four Walls 109 (1977). U.N. Charter Ch. VII. See, e.g., Sharon Sadeh, The ‘New Anti-Semitism,’ Ha’aretz, May 12, 2003, http://www.haaretzdaily.com/hasen/pages/ShArt.jhtml?itemNo=1191 15andcontrassID=3andsubContrassID=0andsbSubContrassID=0 (last visited April 25, 2004) (“The left-liberal media are scathing in their criticism of Israel.”); Chris McGreal, The ‘New’ Anti-Semitism: Is Europe in Grip of Worst Bout of Hatred Since the Holocaust?, Guardian, Nov. 25, 2003, http://www.guardian.co.uk/farright/story/0,11981,1092466,00.html (last visited April 25, 2004) (“it is the ‘new’ anti-Semitism that most disturbs some Jewish leaders because they say it emanates from influential groups such as academics, politicians and the media and is dressed up as criticism of Israel’s occupation of Palestinian land”). See, e.g., Sally Bazbee, U.S. Pro-Israel Position Criticized, Common Dreams, April 3, 2002, at http://www.commondreams.org/headlines 02/0403-02.htm (last visited April 25, 2004); Associated Press, Angry Arafat Accuses US Of Pro-Israel Bias, Common Dreams, Dec. 7, 2001, at http://www.commondreams.org/headlines01/1207-04.htm (last visited April 25, 2004).

8

Protecting Jerusalem’s Holy Sites

or the United States therefore receive cool receptions from those perceiving this bias. One cannot and should not deny the legitimacy of altruistic international concerns and/or concerns relating to peace. They have supported international action throughout the world by the United Nations and other state parties. Nonetheless, the Holy Sites Project attempts to add to this by explicitly focusing attention on what may be referred to as the “vested” interest of the international community: the interest of the international communities of Christians, Jews, and Muslims in the holy sites as holy sites; and the interests of the secular international community in the holy sites as historical sites of the heritage of humankind.40 The Nature of the Problem It is widely agreed that Jerusalem, the Holy City, presents the greatest obstacle to peace in the Middle East.41 It lies “literally and figuratively at the center of the Israeli–Palestinian dispute,”42 capturing the historic memory, the religious identity, and the national aspirations of two peoples radically separated in a shared land. Moreover, Jerusalem symbolizes the international dimension of this conflict. “Jerusalem is unique among all the cities of the world because of its association with [the] three great religions” of the Book: Judaism, Christianity, and Islam – sacred to almost half of humanity.43 Sad to say, conflict over the holy city of Jerusalem has existed throughout history. Indeed, its designation as a holy place and conflict over its control predates the religions of the Book. What is now 40 41

42 43

See discussion infra Ch. 9. See, e.g., Ahmad S. Noufal, The Conflict Over Jerusalem: International Laws vs. Political Solutions, Feb. 6, 2003, at http://www.palestine-info.co.uk/am/publish/printer_27.html (last visited June 16, 2004); Alon Ben-Meir, Jerusalem’s Final Status Must Reflect Its Uniqueness, 3 Middle East Policy 93 (1994); Statement on the Status of Jerusalem, in Together on the Way: Official Report of the Eighth Assembly, World Council of Churches (1998), at http://www.wcc-coe.org/wcc/what/international/state20.html (last visited June 16, 2004). Nicholas Giuyatt, The Absence of Peace: Understanding the Israeli–Palestinian Conflict 121 (1998). Henry Cattan, The Palestine Question 260 (2000).

Introduction

9

Jerusalem was originally inhabited by the Yabousyenn or Jebusites, a tribe of Can’aanites who emigrated from Arabia to Palestine around 3000 bce. There, they established the city of Orsaleem (meaning “City of Peace”), where it is asserted King Malky Sadeq (Melchizedek) welcomed Abraham in 1900 bce and allowed him to offer his sacrifice in their temple.44 From that point forward, the tale of Jerusalem reads as a never-ending saga of conquest and shifting control, at various times involving Jews, Babylonians, Persians, Greeks, Romans, Christians (Byzantine), Muslims, Crusaders, Mamluks, Turks, British, Jordanians, and Israelis.45 “It has suffered more than 20 sieges, changed hands more than 25 times, was destroyed 17 times and its inhabitants massacred on several occasions.”46 The problem of Jerusalem resists easy categorization. Attempts to use history to justify current nationalist claims lead to fallacious results. To claim, for example, that Jewish claims over Jerusalem take precedence over Palestinian claims because Jerusalem was the original national and spiritual capital of Judaism and “[a]t no time in the thirteen centuries of Islamic rule was Jerusalem part of, let alone synonymous with, a national identity,”47 fails for two reasons. First, there must be some limit on the claims of the past over the rights of the living. History cannot explain nor control the attitudes of the generations now alive within the territories of Israel and Palestine. Second, broad historical statements ignore ambiguities even within relatively recent times. For example, while Jerusalem has always held a particular spiritual significance for Jews, many at the turn of the twentieth century were not convinced of the virtues of claiming Jerusalem as a political, national home, as expressed, for example, in the hesitancy of early Zionists towards Jerusalem.48 One approach to confronting the problem of Jerusalem is to attempt to tease out the problem of the “holy.” After all, the holy sites in Israel 44 45 46 48

Noufal, note 41 supra. Id. See also Shmuel Berkowitz, Proposals for the Political Status of the Holy Places Within the Context of a Peace Treaty, in Jerusalem: Legal Aspects 7 (Ora Ahimeir ed., 1983). 47 Cattan, note 43 supra, at 261. Cohen, note 36 supra, at 107. Menachem Friedman, Haredim and Palestinians in Jerusalem, in Jerusalem: A City and its Future 235–255 (Marshall J. Breger and Ora Ahimeir eds., 2002); Uzi Narkis, One Jerusalem 213 (1978).

10

Protecting Jerusalem’s Holy Sites

provide a unique point of contention, and it is these that engage specific religious traditions as parties to the conflict. Ultimately, the attempt to separate the holy sites from the larger issue of Jerusalem is doomed to failure. The fate of the holy sites and the city are too intimately intertwined. Nonetheless, focusing upon the holy sites provides a specific and more manageable way to approach the most emotionally challenging elements of the Jerusalem problem. However, that does not mean that it is easy. The issue of the holy sites in Jerusalem has never been a merely religious concern. Political interests, competition between various religious and national groups, considerations of prestige and honor, and social and cultural processes have always been central factors in the designation of a holy site, in its rise to prominence, and in the frequent conflicts that arose regarding the rights of possession and worship. This historic conflict continues to bear bitter fruit. In considering the history of the evolution of the concept of the holy sites,49 we find various reasons why particular places are designated (or at least seek designation as) a holy site. The reasons range from the venal to the profound, nearly always touching upon the political. They include the following: religious history. The most obvious justification is that a particular site is the location associated with the founder of one of the three religions of the Book or with a seminal event within its history. This clearly applies to sites as the Church of the Holy Sepulchre (associated with the crucifixion and resurrection of Jesus), the Western Wall (associated with the Second Temple); and al-Aqsa Mosque (associated with the Prophet’s ascent to heaven during the Night Journey). control. Designation as a holy site may be used as a tool for asserting a high level of control over a site rather than that accorded other types of property. For example, at the entrance to the Catholic compound of Notre Dame, opposite the New Gate to the Old City, a sign 49

The term “holy site” is defined as a location within Jerusalem that one of the three monotheistic faiths believes to be of enduring religious significance and which the living communities of faith continue to celebrate through worship, pilgrimage, and reverence. The principles and modalities contained herein, which are applicable to the Jerusalem “Holy Sites,” are also applicable to “Holy Sites” located outside of Jerusalem.

Introduction

11

was posted in Hebrew a few years ago, reading: “Notre Dame Compound, owned by the Vatican, holy site, entrance with arms forbidden.”50 While an architecturally impressive church sits at the heart of this site, the compound itself serves mainly as a hotel and social and cultural center for the Vatican. Unlike the Church of the Holy Sepulchre or the Church of the Nativity, which typify the common understanding of the term “holy site,” Notre Dame bears little religious-historical significance. There are no records or Christian traditions linking this site with any of the key historic events within Christian history that would set this church apart from any other. Why, then, was the sign posted at its entrance, and why in Hebrew only? It appears that the heads of the institution used this designation in their signage because they wished to prevent Israeli armed soldiers and security officers from entering the building. They may have also wished to enhance its status as some sort of “extraterritorial” area held by the Holy See in the heart of Israel. territorial interest. Designating a place as a holy site associated with a particular religion may also be a means of asserting a political claim over the territory adjacent to or associated with that holy site. For example, the “Ramban Cave,” near the Tomb of Shimon haTsadik (Simon the Just) in Wadi Joz, demonstrates this evolution. According to elements of Jewish tradition, this is the cave where Rabbi Moses ben Nahman (Nahmanides) – among the greatest medieval Halakhah scholars and one of the prominent leaders of the SpanishJewish community – worshiped while visiting Jerusalem in 1267. According to one tradition, he was also buried there. Prior to the spring of 2000, very few people knew of the existence of the Ramban Cave. It came to public attention when the cave became the subject of controversy between a group of Jewish settlers in Wadi Joz, led by M. K. Beni Eilon, a leader in Moledet (a radical right-wing party), and the Muslim land owner of the site of the cave. In reaction to Jewish settlement, the land owner had fenced the cave off from visitors. The settlers protested. M. K. Eilon claimed that the cave had been a holy site for the Jews for many centuries and, therefore, the fencing-off was 50

Observation of Amnon Ramon, Draft Holy Sites Report (2002).

12

Protecting Jerusalem’s Holy Sites

illegal. The government and courts were asked to consider the issue, and the then Minister of Religious Affairs Yossi Beilin, appointed a committee to examine the issue.51 claiming legitimacy and/or delegitimating other claimants. Some Muslim clerics and representatives of the Palestinian Authority deny any relation or affiliation of the Jews to the Temple Mount/Haram al-Sharif (Mount Moriah), the site of the First and Second Temples and today the site of the Muslim Dome of the Rock and the al-Aqsa Mosque. Sheikh Ra’ed Salah, the leader of the Islamic movement in Israel (northern wing), who is very active on the issue of the Temple Mount/Haram al-Sharif, wrote in an article published in the movement Bulletin, that the al-Aqsa Mosque and the area around it, the walls surrounding it (including the Western Wall), the underground levels, and the structures adjacent to it all belong to the Muslims. He wrote that the Jews, as a group or as individuals, have no rights whatsoever on the compound.52 This view was also voiced by Palestinian speakers at the Camp David Conference (July 2000), who did not understand why Ehud Barak insisted on holding on in any way possible to Jewish affinity to the site.53 Arafat repeatedly argued then, and later, that the First and Second Temples had not been in Jerusalem but in Nablus.54 This Muslim and Palestinian position not only lacks secular historical grounding, it contradicts ancient Muslim traditions that refer to the holiness of the Mount to the Jews and the existence of the Temple of Solomon on the Mount before it became holy to Islam.55 While this denial may simply be a negotiating tactic against Jewish demands for the right of worship on the Mount in the efforts to establish the framework of a permanent agreement, in a deeper sense, it expresses an effort by the Palestinians to negate any Jewish affinity to the Temple Mount/Haram al-Sharif or, more fundamentally, to Jerusalem. 51 52 53 54 55

Nadav Shragai, Ramban Cave Made Place of Worship, Ha’aretz, May 23, 2000. Ha’aretz, January 28, 2002. Menachem Klein, Shattering a Taboo: The Contacts Toward a Permanent Status Agreement in Jerusalem 1994–2001, at 1, 55, 74, 107 (2001). Dennis Ross, The Missing Peace, 718–719 (2004) Amikam Elad, The Temple Mount in the Early Muslim Period, in Sovereignty of God and Man: Sanctity and Political Centrality on the Temple Mount 63, 76 (Yitzhak Reiter ed., 2001).

Introduction

13

representative of identity. Holy sites may be used as representations of identity – with the consequence that their destruction may be considered as a means of destroying the other. For example, recent subjects of conflict included certain tombs considered holy by the Muslims that were “Judaized” by the resurrection by Israelis of ancient Jewish traditions associated with those sites. These include Nebi Yamin (“the tomb of Benjamin,” near the town of Kefar Saba) and Nebi Rubin (“the tomb of Reuven,” near Ashdod), which became Jewish pilgrimage sites. During the first days of the al-Aqsa Intifada (October 2000), Joseph’s Tomb near Nablus, which became a battleground between the Israeli Army and the Palestinians, and the ancient synagogue near Jericho were set on fire and destroyed. A Palestinian mob attacked these holy sites because it viewed them as symbols of the presence of hated Israel. This act was contrary to the relatively tolerant historical attitude of Islam toward Jewish and Christian holy sites. claim international attention. Throughout history, the holy sites have been a lightning rod for international interest in the region. Actors within the territory are aware of this fact. Thus, while PLO Chairman and Palestinian President Yasser Arafat may have had a legitimate claim to act on behalf of Christian holy sites within the occupied territory (due to the fact the congregations for such sites are predominately Palestinian Christians), there can be little doubt that he was also cognizant that there was some political advantage to allying himself with the international Christian community.56 One finds similar alliances for somewhat different reasons between Jewish nationalists and evangelical Christians.57 Similarly, during the Israeli incursion into the West Bank in reaction to the al-Aqsa Intifada, armed Palestinians sought refuge in the Church of the Nativity in Bethlehem – both sides were clearly sensitive to the international implications of their actions.58 special benefits. Religious denominations in control of a religious site may have self-serving interests in seeking holy sites designa56 57 58

See Frontline: The Siege of Bethlehem (PBS television broadcast), described at http://www.pbs.org/wgbh/pages/frontline/shows/siege/ (last visited March 15, 2004). See Gershom Gorenberg, The End of Days: Fundamentalism and the Struggle for the Temple Mount (2000). See Frontline, note 56 supra.

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Protecting Jerusalem’s Holy Sites

tion as well. They may seek the special benefits associated with “holy site” status. For example, the holy sites enjoy the protection of special laws (such as The Protection of the Holy Places Law, 5727–1967). They are exempt from the jurisdiction of the courts, and they enjoy exemption from taxes.59 national unity. Finally, the holy sites often provide a symbol around which nationalist forces may rally. For example, during the 1929 riots over the Western Wall/Haram al-Sharif, both sides used their respective claims to this holy site to provide focus for public outrage fed by the growing conflict between Palestinian Arabs and Zionist Jews.60 This multitude of motivations for recognizing a place as a holy site presents unique challenges to anyone seeking to develop a legal regime to govern and protect them. The multiplicity of interests, perspectives, and interested parties defies simple solution. Moreover, the existence of places holy to more than one religious group, but central to the construction of self-image of competing groups in the Holy Land, has brought about the translation of an essentially political struggle into a religious conflict over these sites. Thus, the important holy sites – such as the Temple Mount/Haram al-Sharif – symbolize the strife over the country as a whole. Compromise over a holy site, let alone its possible loss, poses a real threat to the very core of a group’s self identity.61 Yet hope remains that accommodations can be found to protect and honor the holy sites. For example, among the most contentious holy sites is the Temple Mount/Haram al-Sharif. A first harbinger of Jewish openness toward some type of accommodation on the Temple Mount (and the holy sites in general) can be found in a letter written by the Sephardi Chief Rabbi of Israel, Rabbi Eliahu Bakshi-Doron. It was addressed to Muslim and Christian religious leaders at an interfaith conference in June of 2000, held in Milan at the initiative of the Italian Center for Peace. Rabbi Bakshi-Doron stated: 59 60 61

Shmuel Berkovitz, The Legal Status of the Holy Places in the Land of Israel 14 (1997). See infra text accompanying notes 42–47, Ch. 2. Elchanan Reiner, The Place He Will Choose, in The Temple Mount: Compromise in the Eye of the Storm 43 (Menachem Klein ed., 2002).

Introduction

15

The places holy to Muslims, Christians and Jews must not become a cause of dispute and conflict, nor must they become a weapon in the hands of those who are fighting against the makers of peace.62

With regard to the Temple Mount, he states: We must preserve and respect the sacrosanct status that exists on the holy Temple Mount, which to others is known as the area of the alAqsa Mosque. We must be suspicious of any change in status, as this is liable to violate the sanctity of the place and lead to bloodshed, which is opposed by all the religions and by every civilized society. Instead of violating the sanctity of these places and engaging in endless arguments, we must respect and accept the status quo of the holy sites. We must work to ensure access [to them] and security for everyone who wishes to worship at the place that is sacred to him according to his belief.63

After the letter was reported in the press, arousing fierce criticism from the religious right in Israel, Rabbi Bakshi-Doron explained that his remarks should not be construed to mean that he disputed Israeli sovereignty on the Temple Mount. Even so, the letter was a relatively bold statement that emanated from the heart of the Orthodox religious establishment in Israel. Muslim leaders also appear amenable to seeking solutions protective of the rights of all of the faith traditions.64 As declared in the mission statement of the Holy Sites Project, our purposes are: to make a positive contribution toward the establishment of a lasting peace between Palestinians and Israelis; to promote a better understanding between the two necessary to negotiate for and sustain peace; and to create a spirit of cooperation between Jews, Christians, and Muslims throughout the region and the world to promote global support for the peace process. The means to accomplish these goals involve developing a special regime for the holy sites in Jerusalem and its environs. The regime would remove a contentious issue, with both 62

Baruch Kra and Nadav Shragai, Criticism on the right over the Rabbinate’s authorization of Palestinian administration on the Temple Mount, Ha’aretz, June 29, 2000. 63 Id. 64 See, e.g., interview with Dr. Muhammad Jadallah, in Enrico Molinaro, Supreme Council for the Holy Places, Jerusalem Times, at http://www. christusrex.org/www1/ofm/curr/TSread03. html (last visited July 21, 2003).

16

Protecting Jerusalem’s Holy Sites

religious and nationalistic connotations, from the political final status negotiations between Palestinians and Israelis, thereby helping to facilitate peace. The project seeks to lay the foundation for a solution to the issue of the holy sites, in a way that is sensitive to the needs of people of faith and the broader culture of humankind, while respecting the national rights and interests of the parties concerned.65 We recognize that these sites do not exist in isolation. They are part of the living cities that sustain them and must be sustained. Any proposed regime must be integrated within this broader context and must be adaptable to existing municipal concerns as well as those that might arise through the development of the final status negotiations. It should be stressed that the goal of the project is not to develop a comprehensive legal regime in full detail that may be imposed upon the parties concerned. As amply demonstrated by the multitude of unsuccessful comprehensive peace plans offered in the past, such an effort would be futile. Peace will only be achieved through the active engagement of the interested parties on the ground. The goal of the Holy Sites Project is simply to explore the terrain, till the ground, and provide the parties concerned with the necessary tools by which they can seek to cultivate a peaceful solution to their conflict. Part I of this report explores the history of the holy sites and how they have been identified and protected, beginning with the Ottoman status quo system. Particular attention will be paid to how they have been administered during the period of Israeli rule following the 1967 War. Some of the past proposals offered for protecting the holy sites will be briefly reviewed. In Part II, the numerous, complex issues that must be addressed in developing a legal regime are highlighted. First we consider the principles adopted by the Holy Sites Project to guide its reflections and orientations, including the roles of religion and law as resources for the project. We then consider the types of confidence-building measures and collaborative structures that ought to be developed to advance the process. We then attempt to analyze and apply these guiding principles 65

The term “parties concerned” refers to the State of Israel and the Palestine National Authority, and eventually to the state of Palestine.

Introduction

17

to the specific issues that historically have been raised in association with the holy sites, along with others identified as a part of the project. These issues include questions of state sovereignty, the definitions of a holy site, the nature of the holy sites, ownership and control of the holy sites, municipal and regional concerns, the international role, and the collaborative structures necessary for the development of a legal regime. It is here that we may integrate historical experience with new approaches to these problems. Finally, Part III outlines the decision path for a plan of action to create a legal regime with a list of issues that must be resolved in order to achieve a lasting solution to the challenge of protecting the holy peace.

part one

A Troubled History

2 Historical Perspectives recognition of the holy sites and the emergence of the status quo – 70 c.e. to the 1967 war

For over three thousand years, Jerusalem has been the scene of recurring and progressively greater conflict. In large part, this was due to the presence within its borders of the sacred sites of the three faiths of the Book: Judaism, Christianity, and Islam. For the last fifteen hundred years, after the Muslim conquest of Jerusalem in 638 c.e. each political authority in control of Jerusalem, itself often representing one of those religious traditions, had to decide how to administer the sites of the other two faiths.1 The issue confronted by these administrations was not simply a question of religious freedom or freedom of worship. Somewhat surprisingly, throughout most of this period, minority religions were not persecuted – particularly during periods of Muslim rule – they were free to practice their faiths.2 The problem was of a greater symbolic level. Jerusalem is the home not just of sites of worship and cultus, it is one of the primary historical places where the founders of the three faiths and/or foundational events of the faith took place on earth. As faiths grounded in historical revelation, these sites incorporate the essence of these faiths. For peoples and governments who feel themselves to be grounded in their religious affinity, these places take on iconic meaning. The holy sites also bore historical and political significance as a locus for conflict between East and West. Their treatment and control 1

2

Ahmad S. Noufal, The Conflict Over Jerusalem: International Laws vs. Political Solutions, Feb. 6, 2003, at http://www.palestine-info.co.uk/am /publish/printer_27.html 1 (last visited June 16, 2004). Lionel Cust, The Status quo in the Holy Sites 4–5 (Facsimile ed., 1980).

21

22

Protecting Jerusalem’s Holy Sites

provoked – or at least provided justification for – the Crusades and remained of political concern through the twentieth century. Reservations by the Zionists at the turn of the century about laying claim to Jerusalem were driven by concerns about the reaction of the West.3 Thus, how the holy sites were treated presented serious security concerns. Yet, in spite of the fact that the holy sites presented highly sensitive administrative problems requiring each political authority to enact laws respecting them, these laws did not define what was meant by the term “holy site” or “holy place.”4 Instead, the terms acquired their meaning through use. Thus, in order to properly understand the term, it is necessary to understand its history and evolution. Instead of confronting the nature of the holy sites or developing another analytic way of defining them, over time, lawmakers adopted two strategies. First, they elected to recognize those locations that had acquired a de facto holy sites status as protected holy sites. A site, such as the Church of the Holy Sepulchre, was recognized because of its historic association and popular acceptance as the site of the burial and resurrection of Jesus (irrespective of whether or not it is a historically accurate attribution). In a sense, this was a proactive effort that recognized the importance of these sites to individual faith groups and was used as a political tool to cultivate good relations with a minority community. Second, and more significantly, the decision to recognize a particular place as a holy site was often made when controversy forced the hand of the ruling party. That is to say, particular locations entered the rank of holy sites when their status, either in terms of ownership or control, was made the subject of a contest by two or more parties who each agreed that the site was of particular religious significance. The failure to establish a clear definition for a holy site and to instead rely upon this historically evolved approach creates the poten3 4

Menachem Friedman, Haredim and Palestinians in Jerusalem, in Jerusalem: A City and its Future 237 (Marshall J. Breger and Ora Ahimeir eds., 2002). The term for a place sacred to one of the Books of the faith favored in this report and in the Holy Sites Project is “Holy Site.” In contrast, many of the existing laws and literature favor the term “holy place,” a term rejected by the project in part to distinguish our efforts from those that may evoke problematic associations for the peoples living within Israel and Palestine.

Historical Perspectives

23

tial for significant conflict in two ways. First, the special status afforded the holy sites in laws such as those enacted under the British Mandate (1922–1948) and under Israeli rule provides an incentive for those in control of a religious site to seek the status of a holy site. For example, the holy sites enjoy the protection of special laws (such as Israel’s The Protection of the Holy Places Law, 5727–1967), under which conflicts around them may be nonjudicable because of lack of jurisdiction by the courts, and they enjoy exemption from taxes, among other benefits.5 The second difficulty is that using conflict as a criterion for recognition creates a perverse incentive toward conflict. While this method of determining a holy site was incidental to the primary governmental concern of maintaining the peace and resolving civil disputes, it had the unintended side effect of rewarding conflict. Given this history, as seen in recent times in disputes between Israelis and Palestinians, one side or the other may be able to manipulate the status of a particular area by identifying it as a holy site and then provoking confrontations over that site. This, in turn, makes the creation of holy sites into a geopolitical tool, allowing one side to take control over a particular area through the creation/recognition of a holy site there. Emergence of the Status Quo The first instance of a transition of a particular place/edifice from the status of a religious site to a holy site has undoubtedly been lost in time. Clearly, after several hundred years, a site strongly connected to one of the founders of the three books of the faith, such as the Temple Mount’s association with the Temple (Herod’s reconstruction of the first temple constructed by Solomon), the Holy Sepulchre (Jesus), and al-Aqsa Mosque (The Prophet Mohammed), would have made this transition. Thus, when the rulers of Jerusalem were placed in the position of needing to regulate that site, it was easy to recognize the popular perception that the site was an especially holy site to a particular religious tradition. 5

Shmuel Berkovitz, The Legal Status of the Holy Places in the Land of Israel 14 (1997).

24

Protecting Jerusalem’s Holy Sites

It is difficult to find a period of time from the fall of the second Temple in 70 c.e. to the present in which the religious nature of the city of Jerusalem and its sacred sites were not subject to significant controversy. Throughout that time, the city has been ruled by theocratic or, at minimum, religiously oriented governments. The holy sites as a special topic of national and international concern emerged as an identifiable conflict with the fragmentation within the Christian tradition (325–787 c.e.) and the initiation of Muslim rule over Jerusalem and Palestine (638 c.e.).6 Fragmentation within the church led to controversies over control of particular sites between the Western or Latin Church (what is now referred to as the Roman Catholic Church) and the Eastern or Orthodox communities. These controversies took on political significance with the advent of Muslim rule, which led to the multiple Crusades undertaken by Christian Europe against the Muslim rule in the area. During the late Ottoman period, in response to the long-term internal conflict between the Greek-Orthodox, favored by Eastern governments and their Ottoman rulers, and the Latins, who were supported by certain countries in Europe, over their rights in some of the main holy sites in Jerusalem and Bethlehem, Sultan Abdul Majid appointed a special commission of inquiry.7 The conclusions of the commission were published in a Firman (Sultan’s decree) in 1852. These conclusions, along with the Firman of 1853, established the status quo or the existing rights of the various Christian communities in the Christian holy sites then under dispute. In determining what was to be protected, these Firmans created a core listing of holy sites. Additional disputes and additional agreements about three other Christian holy sites enlarged this list and, by the end of the nineteenth century, transformed it from an isolated series of regulations into what is commonly referred to as “The Ottoman status quo arrangement for the holy sites.” This arrangement refers to seven Chris6 7

Cust, note 2 supra, at 4–5. Walter Zander, Israel and the Holy Places of Christendom 178–180 (1971); Enrico Molinaro, Negotiating Jerusalem: Precondi-tions for Drawing Scenarios Based on Territorial Compromises 33-35 (2002); Ruth Lapidoth, Jerusalem: Some Legal Aspects, in Jerusalem: A City and its Future 62 (Marshall J. Breger and Ora Ahimeir eds., 2002).

Historical Perspectives

25

tian holy sites only and lists the rights of the various Christian communities in their different parts. The arrangement refers to four places in Jerusalem: The Holy Sepulchre and its appendices, Deir al-Sultan on the roof of the Holy Sepulchre, Mary’s Tomb in Gethsemane, and the Church of the Ascension on the Mount of Olives (which is actually held to this day as a mosque by the Muslims, with the right to prayer on the Feast of the Ascension divided among the Christian communities). In Bethlehem, the arrangement refers to three holy sites: The Church of the Nativity, The Milk Grotto, and Shepherds’ Fields in Bethlehem (meaning Deir al-Rayuat – the Greek-Orthodox site of Shepherds’ Fields).8 The conflicts between Christian communities and their national sponsors over rights in these places continued after 1852 and contributed to the outbreak of the Crimean War between the Ottoman Empire, its allies, and Russia (1854–1856).9 As a result of the war, the Ottoman status quo arrangement for the holy sites was recognized by the European powers and received international validity in the Paris Agreement signed on March 30, 1856 (although it is not specifically mentioned in the agreement). The status quo arrangement was again affirmed in the Berlin Agreement signed on July 13, 1878, by the European powers and Turkey, to settle the crisis between Britain, AustroHungary, and Russia. The British Mandate In December 1917, after 400 years of Ottoman rule, Jerusalem was conquered by the British. General Edmund Allenby, the British commander at the head of the conquering army, in his Proclamation of Martial Law in Jerusalem given in a speech on December 11, 1917 from the steps of David’s Citadel, gave a very broad definition of the holy sites worthy of protection by the British military rule. He declared that “since [the] City is regarded with affection by the adherents of three of the great religions of mankind,” [. . .] “therefore do I make known to you that every sacred building, monument [meaning tombs], holy spot, 8

Lapidoth, note 7 supra, at 63.

9

See Cust, note 2 supra, at 9–10.

26

Protecting Jerusalem’s Holy Sites

shrine, traditional site, endowment, pious bequest or customary place of prayer, of whatsoever form of the three religions, will be maintained and protected according to existing customs and beliefs of those to whose faiths they are sacred.”10 The British military rule that was applied to the Holy Land in December 1917 was replaced by the League of Nations Mandate for Palestine, which came into effect in September 1923 and gave mandatory power over the territory to the British.11 The concept of the holy sites (identified in the document as “Holy Places”) is mentioned in Article 13 of the Terms of the Mandate for Palestine, where it states that “responsibility [. . .] of preserving existing rights and of securing free access to the Holy Places, religious buildings and sites and the free exercise of worship, while ensuring the requirements of public order and decorum, is assumed by the Mandatory, who shall be responsible solely to the League of Nations in all matters connected herewith.” Muslim holy sites, referred to as “purely Muslim sacred shrines,” were excluded from the category of holy places under the full responsibility of Mandatory rule, deciding “nothing in this mandate shall be construed as conferring upon the Mandatory authority to interfere with the fabric or the management of [these shrines], the immunities of which are guaranteed.” Paragraph 28 states that when the Mandate ended, the League of Nations Council would take the necessary steps to ensure the rights stipulated in Paragraph 13. Thus, the British Mandatory rule was the first to explicitly involve international factors in administering the holy sites. Moreover, for the first time, it expands the scope of the status quo from a purely Christian concern to consider, if not protected in the same way, Muslim holy sites. In Article 14 of the Terms of the British Mandate for Palestine, Britain is requested to appoint a special commission, with the approval 10

11

See Sir Edmund Allenby’s Proclamation Following the Fall of Jerusalem, 9 December 1917, at http://www.firstworldwar.com/source/jerusalem_ allenbyprocl.htm (last visited June 10, 2004). See League of Nations, Mandate for Palestine ¶ 13, 14 (July 24, 1922), reprinted in Report to the General Assembly of the United Nations Special Committee on Palestine, Vol. II, Annexes, Appendix and Maps 18–22, U.N. Doc. A/364 Add.1 (Sept. 9, 1947), available at http://domino.un.org /unispal.nsf/0/2fca2c68106f11ab05256bcf007bf3cb?OpenDocument (last visited April 25, 2004).

Historical Perspectives

27

of the League of Nations Council, “to study, define and determine the rights and claims in connection with the Holy Places and the rights and claims relating to the different religious communities in Palestine.” The demand to this commission stemmed from the Vatican, which wished to change the status quo of 1852 in favor of the Catholic Church. However, due to Vatican demands for most of the commission’s members to be Roman Catholic, an agreement on its composition was never reached and a commission on the holy sites was not appointed.12 Instead, Britain administered the holy sites itself, mainly on the basis of the principle of maintaining the Ottoman status quo agreement in the Christian sites and existing conditions in the other sites. In view of the different interpretations of the status quo by the various communities, the Mandatory Government attempted to mediate, to postpone, or to take upon itself as a neutral factor many contested roles such as renovation and cleaning. In 1924, the British contributed a significant addition to the historic evolution of holy sites law through the enactment of the King’s Palestine (Holy Places) Order in Council of 1924.13 According to Article 2 of this Mandatory ruling, “no cause or matter in connection with the Holy Places or religious buildings or sites in Palestine [. . .] shall be heard or determined by any Court in Palestine.”14 Such issues would be decided under the jurisdiction of the Mandatory Government. The Mandatory legislator, like the formulators of the Terms of the British Mandate, did not define the holy sites encompassed by this ruling. High Commissioner Harold MacMichael stated in a letter to the chief secretary of the Mandatory Government, dated March 25, 1942, that the King’s Order “was limited in its application to those places and buildings in Palestine to which an almost universal tradition accords the veneration of humanity because of their connection with historic events in the story of the three great religions.”15 He clearly meant that the King’s

12 13 14 15

Meron Benvenisti, A Place of Fire 79 (1996). See Robert Henry Drayton, Laws of Palestine 2625 (1934). Id. Yitzhak Reiter et al., Between Divine and Human: The Complexity of Holy Sites in Jerusalem, in Jerusalem: Points of Friction – And Beyond 108 (Moshe Ma’oz and Sari Nusseibeh eds., 2000).

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Protecting Jerusalem’s Holy Sites

Order not only referred to the seven sites of the Ottoman status quo, but extended to the main holy sites in Jerusalem as differentiated from other less famous places of worship – synagogues, churches, and mosques. Up to this point, the evolving law on the holy sites was driven by controversy and conflict within the Christian tradition and between Christians and Muslims and their respective governmental representatives. The 1920s saw a change in this evolutionary pattern as tensions began to mount between Arab Palestinians and the increasingly powerful Jewish presence. Arabs were responding to increasing Jewish immigration to Palestine16 and the implications of the 1917 Balfour Declaration, which supported the establishment of a Jewish homeland in Palestine.17 This growing tension, insofar as it touched upon the holy sites, emerged slowly and, in contrast to the increasing incidents of violence, it initially appeared in the context of a surprisingly peaceful conflict. Rachel’s Tomb, which had been controlled by Jewish residents since the nineteenth century, needed repairs and renovation. In 1921 and again in 1925, the Jewish community sought to undertake these necessary renovations. On each occasion, the municipality of Bethlehem and the Waqf objected. While violent confrontations between Arab Muslims and Jews were increasing, this encounter fell within the more general strategy of nonviolent political protest by the Arab community.18 In the end, to alleviate the growing friction between the two communities, the Mandatory Government carried out the renovations.19 The holy sites, however, could not escape the escalating violence. Indeed, they became a focal point. Under the customary understanding of the status quo (though not explicitly articulated) as adopted by the British Mandate, Jews were granted access to the Western Wall, 16 17

18 19

See Benny Morris, Righteous Victims: A History of The Zionist-Arab Conflict, 1881–1999 at 106–120 (1999). The Balfour Declaration, November 2, 1917, 1940, Cmd. 5957, at 1–16 (last visited June 10, 2004) available at http://www.yale.edu/lawweb /avalon/mideast/balfour.htm. The Balfour Declaration (Nov. 2, 1917), reprinted in The Arab–Israeli Conflict and its Resolution: Selected Documents 20 (Ruth Lapidoth and Moshe Hirsch eds., 1992). Id. Benvenisti, note 12 supra, at 79.

Historical Perspectives

29

however, they were not allowed to install benches or, more importantly, screens to separate men from women, as required by the cultus of certain Orthodox Jewish sects.20 In 1928, when Jewish activists installed screens for Yom Kippur and refused requests by the Mandatory authorities to take them down, the police forcefully removed them. By 1929, right-wing Zionists “turned the affair into a point of national honor” and in August led protests to claim the Western Wall, with some even publicly advocating rebuilding the Temple (thereby requiring the destruction and appropriation of al-Aqsa Mosque).21 Arab Muslims reacted and the violence quickly spread: riots began in Jerusalem and spread to Safed and Hebron, where a massacre of Jewish communities took place. By the end of the week, 133 Jews and 116 Arabs were killed and 339 Jews and at least 232 Arabs were wounded.22 The Jewish demands to establish worship rights at the Western Wall, viewed by Muslims as part of the Temple Mount/Haram al-Sharif compound and as a Muslim holy site (called “el-Buraq,” after Mohammad’s mythical steed), reflected the rise in the power of the Jewish Yishuv (community) in the Mandate period. The confrontation between the Jewish Yishuv and the Arab leadership about the Western Wall became a national confrontation; each side using these religious symbols as a tool for mobilizing the masses and as a unifying banner in the overall struggle over the future of the Holy Land. Following the violence and at the recommendation of the British Commission of Inquiry (appointed to decide the issue), an international commission of inquiry was set up whose composition was approved by the League of Nations Council.23 This commission determined that the sole ownership of the site would remain in the hands of the Muslim Waqf; however, it recognized the right of the Jews to pray there, though under severe restrictions. They could bring prayer equipment, 20 22 23

21

Morris, note 16 supra, at 111. Id. at 113. Id. at 116. Report of the Commission appointed by His Majesty’s Government in the United Kingdom of Great Britain and Northern Ireland with the approval of the Council of the League of nations, to determine the rights and claims of Muslems and Jews in connection with the Western or Wailing Wall at Jerusalem, December 1930, reprinted in The Rights and Claims of Moslems and Jews in Connection with the Wailing Wall at Jerusalem (1968).

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but could not bring benches, carpets, or a partition to separate men from women; nor were they allowed to blow the ram’s horn (Shofar) at the end of Yom Kippur (the Day of Atonement). These recommendations were accorded the power of legislation in the King’s Palestine (Western or Wailing Wall) Order in Council, 1931. As a result of these developments, Britain expanded the Ottoman status quo arrangement to explicitly include the Western Wall (according to arrangements determined in the King’s Order) as well as Rachel’s Tomb.24 The status quo now clearly was to apply to Christian, Muslim, and Jewish holy sites. United Nations 1948 The British decision, in the face of rising violence in the Middle East, among other reasons, to turn the Palestine issue over to the United Nations brought the issue of the holy sites and the status of Jerusalem again to the international arena. In order to address the problem, the United Nations created the United Nations Special Committee on Palestine (UNSCOP), appointed by the United Nations General Assembly in May 1947. In light of its importance and acknowledged sensitivity, the Special Committee included a subcommittee for the issue of Jerusalem and the holy sites. In addressing the issue of the holy sites, religious, governmental, and non-governmental organizations quickly stepped forward to offer their advice. Intentionally or not, they immediately adopted the status quo approach to the holy sites. Representatives of the Christian communities in Jerusalem presented detailed memoranda with long lists of holy sites administered by them.25 The Greek Orthodox Patriarchate presented a list of 23 sites inside the Old City (including all the small monasteries, especially in the Christian Quarter, used mainly as 24

25

Concomitantly, in 1929 Lionel Cust, district officer for Jerusalem in the mandatory regime, published a comprehensive document on the status quo in the Holy sites (including the Western Wall and Rachel’s Tomb). This document, considered the “last word” on the sensitive subject, was most influential, and became the guiding document for the Israeli government after 1967 – mainly about Christian holy sites. See The Holy Places, Working Paper prepared by the Secretariat, U.N. Conciliation Commission for Palestine, Committee on Jerusalem, U.N. Doc. A/AC.25/Com.Jer/W.14 (1949).

Historical Perspectives

31

dwelling places) and of 18 institutions outside the wall and around Jerusalem (including Bethlehem). The Custodia Terrae Sanctae, the Franciscan institution holding the holy sites for the Catholic Church, presented a list of 36 holy sites in Jerusalem and Bethlehem managed by it and of 25 other holy sites in which the Custodia shared management with other communities or in which it had some interest. The Armenians listed 17 holy sites visited by Armenian pilgrims. Other lists were presented by the French Consulate, by the Catholic Near East Foundation, and by the Mandatory Government that presented a list of Christian as well as Jewish and Muslim holy sites (10 Jewish and 9 Muslim). Memoranda were presented to the UNSCOP Commission by other Christian bodies, such as the Scottish Church, the Maronite Church, and the Ethiopian Church, referring to the proposal to internationalize Jerusalem. Significantly, those representing the Jewish and Muslim communities did not bother to present lists to the Commission. While the numerous Christian lists and sites point to the wish of the Christian communities to ensure their rights in internationalized Jerusalem, the Arabs and Jews were preparing for war over the control of the city. On August 31, 1947, the conclusions of the commission were presented to the UN General Secretary, to be put before the General Council. Most members of the commission favored the proposal to establish two states in Palestine, one Jewish and one Arab, and turn Jerusalem and environs into a Corpus Separatum – a distinct entity, disarmed and neutral, to be ruled by a special international regime appointed by the Trusteeship Council of the UN, with a governor appointed by it for a trial period of 10 years. The proposed boundaries of the international city would be quite broad, and would include all the holy sites in the city and environs, including al-Azariah (Bethunia) in the east, Bethlehem and Bet Sahur (with the Shepherds’ Fields) in the south, and Ein Karem in the west. Most of the commission’s members felt that internationalization would contribute to safeguarding the holy sites and ensuring access to them. The proposal promised protection of access to the holy sites, continued respect of existing rights in them, and free access and worship subject to the maintenance of public order. In cases of disagreement

32

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between Christian communities, the governor could carry on repair works in the holy sites. It was also promised that taxes on the holy sites would not be raised.26 On November 29, the UN General Assembly confirmed the majority proposals of the UNSCOP Commission in Resolution 181 (1), which came to be called the Partition Resolution. The War of 1948 and the UN inability to implement this resolution brought about the division of the city after the war between Israel and Jordan. Jordan kept the Old City and environs containing most of the important holy sites; and Israel kept the western part of the city, and controlled Mount Zion (with David’s Tomb, the Room of the Last Supper, and Dormition Abbey), as well as the birthplace of John the Baptist in Ein Karem. Deliberations in UN bodies continued till the end of 1952. The struggle over Jerusalem in 1947–1948 caused a rise in the number of Christian holy sites. In part this expansion may have been motivated by something resembling ego. It is noteworthy that each Christian community offered larger lists of holy sites for protection than ever before recognized. They may have been attempting to enhance their status by means of a longer list of holy sites. However, perhaps of greater significance for the Christian communities was the desire to seek international protection in the face of this changing political situation in which they were a minority religion whichever side emerged preeminent. In the end, the United Nations reaffirmed the importance of the status quo approach to protecting and regulating the holy sites. In November 1949, the UN published a list of 30 sites in Jerusalem sacred to all three religions.27 In March 1950, the secretariat of the UN Conciliation Commission prepared a list of 97 holy sites in the international area of Jerusalem. This list was based on the above-mentioned lists by the Christian communities, by the various Christian bodies and by the Mandatory Government presented to the UNSCOP Commission. It included 80 Christian, 9 Muslim, and 10 Jewish sites (including the 26 27

Ruth Lapidoth, Jerusalem: Legal Aspects 4 (1997). Map no. 229, November 1949, UN Maps Collection, UN Presentation 1485; H. Eugene Bovis, The Jerusalem Question 1917–1968 142 (1971); Shmuel Berkovitz, The Wars of the Holy Sites 55, 442 (2000).

Historical Perspectives

33

Gihon Spring, called “bathing place of Rabbi Ishmael,” and old and new synagogues in the Jewish Quarter).28 Post 1948 While Israel and Jordan emerged from the 1948 War as bitter enemies destined to essentially refight the war twice more in the next twenty years29 – they shared a common interest with respect to Jerusalem and the holy sites. Neither country wanted to accept the United Nations proposal that Jerusalem become an international city – a Corpus Separatum. Therefore, it served the short term interest of both parties to avoid incidents affecting the holy sites that might provoke international intervention. This led to a period of relative calm for the holy sites from 1949 to 1967. Christian sites, in particular, were generally protected, while conflicts over Jewish or Muslim sites in the territory held by the other were muted. Jordan’s Approach Following the war, the Jordanian King Abdallah created a new position, the “Keeper of the Haram al-Sharif and Chief Guardian of the Holy Places.” On January 5, 1951, Ragheb Nashashibi (former mayor of Jerusalem) was appointed to this position. His role was not only to maintain the status quo but also to assure that “all Sultanic Firmans and all traditional rights held by the Patriarchs will be examined and registered without prejudice in special records, to serve as a reference in case of need.”30 Jordan maintained order strictly and successfully in places prone to disturbances, such as the Holy Sepulchre and the Church of the Nativity in Bethlehem. Incidents were few, both because of strict enforcing of the status quo and because of the fact that during Easter, for example, Jordan posted 150–200 policemen and soldiers in the Holy Sepulchre to keep order. The single serious conflict over the Church of the 28 29 30

Copy of the document from the UN Archives on file with Amnon Ramon. A relatively small skirmish in 1956 and then again in 1967, see Morris, note 16 supra, at 289, 321-325. Zander, note 7 supra, at 87–88.

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Holy Sepulchre during Jordanian rule involved the historic strife between the Ethiopians and Copts over the rights in Deir al-Sultan, an Ethiopian monastery on the roof of the Holy Sepulchre. While the monks of Deir al-Sultan under the status quo held the right of possession to the monastery, the Egyptian Copts held the keys to the roof necessary for access. Once the Jordanian’s took control of the area, the Ethiopian petitioned for control of the keys. Initially, the Jordanian government ruled in favor of the Ethiopians, but under Egyptian pressure later withdrew its decision and ruled for the Copts and against changing the status quo in the site.31 Moreover, as illustrated by Deir al-Sultan, preservation of the status quo did not resolve the problems of conflicts between multiple traditions that shared the possession and control over other holy sites. For many years, repeated crises arose over necessary repairs and renovations to the Church of the Holy Sepulchre. Constant conflicts among the communities over responsibility for these repairs led during Mandatory times to the execution of urgent interventions to correct life-threatening faults by the government or by the Jerusalem municipality. In 1951, the Christian communities finally managed to agree to cooperate in undertaking necessary repairs, but negotiations over it continued for 11 years. Only in 1961 did the Roman Catholics, Greek Orthodox, and Armenians establish a joint technical office that began doing repair and renovation works. Even then, work proceeded slowly. In part this was because of the character of the work and the inability to reach the site by motor vehicles (a problem in administration). However, it also reflected the continued existence of mutual suspicions among the three communities.32 Contrary to its careful handling of the issue of Christian holy sites, the Jordanian government did not hesitate in imposing restrictions on Christian churches and establishments preventing or limiting their ability to acquire land, manage church schools, and the like.33 31 32 33

“Deir Sultan, Ethiopia and the Black World” at http://mahder.com/index.php?name=News andfile=printandsid=88 (accessed 12/19/2004). Benvenisti, note 12 supra, at 80. Daphne Tsimhoni, Christian Communities in Jerusalem and the West Bank since 1948 13 (1993).

Historical Perspectives

35

Concerning Jewish holy sites, Jordan breached its commitment to appoint a committee to discuss, among other topics, free access of Jews to the holy sites under its jurisdiction, mainly to the Western Wall and the important Jewish cemetery on the Mount of Olives, as provided in Article 8.2 of the Cease Fire Agreement between it and Israel dated April 3, 1949. Jordan permitted the paving of new roads in the cemetery, and tombstones were used for building and paving in Jordanian army camps.34 The Cave of Shimon the Just became a stable. Israel protested against these acts, but did not take actual measures because of the joint interest of both countries to remove the idea of internationalization of Jerusalem from the international agenda, and to gain international recognition of the divided city. The Jordanian government dealt directly with Muslim holy sites. The Waqf institutions that administered the chief Muslim sites (primarily the Temple Mount/Haram al-Sharif) became, as a result of the Jordanian Waqf Law of 1966, part of the Ministry of Muslim Affairs and Endowments. The large measure of autonomy enjoyed by local Muslim institutions under Mandatory rule disappeared under Jordan. As a Muslim country, Jordan had no difficulty in managing Muslim holy sites in Jerusalem. Israel As a new country, Israel was in a position to adopt new laws addressing the issue of the holy sites. However, under the pressure of international scrutiny that was not particularly supportive of Israel’s capture of large parts of Jerusalem, Israel largely adopted the expedient tactic of reaffirming Mandatory laws and approaches to the holy sites. For example, the Israeli legislature based some laws on the King’s Order for understanding the term holy site. As a consequence, the term remained undefined in Israeli legislation.35 According to an Israeli court ruling, the King’s Order is also valid in Israel; therefore the courts do not deem themselves qualified to deal with claims about substantial rights in the holy sites (including freedom of worship). The authority of the High Commissioner over the holy sites was transferred to the Ministry of Religious Affairs by Israeli legislation. 34

Berkovitz, note 5 supra, at 5.

35

Id. at 14.

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On the Israeli side of divided Jerusalem following the 1948 War, the affairs of the Christian and Jewish holy sites were carried out relatively smoothly. After a short period of instability after the war, the Christian institutions in West Jerusalem were allowed to continue their activities under Israeli rule with little direct interference. The Franciscans continued to administer their churches in Ein Karem, and other Christian bodies were allowed to return to their institutions on Mount Zion. Israel’s initial response to the full range of religious sites (i.e., churches and mosques) was initially protective, even in the face of a policy that tolerated, if it did not explicitly endorse, the forced expulsion of Palestinians.36 While confiscating the property, Israel would nonetheless preserve a historic church or mosque at the same time that the village surrounding it was being razed.37 However, while the initial impulse had been to not destroy these sites, there was no concomitant interest in reopening them or even maintaining them. Indeed, in justifying the increasing process of demolition of mosques that had been allowed to decay, one justification that was offered was to “[spare] Arab citizens sorrow . . . when passing near their birth villages which they longed for. . . .”38 Clearly, in the face of the public call for the right of return, the Israeli’s did not want to make the territory in Israel inviting for such a return. Indeed, in this regard, Israel has adopted a policy (continued to the present) of sealing off many historic mosques and some churches, and allowing them to fall into disrepair or to be converted to other uses.39 The holy sites in Jerusalem were a different matter. Given their prominence, Israel could hardly overturn the long standing protections of the status quo. However, while Israel complied with existing requirements of the status quo, it soon became apparent that it was not anxious to expand its purview. For example, when David’s Tomb and the Room of the Last Supper, held by the Muslims until 1948, came under 36

37 38 39

Arab Association for Human Rights (HRA), Sanctity Denied: The Destruction and Abuse of Muslim and Christian Holy Places in Israel 13–14 (2004); Morris, note 16 supra, at 256–258 Id. Tom Segev, “Where are all the Villages? Where are They?” Haaretz (Sept. 6, 2002) cited in HRA, Id. 13. Id.

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the Israeli Ministry of Religious Affairs (the central body dealing with Christian communities), access to both sites – previously restricted to Muslims – was permitted to all. However, the Christians communities were not allowed to carry out religious ceremonies on the sites. Similar to Jordan’s treatment of Jewish holy sites, numerous Muslim holy sites (mosques and cemeteries) under Israeli rule in West Jerusalem fell into disuse and suffered from neglect. Some were destroyed due to Israeli development projects. For example, the Muslim cemetery in the Mamila area was damaged due to the construction of Independence Park in the center of Jerusalem.

3 Israeli Policy on the Holy Sites: 1967–2002

While the nature of the status quo handling of the holy sites has remained relatively stable from the 1940s on, the political context in which it operates shifted dramatically with the 1967 War and the Israeli capture of West Jerusalem. Israel’s First Steps after the War On June 4, 1967, the eve of the war, the Israeli government was undecided about capturing the Old City. The cabinet was gravely concerned over the question of the holy sites and the international ramifications of seizing the Old City. Foreign Minister Abba Eban worried that the fighting would entail damage to holy sites. Two other ministers, Moshe Haim Shapira and Zalman Aranne, foreseeing international complications, were led to speculate about the internationalization of the Old City after its capture.1 In a later consultation that evening, Prime Minister Levi Eshkol said that “even if we capture the Old City and the West Bank, we will ultimately be compelled to relinquish them.”2 In line with this, on June 5, while Israel was attacking Egypt during this the first day of the war, it contacted King Hussein of Jordan and promised him that if he would remain neutral, Israel would not attack Jordanian positions – including East Jerusalem.3 1 2 3

Uzi Benziman, Jerusalem: A City without a Wall 15, 16 (1973). Eitan Haber, A War Will Break Out Today 231 (1987). Six Day War, Encarta, at http://encarta.msn.com/encyclopedia_761570433/Six-Day_War. html#endads (last visited May 25, 2004).

39

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The fears expressed by the prime minister and others in 1967 echoed apprehensions harbored by leaders of the Zionist movement and the Yishuv – the pre–1948 Jewish community in Palestine – who understood that Jewish control of the holy sites and the Old City would be unacceptable to international public opinion. Theodor Herzl proposed the establishment of an international regime in Jerusalem, while Chaim Weizmann stated in 1937 that “I would not take the Old City [even] as a gift; there are too many complications and difficulties associated with it.”4 Given this background and the controversy over the internationalization of Jerusalem in the wake of the UN partition resolution of November 1947, it is obvious why ministers such as Shapira and Aranne advocated internationalization of the Old City. Jordan, convinced by Egypt that it was winning its fight with Israel on the morning of the June 5, rejected Israel’s offer of neutrality and began shelling Israeli positions in West Jerusalem. Jerusalem and the West Bank were then added to the Israeli war plans. However, questions about Jerusalem remained. On the following day, June 6, as Defense Minister Moshe Dayan looked down from Mount Scopus at the spectacular view of the Old City with its multitude of churches and mosques, Major General Uzi Narkiss, head of Central Command, urged him to order troops into the Old City. Dayan’s reply was firm: “Absolutely not! What do we need this whole Vatican for?”5 On the same day, as if in response to the cabinet’s vacillations, the prime minister was informed through the American ambassador of a request by the Pope that the city be declared an “open city.”6 Clearly, the world was watching. Nonetheless, war carries its own demands. As fighting continued Moshe Dayan ordered Israeli forces to surround the Old City to minimize possible damage to the holy sites. The troops were ordered to refrain as far as possible from the use of heavy weaponry and to keep away from the Muslim shrines on the Temple Mount (Haram alSharif) and from the Church of the Holy Sepulchre.7 Twenty-four 4 5 6 7

Uzi Narkis, One Jerusalem 213 (1978). Id.; Nadav Shragai, Har Hameriva 18, 395 (1995). Haber, note 2 supra, at 231; Benziman, note 1 supra, at 99. Haber, note 2 supra, at 233.

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41

hours later, on the morning of June 7, the Old City was captured by Israeli Defence Forces (IDF).8 Dayan, who only two days earlier had reservations about seizing the Old City, informed the nation in a radio broadcast from the Western Wall that the mission had been accomplished. Like British General Allenby in 1917, the question of the holy sites was clearly uppermost in his mind: “We have returned to the holiest of our sites, and will never again be separated from it. To our Arab neighbors Israel extends the hand of peace, and to the peoples of all faiths we guarantee full freedom of worship and of religious rights. We have come not to conquer the holy sites of others nor to diminish by the slightest measure their religious rights, but to ensure the unity of the city and to live in it with others in harmony.”9 As was the case with other issues, Dayan in his first declaration articulated the principles of Israeli policy on the holy sites: Israel would rule the Old City and control the holy sites eternally, but would fully respect the rights of the two other religions. It quickly became apparent that the issue of the Christian holy sites could be dealt with more easily than that of Muslim sacred places. Israel had no claims on the Christian holy sites. However, the arrangements that were introduced at the Temple Mount in Jerusalem and at the Tomb of the Patriarchs in Hebron, which are sacred to both Judaism and Islam, were intricate and complex; no wonder that they became two of the thorniest problems in the Arab–Israeli and Muslim–Jewish conflict. Fearing a sharp worldwide reaction to Israel’s capture of the Old City and the holy sites by the leaders of Christianity and Islam, Prime Minister Eshkol moved quickly. On the afternoon of June 7, a few hours after Dayan made his statement, Eshkol convened the heads of the Christian communities and the chief rabbis to read them a declaration that had been formulated by the director-general of the prime minister’s office, Yaacov Herzog: Be assured that no harm of any kind will be allowed to befall the Holy Places. I have asked the Minister of Religious Affairs to contact spiritual leaders in the Old City to ensure orderly relations between them 8 9

Benziman, note 1 supra, at 19. Moshe Dayan, Story of My Life 14 (1978).

42

Protecting Jerusalem’s Holy Sites and our forces so that they may pursue their religious and communal activities unhindered. At my instance, he has given instructions that arrangements at the Western Wall shall be determined by the Chief Rabbis of Israel, those in places sacred to Muslims by a Council of Muslim ecclesiastics, and those in places sacred to Christians by a Council of Christian religious dignitaries.10

The next day Minister of Religious Affairs Zerah Warhaftig announced that pursuant to the prime minister’s declaration, a “Temporary Authority” had been appointed and “detailed instructions for the faithful observance of the principles enshrined in the Proclamation of Independence [of Israel, with regard to the holy sites].” Warhaftig also noted that “within the next few days I will set up responsible councils of the religious leaders in order to implement the legislation.”11 Significantly, Eshkol and Warhaftig avoided quoting from the British proclamation issued by General Allenby in December 1917, stating that the holy sites of the three religions would be held and maintained “according to the existing customs;” and of a similar statement by Jordan’s King Abdallah, in 1951 that the guardian of the holy sites “will safeguard . . . their rights, their beliefs, their cults, and the places of the prayers; that within the limits of the status quo order. . . .” [and] “that the communities, the mosques and the churches will be assured in their respective rights.”12 This was apparently due to Israel’s concern that mention of the status quo might invoke the restrictive, humiliating regulations existing during the Mandate concerning the Jewish holy sites, particularly as regards the Western Wall. Instead, Warhaftig’s statement rested on the authority of Israel’s Declaration of Independence, which states that the Jewish state “will guarantee freedom of religion and conscience, of language, education, and culture. It will safeguard the holy sites of all religions.”13 10

11

12 13

Statement by Prime Minister Levi Eshkol to the Chief Rabbis and the Leaders of all Religious Communities in Israel on 7 June, Christian News from Israel 18:1–2, July 1967, at 10; Zander, supra note 7, at 101. Declaration on Holy Places by Minister of Religious Affairs, Christian News from Israel 18:1–2, July 1967, at 12; Zander, supra note 7, Ch. 2, at 102; Benvenisti, supra note 12, Ch. 2, at 221. Walter Zander, Israel and the Holy Places of Christendom 87 (1971); Meron Benvenisti, A Place of Fire 82 (1996). Benvenisti, note 12 supra, at 82.

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The declarations of the prime minister and the minister of religious affairs expressed Israel’s intention to assure the Christian churches full religious freedom and grant them considerable autonomy in administering their holy sites. Israel’s decision that arrangements at the Christian holy sites would be determined by a council of Christian clerics indicated that the government was not aware at this stage of the generations-long internecine struggles among the Christian churches and communities over control of the holy sites. This situation was liable to prevent the cooperation essential for the joint administration of the holy sites;14 and indeed, no such joint council was ever established. Another step taken by Israel in an effort to allay the concerns of Christendom was to invite the heads of the Christian churches and communities to meet with Major General Chaim Herzog, IDF commander in the West Bank. The meeting took place on June 8, as the war continued, at military government headquarters in the Ambassador Hotel in East Jerusalem. Herzog repeated the statements made by Eshkol and Warhaftig. He also assured his interlocutors that the military government would try its utmost to prevent any harm to the sacred sites, and to ensure freedom of worship for adherents of all creeds. Israel’s approach regarding all the holy sites, Herzog said, would be completely different from that of Jordan, which had done irreversible damage to Jewish holy sites. Herzog then introduced Akiva Sahar, appointed to head a special IDF unit to guard the holy sites by means of a perimeter defense.15 The reaction of the Christian leaders to Herzog’s remarks was highly positive from the Israeli perspective. The Greek Orthodox Patriarch, Benedictus I, who was historically the most important of the city’s three resident patriarchs, thanked Herzog for the IDF’s benevolent attitude toward the holy sites and said he was willing to cooperate with the Israeli authorities. The others echoed his remarks, the Anglican Bishop MacInnes commenting that “it will be recorded in the history books that Israeli soldiers fell because of Israel’s effort to prevent harm coming to the holy sites.”16 The voice of the Lutheran Bishop who asked, “Where are our Muslim brothers?,” was unique at the meeting in 14 16

Id. Id.

15

Benziman, note 1 supra, at 106.

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reflecting concern for the fate of the Muslim religious leaders.17 Supporting this meeting, Israeli sought to restore normalcy with all possible speed thereby enabling the Church of the Holy Sepulchre to reopen to the faithful as early as Sunday, June 25, 1967.18 The relatively low-key attitude taken by the heads of the Christian churches in Jerusalem toward the city’s new rulers (perhaps due in part to their shock at the war’s outcome) was in pointed contrast to the reaction elsewhere, beginning with the Holy See. The Pope, losing no time, called on June 7 for Jerusalem to be demilitarized and to be turned into a haven for the wounded and the defenseless. Two days later the Vatican placed on the public agenda the idea of Jerusalem’s internationalization, which had been dormant since the early 1950s. On June 26, as rumors mounted that Israel was about to annex the eastern part of the city, the Pope declared: “The Holy City, Jerusalem, must remain for all eternity that which it represents: a city of God, a free oasis of peace and prayer, a meeting point of inspiration and harmony for all, possessing its own standing and safeguarded by the international community.” Cool reactions, calling for Israel’s immediate withdrawal from the Old City, were also voiced by international Protestant organizations, such as the Council of Churches in Britain.19 As one would expect, the reaction of the Islamic world and the Arab countries was one of total condemnation. They called for an immediate withdrawal of Israel. The “Protection of the Holy Places Law, 5727–1967”20 Despite the earlier reservations of the Israeli cabinet and the growing opposition of the international community, on June 27, 1967, Israel annexed East Jerusalem by enacting two laws: the first provided for the application of Israeli law, jurisdiction, and administration in East Jerusalem; the second enlarged the area of the city of Jerusalem.21 In 17 18 19 20 21

Id. Michael Shashar, The Seventh Day War 36 (1967). Meron Benvenisti, Facing the Closed Wall 166 (1973). N.B. 5727 refers to the year of the act according to the Jewish Calendar. Y. Ariel Malachi, The Christian Churches and the Six-Day War, 1 Molad 571–583 (1968).

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order to soften the impact of this legislation and to assuage international fears, a third law was rushed through the Knesset that same day, entitled Protection of the Holy Places Law, 5727–1967. This law remains the foundation of Israel’s policy toward the holy sites.22 The first article of the Holy Places Law states that “The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.” Article 2 provides for severe criminal sanctions against anyone who desecrates or otherwise violates a holy site (up to seven years in prison), or who “does anything likely to violate the freedom of access of the members of the different religions to the holy places or offend their feelings with regard to these places” (imprisonment of up to five years). The third article refers to previous legislation on the subject and asserts that “[t]his law shall add to, and not derogate from any other law.” This point subsequently caused legal complications arising from the question of how far the new law overrode earlier legislation, particularly the British “Palestine (Holy Places) Order in Council” of 1924, which authorized the executive (the High Commissioner) rather than the judiciary to settle disputes at the holy sites. The fourth article charges the minister of religious affairs with the implementation of this law, stating that “he may, after consultation with, or upon the proposal of, representatives of the religions concerned and with the consent of the Minister of Justice make regulations as to any matter relating to such implementation.” The thrust of the law, then, was consistent with the declarations by Eshkol and Warhaftig. It guaranteed access to the holy sites and protected them against desecration and against violation of the feelings of those who held them sacred. It is noteworthy that the term status quo does not appear in the wording of the legislation. Again, the reason for this was probably to avoid limiting the rights of Jews at their holy sites, particularly the Western Wall. 22

Protection of Holy Places Law 5727–1967, 21 L.S.I. 76 (1967), available at http://www.knesset.gov.il/laws/special/eng/HolyPlaces.htm (last visited June 16, 2004).

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In comparison with the Eshkol and Warhaftig declarations, however, the law somewhat constricts the role of the heads of the religious communities. It is not they, but the Israeli minister of religious affairs who decides on the arrangements at their holy sites. More than 30 years after the 1967 War, there are still contentious and intractable problems, such as determining the authorized representatives of the various religions, the problem of places held sacred by more than one religion, and the churches’ resistance to open cooperation with Israel. Consequently, the Ministry of Religious Affairs has not promulgated regulations for the administration of the Christian holy sites. Moreover, no regulations were promulgated by the Ministry of Religious Affairs for the Muslim holy sites. Israeli Policy toward the Christian Holy Sites in Jerusalem Israeli policy toward the Christian holy sites has evolved over time. Events can best be understood within two periods of development: the period following the 1967 War up to the beginning of the first Intifada and the period following that. 1967 to the First Intifada On June 29, 1967, two days after Israel formally annexed East Jerusalem, Dayan ordered the removal of the barriers that had divided the two parts of the city since 1948 and permitted free movement of Arabs and Jews throughout Jerusalem. Israelis streamed into the Old City and the city of Bethlehem, south of Jerusalem. Many visited Christian holy sites and churches. This new freedom brought its own difficulties. Inappropriate behavior by some Israelis gave rise to a number of conflicts between visitors and leaders of some of the holy sites. This led the police and the Ministry of Religious Affairs, in coordination with the heads of the Christian communities, to place signs at the holy sites warning against immodest dress and offensive behavior in these places.23 (Such signs are still posted at the entrance to the plaza in front of the Church of the Holy Sepulchre.) In August 1967, a gold 23

Id. at 75. Text reproduced in The Arab–Israeli Conflict and its Resolution: Selected Documents 132 (Ruth Lapidoth and Moshe Hirsch eds., 1992).

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tiara and other jewels adorning a statue of Mary on Golgotha in the Church of the Holy Sepulchre were stolen. Arab officials used the theft and the behavior of Israeli visitors to condemn the Israeli authorities. Following an intensive police investigation, the jewels were soon recovered and returned to the church in a festive ceremony. The thieves were sentenced to lengthy prison terms.24 Following the consolidation of Israeli rule in East Jerusalem, a thorough survey was conducted to determine the amount of damage caused by the war. It emerged that the Christian holy sites and institutions had sustained only very minor damage. None of the status quo sites (Church of the Holy Sepulchre, Deir al-Sultan, Mary’s Tomb, and the Church of the Ascension on the Mount of Olives) had been affected; but some damage had been caused to several churches in the Mount Zion area and to the Church of St. Anne near St. Stephen’s Gate. The large-scale damage that had been caused during the 1948 War to Christian institutions that straddled the boundary between the two sections of the city was also plainly visible. Some Arab and church officials cited this devastation in their public criticisms of Israel.25 To address this problem, a few months after the war the Israeli government decided to pay reparations to the churches for all damage sustained between 1948 and 1967, whether due to actions by Jordan or by Israel. The churches submitted their claims to an Israeli committee of experts. By the end of 1968, the panel had reached agreements with 15 different churches and church bodies. Only the French government refused to submit an estimate and accept reparations for damage done to the Church of St. Anne, which was in its possession.26 By 1969, 6 million Israeli pounds ($1.7 million) had been paid out.27 To avoid possible criticism on the part of international Christian bodies, Israel abandoned its intention to retain land claimed by various Christian groups around Mount Scopus, Beit Hanina, Atarot, as well as the Notre Dame monastery.28 24 26 27 28

25

Zander, note 12 supra, at 104. Benvenisti, note 19 supra, at 170. Id. Benvenisti, note 19 supra, at 164; Saul P. Colbi, A History of the Christian Presence in the Holy Land 204 (1988). Benziman, note 1 supra, at 118.

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In addition to paying reparations, the Ministry of Religious Affairs and the Jerusalem Municipality assisted in the renovation and rehabilitation of a number of churches and Christian institutions in the Old City and environs. These included the Church of the Holy Sepulchre, the Maronite Center, and the Syrian-Catholic Center in the Old City. During the 1980s, extensive infrastructure work was done along the Via Dolorosa, and the paving stones around the churches were laid out in the shape of a semicircle for emphasis.29 The Israeli authorities offered support to Christian social clubs, schools, and charitable organizations that operated in the city. Most of them rejected the aid. Various tax and customs exemptions were granted to most of the churches and their leaders.30 Israel’s desire to grant the Christian communities autonomy in the administration of their holy sites proved problematic because of the disputes among the Christian communities and their ingrained mutual suspicions. For example, control of the Church of the Holy Sepulchre is actually divided among six Christian communities, according to the conditions of the Ottoman and Mandatory status quo. Friction has abated lately among the three major communities (Greek Orthodox, Roman Catholic, and Armenian), who hold most parts of the church and conduct renovations in it. Control of the Church of the Nativity in Bethlehem is also divided according to the status quo agreements, between the Greek Orthodox, Armenian, and Latin (represented by the Franciscans) communities, who built a large church adjacent to the historic one. The right of possession and the cleaning of the various sections of the church are carefully divided between the three communities. There have not been any major conflicts lately between the three. Given this problem of conflicting claims of ownership, the Israeli authorities reversed course and elected to abide by the existing status quo as developed under Ottoman rule and the British Mandate. Although, the specifics of the status quo were not enshrined in declarations by Israeli leaders or in the Protection of Holy Places Law, 29 30

Colbi, note 27 supra, at 205. Daphne Tsimhoni, Christian Communities in Jerusalem and the West Bank since 1948 9 (1993).

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5727–1967, in practice Israel adopted the status quo arrangements in accordance with the famous document issued by the Mandatory official Lionel George Arthur Cust.31 Perhaps the only deviation from that policy occurred during Easter in 1970, when the government turned a blind eye as the Ethiopians switched the locks on the gate to a corridor leading from Deir al-Sultan to the plaza of the Church of the Holy Sepulchre, despite the protest of the Copts, who previously held possession of the area under the status quo.32 In the first years following the 1967 War, Israel continued this effort to appease and accommodate the Christian churches and communities. Faced with broad international opposition to the annexation of East Jerusalem, Israel viewed the local and international Christian organizations as a moderating element vis-à-vis Palestinian nationalist groups. Israel also sought to prove to the Western world that Christian holy sites and communities could flourish under its rule. In the Jordanian period, various restrictions had been imposed on the Christian sects in the purchase of land, the administration of educational and relief institutions, and in social and cultural activity. Local and foreign Christian groups needed special government approval to buy land. The activity of Christian charitable organizations was closely supervised by Amman, as was social and cultural activity within the Christian communities. The Jordanian authorities even attempted to blur the religious character of schools run by the Christian communities. These restrictions were lifted under Israeli rule. Similarly, the hidden discrimination that the Christians, as a religious minority, suffered at the hands of the Hashemites disappeared, as did harassment of Christian institutions by radical Muslim groups.33 Israel’s treatment of the Christian communities in the immediate aftermath of the war was so favorable that it led to a request made to the Israeli authorities on July 3, 1967, by 550 dignitaries from Bethlehem (most of them Christians) to annex their city to Israel. Bethlehem, they argued, had always been closely 31 32 33

Lionel Cust, The Status quo in the Holy Sites 64 (Facsimile ed., 1980); Benziman, note 1 supra, at 103. Benziman, note 1 supra, at 125. Daphne Tsimhoni, The Christian Communities in Jerusalem and the West Bank 1948–1967, 9 Middle East Review 41–46 (1976).

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connected with Jerusalem and the unification of Jerusalem should also encompass Bethlehem.34 However, Israel soon discovered that the attitude of the various Christian communities toward the new rulers was complex and that significant differences were discernible among them. With respect to the local churches, such differences stemmed primarily from the character of the leadership of each Christian community and the relations maintained with the Arab population. The senior leaders in the Greek Orthodox and Armenian churches favored the Israeli government and on several occasions thwarted initiatives for anti-Israeli resolutions by heads of their churches in Jerusalem. The (Roman Catholic) Latin Patriarch and the Apostolic Delegate in Jerusalem tried to maintain a neutral, cautious, and formal stance toward the Israeli authorities. In contrast, the heads of the Greek-Catholic and Anglican churches (both of which are considered Palestinian-Arab churches),35 the Coptic Archbishop, and the leaders of the Franciscan Order often manifested hostility toward Israel.36 The reception of Israeli rule in Jerusalem by international denominational leaders was generally more reserved, with most voicing strong objections. The Holy See held numerous meetings with Israeli representatives following the war, which lead to a certain moderation of its attitude toward Israel and its opposition to Israeli rule of Jerusalem. Nonetheless, it wasn’t until 1994 that the Holy See established diplomatic relations with Israel.37 The established Protestant international bodies similarly objected to Israeli rule in Jerusalem; but fundamentalist Protestants, who have viewed Israel’s reemergence as the fulfillment of biblical prophesy of the “end of time,” took a positive attitude.38 As in other spheres, the first months after the 1967 War were a form34 35 36 37 38

Ma’ariv, September 16, 1968. The local Arab community assumed growing influence in the Anglican Church over the years, and in 1976 an Arab bishop was appointed to head the church. Benziman, note 1 supra, at 121; Benvenisti, note 19 supra, at 172. Benziman, note 1 supra, at 108; Benvenisti, note 19 supra, at 168. Israel and the Vatican established diplomatic relations in 1994. Y. Ariel Malachi, The American Fundamentalists and Israel, in Halakha Lema’aseh: Zramim Fundamentalistim Lenokhah Ba’ayot Be’ezoreinu 13, Policy Paper no. 32, Leonard Davis Institute for International Studies, Jerusalem (1989).

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ative period in terms of the development of Israeli policy toward the Christian churches, communities, and holy sites and freedom of religion for Christians in Jerusalem. The pattern of relations that was formed between the Israeli authorities and the Christian churches in this period held for about 20 years. No significant changes occurred until the outbreak of the first Intifada, the Palestinian uprising in the territories, at the end of 1987. First Intifada to the Present The growing resistance to Israeli occupation in the 1980s, coupled with surging Palestinian nationalism, which erupted into the first Intifada in December 1987, also affected the Christian communities, where there was a growing identification with the plight of the Palestinians. This process of localization, shifting from an identification with the international church community to a focus upon the indigenous faith communities, accompanied the increasing appointment of Palestinian and Arab church leaders. It reached its zenith in December 1987 with the appointment of an Arab clergyman, Michel Sabbah, to the key position of Latin Patriarch.39 From this position, Sabbah helped lead a public display of opposition to the occupation and of support for nonviolent resistance by most of the church leaders. In an unprecedented move, they united to condemn Israeli rule in the territories in a series of leaflets. Their major complaint was that the Israeli authorities were violating the freedom of religion of the local Christians, particularly the principle of free access to the holy sites in Jerusalem. Two incidents from 1989–1990 illustrate the growing alienation between the Christian communities and Israeli authorities. They include the tax revolt in the Christian town of Beit Sahour in 1989 and the seizure of St. John’s Hospice near the Church of the Holy Sepulchre in the Christian Quarter of the Old City in April 1990 by Jewish settlers. beit sahour. Responding to calls by the leaders of the first Intifada in 1989, church and community leaders from Beit Sahour, a primarily 39

Michael Dumper, The Politics of Sacred Space: The Old City of Jerusalem in the Middle East Conflict 117, 119 (2002).

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Christian community of 12,000 inhabitants near Bethlehem, announced that in protest of the Israeli occupation of the West Bank and Gaza the residents of Beit Sahour would not pay Israeli taxes. In furtherance of this protest, church leaders held prayer vigils with Israeli peace activists in their homes and a service for peace in the Beit Sahour Greek Orthodox Cathedral.40 Responding to this, Israeli authorities chose to make an example of the community.41 On September 21, 1989, the Israeli army laid siege to the town: they sealed off the city for almost six weeks, cut phone lines, imposed partial curfews, arrested 40 townspeople, entered stores and residences destroying property, and confiscated property estimated to be worth between $1.8 and $3 million in lieu of the smaller amount of tax payments actually owed.42 The heads of the churches in Jerusalem issued a statement of solidarity with the town and declared October 29 a “day of fasting and prayer.” They also organized an unprecedented demonstration of church leaders and consuls from the member-states of the European Economic Community; but Israeli forces prevented them from entering the town. neot david. In the second incident, 150 Jewish settlers entered St. John’s Hospice, located in the Christian Quarter of the Old City near the Church of the Holy Sepulchre, on April 4, 1990, on the eve of Good Friday. The settlers renamed the building, with its 53 rooms, “Neot David.” They claimed they were the successors to Jewish residents who had lived in the Christian Quarter until 1936 and had been forced to flee by Arab attacks. However, it was soon discovered that the right of protected tenancy in the building, which belonged to the Greek Orthodox Patriarchate, had been purchased for $3.5 million from a protected tenant, an Armenian merchant named Martyros Matossian, by a Panamanian company fronting for Ateret Cohanim, a 40

41 42

John Bacher, Palestinian Pacifism, Middle East Window, at http://www.middleeastwindow. org/article254.html (last visited June 7, 2004); Souad Dojani, Eyes Without Country: Searching for a Palestinian Strategy of Liberation 64–65 (1995); Maria J. Stephan, People Power in the Holy Land? How Popular Nonviolent Struggle Could Transform the Israeli–Palestinian Conflict, 14 J. Pub. and Int’l Aff. (Spring 2003), http://www.princeton. edu/~jpia/pdf2003/Ch%209%20People-Stepha n-JPIA%202003.pdf (last visited June 7, 2004). Israeli-Occupied Territories, Human Rights Watch (1989), at http://www.hrw.org/reports/ 1989/WR89/Israel.htm (last visited April 30, 2004). Bacher, note 40 supra; Dojani, note 40 supra, at 64–65; Human Rights Watch, note 41 supra.

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Jewish association that has as its declared aim the acquisition of properties in the Arab sections of Jerusalem. It was then learned that the purchase had been encouraged and supported by the Israeli government and the housing ministry had also underwritten 40 percent of the purchase price by various means.43 These events led to a heightened protest by the Christian communities against Israeli policies and actions. The high point of the protest was the churches’ decision to close their doors on April 27, 1990, in reaction to the St. John’s Hospice incident.44 As a result of these and other events, the church leaders began to shape their role not only as spiritual and religious leaders of their communities, but also as having an obligation to care for the safety and well-being of their flock. Solidarity with the Palestinian cause was given expression in a declaration issued in August 1992 by church leaders led by clergymen of Arab origin (and together with the Mufti of Jerusalem), calling on the Vatican not to ignore “the historic Arab sovereignty over the city” and praising the freedom of worship and safeguarding of holy sites under Islamic rule.45 As had been the case with Israel’s efforts to cultivate world opinion through its approach to the Christian communities following the 1967 War, the Israeli–Palestinian peace process and the signing of the first accords in 1993–1995 brought Palestinian efforts to the fore. Within the peace process, the Palestinians insisted on their custodianship of the Christian communities and their holy sites. This tendency reached a peak with Arafat’s dramatic arrival in Bethlehem for the 199546 Christ43

44

45 46

Letter dated 23 April 1990 from the Chargé d’affaires a.i. of the Permanent Observer Mission of Palestine to the United Nations addressed to the Secretary-General, U.N. GAOR, 45th Sess., U.N. Doc. A/45/253-S/21269 (1990), at http://domino.un.org/unispal.nsf/0/b7e7f0 f769efa1f 0852563d5005d97b0?OpenDocument (last visited June 7, 2004); Ghada Karmi, Jerusalem: A City of All Its Citizens, Center for Contemporary Arab Studies, at http://www.ccasonline.org/symposium/karmi.htm (last visited June 7, 2004); Dumper supra note 39, at 119. Letter dated 27 April 1990 from the Chargé d’affaires a.i. of the Permanent Observer Mission of Palestine to the United Nations addressed to the Secretary-General, U.N. GAOR, 45th Sess., U.N. Doc. A/45/258-S/21276 (1990), at http://domino.un.org/unispal.nsf/0/ 89869bf9e14f467e85 256b410073cecb?OpenDocument (last visited June 7, 2004). The Muslim Arafat, Part Three: The Deceived, Middle East Digest, Feb. 1997, at http://www.cdn-friends-icej.ca/medigest/feb97/marafat3.html (last visited June 15, 2004). See, e.g., Jerrold Kessel, Palestinians rejoice as Arafat arrives in Bethlehem, CNN, Dec. 23, 1995, at http://www.cnn.com/WORLD /9512/israel_bethlehem/12–23/ (last visited June 7, 2004).

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mas celebrations and his attendance of the midnight mass in the Church of the Nativity. The Palestinians attribute considerable importance to the Christian connection – both as an instrument to reinforce Palestinian solidarity between Christians and Muslims and as a tool to enhance the status of the Palestinian Authority in international public opinion. At the same time, attacks by Muslim groups on Christians and on Christian churches and institutions around Jerusalem, Bethlehem, and Ramallah, begun during the Intifada, continued. As Israeli–Palestinian negotiations proceeded, the leaders of the local Christian communities began to be concerned that their cause would be marginalized. A memorandum drawn up by the heads of the communities on November 14, 1994, expressed opposition to exclusive rule over Jerusalem by either of the two sides. They called for the assurance of the city’s universal character, including the status of the holy sites and the Christians’ “legitimate rights” (interpreted very broadly in the document) by means of a “Special Statute” to be formulated by representatives of the three religions and the various political bodies in the city, with guarantees to be provided by the international community. The increasing level of conflict – terrorist attacks and the closures imposed by Israel in their wake – compounded the problems of the local Christians (as of the entire Palestinian population). Since March 1993, church leaders have repeatedly complained about the closures that deny Christians living outside Jerusalem access to the holy sites in the city and about the fact that Jerusalem is cut off from the Christian centers in Bethlehem and Ramallah.47 Various church sources maintain that this situation has intensified the emigration of Christians, particularly from Bethlehem and Ramallah.48 There is a growing concern among Christian authorities that their holy sites will become museums. Israel’s response is that the emigration of Christians is not a new phenomenon, but a process that began with the conclusion of the Mandate and peaked under Jordanian rule. Indeed, Israel cites the increase in the Christian population inside the Green Line as compared with the 47 48

See, e.g., Mark Willacy, Palestinian Christians Barred from Easter Pilgrimage, ABC Radio, at http://www.abc.net.au/am/content/2004 /s1085518.htm (last visited June 7, 2004). See Donald E. Wagner, Dying in the Land of Promise: Palestine and Palestinian Christianity From Pentecost to 2000, at 213–233 (2003).

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dire circumstances of Christian minorities in the Islamic countries. As for the closure, Israel maintains that it is a security necessity in light of Palestinian terrorism. Since the outbreak of the second Intifada, or al-Aqsa Intifada, Bethlehem and the Church of the Nativity have become a battle zone. Israel refused access to Arafat at Christmas 2001.49 At the beginning of April 2002, the church became a fortified position for hundreds of armed Palestinians, who wished to find sanctuary in the church for fear of being arrested by the Israeli Army. Only after a siege and long negotiations, in which international religious leaders played a major role, the crisis was ended and the monks of the three communities resumed the management of the church.50 Similarly, Palestinian shootings from the Christian town of Beit Jala toward the southern quarters of Jerusalem and the resultant Israeli shelling that caused many Christians to leave the town51 illustrate the deep crisis of the century-old Christian presence in the Holy Land. The Christian situation in Jerusalem and the West Bank following the application of the Israeli–Palestinian Interim Agreement and the subsequent difficulties in the peace process creates a difficult situation. They are caught between conflicting forces: their desire to identify with surging Palestinian nationalism (in the wake of the Palestinian Authority’s establishment), the harsh pressure exerted by Hamas and other Islamic fundamentalist groups, and the constraints imposed by Israel. The heads of the churches are doing their best to maneuver and steer a reasonable course between the various forces; but their “war of survival” is becoming increasingly difficult. The difficulty is strikingly illustrated by the April 1997 episode in which Islamisists expanded the Hanka Mosque next to the Church of 49

50

51

Herb Keinon and Lamia Lahoud, Arafat Barred from Bethlehem, Jerusalem Post: Internet Edition, Dec. 24, 2001, at http://pqasb. pqarchiver.com/jpost/index.html?ts=10924 23805 (last visited March 16, 2004). Frontline: The Siege of Bethlehem (PBS television broadcast), described at http://www.pbs.org/wgbh/pages/frontline/shows/siege/ (last visited March 15, 2004). While the program reported heavy Vatican involvement, Cannon Andrew White of the IRC, a participant in the negotiations, denied that. Israel to Leave Palestinian Town, BBC News, Aug. 29, 2001, at http://news.bbc.co.uk/ 1/hi/world/middle_east/1514377.stm (last visited June 16, 2004).

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the Holy Sepulchre at the expense of the Greek Orthodox Patriarchate and the Franciscans’ Custodia Terrae Sanctae. Seeking to redress their property rights, the leaders of the churches appealed to the prime minister of Israel, to Arafat, and to King Hussein of Jordan to restore the status quo ante at the site. However, as of this writing, despite the efforts of all three parties to resolve the problem, the expansion of the mosque remains a fact.52 A similar situation involving the Church of the Ascension and the Shihab Ed-din Mosque, previously approved by the Barak government, was started then placed on hold in November 2002 following worldwide protests by the Christian communities.53 One might view the two accords, between Israel and the Holy See54 and the 1997 accord between the PLO and the Holy See,55 as a tentative rapprochement between Christians, Israelis, and Palestinians. However, while these agreements constitute an important achievement for the Roman Catholic Church, which succeeded in consolidating its legal status in Israel and in the Palestinian Authority, it is difficult to see how the agreements will benefit the larger Christian community. Not only has no comparable accommodation been reached with other Christian denominations, the accords have little affect on the ground. Individual local Christians are being worn down in the Israeli–Palestinian and Jewish–Muslim conflict with the result that many Palestinian Christians are leaving the Holy Land.56 Although international Christian public opinion supports the cause of the local Christians and the 52

53 54

55 56

Nadav Shragai, The Churches in Jerusalem: The Waqf Annexed Land and Built Illegally Next to the Church of the Holy Sepulchre, Ha’aretz, April 13, 1997; Nadav Shragai, Dispute Over Whether to Intervene in Dispute Between Waqf and Churches in Jerusalem, Ha’aretz, April 25, 1997; Nadav Shragai, Jordanian Delegation Formulates Compromise in Dispute Between Waqf and Greek [Orthodox] Church in Jerusalem, Ha’aretz, June 26, 1997. See Franciscan Custodia Terrae Sanctae, at http://198.62.75.1/www1/ofm/cust/TSnws16. html (last visited June 10, 2004). The Fundamental Agreement Between the Holy See and the State of Israel was signed on December 30, 1993 (at http://www.us-israel.org /jsource/anti-semitism/holysee.html) and on November 10, 1997, Israel and the Holy See signed an agreement consolidating the legal status of the Catholic Church and its institutions in Israel (at http://www.us-israel.org /jsource/anti-semitism/holysee1.html). The Fundamental Agreement between the PLO and the Holy See was signed on February 15, 2000 (at http://www.us-israel.org/jsource/Peace /plovatican.html). See Wagner note 48 supra.

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Israel-Vatican accords, the Christians are increasingly becoming a secondary factor whose rights and ultimate fate are in the hands of the two major contestants in the struggle for the Holy City of Jerusalem. Israeli Policy toward Muslim Holy Sites and Muslim Community Affairs In contrast to the relative tranquility of relations between Israeli authorities and the Christian communities after the 1967 War, relations with Muslim authorities were tumultuous and stressful. Although Israel refrained from direct rule over the Temple Mount/Haram al-Sharif and left the administration of the site to Muslim authorities, it insisted on fashioning relations with the Muslim community of Jerusalem according to patterns customary in Israel. Since the total disintegration of the Muslim religious and judiciary system in Israel following the 1948 War, the Muslim community has been ruled by Jewish government officials and has had no real autonomy.57 Following the 1967 War, Israel tried to force the same system upon the influential Muslim institutions in Jerusalem with authority over religious, administrative, and judicial affairs. On July 11, 1967, the minister of religious affairs informed the Muslim representatives in East Jerusalem, headed by the most senior representative of the Muslim establishment in the city, Sheikh Abd-elHamid el Saah, that the government wanted to enforce laws dealing with the Muslim community on three issues in East Jerusalem.58 The first issue was the Qadis’ Law (Muslim religious magistrates) 1961. Under this law, the Qadis of East Jerusalem (a type of traditional Palestinian judge) must swear allegiance to the State of Israel before its president and judge according to the laws of Israel in cases in which Knesset (Israeli parliament) legislation contradicts religious law (e.g., minimum age of marriage, etc.). The Muslims were required to separate Shari’a (Muslim religious law) courts in East Jerusalem from those 57 58

See Marshall J. Breger and Thomas A. Idinopulos, Jerusalem’s Holy Places and The Peace Process 3 (1998). Yitzhak Reiter, Organizing Muslim Religious Affairs in Jerusalem (1967–2001), in The Old City 177 (Ruth Lapidoth ed., 2002).

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in the West Bank and accept the authority of the Shari’a Court of Appeals in West Jerusalem, acting by authority of Israeli law. The second issue was the Israeli government’s assertion of a right to supervision of Friday sermons in the al-Aqsa Mosque and all other mosques with the intention of censoring all political or anti-Israeli expressions. And thirdly, the Israeli authorities sought to appoint a government commission to supervise the administration of Muslim religious properties according to the Mandatory defense regulations of 1937. For both political and religious reasons, the Muslim establishment in Jerusalem could not and would not accept this Israeli dictate. When a Jewish official asked for the draft of the following Friday’s sermon at the al-Aqsa Mosque and crossed out several verses from the Koran, a de facto rebellion took place.59 On July 24, 1967, twenty-two Muslim political and religious dignitaries in Jerusalem convened and wrote a memorandum addressed to the military governor of the West Bank. They claimed the illegality of the annexation of East Jerusalem, which is part and parcel of the Kingdom of Jordan, and proclaimed themselves the “High Islamic Authority.” The memorandum stated: Since Muslim religious law stipulates clearly that Muslims must take the initiative to conduct their religious affairs themselves in situations such as the present and since Muslim religious law forbids non-Muslims to conduct Muslim religious affairs . . . the undersigned have therefore appointed themselves as the “Muslim Authority responsible for Muslim affairs in the West Bank, including Jerusalem,” until the occupation would be terminated.60 The Israeli authorities initially rejected this new authority, which came to be called “The Muslim Council,” banishing several of the signatories of this document (including Sheikh Abd-al Hamid al-Saah) to Jordan. However, gradually they ceased to intervene in Muslim religious affairs. A modus vivendi, though fragile and unofficial, was achieved with time: Israel did not recognize The Muslim Council, its authority, or its decisions; but it did not interfere with its activities. For its part, the Council, whose activities were anchored neither in Israeli law nor in Jordanian law, did not recognize Israeli authority. This recip59

Benvenisti, note 12 supra, at 84.

60

Reiter, note 58 supra, at 178.

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rocal nonrecognition did not hinder unofficial cooperation of the two parties – especially over the administration of the Temple Mount/Haram al-Sharif.61 Conflicts occasionally arose over issues such as Israeli archaeological excavations outside the holy compound, but contact between the Council and Israeli authorities was never severed. The Kingdom of Jordan served as a moderating factor and financed the activities of the Muslim institutions in all matters of the administration of the Temple Mount/Haram al-Sharif. This modus vivendi incensed Jewish extremist groups, as the presence of an autonomous authority on the Temple Mount seemed to them a continued subjugation of this most holy site to foreign rule.62 Prohibition of Jewish prayer on the Mount by the Israeli government and its affirmation by the Supreme Court appeared as a betrayal of the mission of the State of Israel. As to the other holy sites sacred to both Judaism and Islam (except the Temple Mount/Haram al-Sharif), the influence of the Muslim Council was quite limited. The Israeli authorities did not address it in instituting new worship arrangements at the Western Wall, at the Patriarchs’ Tomb in Hebron, in Nebi Samwil, or in the Tomb of David. However, Israeli authorities did not intervene in matters of management of Waqf properties, the Muslim education system, or the Muslim judiciary system. The attempt to enforce Israeli law and administration on these areas in East Jerusalem failed. The overall interest of Israel in its status in Jerusalem brought about the adoption of a compromise policy. The government recognized that intervention in Muslim religious affairs might arouse not only the Muslim world against it but also Western public opinion. Therefore, Israel ended up with a conciliatory policy, maintaining the autonomy of the Muslim community over its religious affairs and holy sites, with minor alterations (such as those affecting the Western Wall) viewed by the Israeli government as redressing historical injustices.63 The fragile modus vivendi between the Israeli government and the 61

62

Yitzhak Reiter, Jewish–Muslim Modus Vivendi at the Temple Mount/al-Haram al-Sharif Since 1967, in Jerusalem: A City And Its Future 269–295 (Marshall J. Breger and Ora Ahimeir, eds. 2002). 63 Benvenisti, note 12 supra, at 84. Reiter, note 58 supra, at 173.

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Muslim Council and other Muslim authorities began to deteriorate as Jordan’s influence over those authorities waned and the influence of the Palestinians and eventually the Palestinian Authority grew. In the 1980s, in order to broaden its public political base, the Council was enlarged to include all the Qadis of the West Bank as well as many important political figures. In 1994, on the eve of the establishment of the Palestinian Authority, the Council elected as its head the director of the Waqf, Hassan Tahbub, who was later appointed minister of Muslim property or Waqf by the Authority. Feisal al-Husseini, holding the Jerusalem portfolio in the PLO Executive, was appointed as his deputy. Thus, the Council became a body whose heads were members of the Palestinian local and national elite. This aided both the Council and the Palestinian Authority in their struggle against Jordan over control of Haram al-Sharif. At the end of 1994, the Council sided with Arafat in the controversy on the preferred status of Haram al-Sharif that Israel promised to Jordan in Article 9 of the peace treaty between the two countries. In January 1997, Arafat appointed eighteen additional representatives of the West Bank and Gaza Strip to the Council. Among them were Dr. Abd-al-Aziz al-Haj Ahmad, a former minister without portfolio in the Palestinian Authority cabinet, and the governor of Jerusalem for the Palestinian Authority, Jamal Othman Nasser (with offices in Abu-Dis). Thus, the whole Council, not only its heads, became a body in which most of its members were Palestinian Authority officials. This process enabled the Authority to manage the affairs of Haram al-Sharif and control the Waqf personnel in East Jerusalem (despite continued funding by Jordan). The Palestinian takeover of the Council and the Waqf institutions on the Haram al-Sharif and Jordan’s loss of power as a moderating factor, combined with the growing influence of the northern wing of the Islamic Movement in Israel (led by Sheikh Raed Salah) in the management of the Mount, brought about a change in the pattern of relations with Israeli authorities. Ignoring the modus vivendi, the Muslim authorities on the Mount initiated the transformation of Solomon’s Stables (the underground spaces under the southeastern corner of the Mount) and the underground space under the al-Aqsa Mosque (called

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“al-Aqsa al-Kadima,” ancient al-Aqsa) into mosques, without asking or receiving approval from the Israeli authorities.64 In what may be interpreted as a quid pro quo that would restore the informal balance of the modus vivendi, Israeli authorities sought an unofficial understanding with the Muslim authorities in which the Muslim authorities would not oppose the opening of the northern exit of the Hasmonean Tunnel (part of a controversial project to expose additional portions of the Western Wall, violently opposed by Muslim authorities for over twenty years) in return for a post-facto Israeli confirmation of Solomon’s Stables mosque. The effort did not succeed.65 The opening of the northern exit of the tunnel in September 1996 into the Via Dolorosa brought about a wave of riots in Israel and the territories. Fifteen IDF soldiers were killed and 60 Israeli soldiers and civilians were wounded. Forty Palestinians died and about 600 were wounded. Perhaps more significantly, this led to an almost complete break between the Israeli and Muslim authorities on the Temple Mount/Haram al-Sharif. Since then, the Muslim authorities have acted on Haram al-Sharif without Israeli coordination or supervision, while Israeli public sentiment increasingly favors exerting Israeli control over the Temple Mount. Parallel to these events, at the Camp David Conference in July 2000, the Temple Mount/Haram al-Sharif emerged as one of the greatest obstacles to a final status agreement between Palestine and Israel. The then Israeli Prime Minister Ehud Barak informed U.S. President William J. Clinton that he could not relinquish Israeli sovereignty over the Mount. The Palestinians rejected any possibility of dividing sovereignty of the Haram al-Sharif, insisting on full Palestinian sovereignty.66 Similarly, the “expansion” of the Western Wall by exposing the Wall Tunnel proved to be a stumbling block. Moderate members of the Palestinian leadership who were ready to discuss an arrangement whereby Israel would receive autonomy or sovereignty over the Western Wall plaza refused to accept the Israeli demand for sovereignty also 64 66

65

Reiter, note 61 supra, at 282–286. Id. at 285–286. Menachem Klein, Shattering a Taboo: The Contacts Toward a Permanent Status Agreement in Jerusalem 1994–2001 47 (2001).

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over the tunnel that passes underneath the Muslim quarter, adjacent to the western wall of the Haram al-Sharif.67 Following the failure of Camp David and growing cynicism over the Oslo process, Ariel Sharon’s visit on the Mount on September 28, 2000 provided the spark that set off the al-Aqsa Intifada. In addition to the violence and death, the Intifada led to the closing of the Temple Mount/Haram al-Sharif to non-Muslim visitors. The delicate modus vivendi that existed there since July 1967 finally collapsed. The Israeli–Palestinian conflict over the Temple Mount/Haram alSharif reinforced its nationalist status in Palestinian, Arab, and general Muslim consciousness. Until the outbreak of the last Intifada, up to a quarter million pilgrims arrived there on the last Friday of Ramadan. It became a rallying and unifying factor utilized by the Islamic Movement to close ranks. Each year, the Movement organizes a mass rally in Umm al-Fahm (attended by some 50,000) under the banner “alAqsa is in danger.” The Attitude of the State of Israel and Jewish Public toward the Jewish Holy Sites: Temple Mount and the Patriarchs’ Cave Since Israel’s conquest of the Temple Mount in 1967, both the State and the Jewish public have displayed ambivalence about control of the site. On the one hand, the Temple Mount is the holiest and most important site in Judaism. In 1967, it was there that the commander of the Israeli paratroopers, Mordechai Gur, uttered his famous declaration, “The Temple Mount is in our hands!” Yet Moshe Dayan, the defense minister at the time, decided within hours of the Temple Mount’s conquest to place the Muslim Waqf (religious endowments department) in charge of its administration (apart from the overall Israeli responsibility for public order) and to prohibit prayer by Jews there. How did Dayan convince the cabinet to support an arrangement that prevented Jews from worshipping at the site on which the first and second Jewish Temples once stood? How did the Jewish public (including 67

Id.

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the national-religious public) come to accept such an arrangement in the midst of the post-1967 messianic atmosphere? These difficult questions were sharpened in light of Dayan’s failure to institute a similar arrangement at the Patriarchs’ Cave in Hebron, which is also sacred to both Jews and Muslims as the burial place of the Jewish patriarchs and matriarchs (except Rachel). There on June 7, 1967, a unit of the military rabbinate under the Chief Rabbi of the Israeli Defense Forces Rabbi Shlomo Goren assumed the supervision and guardianship of the Patriarchs’ Cave and brought a Holy Ark (the synagogue furnishing that contains the Torah scroll) into the foyer next to the mosque’s main hall, thus establishing the site as a synagogue and as a place of Jewish worship.68 The military rabbinate permitted Jews to pray at the Holy Ark without consideration for the established hours of prayer at the mosque. The thousands of Jews who mobbed the cave did not remove their shoes, as is customary in a place of Muslim worship. This offended Muslim sensibilities and damaged the expensive carpets on the mosque’s floor. The Muslim guards complained more than once that immodestly dressed women, as well as visitors with food in their hands or mouths, were an affront to the site’s sanctity. Complaints were also heard that the soldiers guarding the site were playing dice or cards. The rabbinate even permitted weddings to be held there, which meant that wine – which is forbidden by Muslim religious law – was drunk at the site. These acts were performed contrary to the intentions of the minister of defense, who did not wish to establish a synagogue at the Patriarchs’ Cave in the first place. In this case, however, Dayan was forced to accept the existence of a synagogue at the site, as well as the division of hours of prayer between Jews and Muslims due to pressure from Rabbi Goren and the minister of religious affairs, Dr. Zerah Warhaftig, who believed that the matter was within his sole purview. Since 1967, settler groups in Hebron and Kiryat Arba (the Jewish settlement right next to Hebron) and the political groups backing them have achieved farreaching changes enhancing Jewish control and interests over the 68

See, e.g., Ariel Natan Pasko, Jerusalemizing Hebron, at http://www .freeman.org/m_online/ jun03/pasko2.htm (last visited June 10, 2004); The Return to Hebron – June, 1967, at http://www.hebron.org.il/Goren /returnto.htm (last visited June 10, 2004).

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site.69 This has created considerable tension and led to severe violent incidents, culminating in Baruch Goldstein’s massacre of Muslim worshippers in the Patriarchs’ Cave in February 1994.70 It is interesting to note that Dayan originally intended to renovate the level below the floor of the mosque, allowing the site to be divided into a place of Jewish worship in the lower cave and one of Muslim worship in the mosque above it – similar to the division between the Western Wall and the Temple Mount. However, after the site was examined, Dayan found that the lower space was very small and was unusable.71 Why did Dayan lose his struggle with Rabbi Goren over Hebron, yet succeed on the Temple Mount in Jerusalem? An important reason was the religious ban placed on Jews by the Supreme Rabbinical Council on entering and worshipping on the Temple Mount in 1967. The Chief Rabbinate and other eminent Judaic authorities based their decision on the Halakhah (Jewish religious law) precept that a Jew is considered ritually “unclean” if s/he comes in contact with a corpse or is in the presence of a corpse at some time during his/her life. During the Temple period, Jews could purify themselves of such ritual uncleanness by using a mixture of the ashes of a red heifer with special water. Because it is no longer possible to obtain the ashes of a red heifer (the breed is extinct), all Jews are held to be ritually impure and therefore may not enter the Temple or the ground upon which it was built.72 While this prohibition technically does not apply to the entire Temple Mount, because no one knows the exact location of the Temple on the Mount, the rabbis characteristically extended the prohibition to include all of the Temple Mount to avoid inadvertently violating the law.73 Some rabbis (e.g., Rabbi Avigdor Nebenzahl, the rabbi of the Old City’s Jewish Quarter) add to the halakhic strictures the fear that Jewish prayer on the Temple Mount may provoke a jihad (Islamic holy war), which would cause bloodshed and deaths of Jews in every corner 69 70 72 73

Investigative Committee in the Matter of the Massacre at the Cave of the Patriarchs in Hebron 1994, Report 99–106 (1994). 71 Id. See Dayan, supra note 9. Benziman, note 1 supra, at 136; Gorenberg, supra note 55, Ch. 1, at Chapter 1. See Gershom Gorenberg, The End of Days: Fundamentalism and the Struggle for the Temple Mount 13 (2000).

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of the world.74 A similar concern, also not halakhic in character, may be the threat, of which the rabbinical establishment is especially prone, of the revolutionary potential latent in performing an act on the Temple Mount that may appear to be a step toward rebuilding the Temple. Most rabbis who permit Jews to visit the Temple Mount do not advocate rebuilding the Temple at this time. Nonetheless, against the background of Judaism’s development since the destruction of the Second Temple as a “religion without a shrine,” even the mere act of Jewish worship at the site or the establishment of a synagogue could be interpreted in provocative, revolutionary terms. The Chief Rabbinate’s decree was issued a few months after the 1967 War. Fifty-six of the country’s preeminent rabbis signed a warning against Jews visiting “the entire Temple Mount.” The signatories included the two Chief Rabbis at the time, Unterman and Nissim; the president of the Committee of Yeshivas, Rabbi Yehezkel Abramsky; and Rabbis Yosef Shlomo Elyashiv, Shlomo Zalman Auerbach, and Zevi Yehuda Kook. Representing virtually the entire gamut of opinion in the Jewish-religious population, these spiritual leaders were joined by more than 300 rabbis who added their signatures to the ruling.75 The result was a rare consensus in the schismatic world of Judaism. In addition to issuing a halakhic prohibition, the Chief Rabbinate posted a sign by the walkway leading to the Mughrabi Gate of the Temple Mount, stating: “Religious law strictly forbids entry to the Temple Mount area because of its holiness.” In the first months after the 1967 War, tens of thousands of Israelis streamed past the sign to visit the Temple Mount and its Muslim shrines. Minister of Religious Affairs Warhaftig told the Chief Rabbis that their sign was an edict beyond the public’s ability to obey. To avert violation of the Chief Rabbinate decrees posted adjacent to the Western Wall, Warhaftig unsuccessfully tried to establish the Gate of the Chain as the general entry site to the Temple Mount.76 It is important to point out that at no time in their deliberations did the rabbis, rabbinic authorities, or religious politicians translate their 74 76

Benziman, note 1 supra, at 72. Id. at 136.

75

Id. at 61.

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objections to Jews entering or worshiping on the Mount to advocate surrendering their right of eternal ownership of the Temple Mount. As early as June 18, 1967, Minister of Religious Affairs Warhaftig stirred a public furor when he stated in an interview: “There is no doubt that the Jewish people has the right to the Temple Mount, for it is the Holy of Holies of the Jewish people. However, as I understand it, the Jewish people does not intend to claim that right in our time by destroying those [Muslim] places. . . .”77 [emphasis added.] The ruling of the Chief Rabbinate and of the major Haredi rabbis forbidding Jews to enter the Temple Mount was supported by the majority of Israel’s religious population. However, some rabbis and groups, primarily from the national-religious camp and veterans of the pre-state Leh’i underground, refused to accept the Chief Rabbinate’s decision. Immediately after the capture of the Temple Mount by Israeli forces, they began to propose various ideas to establish Jewish presence there. These have included constructing a biblical “tent of congregation” and surveys of the Mount to establish where the original Temple stood, which could then be used to determine where on the Mount Jewish pilgrims could visit without risk of ritual contagion and where a synagogue could be built.78 Increasingly, in recent years, circles in the national-religious camp (including its mainstream) are taking a positive view of Jewish visits to the Temple Mount. Fear of losing Jewish sovereignty on the Temple Mount and incidents in which the police have forcibly ejected radical activists of groups such as the “Temple Mount Faithful” (Ne’emanei Har Habayit) and “Hai Vekayam,” who generate solidarity within the national-religious camp and add new recruits for the stand that Jews should be allowed to exercise their right to pray on the Temple Mount.79 Muslim construction on the Temple Mount in September 2000 and the discussions at the Camp David Conference in July 2000 (in which the Temple Mount was a major theme) brought about a certain change in the position of the Supreme Rabbinical Council. It nominated for 77 78 79

Benvenisti, note 19 supra, at 238. Benziman, note 1 supra, at 136. Also see Gorenberg, note 73 supra, at 103. Benziman, note 1 supra, at 136. Also see Gorenberg, note 73 supra, at 171–172.

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the first time a six member special rabbi committee to examine the possibility of establishing a synagogue on the Mount.80 Nonetheless, given continuing opposition by the increasingly powerful Haredi rabbis and the continuing authority of the halakhic prohibition, no new ruling appears likely. The discussions at the second Camp David Conference, the events of the al-Aqsa Intifada, the prohibition of non-Muslims to visit the Temple Mount and the negotiations between Israel and the Palestinians in the midst of those bloody events (from which the various ideas were leaked concerning an Israeli agreement to transfer sovereignty over the Mount to the Palestinian Authority that in turn would recognize a Jewish connection to the site), aroused harsh reactions within Israeli public opinion, including among persons and groups not belonging to the right-wing camp or the national-religious public. For example, according to the Clinton proposal, the Temple Mount would be transferred to Palestinian sovereignty, while the Western Wall and the Jewish Quarter of the Old City would remain under Israeli sovereignty.81 A public opinion survey conducted in December 2000 (in the framework of the “peace index” project headed by Professors Efraim Ya’ar and Dr. Tamar Hermann of Tel-Aviv University) revealed a clear majority of 66 percent of the Jewish-Israeli public opposing these proposals on the basis of the historical rights of the Jewish people (27 percent disagreed and 7 percent had no opinion).82 The sharpest reactions were those of the Settler Rabbis’ Committee, Rabbi Mordechai Eliyahu, and the Temple Mount groups that support Jewish worship on the Mount.83 The camp of Temple Mount supporters was caught in a paradoxical situation: on the one hand they succeeded in getting large portions of Israeli society to support their struggle; on the other hand, the realization of their goal – enabling Jews to worship on the Mount or to establish a synagogue there – seems further away than ever, considering the anticipated Muslim reaction in 80 81 82 83

Nadav Shragai, This Week the Rabbinate Will Begin Discussing the Establishment of a Synagogue on the Temple Mount, Ha’aretz, Sept. 3, 2000. Efraim Ya’ar and Tamar Hermann, A Clear Jewish Majority Against the Main Sections of the American Bridging Proposal, Ha’aretz, Jan. 4, 2001. Id. Nadav Shragai, Rabbis: We Must Fight Until the Land Burns, Ha’aretz, Dec. 29, 2000.

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Israel and abroad. The expectation that the Temple Mount would become one of the rockiest points of dispute in the Israeli–Palestinian/Jewish–Muslim conflict has thus been completely confirmed. The Status of the Western Wall and Other Jewish Holy Sites in Jerusalem and Vicinity The reclaiming of the Western Wall by the people of Israel at the end of the 1967 War was a unique religious and national experience in the history of the State of Israel. The astonishing results of the war – Israeli control of the West Bank, the Sinai Peninsula, and the Golan Heights – were dwarfed against the “liberation of the Western Wall.” The parachutists who conquered the Temple Mount on June 7, 1967, did not look for the Mount but for the Wall. The photo of the soldiers weeping at the stone wall turned into the symbol of Israeli victory in the war.84 In the immediate wake of the parachutists came the military rabbinate group, with Rabbi Goren at their head. They brought to the Wall a Torah scroll, a ram’s horn (Shofar), and a bench. They raised the scroll, blew the horn, and sat on the bench. Each of these acts was symbolic – they had all been illegal during the British mandatory period. Within 48 hours, the densely built Mughrabi quarter was torn down by the Parks Authority of Israel, and the narrow square facing the wall became a tremendous plaza. More than one hundred Arab families were evacuated in order to make room for the hundreds of thousands of Jews wishing to visit the Wall. While the need for space was obvious, this also reflected a squaring of an account with the British and Muslim authorities who had restricted worship at the Wall during Mandatory times and with the Jordanians who banned access to Jews for nineteen years.85 The decision to tear down the Mughrabi quarter was supported by all parts of the Jewish population. Shortly thereafter, the Western Wall became a bone of contention between three Israeli governmental bodies, each attempting to influence the structure of the plaza as a national and religious symbol. The “secular” National Parks Protection Authority, which had torn down 84

Benziman, note 1 supra, at 157.

85

Benvenisti, note 12 supra, at 69.

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the quarter, was dislodged from the management of the site by the Ministry of Religious Affairs, which saw itself, pursuant to the prime minister’s declaration of June 7, as the sole governmental body authorized to manage the Jewish holy site as the representative of the Chief Rabbinate.86 The Ministry of Religious Affairs, in turn, quickly adapted the Wall plaza to conform to the needs of the Jewish orthodox establishment in Israel. This included providing barriers to separate men from women. In the meantime, an archaeological mission was organized by the initiative of Professor Benjamin Mazar, one of the senior biblical archaeologists of Israel, to excavate near the walls of the Temple Mount. The excavation plan aroused severe opposition on the part of the minister of religious affairs and the Chief Rabbis.87 However, the excavation had the license of the Antiquities Authority and the support of the Hebrew University of Jerusalem, the National Academy of Sciences and Humanities, and the National Parks Protection Authority and was begun near the southern wall at the end of February 1968. No one asked the owners of the grounds – the Muslim Waqf Authority. Neither was the excavation officially approved by the District Planning and Building Commission. The Ministry of Religious Affairs also started its own excavations along the Western Wall to the north of the plaza, without requesting approval from the Antiquities Authority. These excavations eventually became the Western Wall tunnel.88 For a time, the Western Wall became not only the most holy religious place for Jews but also a national Israeli symbol. The Wall became the site where soldiers take their oath of allegiance and where the Memorial Day opening ceremony is celebrated for Israeli Defense Forces (IDF) soldiers. Tensions often arose between the religious and “secular” establishments over these ceremonies. However, the orthodox establishment’s appropriation of the Western Wall plaza significantly weakened its status as a “secular” historic-national symbol. A large part of the nonreligious society in Israel now feels alienated from the Wall, identified with the “orthodox” and orthodox establishment. Its status within religious circles (mostly among the national-reli86 88

Benziman, note 1 supra , at 158. See supra text accompanying note 67.

87

Id.

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gious parties) has also been eroded with the rise in the status of the Temple Mount and the struggle for the right of Jewish worship on it. The Wall has become in Israeli society a familiar site with no unique aura. The number of regular worshippers drops from year to year and only on special holidays, like the Ninth of Ab or the priestly benediction on Sukkoth (the Feat of Tabernacles), do tens of thousands gather there.89 Difficult security conditions during the al-Aqsa Intifada have also contributed to a drop in the number of worshippers. As with other cases, the symbol of the “unattainable Wall” was stronger in Jewish and Israeli consciousness and collective memory than the “accessible” Wall where one may pray daily. Compared to the “waning” of the Wall, two other Jewish sites have gained strength over the past few years and have become foci of tension in the Palestinian-Israeli conflict: the Patriarchs’ Tomb in Hebron90 and Rachel’s Tomb.91 Despite security risks by its location on the West Bank, the Patriarch’s Tomb attracts thousands of pilgrims. They arrive by special transportation on special occasions and come mostly from the religious sector including an increasing number of Haredim. Similarly, over the last decade, Rachel’s Tomb has become a center of pilgrimage due to the apprehension that it will be turned over to the Palestinian Authority. The status of Joseph’s Tomb in Nablus has also risen after its transfer to the Palestinian Authority and the PalestinianIsraeli clash over it. The revival of worship of the Righteous has strengthened two additional tombs in the Jerusalem area: Nebi Samwil and the Tomb of Shimon ha-Tsadik (Shimon the Just). Torah study centers (kolel) exist in both places. The first is administered by an officer for religious affairs of the military government, and the second by the Ministry of Religious Affairs.92 89

Israel Mosaic, The Western Wall, at http://mosaic.lk.net/g-wall.html (last visited June 10, 2004). 90 See supra text accompanying note 9. 91 See International Religious Freedom Report: The Occupied Territories, Jewish Virtual Library, 2001, at http://www.us-israel.org/jsource/anti-semitism/reloccupiedterritories01.html (last visited June 10, 2004). 92 Nebi Samwil, Jewish Virtual Library, at http://www.us-israel.org/jsource /Archaeology/ Nebisamwil.html;

4 Solutions Offered for the Issue of the Holy Sites

As the preceding, brief history reveals, throughout history, Jerusalem and the holy sites have served as a lightning rod for conflicts in this region. This conflict has been pronounced and virtually unending for the last hundred years, generating over seventy significant proposals by governments, international organizations, as well as many public intellectuals on how to resolve the conflicts in the Middle East and promote peace. Those developing new proposals need to consider what lessons may be learned from this rich intellectual past. In considering prior proposals about how to protect the holy sites, the first feature of note is that few have addressed the topic separately from the city itself. Inherent in this absence is the fact that Jerusalem and the holy sites represent a uniquely interrelated set of problems. Indeed they may be so symbiotic that in some ways they represent a single problem with numerous subparts. Jerusalem’s national and international political importance stems in large part from its holiness to the three monotheistic religions and the extraordinary concentration of holy sites in the Old City and its environs. Adding to this religious dimension, the conflict in the region can all too easily be viewed as a conflict between faith traditions because governments predominately representing two of these faith traditions are the mutually hostile parties in this nationalist struggle. Thus, insofar as religion may feed the national and/or international aspects of this struggle, resolving the religious concerns over the holy sites represents a critical step in the overall solution to the issue of Jerusalem. Complicating this already difficult problem is the fact that Jerusalem 71

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is not a static or fixed territorial object on a map. It is a thriving metropolitan community. People live and work in Jerusalem. They require municipal services and state-supported services as well. Therefore, despite the best efforts of many thinkers and negotiators who have sought to separate the issue of the holy sites from the issue of the city of Jerusalem, such attempts have inevitably failed. Any attempt to develop a legal regime to govern or protect the holy sites must inevitably confront the necessary overlap between the system that would protect the holy sites, with the municipal and administrative infrastructure necessary to support and sustain the holy site within the physical space of an urban environment.1 That is to say, one cannot separate a holy site from its environment and those governmental services necessary to support it. Thus, while it may be possible to develop a legal regime to protect the holy sites separate from a comprehensive peace settlement (as contemplated by the Holy Sites Project), the regime cannot avoid confronting intermediate problems that touch on the administration and governance of Jerusalem – admittedly, a key hurdle for the final peace settlement. Prior efforts to address the Jerusalem-holy sites issue can be analyzed according to three components: sovereignty, the holy sites (identity/ownership/control), and municipal administration. However, while these concepts are distinguishable, they are ultimately not separable. Proposals that focus only upon one are incomplete. A proposal may address more than one component at a time and/or may use one component as a trade off against how another is handled. For example, in many proposals, there is a striking similarity between the regime suggested for Jerusalem as a whole and that for the holy sites; however, the religious character of the latter has sometimes led to a proposal unique to them (sometimes as compensation for granting sovereignty over the whole city to a party perceived as “alien” to those to whom the sites are holy).2

1 2

See Moshe Hirsch et al., Whither Jerusalem? 140 (1995). Id. at 141.

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Sovereignty Sovereignty is perhaps the most obvious starting point of analysis. The problem is fairly simple to state. The holy sites exist as objects within a territorial space. Two (or more) peoples, the Palestinians and Israelis, have laid claim to the territory in which the holy sites reside. Each asserts the right, native to all peoples, to exercise sovereignty over the territory they control. However, when a holy site sacred to one of those peoples rests in territory controlled by the other, fear arises (often sadly justified in the past) that the holy site will suffer insult if not abuse. In many ways, the issue of sovereignty over Jerusalem and/or the holy sites has taken on much the same character as that associated with the holy sites themselves. The idea of sovereignty has become greater than the practical implications of sovereignty. Fraught with emotion, it has become symbolic of nationhood and national character. Leaders may concede certain important features of traditional understandings of sovereignty, such as exclusive control over the territory, so long as they do not have to surrender the idea of holding sovereignty. For example, in a plan to protect the holy sites offered by Israel immediately following the 1967 War, Israel proposed conferring diplomatic, extraterritorial status on the holy sites.3 While this would remove authority over the site from the host country’s control – historically a prime indicia of sovereignty – it technically did not affect sovereignty. Suggested approaches to the issue of sovereignty over Jerusalem have evolved over time. While the genesis of ideas about sovereignty (or other aspects of the Jerusalem/holy sites problem) may be traced to the time of the League of Nations Mandate or before, not surprisingly, the popularity of particular ideas largely has trailed the political situation on the ground in Israel and Palestine. The acceptability of one approach, as opposed to another, generally depends upon the standing or political/military power of the party involved. Interestingly, in many cases, the ‘new’ approach emerges after a significant change of status on the ground (such as territorial changes caused by war) and embodies characteristics of the preexisting status quo that had been previous3

Id. at 50.

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ly unacceptable. In general, these approaches may be summarized as follows: corpus seperatum. The earliest and most important efforts to solve the problem of the holy sites in particular and the issue of Jerusalem as a whole was to propose the territorial internationalization of Jerusalem as a corpus separatum. This idea was initially proposed in the United Nations General Assembly Resolution 181 (the Partition Resolution) of November 29, 1947,4 though in many ways it drew upon the prior Peel Commission Report of 1937, which advocated creating an enclave to include Jerusalem, Bethlehem, Nazareth, and related territory that would be ruled by a British Mandate after the establishment of two independent states in Palestine, one Jewish and one Arab.5 The central principle in that proposal was to internationalize Jerusalem (including the holy sites), thereby denying sovereignty to both sides of the conflict. Sovereignty over the city would instead be granted to an international body. These proposals were usually accompanied by the hope that it would eliminate Jerusalem as a source of ongoing conflict and that an impartial international body would better guard the interests of all religious communities in the city and decide fairly between competing claims to certain sites. The main difficulty in this proposal is the question: who will constitute this international body – especially after the United Nation’s inability to implement the decision of 1947? At that time, Israel was unwilling to consider surrendering control over those parts of Jerusalem it had acquired during the 1948 War, while Jordan was unwilling to surrender the parts of Jerusalem under its control or to relinquish its aspiration to recover all of Jerusalem. The Vatican was a strong advocate for internationalization and, while it finally began to accept that internationalization was unrealistic after the 1967 War, it did not officially renounce that position.6 functional internationalization. Following the failure to implement the corpus seperatum, the United Nations returned to the 4 5 6

Future government of Palestine, G.A. Res. 181 (II), U.N. Doc. A/RES/181 (II)(A+B), at 1 (1947) [hereinafter Partition Resolution]. Excerpts from the Report of the Palestine Royal Commission, 22 June 1937, in 3 The ArabIsraeli Conflict 150 (J.N. Moore ed., 1974) [hereinafter Peel Commission]. Hirsch, note 1 supra, at 128.

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question, and Sweden, among others, suggested a legal regime that would recognize the sovereignty of both Israel and Jordan over those parts of Jerusalem controlled by them, but that both would operate under the supervision of a United Nations commissioner in the area.7 Thus, while preserving the label of sovereignty as an absolute, the legal practice would have been international control of the city. This approach never achieved a consensus – or even a majority at the United Nations. Interestingly, at the same time this functionalized internationalization was being proposed for the whole city, Israel suggested creating a legal regime that would functionally internationalize the holy sites (most of which were in Arab-controlled territory.)8 divided city. Shortly after the 1967 War, proposals for Jerusalem began to suggest the division of Jerusalem between Israel and Palestine according to the pre-1967 borders.9 These proposals supported the claims by both Israel and Palestinians that Jerusalem was to be their national capital. The most glaring difficulty with this approach is that the pre-1967 division of the city placed the Old City (including both the Western Wall and the whole Temple Mount/Haram al-Sharif ) under the sovereign control of the Palestinians. Few could seriously believe Israel would voluntarily accept such a solution. Moreover, when negotiators attempted to carve out the holy sites, such as at Camp David II in 2000,10 the difficulties in administering a fragmented city began to be recognized. open city. The most recent approach to Jerusalem attempts to synthesize the concepts of a divided city and a functional binational internationalization. Specifically, these proposals suggest that Jerusalem 7

8 9

10

Draft Resolution Concerning an International Regime for the Holy Places, Proposed by Sweden, U.N. Doc. A/AC.38/L63 (1950), available at http:// mfa.gov.il/mfa/go.asp?MFAH 019k0. U.N. GAOR, 5th Sess., Supp. No. 9, at 29, U.N. Doc. A/1286 (1950). See, e.g., Camp David Accords: Annex and Letters (Letter from Anwar Sadat September 17, 1978), Israel Ministry of Foreign Affairs, at http://www.mfa.gov.il/mfa/peace%20process/ reference%20documents/ (last visited June 16, 2004); Resolution of the Arab Summit Conference at Fez, 6 September 1982, in The Arab-Israeli Conflict and its Resolution: Selected Documents 296 (Ruth Lapidoth and Moshe Hirsch eds., 1992). The Debate at Camp David over Jerusalem’s Holy Places, The Middle East Media Research Institute, Special Dispatch No. 121, Aug. 28, 2000, at http://christianactionforisrael.org/ isreport/julaug00/debate.html (last visited June 16, 2004).

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serve as the capital city for both Israel and the new Palestinian state, but that it be administered as a unified city with shared facilities and open access for all who enter the city.11 “All of Jerusalem should be an open city. Within Jerusalem, irrespective of the resolution of the question of sovereignty, there should be no physical partition that would prevent the free circulation of persons within it.”12 Though often vague in details, the whole of Jerusalem would be under the shared governance of Israel and the Palestinian state with, effectively, a constitutional guarantee that Jerusalem exist under “open” status. Holy Sites The second way to analyze prior proposals is to consider how they have specifically addressed the holy sites. How do they define the holy sites? What accommodations or limitations do they impose on the holy sites or the groups in control of them? Not every proposed solution to the Jerusalem problem specifically addresses the question of the holy sites – though the presence of the holy sites may justify the proposal itself. For example, the proposal to internationalize Jerusalem (corpus seperatum) is predicated upon the special status of Jerusalem as the Holy City for the three great faiths of the Book.13 However, because of the importance of the holy sites, many of the proposals for Jerusalem provide special attention to this issue. General Principles Applicable to the Holy Sites Most negotiators and advocates of these proposals regarding the holy sites acknowledge that any settlement must incorporate certain basic principles that must guide those appointed as custodians of the holy sites. These include: freedom of worship. International law recognizes that freedom of worship is a basic human right.14 Moreover, since the creation of the 11 12 13 14

Permanent Status Issues: Jerusalem, PLO Negotiation Affairs Department, at http://www.nad-plo.org/howjerusalem.php (last visited June 16, 2004). Id. See, e.g., Peel Commission, note 4 supra. International Covenant for Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N.

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concept of the holy sites and the status quo by the Ottoman Empire, one of the central political concerns over the administration of the sites has always been to protect the religious life of a religious minority.15 Thus, every proposal to protect the holy sites includes some assurance that, even where the site may be within the territory of or under the sovereignty of a party not of that faith tradition, the freedom of worship of the holy site’s faith community will be unimpaired.16 freedom of access. Freedom of access is often used synonymously with the assurance of freedom of worship.17 After all, the cults of the holy sites (i.e., people of faith for whom the holy sites hold special religious significance) hold dogmatic beliefs that worship at those holy sites is of particular religious merit or exists as a religious duty. Denying access, as has happened in the past,18 effectively denies those individuals their freedom to worship. These provisions of the suggested peace plans clearly intend to benefit from the freedom of religion of worshipers at those sites – that is to say, the congregants of the faith in possession. It should also, arguably, apply to shared holy sites, i.e., those that are holy to more than one faith tradition, regardless of which faith tradition is in control. However, this formulation may or may not address the rights of access of non-members of the faith associated with that site. To what extent should spiritual pilgrims of a non-Abrahamic faith be guaranteed access to a holy site? What about a cultural pilgrim seeking access to a place that has held an iconic status within the creation of Western culture? An assumption that access should also be protected for these latter cases appears to underlie the United Nations Education Scientific and Cultural Organization (UNESCO) recognition of the Old City as a cultural heritage site under the Convention

15 16 17 18

GAOR, Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force, March 23, 1976. See discussion supra Ch 2. See, e.g., Partition Resolution, note 4 supra; Sadat letter, note 9 supra; PLO NAD, note 11 supra. See, e.g., Peel Commission, supra note 4, Ch. 1; Resolution of the Arab Summit Conference at Fez, in Lapidoth, note 9 supra, at 92. See, e.g., Josef Federman, Israeli Troops Scuffle With Worshippers, Associated Press, Oct. 31, 2003, at http://www.kansas.com/mld/Kansas /2003/09/29/news/7144181.htm (last visited June 16, 2004); Shmuel Berkovitz, The Legal Status of the Holy Places in the Land of Israel 5 (1997).

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Concerning the Protection of the World Cultural and Natural Heritage. independent management by religious leaders. Another aspect of religious freedom involves the freedom of religious leaders to manage the holy sites in which they are responsible for the benefit of their communities. Determining how to administer a site, including decisions about times for services, the arrangement of space, etc., affects its cultic character (i.e., how well it serves as a place of worship.) Conferring management responsibility upon religious leaders also may help separate the issue of the holy sites from the broader questions of sovereignty and political control.19 It avoids arguments over which government or agency is responsible for which holy site. Religiously autonomous administration of the holy sites, however, does present some significant problems for those concerned with the protection and preservation of the sites. To what extent should a local religious leader be allowed to alter the character of an internationally important site? At the simplest level, local leaders may be more concerned with adapting the worship space to meet the needs of their congregation than with the preservation of historic architectural details. Or they may be driven by financial constraints to seek renovations and/or modernization that save money in terms of maintenance or the costs of utilities. This concern grows in significance when we consider the conflicting claims of ownership over many of the holy sites where modification may be attempted by a faith tradition in primary control of a site simply to denigrate or deny the interests of the other faith tradition.20 tax exempt status. Given the nature of the holy sites as places of worship and centers for the delivery of social services, many proposals endorse providing the holy sites with tax exempt status.21 This follows the common practice in most countries in the West where religions are treated as important contributors to civil society. In lieu of sharing in the tax burdens of society, religious institutions provide direct services 19 20

21

See, e.g., Sadat letter, supra note 9; Israel 1967 Proposal, in Lapidoth, note 9 supra, at 50. See, e.g., the problems presented by the multiple claims of ownership over the Church of the Holy Sepulchre discussed supra at notes 30–32, Ch. 3, and the conflicts over Haram al-Sharif/Temple Mount discussed supra at notes 57–62, Ch. 3. See, e.g., Partition Resolution, note 4 supra; Israel 1967 Proposal, note 19 supra.

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to that society. More importantly, taxation presents a risk to religious entities. As noted in the famous 1819 axiom by Chief Justice John Marshall, “The power to tax is the power to destroy.”22 Granting the holy sites tax exempt status shields them from potential covert abuse by the state through its tax system. On these issues, both the Israelis and Palestinians show readiness (at least in their public statements) to reach an agreement, more so than on other issues. Interestingly, a number of the settlement proposals directly or indirectly promise to maintain the existing status quo regime after the settlement.23 Presumably, this provision serves a number of purposes. It offers a shorthand description for what is covered by the holy sites proposal and precludes extended controversy over what is or is not a protected holy site. It implicitly fixes the number of holy sites and denies the possibility of adding new sites. It also provides continuity with the past and links back with the United Nations initiatives from the 1947–48 period.24 Administrative Approaches to Handling of the Holy Sites With respect to the question of how the holy sites will be administered or controlled, the proposals fall into three categories: international supervision/management; autonomy of sites; and extraterritoriality. As in the case of the proposals affecting sovereignty, the three emerged out of the historical context in which they were proposed. The earliest approach, international supervision, arose at the time when the very existence of Israel was considered an object for international determination. Later proposals reflect efforts to find accommodation for Palestinian interests in the face of increasing de facto control over all of the holy sites by Israel. international/un supervision. The first proposals for the holy sites essentially drew upon the same impetus as the initial proposals for 22

23 24

McCulloch v. Maryland, 17 U.S. 316, 431 (1819) – where Marshall states “the power to tax involves the power to destroy,” though subsequent citations tend toward the simpler “is.” McCray v. United States, 195 U.S. 27, 96 (1904). See, e.g., Report of Sir William Fitzgerald on the Local Administration of Jerusalem (1945), in Lapidoth, note 9 supra, at 30; U.N. Doc. A/1286, note 8 supra. See discussion supra, Ch. 2 at notes 24–28.

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the internationalization of Jerusalem. In order to assure the protection of the holy sites against the parochial or hostile interests of the parties on the ground, it was determined that they should be administered by the United Nations or some other international body.25 As expectations for the efficacy of United Nations interventions waned and in the absence of any other competent governmental authority, some have suggested that supervision over certain activities should be in the hands of a committee of international representatives of the three religions.26 However, while this solution might preserve the integrity of decisions taken on behalf of those sites, it is unclear how these committees could either protect the sites against intrusion or assure the delivery of necessary services. Unlike the United Nations, the religions control no armies of peace keepers nor have they any authority to compel governmental compliance. autonomy. Another approach, representing a variation on the international religious committees, is to transfer administration of the holy sites to the coreligionists for whom the place is holy – an “autonomy” of the holy sites. The main proposal along these lines was that of the British legal expert Sir Elihu Lauterpacht, who suggested in 1968 that representatives of the religious communities would administer the holy sites and enact judicial authority over their staffs in certain areas, while the officials of the territorial sovereign would not be allowed to enter these sites without explicit permission of the heads of the religious community.27 It was also proposed, in this spirit, to establish a special police force composed of members of all three religions, to be called “holy sites police.” extraterritoriality. A more extreme attempt to safeguard the independent status of the holy sites was expressed in proposals to grant the holy sites extraterritorial status. While in some ways this suggestion reflects an extension of the internationalization of Jerusalem concept expressed in the United Nation 1948 Partition Resolution,28 the Israelis advanced this concept with their 1967 proposal that would have con25 26 27 28

See, e.g., Fitzgerald report, note 23 supra; U.N. Doc. A/1286, note 8 supra. See, e.g., Hirsch, note 1 supra, at 141–142. Elihu Lauterpaucht, Jerusalem and The Holy Places, (1968) at 5 et. seq. See Partition Plan, note 4 supra.

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ferred diplomatic mission status on all of the Christian and Muslim sites; Muslim and Christian clerics would have a special status similar to diplomats, and Jordan and the Holy See would be recognized as the “sending states” for Muslims and Christians respectively.29 Since diplomatic status did not affect sovereignty, the next step was to suggest extraterritorial status. Thus, the legal expert Raphael Bankler (University of Paris) and Yaakov Hazan suggested in 1980 that sovereignty over the city would be granted to Israel, but the Muslim holy sites would be granted extraterritorial status. In a mirroring proposal, Professor Walid Khalidi of the Center for Middle Eastern Studies at Harvard University proposed in 1988 that sovereignty over East Jerusalem would be granted to the Palestinian state, while the Jewish holy sites in this area would be granted an extraterritorial status.30 In both of these cases, it is unclear who, if anyone, could claim sovereignty over these two extraterritorial sets of holy sites (though presumably, the assumption was that the Palestinian state and Israel, respectively, would act as the sovereign sponsor state for these two forms of religious extraterritoriality). A variation on this approach was raised at the Camp David Conference in July 2000, where it was proposed that, in addition to the formation of a Palestinian State in the occupied territories, Palestinians would be granted administrative control over Arab neighborhoods in East Jerusalem and Muslim control over Temple Mount/Haram al-Sharif (with the right to fly a Palestinian flag over it) would be recognized. Israel, however, would retain sovereignty over all of Jerusalem.31 Again, the relationship between the new Palestinian state and these “administrative” territories was unclear, and the proposal ultimately foundered on the emotion laden shoals created by the question of sovereignty. 29

30 31

Israel 1967 Proposal, note 9 supra, at 50. While the recognition of Jordan as the Muslim sending state reflected the special relationship between Jordan and the Waqf in Jerusalem that would later be enshrined in the peace treaty between Israel and Jordan, see Reiter, supra note 61, Ch. 3, this proposal demonstrates a striking disregard for the many Christians (including those in custody of some of the holy sites) for whom the Holy See is not an appropriate or even welcome representative. See, e.g., Hirsch, note 1 supra, at 142. See, e.g., Joel Beinin, The Failure of Camp David II, Peacework, November 2000, at http://www.afsc.org/pwork/1100/112k17.htm (last visited June 16, 2004); David Shyovitz, Camp David 2000, Jewish Virtual Library, at http://www.us-israel.org/jsource/Peace/ cd2000art.html (last visited June 10, 2004).

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Municipal Administration The problems of administering Jerusalem as a city have expanded over the years as the conflicts regarding sovereignty issues have evolved and as the reality of Israeli control over part – then, all of Jerusalem – settled in. As advocates and negotiators were forced to consider the practical implications of the various proposals for sovereignty, they had to modify their expectations on how the city would be administered. However, unlike sovereignty, the evolution and advocacy of each of these approaches was not linear, moving from one to the next, but interactive shifting among them as particular concerns gained prominence. There are essentially three possible approaches to governing the city: unified, divided, and shared. unified city. The existence of a unified, single city of Jerusalem is in many ways the simplest response to the problem of municipal administration. It facilitates management of the city and comprehensive protection for the holy sites. The unified-city approach was contemplated in the original efforts to create an international city (corpus seperatum) for Jerusalem.32 The internationalized unified-city approach attempted to avoid the political tension between Israelis and Palestinians by placing sovereignty and administration in the hands of the international community. The earlier Peel Commission had expressed strong doubts about the ability to create a shared Israeli–Palestinian authority, given the ethnic character of the neighborhoods of Jerusalem.33 In terms of municipal administration, it is the simplest basis for administration and economy of the city. Israel in recent years has adopted the unified-city approach with Jerusalem being an exclusively Israeli city and the capital of Israel.34 In order to ameliorate the political problems with this approach in relation to the Palestinian populace, a number of leaders and thinkers, such as the former mayor of Jerusalem Teddy Kollek, have proposed municipal 32 34

33 Partition Resolution, note 4 supra. Peel Commission, note 5 supra. See, e.g., Alon Ben-Meir, Jerusalem’s Final Status Must Reflect its Uniqueness, 3 Middle East Policy 93, 103 (1994); Amir S. Cheshin et al., Separate and Unequal: The Inside Story of Israeli Rule in East Jerusalem (1999).

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administrative systems that emphasize providing ethnic neighborhoods with significant authority over their internal affairs.35 However, while this latter approach offers some promise, critics have suggested that its actual implementation to date has been deeply flawed (if not intentionally deceptive).36 The fundamental problem is how does one protect the interests of a minority group in a democratic polity where questions of allocations of scarce resources are at stake. This problem is exacerbated where loyalties and identities are divided between the majority and the minority. divided city administration. In contrast, the simplest proposal in terms of meeting the competing demands of Israel and the Palestinians to have Jerusalem as their state capitals has been to simply divide the city into two parts, one administered by the Israelis (usually identified as West Jerusalem) and one administered by the Palestinians (East Jerusalem). While not elaborated on, this appears to be the premised position for a number of proposals.37 Problems arise, however, when one begins to consider issues of security and the economy. The provision of services becomes awkwardly segregated, enormous disparities in resources may be fostered, and the operation of the municipal economy (including shopping and tourism) may be impaired by the need to cross national borders to move from one side of the street to the other. From the perspective of the holy sites, these proposals do not address the problem of administering those essential city services necessary for the protection and administration of the holy sites within the separate cities. Nor does it address the problem of access where municipal/national borders may interfere with ready access to particular sites. shared city. As Palestinians come to accept the fact that Israel is unlikely to surrender control over the city, an increasingly prominent suggestion is that Jerusalem should be the shared capital of both the Israelis and the Palestinians.38 This has also been referred to as the 35 36 37 38

Teddy Kollek, Sharing United Jerusalem, 67 Foreign Affairs 156 (1988). See, e.g., Cheshin et al., note 34 supra. See, e.g., Sadat letter, note 9 supra; Arab Summit, note 9 supra. See Camp David Accords: Annex and Letters; Resolution of the Arab Summit Conference at Fez, 6 September 1982; The Debate at Camp David over Jerusalem’s Holy Places, supra notes 9–10.

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“Condominium Solution.”39 While each side may have special interests in and authority with relation to particular ethnic neighborhoods, they would have to make administrative decisions collaboratively. Recognizing the value of administering the city as a unified whole, Palestinian Counsel member Ziad Abu Zayad has suggested that Jerusalem should be considered as a city under divided sovereignty as the capitals of Israel and Palestine with all municipal services provided by a common, joint administrative civil service.40 Not only does this approach answer the complaints over administrative efficiency and effectiveness in a divided city, it would help satisfy the emotional/nationalistic demands of both Palestinians and Israelis that Jerusalem serve as their respective national capitals. One problem, however, that remains from the divided city scenario concerns security. How and to what extent can Israel and the Palestinian state control access to Jerusalem? How do they control their individual borders with respect to individuals being granted access to Jerusalem? As was the case with the issue of sovereignty, proposals regarding the municipal administration of Jerusalem typically have not specifically addressed the issue of the holy sites. As has all to often been the case, the holy sites have been treated as too intractable and too provocative to be addressed within a liberal political structure. Nonetheless, these proposals provide the necessary background and potential building blocks for a new legal regime to protect the holy sites. 39 40

John V. Whitbeck, The Road to Peace Starts in Jerusalem: The “Condominium” Solution, 45 Cath. U. L. Rev. 781 (1996). Dan Izenberg, How to Share an Indivisible City, The Jerusalem Post: Internet Edition, June 12, 1997, http://www.jpost.com/com/Archive /12.Jun.1997/Features/Article–7.html (last visited June 15, 2004).

part two

Points of Contention – Opportunities for Change

5 The Multidimensional Problem

As previously noted, the goal of the Holy Sites Project is to help facilitate and support the development of a legal regime to protect the sites separable from – though complementary to – the peace process as a whole. Our object is not to impose a solution to the problem of the holy sites. History amply demonstrates the futility of such an effort. The ultimate success of any legal regime depends upon the people who must live under its authority. It is they who must be the principal authors of its creation. The goal of the Holy Sites Project is simply to assist these interested parties in negotiating to create an effective legal regime. In this report, we are seeking to: provide the necessary background for the negotiating process; identify and highlight relevant problems and issues of concern; highlight possible options and alternatives; and suggest an appropriate process. In this section, we begin the process of issue identification and consideration of how problems raised in that connection might be resolved. Developing a legal regime to protect the holy sites requires that we confront a complex set of interrelated and interactive problems. The difficulty is not simply to protect the religious sites and institutions of a minority religion(s) within the dominion of a theocratic state or a religiously identified state. It is the need to find a way to respect a diversity of faiths while both separating and integrating those faiths within a diverse, amorphous, and ever-changing society. It is the challenge of dealing with faith that also carries the baggage of nationalism and national identity. This is also a problem that transcends boundaries, while remaining 87

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inexorably situated in a particular time and space. The importance of the holy sites transcends national boundaries and engages the believers of three of the world’s major religions. Indeed, they stand as icons within the collective heritage of western civilization and ultimately world culture. Nonetheless, the holy sites remain situated within the territory of a sovereign state and require the support and services of local governmental authorities. Complicating this, the holy sites are not only subject to the normal stress and strain of local politics seeking to balance and accommodate the often competing interests of the residents of a particular community, they stand at the heart of the ongoing nationalist conflicts – some might say the survivalist struggle – between the Palestinians and Israelis. Global solutions such as the repeated proposals to make Jerusalem an international city, a corpus separatum, have failed in the past and appear unlikely options for the future. A more tailored approach must be found, one that confronts the many individual problems of protecting the holy sites within the context of multiple claims of jurisdiction and the realities of existence of a congregation of faith within a living city. In attempting to develop a legal regime to confront these problems, certain broad concepts and understandings adopted by the Holy Sites Project shape our approach to this problem and provide some guidance regarding the holy sites and the city of Jerusalem. They serve as the foundation or predicate for the Holy Sites Project in terms of focusing attention upon those issues and ideas necessary to provide the framework for a possible new regime to protect and administer the holy sites. In doing so, the Holy Sites Project will inevitably raise issues that ultimately may only be resolved in the course of concluding the final status negotiations. While the effort here is to promote the negotiation of a settlement of the holy sites question separate from the final status negotiations, thereby facilitating those negotiations, the regime will have to anticipate possible resolutions to certain issues insofar as they affect the holy sites. In a sense, if the holy sites regime is successfully negotiated, it may foreshadow the final status negotiations. Nonetheless, the project’s ambitions must be limited to the holy sites. To begin with, we have identified religion as a central feature of the project. This focus is critical and, in many ways, helps set it apart from

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prior efforts in the peace process, particularly those efforts offered by secular, nonreligious institutions. As noted at the outset of this report,1 while the conflict between Palestinians and Israelis is not a religious conflict per se, religion nonetheless stands near its heart. Religion is a “fact on the ground.” Failing to attend to it has been a major, if not fatal, flaw in many of the prior efforts to advance peace in the Middle East. However, more than that, attending to religion offers positive benefits and guides the project in a number of ways. First, it provides both the motivation toward peace and the language of reconciliation necessary to achieve it.2 While secular, traditional liberal critics fear religion, attending to its history of violence and intolerance, for people of faith, religion offers the hope of reconciliation and peace. Both perspectives witness certain truths about religion. Nonetheless, it is the latter that offers particular, as yet unexploited potential. Second, as will be seen in the proposals for a plan of action, religion also provides both an impetus toward peace and guidance on how to enter into the conversations necessary to achieve that peace.3 The Abrahamic faiths offer guidance not only on moral behavior but also on community building useful for these negotiations. Third, religion helps to shape and refine some of the necessary questions that must be answered and to shape some of the concepts that must be developed. For example, the holy sites are, first and foremost, a religious question. Finally, attending to religion will help identify some of the important participants available to contribute to the peace process, in addition to those who may already be engaged. Religion provides one tool to assist the negotiations of the holy sites regime. Law provides the second. Specifically, a significant body of law can be drawn upon to help provide shape for the ultimate legal regime and define the interests of the parties that are to be a part of that regime.4 Finally, insights can also be drawn from international relations and historical processes for negotiating regional security agreements.5 Specifically, security regime negotiators have had to develop mecha1 2 3 5

See supra text accompanying notes 17–20, Ch. 1. See supra text accompanying notes 23–27, Ch. 1. 4 See discussion infra Ch. 8. Id. Id.

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nisms, known as confidence-building measures or collaborative mechanisms, through which opposed nations can address the needs of the proposed security regime and overcome preexisting distrust, if not outright hostility. Thus, while religion provides possible incentives or motivations for peace that may be used by the negotiators of the legal regime, these confidence-building measures can be used either to help implement the religious motivation or to counter secular influences. The foregoing helps provide guidance for the process of negotiation and the intangibles of the negotiating process – the motivational and emotional impetus. Switching to substantive concerns, the second and related focus of the project is the holy sites. We distinguish between religion and the holy sites as a focus, first because it allows us to explore and attend to the place of religion as a resource for peace in a region in which religion – independent of the existence of the holy sites – is a critically important social force. Equally, while the holy sites clearly engage religion, as previously noted, the holy sites have never been merely a religious question.6 They have been enmeshed with issues of politics, territory, and identity. However, while those impulses will still be present, the idea of the Holy Sites Project is that if the religious questions can be satisfactorily addressed, they will not be available as a hook on which to hang political aspirations hidden behind the claims of religion. In considering and defining the holy sites, a number of crucial questions must be asked and answered. What do we mean by a holy site? If it is to be protected, then what qualifies it for protection? Must all holy sites be protected identically? Are they all comparable? In the ensuing analysis, these questions break down into three categories: legal definitions of the holy sites,7 the nature of the holy sites,8 and categorizing the holy sites.9 Once the parameters of the effort are limited and defined by a focus upon the holy sites, negotiators must confront the challenge of developing a viable political-administrative mechanism to address the needs of the holy sites that is not predicated upon a particular outcome of the final status negotiations. To do so would doom the proposed regime to 6 7 9

See supra text accompanying notes 48–58, Ch. 1. 8 See discussion infra Ch. 8. Id. Id.

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failure. Instead, the mechanism must anticipate alternative solutions to the final status negotiations that would allow it to be adopted, thus freeing the final status negotiations of the holy sites obstacle. The first and most basic of the political issues is that of sovereignty and state control.10 Since the holy sites exist in a physical space within the territory of a state – or possibly multiple states – how are the claims of the state to be understood? What does sovereignty mean in this increasingly globalized world? Next we must consider in greater detail the contours of a legal regime appropriate to administering the holy sites. Most fundamentally, questions of ownership arise.11 How should we recognize claims of ownership and control by individuals and or congregations? Many people of faith outside the congregation – indeed outside the state – also claim these sites as holy. Moreover, many secular individuals recognize the cultural importance of the holy sites. How should their interests be reflected in a new legal regime? Extending the legal regime analysis slightly, the holy sites reside within a city. This requires collaboration and interaction between those administering the holy sites and municipal or governmental officials charged with providing necessary services to those sites.12 Another important aspect is the special character of the city that functions as a spiritual center for the three great religions and for others the world over. This special status provides the area with unique opportunities for social and economic development that affects a wide range of activities in the city: tourism, pilgrimage, crafts and industries, education, and the infrastructure of the city. This also promotes the involvement of people of faith from around the world in the process of peace. Finally, a basic premise of the Holy Sites Project is that the international community (secular as well as religious) has a vested interest in this situation and an important role to play in its resolution.13 What role should the international community play? What is the cognizable interest of the international community? Is it only the interest of the international members of the three religions? 10 12

See discussion infra Ch. 9. Id.

11 13

Id. Id.

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In reviewing the following discussion of issues, procedural and substantive, it must be remembered that the goal of the Holy Sites Project is to facilitate the negotiation of a holy sites regime by the concerned parties. The project does not attempt to determine the details of the negotiations or the resulting legal regime. The effort is simply to sketch the broad contours of such a regime and the issues that must be confronted and resolved as a necessary critical first step.

6 Principles1 to Praxis

As demonstrated in Part I, the roots of the Israeli–Palestinian conflict run deep, and the challenges presented by the holy sites to a solution to that conflict are well recognized. To date, over seventy proposals have been offered by governmental leaders, international NGOs, and interested scholars. The question naturally arises as to what makes this effort different. Clearly, given the long history and number of proposals made, absolute originality is impossible. Nonetheless, a number of features are different from most prior efforts. These include both structural and conceptual differences. First, we start with a modest objective: not of formulating a final settlement to all elements of the conflict, but rather to tackle what has been identified as one of the most emotional obstacles to peace – the status of the holy sites. In past efforts to address the conflict, the holy sites have frequently emerged as tools or weapons used to obstruct a settlement or as alternatives to direct negotiations, thereby magnifying the difficulty. For example, individual holy sites 1

Unfortunately, in this chapter we will be dealing with principles from a number of different sources that might lead to some confusion. In short, the Holy Sites Project has created a set of explicit principles for development of a legal regime to protect the holy sites. These are referred to as the Principles of the Holy Sites Project [hereinafter The Holy Sites Principles], infra Appendix I. However in developing these explicit principles, the project drew upon religious and legal resources that are, in effect, implicit principles for the project. Finally, in articulating these religious principles, we will be drawing upon a project of the Park Ridge Center resulting in the principles: To Speak and Be Heard: Principles of Religious Civil Discourse, and Guidelines for Religious Participants in Civil Discourse, in Martin E. Marty, David E. Guinn and Larry Greenfield, Religion and Public Discourse: Principles and Guidelines for Religious Participants (1997).

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have been used as a means of asserting a political claim over territory.2 Separating out the holy sites narrows the range for negotiation and focuses it upon the most emotive and potentially subversive topic. Second, the project seeks to localize the negotiation. A majority of prior proposals were offered by outsiders to the conflict, ranging from the British during the Mandate up through the United Nations. The Holy Sites Project rejects that approach. While believing that international partners have a role to play, a basic organizing principle of the project is that a truly effective solution can only be developed by the immediate parties – Palestinians and Israelis, supported by their international partners, including the Abrahamic faith communities.3 Thus, the object of the project (and this report) is not to promote a particular legal regime, but to set the stage for the negotiations to create that regime. Finally, the project identifies religion as an important factor in the negotiations. While religion can be an obstacle to peace, it may also serve as a motivation to help counter the history of hostility between the parties as an important resource. Balancing that focus on religion, the project also draws upon principles of international law to structure and organize the goal of finding a settlement that will protect the holy sites. Here, we will begin developing the project’s approach by identifying some of the precepts or principles that can and should guide the negotiations to create a holy sites legal regime. In succeeding sections, we will consider additional mechanisms necessary for the negotiation along with substantive issues that need to be confronted. Principles Drawn from Religion As repeatedly noted previously, religion serves as a central organizational locus of the Holy Sites Project. The analysis to this point has focused upon religion as a sociological fact. That is to say, we have considered the role religion has played as a forum for conflict (i.e., the religious 2 3

See Nadav Shragai, Ramban Cave Made Place of Worship, Ha’aretz, May 23, 2000. See The Holy Sites Principles, infra Appendix I, A1.

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nature of the holy sites made them the subject of conflict)4 and how the absence of religion, or at least explicit attention to it, may have condemned the Oslo Peace Accords.5 Here I want to draw attention to those religious ideas and concepts that may help facilitate the development of the holy sites legal regime. Religion and Peace The negotiators and advocates for the Oslo Accords omitted explicit attention to the religious dimension of the Israeli–Palestinian conflict. As many commentators have noted, the negotiators viewed religion with suspicion – if not hostility.6 In many ways this suspicion is understandable. Religious symbols and language have been used to justify the conflict and the ongoing violence, from the references to jihad by Palestinian radicals7 to the demand by the Jewish radical group the Temple Mount Faithful to destroy the al-Aqsa Mosque and rebuild the Temple on the Temple Mount/Haram al-Sharif in fulfillment of Jewish Law.8 Even Christianity, numerically a small presence in the area, has contributed support for violence; certain fundamentalist and evangelical sects have allied themselves with Jewish extremists (such as the Temple Mount Faithful) based upon their reading of Revelations and the belief that Jewish control of the Temple Mount represents the first stages of the Apocalypse/End of Time.9 Nonetheless, while religion may represent a potential ideological adversary to peace, a basic premise of the Holy Sites Project is that it must be addressed. In part this is based upon pragmatic need. Religion is profoundly important to the people on both sides of the conflict, and it will not simply “go away” if it is ignored. “Religious tradition, with its 4 5 6

7 8

9

See supra text accompanying notes 48–53, Ch. 1. See supra text accompanying notes 18–20, Ch. 1. See Yehezkel Landau, Healing the Holy Land: Interreligious Peacebuilding in Israel/Palestine, United States Institute of Peace: 51 Peaceworks 13 (August 2003), at www.usip.org (last visited April 25, 2004). See, e.g., Statement from Islamic Jihad, CNN.com, Aug. 9, 2001, at http://www.cnn.com/ 2001/WORLD/meast/08/09/jihad.statement/. See Marshall J. Breger and Thomas A. Idinopulos, Jerusalem’s Holy Places and The Peace Process at 55–56 (1998). Gershom Gorenberg, The End of Days: Fundamentalism and the Struggle for the Temple Mount 171–172 (2000). See Breger and Idinopulos, note 8 supra 31, at 55–56; Gorenberg, note 8 supra, at 14.

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symbols and loyalties, is fundamental to the identities of both Arabs and Jews, even for those who do not define themselves as traditional or observant.”10 Efforts to avoid religion deny the reality on the ground. Moreover, it inadvertently promotes conflict. “If religion does not become part of the solution, it will motivate hate.”11 Religious conflicts may only be resolved if they are explicitly addressed. The need to address religion not only demands attention to religious concerns or objections, it requires the participation and engagement of people of faith. “Much of the hard work to promote peaceful coexistence must be done internally by each community. The religious peacemakers must take on the defamers and mythologizers within their own communities who are demonizing the Other.”12 Fortunately, while religion bears within it the capacity to promote violence and conflict, it may also support “militants for peace.”13 Not only can religious tradition be cited to rebut the claims of advocates of violence, it may motivate the faithful to “‘go to extremes’ – including risking their lives – in pursuit of justice and peace.”14 It is this shared peace tradition within the three religions of the Book that the religious leaders in the First Middle East Interfaith Summit refer to in the introductory paragraphs of the First Alexandria Declaration of the Religious Leaders of the Holy Land: “According to our faith traditions, killing innocents in the name of god is a desecration of His Holy Name, and defames religion in the world. The violence in the Holy Land is an evil which must be opposed by all people of good faith.”15

10 11

12 13 14 15

Landau, note 6 supra, at 11. Rabbi Johnathan Sacks, quoted in David Smock, Building Interreligious Trust in a Climate of Fear: An Abrahamic Trialogue, United States Institute of Peace: 99 Special Report 4 (February 2003), at www.usip.org (last visited April 25, 2004). Smock, note 11 supra, at 7. R. Scott Appleby, The Ambivalence of the Sacred: Religion, Violence, and Reconciliation, 10–11 (2000). Id. at 11. Reprinted in Landau, note 6 supra, at 51. The Middle East Interfaith Summit was the first meeting involving the participation of religious leaders of the Abrahamic traditions from the Holy Land to consider the Israeli-Palestinian conflict. In January 2002 they issued the Alexandria Declaration advocating a peace settlement “implement[ing] the Mitchell and Tenet recommendations.” (Point 4.) Id. at 16–25, 51.

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Religion and Civil Discourse In addition to being the bearers of dogma and religious ideology, religions are also communities of faith within the world. They not only came together around their religious encounter with the transcendent, they have succeeded in surviving over time. This has required them to find methods for negotiating the demands of the world and resolving internal disputes within their communities.16 In essence, they are political communities exhibiting a complex polity. Obviously, as evident by the phenomena of schism within the religions, they have not always been successful at handling these conflicts. On the other hand, no state has been more successful than they, as witnessed by the relative stability of the Catholic Church, Orthodox Judaism, and Sunni Islam, all of whom are older in terms of relative continuity than any current nationstate. Drawing upon this practical, political wisdom, religion offers some guidance on how to advance the negotiations toward a new legal regime for the holy sites. Those insights may be categorized under two broad headings: substantive principles and procedural guidelines. Substantive Principles Substantive principles refers to those concepts and ideas drawn from the praxis of religion that describe the nature of civil discourse or political engagement. They direct our attention to the internal dynamics of negotiation and how a new type of conversation may be invoked that differs from the confrontational approach common in most Western forms of civil discourse. This include: process. The first point to recognize is that the effort to develop a new legal regime through civil discourse is a process of peacemaking.17 In initiating the conversation toward settlement, the discourse should not be considered as a ground for continuing the conflict, nor viewed as 16

17

Based upon this insight, the Park Ridge Center for the Study of Health, Faith, and Ethics initiated a project entitled Religion and Public Discourse, led by Martin E. Marty, Larry Greenfield, and this author to explore the insights offered by the world’s religions. The project enlisted the participation of religious leaders drawn from 6 world religions, representing a broad political spectrum (liberal to conservative) and diverse sects within the major Abrahamic traditions. Marty et al., note 1 supra. Marty et al, note 1 supra, Principle I.2.

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an opportunity for victory or defeat. The goal must initially focus upon understanding the positions of all participants and sharing in the joint process of advancing the negotiation toward an ultimate resolution. religion calls for civil engagement. Even people of faith sometimes make the same mistake that the secular negotiators at Oslo fell prey to – that religion was and is not a proper party to the peace process. It is true that there are non-worldly and monastic traditions within the religions of the Book. Nonetheless, all of the religions have powerful traditions that have historically supported the engagement of the faithful with those issues that advance justice and peace.18 So called conservative and fundamentalist religionists have recognized the political dimensions of faith. Liberal people of faith have often been much more inclined to accept the traditional, Lockean belief that religion is a personal matter to be segregated from the public sphere so as to avoid potential conflict.19 Their mistake is that conflict is inevitable. The only question is how to address it most effectively. engage at a personal level. One of the central features of most faiths is the effort to bring people together – to share bread and engage personally with other members of the community. Thus, instead of simply interacting with “representatives of the other side,” participants in religious discourse should make the effort not only to understand the ideas and values of their negotiating partners, they should get to know them as individual people.20 This is particularly critical where the nature of the prior conversations or disputes have promoted antagonism or hostilities. Such emotions inevitably lead to ever greater objectification of the “other” not only as the enemy, but as something other than human: the beast, the savage, the demon. start from points of agreement. As demonstrated in the abortion debate in the United States, efforts to resolve conflict are doomed to failure when they start at the point of ultimate disagreement. Instead of conversation, such confrontations lead only to competition as to who can disparage the other more effectively or who can make their voice 18 19 20

Id. at Principle I.3 and I.4. David E. Guinn, Faith On Trial: Communities Of Faith, The First Amendment, And The Theory Of Deep Diversity 7–8 (2002). Marty et al, note 1 supra, Principle III.1.

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heard amidst the resulting screaming match to restate the position they held before the confrontation began. If progress is to be made, the participants need to start at those points in the conversation where they can find agreement and shared values.21 This allows a humanization of the conversation and can promote recognition of unrecognized opportunities for mutual benefit. act on the basis of relative and partial agreements and put words into action. Talk is not enough. Parties to the negotiation must act upon those areas of agreement.22 Organized dialogues “generally place [. . .] too much emphasis on talk. . . . Engaging in joint activities and projects is more effective means of building trust and mutual understanding than is discussion or debate.”23 In this light, the process of civil discourse and negotiation may be advanced through diverse ways, such as through telling and sharing stories24 or through shared ritual or spiritual practice.25 Procedural Guidelines Religions also offer insights on how to structure civil discourse. These procedural guidelines attend not to the internal dynamics of the conversation, but to the environment created by those who organize the discourse in which the conversation takes place. While in some cases they specifically address religious discourse, they also provide guidance applicable to any serious negotiation over a controversial topic. allow adequate time for conversation. Decision making within the religious traditions typically involves a long process of consensus-building among its members.26 Thus, initiating a religiously engaged negotiation over the holy sites – one that will engage religious communities as potential partners in the process or as a targeted audience within the larger political community – cannot be undertaken with unrealistic expectations for quick action. At the same time, time must be managed. Many critics view the history of delay in negotiations in the Middle East as a specific Israeli tactic that has allowed them, as the dominant party in the negotiations in possession of the territories 21 23 25

Id. at Principle III.2. Smock, note 11 supra, at 5. Landau, note 6 supra, at 35–37.

22 24 26

Id. at Principle III.5. Marty et al, supra note 1, Principle III.2. Marty et al, supra note 1, Guideline 1.

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claimed by Palestinians, to use the time involved in the delay to “change the facts on the ground.”27 Added to this suspicion is the cynicism induced by exhaustion from the seemingly unending nature of the Oslo process.28 In order to preserve the sense of hope necessary to the process, there will be enormous pressure to achieve results quickly. To address this concern, organizers will need to establish an agenda with identifiable targets by which to measure progress. Moreover, it may be helpful to establish a wide variety of working groups addressing selected parts of the overall programmatic effort to develop a holy sites regime.29 While these characteristics were also shared by the Oslo process,30 and may therefore be considered suspect, it may be hoped that by starting at points of agreement, as suggested previously, such short-term progress may more readily be identified, recognized, and achieved – at least insofar as the participants are concerned. create an atmosphere conducive to trust. Efforts to advance peace demand that risks be taken. It takes courage to offer a concession from a long-held position in order to effect a possible compromise. Such concessions could be used by others to undermine the relationship between the negotiators and the community they represent; or it might be exploited by other parties to the negotiation to establish a new benchmark – a point once conceded may never be recovered to its former status. Therefore, any attempt to honestly engage in civil discourse requires great trust on the part of all of the participants that their efforts will be treated in good faith. Unfortunately, this topic and this region suffer from the legacy of long-standing conflict. Suspicion of the motives and actions of others permeates the environment. While the 27

28

29 30

Mustafa Barghouthi, Israel Predetermining Status of Jerusalem, Aljazeera.net, Dec. 7, 2003, http://english.aljazeera.net/NR/exeres/58237548-677F-4497-A90E-A8C23155C3A1.htm (last visited June 26, 2004); Chesin et al., supra note 34; Ch. 4. See, e.g., Press Release, American Embassy Tel Aviv, Remarks by U.S. Ambassador to Israel Daniel Kurtzer, “Assessing the Israeli–Palestinian Negotiations 1993–2000” Conference, Leonard Davis Institute, Hebrew University, Jerusalem (Mar. 2, 2004), at http://www.usembassy-israel.org.il/publish/mission/amb/030204.html (last visited June 16, 2004); Marwan Bishara, Palestine/Israel: Peace or Apartheid 49 (2001). Marty et al, supra note 1, Guideline 8. See Justus R. Weiner, Co-Existence Without Conflict: The Implementation of Legal Structures for Israeli–Palestinian Cooperation Pursuant to the Interim Peace Agreements 26 Brooklyn J. Int’l L. 591, 600–612 (2000).

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peace-making and peace-promoting aspects of religion discussed previously provide the motivation to undertake the process of discourse, the organizers of the discussion need to help promote an atmosphere and those practices supportive of trust.31 These include, for example, hosting activities promoting personal relationships among the parties (e.g., shared meals and social functions) and establishing a policy of openness to a wide variety of potential participants to the process. At the same time, it may be important to limit media access to the process. In part, this is because many people of faith feel that the media is hostile to religion and that it unwittingly harms interfaith relations.32 More importantly, this may help avoid the risk that the delicate process of negotiation could fall prey to the demand that the conflict be refought in the public press.33 include multiple traditions and respect the diversity within traditions. The Holy Sites Project naturally advocates the engagement of the three Abrahamic religions: Judaism, Christianity, and Islam. Moreover, on a practical level, this also entails the involvement of those traditions within the religions that “own” or control specific holy sites, such as the Roman Catholic, Greek Orthodox, and Copts. However, as a matter of principle, the project also advocates the engagement of a wide range of religious representatives. This reflects the position of the project that the holy sites are sacred not only to the custodial communities in possession of those sites, but to all members of that faith (indeed to all members of the human community.)34 All have an interest in their protection and preservation. However, equally important, resistance may be strongest within particular traditions rather than between them. “[T]he ability to coexist is inversely proportional to the challenge to one’s existential identity and meaning structure that the ‘other’ poses.”35 Therefore, the conversation among the various sects within a tradition is critical.36 31 32 34 35

36

Marty et al, supra note 1, Guideline 2. 33 Smock, note 11 supra, at 10. Marty et al, supra note 1, Guideline 9. Holy Sites Principles, infra Appendix I, A1. Marc Gopin, New Modes of International Conflict Resolution: Shared Public Space and Peacemaking: New Visions of Place in Israel and Palestine, 26 Fletcher F. World Aff. 106 (2002). Marty et al, note 1 supra, Guideline 3 and 4.

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provide multiple forums for discussion and reflection. Religious participation in the peace process cannot be reduced to a simple process of negotiation and agreement among religious leaders or representatives. While that may be important, religious civil discourse also entails the engagement of the entire religious community in the process of discussion and consensus building. To effectuate this latter goal, it may be very helpful to initiate a wide variety of forums for civil discourse that address issues relating to the legal regime, peace, and the holy sites, yet that may or may not tackle specific problems demanding concrete agreement.37 In this regard, shared spiritual practices and social outreach programs that help build interfaith trust may make invaluable contributions as part of an overall strategy of engagement.38 Principles Drawn from Law In addition to drawing on religious insights, the Holy Sites Project also pays careful attention to principles of international law relevant to the problems of the holy sites and Jerusalem. Law will, of course, provide the tools and structure for the proposed legal regime. However, law also provides conceptual guidance useful to shaping the negotiations toward the creation of the regime. Of these, three are of particular significance: the rights of peoples, the interests of peace, and the common heritage of humankind. Rights of Peoples Noted within the United Nations Charter,39 the International Covenant on Civil and Political Rights,40 and numerous other international instruments, all “peoples” have a right to self determination. This includes political, as well as linguistic and cultural integrity.41 Both the pre-Israeli Zionists and the current Palestinians have in some sense relied upon this claim of a people’s right as a basis for statehood. 37 39 40

41

38 Id., at Guideline 8. Landau, note 6 supra, at 35–37. U.N. Charter art. 1, 55. International Covenant for Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force, March 23, 1976. See supra text accompanying notes 8–20 and 48–53, Ch. 1.

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Ignoring for the moment the question of Israeli Arabs, few would argue with the proposition that Israeli Jews and Palestinians are in fact “peoples” according to the standards of international law. Potential confusion does arise over the relationship of a people and their territory. Specifically, both Jews and Palestinians claim a historic connection to the same land: Palestine. Insofar as we may identify a people by their historic territory, we may be led to the erroneous conclusion that some kind of historic priority to possession may justify current territorial claims. Instead, in this case, while both Jews and Palestinians have legitimate historical claims to Palestine, an equally valid claim can be made that their identity as a people rests upon more cultural grounds. Specifically, Jews and Palestinians are a people not simply because they reside in a historic homeland, but because they have been culturally formed as a single group. Indeed, in this regard, one may say that they have undergone the same type of systematic formation, one arising out of dispossession and oppression: in Europe and elsewhere for the Jews; in the Palestinian refugee camps and the occupied territories for the Palestinians. As suggested by the theorist Iris Marion Young, groups are formed not simply by self identification but by social construction under the force of a dominant culture that coerces the collectivization of individuals into the group.42 A person does not simply choose to be part of an ethnic, racial, or other minority group, but becomes part because the broader culture categorizes that person in that way. This social construction leads, in turn, to a self identity with the group that can become so profound that individuals are willing to sacrifice everything, including life itself, on behalf of the whole. We have borne painful witness to this reality both in the founding of the Israeli state (where sacrifice for the group predated the existence of the state) and the recent al Aqsa Intifada. Given that the issue of sovereignty is a primary concern within the peace process, Palestinians are a necessary party to any peace process not because they are a state, but because they are a people.

42

Iris Marion Young, The Ideal of Community and the Politics of Difference, 12 Social Theory and Practice 1, Spring 1986, reprinted in Feminism and Community (Penny A. Weiss and Marilyn Friedman, eds., 1995).

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Peace and Security While the project gives pride of place to the Israelis and Palestinians in the peace process, we also recognize the important role to be played by the international community. In this regard, as noted previously, the project identifies two interests drawn from principles of international law on the part of the international community: the principle of peace and security and the interest of the common heritage of human kind. Given the foundational international interest in peace and security, as embodied in the United Nations Charter,43 the project acknowledges the authority of the United Nations and, more particularly, the Security Counsel’s right to intervene. So too, the project acknowledges the legitimacy of United Nations Security Council Resolutions 242 and others. Nonetheless, the project also acknowledges the pragmatic reality that peace will only come from an agreement between the two peoples involved in the conflict. Therefore, while believing that the international community has a particular role to play in the peace process, the project also accepts that the specifics of that role are subject to negotiation. Common Heritage of Humankind Finally, the project accepts the principle of a common heritage of humankind44 as a foundation upon which the legal regime to protect the holy sites can be based. Specifically, as incorporated in the Convention Concerning the Protection of the World Cultural and Natural Heritage,45 there are buildings in the world that are of “outstanding universal value” from the historical, aesthetic, ethnological, or anthropological point of view.46 Furthermore, the Convention “recognize[s] that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate.”47 The common heritage regime is not comprehensive and remains subject to further negotiation. Nonetheless, it does provide some legal 43 44 45 47

U.N. Charter art. 1. See Convention Concerning the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, UNESCO Doc. 17/C/106 (1972). 1037 U.N.T.S. 151. 46 Id. Id. at Art. 1 Id. at Art. 6.

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guidance and suggestions on how to proceed, including, for example, the possibility of providing financial support to site maintenance that may provide incentives for the parties to participate. Application The foregoing principles are, for the most part, procedural. They provide guidance on how to structure a proposed negotiation and the contextual features, such as religion, that need to be considered as necessary background for a negotiation. By recognizing the motivational value of religion, those organizing the negotiation may consciously invoke religion as a positive resource for the negotiation. However, in doing so, the negotiation organizers will then have to consider how to structure the negotiation to address the procedural challenges posed by certain characteristics of religion, such as the need for adequate time, personal engagement, and a process rather than an end. Building on this abstract negotiating base, the project also recommends the adoption of a strategy of creating collaborative structures and confidence-building measures as a feature for the negotiation process. This concept will be addressed in the next chapter.

7 Collaborative Structures/Confidence-Building Measures

Developing a legal regime for the holy sites presents many complicated problems. Most notably, it will require the development of collaborative structures to address the complex logistics of administering the holy sites regime and involving the participation of a diverse range of interested parties (religious leaders, municipal officials, the Israeli government, the Palestinian Authority, and international representatives). Many of these parties are deeply suspicious of one another – if not hostile. The challenges are, therefore: first to cultivate an atmosphere of trust and to develop effective collaborative structures necessary to foster the development of trust; and second, to develop the actual administrative structures. The object of this section is to describe the characteristics of these mechanisms and their adoption as an initial stepping stone in the process of creating a holy sites regime. This idea is not original with the Holy Sites Project, nor new to the peace process. It was introduced in the Oslo agreement with the 1993 Declaration of Principles1 and succeeding agreements, such as Oslo II,2 the Hebron Protocol,3 and other instruments within the Oslo process.4 1 2 3 4

Declaration of Principles on Interim Self-Government Arrangements, Sept. 13, 1993, Isr.–Palestine Liberation Organization, 32. I.L.M. 1525. Israeli–Palestinian Interim Agreement on the West Bank and the Gaza Strip, Sept. 28, 1995, Isr.–Palestinian Liberation Organization, 36 I.L.M. 557. Protocol Concerning the Redeployment in Hebron and Related Documents, Jan. 17, 1997, Isr.–Palestinian Liberation Organization, 36 I.L.M. 650. See Justus R. Weiner, Co-Existence Without Conflict: The Implementation of Legal Structures for Israeli–Palestinian Cooperation Pursuant to the Interim Peace Agreements 26 Brooklyn J. Int’l L. 591 (2000).

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This involved the establishment of over 23 committees and structures working in the areas of security, law, civil administration, and economic development.5 These structures met with mixed results. Whereas security-related structures were largely problematic (with decreasing effectiveness in the period leading up to and at the start of the al-Aqsa Intifada),6 economic and civil structures met with better results. “[W]here there [was] mutual interest, such as with employment, these mechanisms can be effective, whereas when there is not, as in the case of environmental concerns, they are virtually non-functional.”7 In essence, these systems function where there is goodwill and mutual interest. That does not mean starting as friends. In the case of the Palestinian-Israeli conflict, that would be far too much to expect. It merely requires that both sides proceed with honesty and integrity. A shared interest in protecting their respective holy sites can provide one incentive for collaboration. It may be hoped that religious involvement and religious motivation may serve as a second motive, to provide the glue that helps hold these systems together providing a level of hope sadly lacking in the broader political realm. In order to be successful, the legal regime designers need to understand the nature of these types of mechanisms and the varied purposes they are intended to serve. Different types of confidence-building measures or collaborative structures address different needs. In this section, we will begin by examining the various types of confidence-building measures that may be useful for the holy sites legal regime process. These will be followed by a brief outline of potential collaborative structures that may be implemented to meet the practical logistical needs of the holy sites regime administration. However, unlike the Oslo process, which sought to develop new collaborative structures from scratch, we advocate an effort to involve existing activities or organizations into the process. Specifically, negotiators should seek to identify organizations that serve the same functions as the proposed confidence-building measures and/or collaborative structures needed by the regime and to invite the organizations or 5 7

Id. Id. at 648.

6

Id. at 615–639.

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participants to adapt their activities to address the needs of the proposed regime. This will expedite the process of organization and establishment of the regime and capitalize upon the goodwill present in the existing efforts. It is only where a void exists that the regime should seek to create new mechanisms. Confidence-Building Measures The first task for the developers of a holy sites legal regime is to establish and build trust among the parties to the regime. They must work together to build and support such a regime. Trusting their collaborators is a necessary part of making the regime work. As inadequately demonstrated in the Oslo process, a model for this process exists in the realm of national security negotiations: the implementation of confidence-building measures (CBM) followed by (or joined with) the creation of collaborative structures.8 Within the context of national security/conflict resolution, a confidence-building measure involves the creation of a collaborative effort composed of the two (or more) parties in potential or actual conflict in which the parties undertake tasks of mutual interest and limited threat to the other. Different types of confidence-building measures have been developed. Those most suitable for adoption under the holy sites regime include: academic, civic, diplomatic, and political. With respect to the holy sites, we would also add the category of a religious CBM. The goal of these CBMs, as distinct from the more practically applied collaborative mechanisms,9 is to advance understanding within civil society about the problems and the perspectives of each side. Typically, an academic CBM will develop courses and research on the subject targeted toward scholars and the educational system. A civic CBM will involve nongovernmental organizations in programs to educate the public. A diplomatic CBM will provide diplomats with training on the issue and allow them to work with individuals from the “other side.” A political CBM will undertake discussion among politi8 9

From a working paper of the Middle East Group of Experts Program on Regional Security – in files at IHRLI. See discussion infra this section.

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cians and governmental officials from both sides over the actual political administration of an issue of common interest. Finally, a religious CBM will engage religious leaders and/or faith communities in religious activities and/or interreligious dialogue. In developing confidence-building measures with respect to the holy sites, a number of initiatives are already in place that may be used as the basis for holy sites CBMs. That is to say, initiatives already exist that are seeking to promote understanding between the Israelis and Palestinians. The task for the Holy Sites Project would be to encourage them to incorporate issues related to the holy sites as an explicit element of their agenda and/or to adjust their membership to include parties necessary to achieve an agreement upon the holy sites regime.10 Religious Confidence-Building Measures Among the most advanced of the existing CBMs are interreligious initiatives, what may be referred to as religious CBMs. These focus upon developing a greater understanding of and among the three faiths of the Book. They include groups such as: The Israel Interfaith Association, the Elijah School for the Study of Wisdom in World Religions, the interreligious Coordinating Council in Israel, and Yakar Center for Tradition and Creativity, an institution encouraging social involvement and promoting interreligious dialogue. A particularly interesting dialogue has taken place recently between Sufi Muslim mystics and Israeli rabbis and academics, deeply interested in Muslim mysticism. Not long ago, a Muslim mystical ceremony (called a Zikr) was performed during an academic conference at the Jerusalem Van Leer Institute (a respected academic institution).11 The ceremony consists of intensive calling of the name of God (Allah) accompanied by sounds of drumming, with the goal of entering a state of ecstasy and mystical trance. At the conference, it emerged that there are several Jewish groups in Israel who regularly study Sufism and perform its ceremonies. According to one of the organizers, Dr. Avi Elkayam of Bar-Ilan University, these are attempts to build a new bridge between the Jewish and Sufi mystical experiences and to reintroduce 10

See discussion infra Ch. 14.

11

Interview with Amnon Ramon.

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the ties that existed between Jewish and Muslim sages in medieval times.12 These types of encounters break down barriers of religions and nations. They are meant for those who wish to remove themselves from day-to-day politics and routine activity; but they could also help to cultivate a deeper mutual knowledge of the two religions and perhaps also generate a dialogue that cuts across traditional boundaries. For example, at an international conference on the Temple Mount/Haram al-Sharif convened by UNESCO, two of the participants with a history of shared religious engagement, Rabbi Menahem Fruman from Tekoah and Sheikh Abu Sallah, broke with conventional wisdom and proposed that the site be divided. The Muslim side would occupy Islamic holy sites, while on the Jewish side there would be no worship, in accordance with rabbinical rulings. It would remain empty, “in a waiting position until the Holy One decides to redeem His people and bring us the Temple.”13 One of the problems encountered by these groups is that they tend to operate among those already convinced and not within the mainstream of each religion, which remains alienated from interreligious dialogue.14 Most of the Jewish participants in the dialogue belong to the Reform and Conservative streams of Judaism. Similarly, Islam is not generally represented by the religious establishment in Jerusalem, but by academics and members of institutions that are not part of the mainstream (such as the Sufi Islamic College in Baka al-Gharbiya). Christian clerics, particularly Protestants and Catholics, are more receptive to interreligious dialogue, but lack large communities of believers in the Holy Land. In order to go beyond “convincing the convinced,” ways must be found to involve larger circles in interreligious study and dialogue. This is the direction taken by Yakar15 (based in Jerusalem’s Qatamon neighbor-hood), which organizes events and lectures for the general public, most of whom are from the Orthodox stream of Judaism. 12 13 14

15

Id. Yair Sheleg, Buddha of the Muslims, Ha’aretz, June 30, 2000. David Smock, Building Interreligious Trust in a Climate of Fear: An Abrahamic Trialogue, United States Institute of Peace: 99 Special Report 9 (February 2003), at www.usip.org (last visited April 25, 2004). See http://www.yakar.org (last visited June 26, 2004).

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Political Confidence-Building Measures The Israeli authorities and the Muslim Waqf already operate an ad hoc collaborative structure with respect to the administration of the Temple Mount/Haram al-Sharif and the Western Wall. Admittedly, this has been a contentious, sometimes acrimonious collaboration that has deteriorated severely in recent years with the onset of the al-Aqsa Intifada.16 Nonetheless, the experiences of this group in dealing with the routine collaborative efforts necessary to coordinate security and other services could serve as a valuable resource. The challenge – and perhaps the opportunity – would be to expand the membership in this group and direct its attention to broader issues relating to the other holy sites. Civic Confidence-Building Measures The Israeli government actively promotes tourism. Building on this, it may be possible to organize a confidence-building measure/collaborative structure to promote tourism. Secular officials along with the three religions in the city could establish an educational and tourist center highlighting the history and heritage of the holy sites by means of stateof-the-art visual and other methods. No doubt that what makes Jerusalem unique is the city’s triple sanctity and the activity of the adherents of the three religions during three millennia. A balanced and attractive exhibit could be an important tool in understanding the city’s complexity, educating for tolerance, and granting legitimization to the “other.” This distinctive quality, existing in no other city, is also Jerusalem’s most valuable tourist resource. A visitors center of this kind could become a major attraction for every tourist and pilgrim to the city. Initial examples along this line can be found in the Tower of David Museum and in the Turjeman Post Museum on the city’s former border in the Musrara neighborhood. Enhancing the attention to promoting tourism would also counterbalance municipal concerns caused by the drain on taxes and resources caused by the holy sites tax exempt status.17 16

17

See, e.g., Yitzhak Reiter et al., Between Divine and Human: The Complexity of Holy Sites in Jerusalem, in Jerusalem: Points of Friction – And Beyond 108 (Moshe Ma’oz and Sari Nusseibeh eds., 2000). See discussion infra Ch. 9.

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Collaborative Structure A collaborative structure differs from a confidence-building measure insofar as it actually performs work associated with the holy sites legal regime. Thus, the tourist/education CBM and the political CBM mentioned previously are both confidence-building measures and, depending upon their constituency and authority, are potential collaborative structures with ongoing responsibilities following the implementation of the legal regime. Authority In developing collaborative structures, one question is how broad should its authority be. It is theoretically possible to imagine a collaborative structure with sole authority over all of the holy sites. This appears to have been the idea behind the Pro-Jerusalem Society that was active in the city during the British Mandate period. The society, including the Mufti, the Chief Rabbis, and the heads of the Christian communities, worked with British officials during the Mandate on matters related to the holy sites. Sir Ronald Storrs, the first British governor of Jerusalem and the society’s founder, relates in his memoirs that although the clerics were divided on almost every issue, they were able to unite on the basis of their common love for the holy city.18 The society’s emblem, which integrated the Franciscan crucifix, the Star of David, and the Muslim crescent, graphically illustrated the intercommunal cooperation and the consensus on the need to preserve and restore Jerusalem. The partnership proved to be an excellent vehicle for international fundraising. The difficulty with adopting a single collaborative structure is there are many important functions that the collaborative structure will be called upon to meet. These will include issues such as: security, municipal administration, tourism, archeological and historical preservation and planning, and dispute resolution. It is difficult to envision a single structure with the capacity or expertise to address all of these.

18

See Ronald Storrs, Orientations, 364 (1937).

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Composition The second question is who should be included in the collaborative structure. Membership may vary slightly according to the issue being addressed. However, using the issue of municipal services and administration as an example, the model provided by the Pro-Jerusalem Society ostensibly allied leaders of the three major religious communities and placed them in dialogue with a single municipal administrator. However, since it appears impossible to develop an adequate legal regime for the holy sites that does not include both Israeli and Palestinian authorities, the collaborative model will either need to expand to embrace both of these interested parties – or the regime must anticipate the collaborative structure acting as a mediator between the parties (probably a less than optimal result). Moreover, the Holy Sites Project has identified international interests in the region as well. Again, some representation for these must be included in the mix. Tasks However the ultimate collaborative structures are formed, three essential tasks must be addressed: municipal/administrative, historic/ archeological, economic promotion, external dispute resolution, and internal dispute resolution. municipal/administrative. The municipal/administrative tasks include issues of security, maintenance of public means of access, the environment, and utilities. The collaborative structure will need to make sure municipal services are provided to the holy sites. The structure will also need to assure that the parties in control of the holy sites comply with necessary rulings. One of the existing problems with administration in relation to the holy sites is the lack of reciprocity of duties and responsibilities among the two forms of administration. historic/archeological. Almost all of the holy sites are of profound historical and archeological importance. This collaborative structure will need to negotiate the interests of both the local and international communities in preserving and researching these sites in a manner that respects their sacred character. It will also be necessary to address the concern that historical/archeological research represents a religious-political challenge to the identity of that site where, for exam-

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ple, the research seeks to advance the historical claims of one religion to that site at the expense of the existing party in possession. This appears to have been a primary concern relating to archeological work in the area of the Temple Mount/Haram al-Sharif.19 economic promotion. As previously noted, the holy sites are generally tax exempt. It is therefore important for the holy sites regime to develop ways to economically support the regime in collaboration with or apart from municipal taxing power. For example, given their importance as a tourist attraction, this may involve designating a share of tourist related taxes (e.g., hotel occupancy taxes, etc.) to support the regime. Alternately, UNESCO provides funds to support historical sites under the Convention Concerning the Protection of World Cultural and National Heritage that may be drawn upon.20 external dispute resolution. The administrative scope and authority of the collaborative structures will inevitably cross sovereign lines. Because both the Palestinian Authority and the Israeli government will be involved within the collaborative structures, some method needs to be developed to resolve disputes of interpretation of the rules of the legal regime or conflicts over how to implement them. While private religious participants within the regime may serve as informal mediators, given the governmental issues involved, international governmental participants, either from specific states or from the United Nations, may be appropriate arbitrators. internal dispute resolution. In order to preserve religious freedom for the holy sites, the British authorities in 1924 implemented legislation21 (since adopted by Israel)22 precluding the courts of the state from hearing cases arising in connection with the holy sites. However, while this arguably assures religious freedom from the state, the problem is that a number of the sites are subject to contested claims of ownership and control. Moreover, under the legal regime, an international interest or right may exist in sites that deserve protection. Some 19 20 21 22

See Reiter, note 16 supra. See http://whc.unesco.org (last visited June 26, 2004). See Robert Henry Drayton, Laws of Palestine 2625 (1934). See Protection of Holy Places Law 5727–1967, 21 L.S.I. 76 (1967), available at http://www.knesset.gov.il/laws/special/eng/HolyPlaces.htm (last visited June 16, 2004).

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form of conflict resolution must be developed to resolve these conflicts. A likely structure would primarily involve religious leaders. While efforts to engage religious leaders in shared administration dispute resolution schemes, with the possible exception of the Pro-Jerusalem Society discussed previously,23 have not proven successful, it is to be hoped that integrating international religious leaders, including ones with experience in conflict resolution such the International Centre for Reconciliation or the Foundation for Reconciliation in the Middle East can help overcome this legacy of religious rigidity. International governmental representatives may be able to assist in this, particularly where that organization controls funds or other benefits that may be used to help compensate for any perceived losses incurred by one of the religious participants. Implementation As should be evident, CBMs and collaborative structures represent two important types of tools that can be used by the negotiators of the holy sites regime. In theory, the two types are clearly distinct. However, in practice, with the exception of strictly educational or religious CBMs, the most effective CBMs appear to be those that also engage in some degree of productive, collaborative work. Moreover, the type of collaborative work performed by these CBMs may serve as a precursor of or act as the initial version of a collaborative structure. Given these characteristics, one may suggest the general parameters of the implementation strategy that the negotiators should pursue. First, one of the most crucial tasks at the outset of the negotiations is the cultivation of trust and confidence among both the negotiators and the larger public to which they must answer. Moreover, since building trust and confidence takes time, the negotiators should immediately seek to engage existing social or political groups that are active in promoting positive relations between Israelis and Palestinians and/or Christians, Jews, and Muslims and encourage them to incorporate the values of the prospective holy site regime in their work. Specifically, the 23

See text at n. 18 supra.

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effort should be to engage those organizations in functioning as educational and/or religious CBMs. Without knowing the exact contours of the ultimate legal regime, CBMs with a more functional character may interfere with the negotiation of a regime whose collaborative-structure needs are far different. As previously suggested, seeking out existing organizations with a topical interest that is in some way related to the goals of the holy sites regime will both save time and effort in organization and capitalize upon existing goodwill built up by that organization. Clearly, there are many organizations, especially those with a religious grounding, that should be very interested in the project. It is only in the absence of these existing organizations that the holy sites negotiators should seek to create their own. Once the negotiations have begun and the legal regime begins to take shape, the negotiators should consider taking the next step. They should either encourage existing organizations (whether associated with the negotiation as an adopted CBM, a CBM created by the project, or another organization with a functional character of interest to the project) to undertake collaborative functions that will lay the groundwork for the ultimate regime or to handle interim activities. These organizations will continue to serve the vital function of promoting confidence while making the confidence deeper by undertaking needed work on behalf of the project. Lastly, within the final regime, a number of collaborative mechanisms will need to address the five functions discussed previously: municipal/administrative, historic/archeological, economic promotion, and dispute resolution.

8 Defining the Holy Sites

The first task of law is to define itself: what does it regulate? How and in what way? Of these three, the first is of the greatest import. Indeed, in the case of the holy sites, the first and preeminent question is: what is a holy site? The first critical task in creating a legal regime to protect the holy sites is to define the term. It is important not only in regards to determining what is to be regulated, but also because an adequate definition can provide insight and guidance on how to resolve certain disputes over the characterization of a site and may suggest some parameters for the type of regulatory control that is appropriate. Background: Contested Ground In seeking a legal definition for the holy sites, we do not start ab initio – we begin with the existing law. As previously described, over the last hundred and fifty years, this problem has challenged the Ottoman Empire, the British, the United Nations, and Israel.1 The current law traces its primary impetus to the 1967 War, Israeli occupation of the Old City and environs (home to most of the important holy sites), and the extension of Israeli Law over East Jerusalem on June 27, 1967. These actions reawakened the issue of Jerusalem and the holy sites. Israel attempted to reduce international opposition to its steps (interpreted by the world as the annex1

See discussion supra Chs. 2 and 3.

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ation of East Jerusalem) by legislating the Protection of the Holy Places Law, 5727–1967.2 The basic principle of Israeli policy about the holy sites was stated in paragraph one of the law: “The Holy [sites] shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.” The law sets imprisonment terms of five to seven years for those violating these principles, but does not define a holy site. The Israeli legislator repeats these regulations in Basic Law: Jerusalem, Capital of Israel, 1980.3 Israel’s attitude toward Christian holy sites usually (except in the case of Deir al-Sultan, with which we will deal with as follows) supported maintaining the status quo. As for Jewish holy sites – the Western Wall and Rachel’s Tomb, mentioned in mandatory lists of status quo sites – Israel did not adhere to British arrangements, and the two sites became exclusive Jewish sites. Entry of Jews to the Temple Mount was permitted, but prayer there was forbidden to Jews, and the administration of the whole Temple Mount remained in the hands of the Muslim Waqf. The Patriarchs’ Cave in Hebron, closed to Jews since the thirteenth century, was opened to them for prayer, and its use and worship rights were divided between Jews and Muslims according to a new arrangement. A similar arrangement was instituted in Samuel’s Tomb (Nebi Samwil) northwest of Jerusalem. An Israeli attempt to solve the problem of the definition of a holy site was made by the Ministry of Religious Affairs in 1981. The Minister formulated regulations about the Jewish holy sites (first and foremost the Western Wall) according to the authority vested to him in Article 4 of the Protection of the Holy [Sites] Law and made a list of all the Jewish holy sites to which these regulations apply. In Jerusalem, the list includes the Western Wall, the Cave of Shimon the Just, the small Sanhedrin Cave (near the former), the Tomb of Rabbi Ovadiah of Bartenu2 3

Protection of Holy Places Law 5727–1967, 21 L.S.I. 76 (1967), available at http://www.knesset.gov.il/laws/special/eng/HolyPlaces.htm (last visited June 16, 2004). Basic Law: Jerusalem, Capital of Israel, 1980, 34 L.S.I. 209, available at http://www.usisrael.org/jsource/Peace/Basic_Law_Jerusalem.html (last visited June 16, 2004).

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ra (at the Mount of Olives cemetery), and Zechariah’s Tomb and Absalom’s Monument in the Kidron Valley.4 The Temple Mount, the most holy site to the Jews, does not appear on the list for obvious reasons; but in three sites (Zechariah’s Tomb, Absalom’s Monument, and the small Sanhedrin cave) there is no Jewish worship whatsoever (all three are tombs from the Second Temple period – the second and first centuries b.c.e.). In 1995 (after the beginning of the Oslo Process), the Ministry of Religious Affairs considered adding to the list David’s Tomb on Mount Zion, the cave of the prophets Haggai and Malachi (on the western slopes of the Mount of Olives), the Tomb of the Prophetess Hulda (at the top of the Mount of Olives), Jehoshaphat’s Cave and the Grave of the Sons of Hezir in the Kidron valley, the Siloam Tunnel and spring, the large Sanhedrin Cave (in the Sanhedrin Tombs Garden), Jeremiah’s cave (“Hatzar Hamatarah,” near the central bus station of East Jerusalem), Zidkiyahu Cave (near Nablus Gate), the Kings’ Tombs in Saladin Street, and synagogues in the Old City.5 This proposal was not approved, but it illustrates the trend to increase the number of Jewish holy sites since the beginning of the Oslo process. Thus, the new Ministry list includes ten sites in which there is no regular Jewish worship. As for Christian and Muslim holy sites, the Ministry of Religious Affairs has not formulated any regulations and has not listed such places. Differing from the fuzzy state in Israel, the legal position in the West Bank is clearer (from the point of view of Israeli law). A Decree about the Protection of the Holy [Sites] (Judea and Samaria) (no. 327) states in Article 5 that a document by an authorized body (officer for religious affairs in the military government) attesting to the holiness of a certain site will be sufficient proof of this fact. The authority (the military government) is authorized to establish rules of behavior in holy sites, whose violation is a legal offense. Article 2 of the Decree states that these rules of behavior are identical to those in Article 1 of the Protection of the Holy [Sites] Law, 5727–1967.6 4 5 6

Shmuel Berkovitz, The Legal Status of the Holy Places in the Land of Israel 14 (1997). A copy of the list is in Amnon Ramon’s archives. See Protection of Holy Places Law 5727–1967, note 2 supra.

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The courts are no clearer than the legislature. No Israeli court has provided an overall definition of the concept “holy site” in any of its rulings. However, in relation to a complaint about restricting the authority of the courts to adjudicate conflicts about holy sites (in accordance with the 1924 Order in Council), it was ruled that proof must be given about a place claimed to be holy “that some people have seen the place, at least for a period of time, as a holy site; or [. . .] that the character of the place is so obvious and clear that the court has crystallized a constructive notice about its claimed character as a holy site.”7 A similar ruling states that “the legislature meant to ascribe to this term [“holy site”] a flexible meaning learned in large measure from the treatment of a place by a certain religious community as holy,” and from which one may deduce that the number of holy sites may shrink or expand under certain circumstances.8 Attempts by the courts to define a holy site are characterized by a broad and flexible approach based on the treatment by a religious community of a place as holy. Yet, since a religious community is often not of one piece and has a variety of opinions, views, and traditions (sometimes contradicting), it is difficult to apply the court’s ruling. For example, with respect to the “Notre Dame Compound,” discussed in Chapter 1, should the Roman Catholic Church’s self designation of this site as a “holy site” be accepted by the courts as law despite the fact that it bears little religious-historical significance for Christianity as a whole and is unlikely to be recognized as a holy site outside the hierarchy of the Roman Catholic Church? Another difficult problem arises in the case of places holy to two religions (such as the Temple Mount/Haram al-Sharif), where one religion may deny the attachment of the other to the holy site. In deferring to the judgment of individual religious communities, should the law privilege the believer in the sanctity of their own site or the believer whose faith denies that connection? As we have seen, Christian, Muslim, and other international secular efforts to define the holy sites have been similarly constrained and limited – if they attempted to offer a definition at all. Again, the most common 7 8

Justice M. Shamgar, quoted in Berkovitz, note 4 supra, at 16. H.C. 267/88, quoted in Ruth Lapidoth, The Old City of Jerusalem 19 (2002).

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effort appears, like Justice Potter Stewart’s definition of pornography, to follow the maxim: “I know it when I see it.” In practice, this means that the term is defined simply by listing those sites perceived to be holy. The Multiplication of Holy Sites: Refining the Definitional Problem The direct result of the difficulties in defining a holy site has been the “multiplication” of holy sites in Jerusalem and environs as the struggle for the future status of Jerusalem has intensified. Nationalist and religious nationalists seek to have particular sites declared holy as a means of laying claim to the territory in which they reside or as a means of denying the legitimacy of claims by others over that territory.9 Thus, the lists of holy sites in Jerusalem were cultivated over the years, until a study prepared in 2000 by three authors – an Israeli-Jew, an Armenian Christian, and a Palestinian Muslim – counted three hundred and twenty-six holy sites in Jerusalem. The list includes religious institutions, religious schools, etc. On the other hand, the list includes only a small part of the synagogues in West Jerusalem since there is less conflict between the government and the religious community.10 This problem has led some thinkers and commentators to urge preserving a fixed listing under the traditional status quo rubric. They oppose leaving the definition of “holy sites” open for future development for fear that it will provoke or incite continuing violence or controversy.11 For example, a number of Jewish groups have recently declared the Cave of Nahmanides – Ramban – in Wadi Joz, adjacent to the Cave of Shimon the Just, previously a place of only historic interest, to be a Jewish holy site, provoking outrage among Muslims in the area.12 9 10

11 12

See, e.g., Gershom Gorenberg, The End of Days: Fundamentalism and the Struggle for the Temple Mount 103 (2000). Yitzhak Reiter et al., Between Divine and Human: The Complexity of Holy Sites in Jerusalem, in Jerusalem: Points of Friction – and Beyond 117 (Moshe Ma’oz and Sari Nusseibeh eds., 2000). See Amnon Ramon, Delicate Balances at the Temple Mount 1967–1999, in Jerusalem: A City and Its Future 304 (Marshall J. Breger and Ora Ahimeir eds., 2002). See Jerusalem Under Barak, Part 2: Settlements and Settlers, The Palestinian Society for the Protection of Human Rights and the Environment, Jan. 2001, at http://www.lawsociety.org/Reports/reports/ 2001/jerusalem2.html (last visited June 16, 2004).

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While these arguments have merit, they present two weaknesses. First, a closed list denies the reality of religion, which involves a living and changing community of faith. As previously noted, the holy is a self validating concept. Insofar as a community of faith experiences a special connection with the holy at a particular site, they will treat it as a holy site regardless of what the law says. Precluding recognition of an emerging holy site could be provocative in its own right as a denial of that community’s faith experience. Second, the effort to create a closed list of holy sites could be provocative and self-defeating. If the only protection a holy site is to receive depends upon its classification, every group with a speculative interest in a potential holy site will feel compelled to demand its inclusion lest the possibility be forever foreclosed. This has been demonstrated both at the time of the creation of the state of Israel, when the United Nations sought to establish a fixed status quo list,13 and at the initiation of the Oslo process, as mentioned previously. The alternative of developing a nonclosed, definitional understanding of the holy sites open to the possibility of recognizing new sites presents its own challenges. Specifically, it presupposes our ability to distinguish among the multiple motives for definitional conflict. The ostensible motive for concern over the holy sites is an effort to protect locations with specific, critically important religious value and meaning not only for those within the area, but for the peoples of the world. However, as suggested previously and discussed in greater detail in Chapter 1, additional motives often hidden under the mantel of concern for the holy sites include efforts to use the label of a holy site as a means of resolving territorial disputes, asserting control over a site, using a site to bolster nationalist identity, and/or using a site to attract international attention.14 These motives may be identified as sovereigntist motives insofar as they relate to the emotional and ideological issues of nationhood and national identity. The first task in developing a legal regime to protect the holy sites is 13 14

See supra text accompanying notes 25–28, Ch. 2. See supra text accompanying note 49, Ch. 1.

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to distinguish between protecting the holy sites qua holy sites and the sovereigntist implications of the holy sites. Indeed, it is a fundamental premise of the Holy Sites Project that this can and must be done. No one can question the profound importance of the holy sites to the peoples of the region, their international coreligionists, or humankind as a whole for whom the holy sites represent critically important cultural landmarks. Whatever the ultimate form the final settlement takes, failure to protect the holy sites would promote instability and threaten the promised peace. Moreover, focusing upon this crucial goal of protecting the holy sites will provide not only motivation for the negotiation (i.e., the legitimate desire to protect the holy sites against harm and for use), it can be used to justify distinguishing between concern for the holy sites qua holy sites and related, though distinguishable, sovereigntist interests. For example, a regime that assures freedom of worship, freedom of access, appropriate security, and municipal services and supports necessary maintenance of the property will mitigate against arguments over control motivated by sovereigntist interests, but presented in terms of simply claiming the protection of a holy site. Shifting the focus of negotiation to attending to the interests of the holy sites as holy sites provides at least four benefits. First, it ends the current reactive relationship between the law and the holy sites, wherein the law has been used by the state to ameliorate or end the state of conflict over those sites. Since the Ottoman Empire, new holy sites have typically been recognized only after they have become the subject of dispute and disruptive conflict. Developing a holy sites specific definition for the regime would allow recognition of holy sites whenever they satisfy the criteria for application without need for overt conflict. Second, it allows the adoption of a definitional approach to identifying the holy sites, thereby avoiding the provocative nature of a closed listing. It does so by allowing the state to establish an appropriate level of control over the addition of new holy sites by requiring their compliance with existing, identified criteria. Recognition of a new holy site represents a certain “cost” to the state. This will commonly include granting exemptions from taxes (e.g., property, income from site specific businesses, etc.), providing security and other necessary services, and

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possibly excluding the operations of the site from otherwise applicable judicial and regulatory control.15 Third, a defined regime reduces the threats to stability and national/territorial security presented by the current system’s acceptance of sovereigntist motivated claims to holy site status. Admitting a new holy site to the regime must be governed by its identity as a holy site, not simply the assertion of an interest group that may be motivated by sovereigntist interests. The legal regime to protect the holy sites can then be designed to protect only the sites, not the territorial claims or interests of either side to the current dispute. Finally, developing a defined understanding of the holy sites allows for the creation of a legal regime capable of discriminating among the holy sites. Clearly, not all holy sites are the same. They need not be treated the same. Certain sites, such as the Church of the Holy Sepulchre, the Dome of the Rock, and the Western Wall, are critical to the religions involved and the larger international community. At the other end of the spectrum, religiously identified cemeteries may have significant import for the local religious community, but only limited interest for the larger national or international community (except, for example, where they are used as targets for symbolic violence in the form of desecration). An effective legal regime can and should take these factors into consideration. Thus, instead of attempting a closed listing of holy sites, creating a system for the protection of the holy sites that is sensitive to the particular and special nature of those sites appears as a much more promising avenue. The regime could offer greater or lesser degrees of protection according to the nature of the particular site. However, in order to be widely accepted, as a threshold matter, the regime needs to assure that all sites receive a basic minimum of protection. The question is not simply whether a site is protected or not based upon whether it is recognized as a holy site – an all or nothing proposition. All sites should be respected and protected. The real question is what level of protection is appropriate for a particular site. This, in fact, conforms with existing national and international stan15

See, e.g., Protection of Holy Places Law 5727–1967, note 2 supra; Berkovitz, note 4 supra.

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dards. During the Ottoman period when designation as a holy site emerged as a legal construct, it arose to provide significant protection for a practicing religious community that was (since it primarily involved Christian communities) a minority religion within the dominant Islamic culture. Modern international treaties now provide significant protection for the religious freedom of minorities.16 Therefore, it is now possible for a place of worship, to some extent holy (however it is understood), to receive significant protection as a holy place of worship even though it is not designated as a holy site with the full range of protections offered for such a holy site. For example, the freedom of religious exercise at a place of worship would be protected under international standards,17 without necessarily requiring that that place of worship be subject to special exemption of normal judicial supervision or subject to specialized holy sites regulation.18 The political impetus of seeking holy site status simply to achieve a basic level of protection need not be compelling. Based upon this presumption toward religious respect, attention to the holy sites can be more tightly targeted to address those characteristics that make the holy sites unique and uniquely deserving of special care. The task is to identify crucial characteristics of the holy sites that may influence the nature and extent of the protections necessary under the proposed holy sites legal regime. While this approach does require some line drawing and judgment, assuring an adequate level of protection for all sites lessens the stakes over the conflict. In drawing these lines, it is important to consider the nature of a holy site both through careful principled analysis and to reflect upon what may be revealed by sorting particular holy sites into analogical categories.

16

17

18

See, e.g, International Covenant on Civil and Political Rights, art. 18, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 (ICCPR); Universal Declaration of Human Rights, art. 18, G.A. Res. 217A (III), U.N. GAOR, 3rd Sess., Supp. No. 3, at 71, U.N. Doc. A/810 (1948). See, e.g., International Covenant for Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force, March 23, 1976, at Art 18. See, e.g., Protection of Holy Places Law 5727–1967, Art. 3 (incorporating the British “Palestine (Holy Places) Order in Council” of 1924), note 2 supra.

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The Nature of the Holy Sites: A Descriptive Approach The law has, to date, developed an incomplete and largely inadequate definition of the holy sites. The complex interplay between the domains of religion and politics in the Holy Land makes it difficult to legally define a holy site. As we have seen, these are highly contested, high-stakes contests between parties with multiple interests and political agendas. The definition of the holy site has itself become contested ground within this larger conflict. To this hardship is added the challenge of defining holiness in a widely acceptable manner. In law, we tend to seek “secular” – that is to say, nonreligious – terms for legal concepts within state law. This avoids the problem of the state becoming enmeshed in religious-theological disputes, while at the same time supporting the religious freedom of a plurality of faiths. Yet, how does one define a religious term without implicating or adopting certain religious norms and standards?19 Indeed, in order to truly comprehend the nature of the holy sites so as to effectively regulate them, some understanding of the religious meanings involved is necessary. To begin with, the holy or sacred does not derive its meaning from systems of political or social relationships, but from another religious conceptual system whose foundation rests upon particular understandings of the transcendent. What is holy or sacred in this world reflects a belief or recognition that this is a place or an act in which the transcendent breaks in upon the mundane.20 Enacting that act or being present in that space allows the believer to intimately experience the presence of the transcendent. Thus, examining the holiness of a place by strictly secular empirical means, such as determining the authenticity of the tradition related to the holy site or citation of archeological findings confirming or denying it, points to a relative misunderstanding of the holy and the religious dynamics involved. The holy site is first and foremost holy. It is not the tradition woven around it or the worship carried 19 20

David E. Guinn, Religion in Public Bioethics: A Necessary Player, 9 Second Opinion 15, 22 (2002). Mircea Eliade, The Sacred and the Profane: The Nature of Religion 20–68 (1961); Rudolf Otto, The Idea of the Holy (1972).

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out within it. Its holiness in the eyes of believers does not require any outside explanation in secular terms.21 Recognition of the holy is, in essence, a self-validating event, complete in and of itself. Nonetheless, as a social and political phenomenon, those characteristics of religious or cultic practice related to a holy site may serve as important indicators of the holy for those charged with legislating with respect to the holy sites. A religious belief without social act or consequence is irrelevant to the law. It is like asking whether a person dreams in color or black and white. While this may be anecdotally interesting, it is irrelevant even to those laws directed towards regulating rest for commercial pilots on the basis of safety concerns. Adding to the complexity of the political problem, as a religious concept connected with divinity, the holy commonly involves absolutist claims on the believer that translate into demands. As expressed in association with the holy sites, the faithful may claim an eternal and exclusive right to the site as well as the determination of the character of worship in it. Thus, conflict between two competing religious groups over a holy site resulting from contradictory demands by the Divine, as religious edicts, may be irreconcilable with each other. Theoretically, one may concede one’s own property, but one cannot concede anything entrusted to the religious community by God. Professor Itzhak Englard (today Supreme Court judge) observed that no utilitarian consideration is applicable when the litigant sees himself as responsible to God. God – the chief litigant – is absent from the discussion, and his representatives on earth are not allowed to concede anything in his name. Therefore, it is particularly difficult to arrive at a compromise or a division of a holy site.22 Yet, despite these difficulties, insofar as the law is a necessary tool to regulate and protect the holy sites, the task must be undertaken. As objects in the profane world subject to human dispute, law is necessary to control the inevitable conflict. 21 22

Elchanan Reiner, The Place He Will Choose, in The Temple Mount: Compromise in the Eye of the Storm 42 (Menachem Klein ed., 2002). Itzhak Englard, The Legal Status of the Holy Places in Jerusalem, in Jerusalem: Legal Aspects 1 (Ora Ahimeir ed., 1983).

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To start, it is helpful to compare the types of holy sites that are commonly recognized as being holy sites. Among the preeminent sites, one finds the Church of the Holy Sepulchre, the Western Wall, and Haram al-Sharif. All share similar status within their faith traditions and are associated with the foundations or founders of the faith. There are, however, many sites recognized as holy sites based upon the cultic practices of members of the faith communities. These include sites such as Mary’s Tomb and the Church of the Ascension (Christian), the Tomb of Shimon the Just, and the Tomb of Rabbi Obadiah of Bartenura (Jewish) and Nebi Samwil and the Church of the Ascension (Muslim sites also sacred to Jews and Christians respectively.) Looking at these tells much about the difference between the Christian concept of a holy site and that of the Muslims and Jews that will need to be considered. In Christianity, the cult of holy sites began at a relatively early stage in its development, with Christianity becoming the preferred religion of the Roman Empire in the fourth century. Important events in the lives of Jesus, his mother and revered figures of the New and Old Testaments were connected to a certain location, and these locations became sites of pilgrimage and regular worship. Religious ceremonies and prayers were held at the holy sites on special dates, and a unique “Jerusalem liturgy” developed. In fact, at the time, a great pilgrimage movement to Jerusalem emerged. The Holy Land became the most popular destination involving more people than any other place in Byzantine times. The pilgrims desired to follow in the steps of Jesus, the “founding father of the faith,” to touch the holy sites, and to experience first-hand the great events described in the Scriptures. The holy sites became testimony to the truth of the Christian gospel. Visiting them enabled pilgrims to fortify their faith and obtain a religious experience that had the power to mold a new person. Prayer at the holy sites, which multiplied between the fourth and seventh centuries, was viewed as more valuable than prayer at other places, for pilgrimage is based on the belief that a holy site is directly connected to heaven.23 In opposition to the Christian concept, the ancient Jewish world had 23

Oma Limor, Holy Land Travels 4 (1998).

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one central holy site – the Temple Mount, sanctified not only by a holy event that occurred on it, but by dint of its being the House of God, the site of the First and Second Temples. The sanctity of the Temple and the obligation of pilgrimage to it resulted in the creation of the sanctity of Jerusalem and later of the Holy Land, in general. The cult of holy tombs in Judaism was a later development. It began with popular religion in the post-Temple period and accelerated in the Middle Ages, as a reaction to the Crusader conquest of the country. More recently, this cult has had a significant revival in Israel – mostly in Galilee, yet the number of holy tombs in Jerusalem and environs remains rather minimal. For the Muslims, the most holy and important site in Jerusalem is the Temple Mount/Haram al-Sharif, connected to the “night journey” of Muhammad and his ascension to heaven (al-Isra’a wal-me’raj’) in 613 c.e. No other events in the life of Muhammad, or in early Islam, were associated with Jerusalem. The religion preached pure monotheism and did not foster holy sites or pilgrimage (except the Qa’aba in Mecca). The cult of holy sites developed in Islam, as in Judaism, on the level of popular religion and was at times denounced by the religious sages. In the case of Jerusalem, it seems that the holy compound of Haram al-Sharif fulfilled religious desires and hardly left room for the cult of other holy sites. As seen above, the modest Muslim cult in the holy sites of Jerusalem and environs (apart from Haram al-Sharif ) usually perpetuates holy traditions ascribed to these places by Christians and Jews based upon Islam’s belief that it represents the continuation and culmination of the Abrahamic tradition. In considering all of these sites, four common features emerge. They are (1) historic, (2) often connected to particular important religious figures, (3) supported by a community of faith, and (4) they provide a space or locus for worship or ritual. Specifically, they are: historic. The three faiths of the Book, Judaism, Christianity, and Islam, place particular emphasis upon the actions of God through history. They were each founded by identified historical figures who expressed God’s will and intention through teaching and through life. These religions have continued to mark God’s on-going activity through actual history: the raising of the First and Second Temple, the

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martyrdoms of the apostles, the Prophet’s ascension to heaven from Haram al-Sharif. Therefore, the most important sites among the holy sites must be those that possess a long historical association with that faith. relation to particular figures. The three faiths have each been led or influenced by a variety of religious figures. The most important figures are the founders (e.g., Abraham, Jesus, and Mohammed.) There are, however, many additional figures of greater or lesser importance: prophets, apostles, or special leaders. It may be possible to make some distinctions according to the importance of the person associated with the holy site. communities of faith. The holy sites are not simply architectural or archeological artifacts. They provide a home to a living community of believers. In many cases, a holy site houses a specific permanent congregation that regularly worships at the holy site and provides the congregational support to maintain it. Indeed, many would argue that what distinguishes an historic holy site from a museum or archeological dig is the fact that a holy site sustains and is sustained by a living community of faith.24 place of cultic practice. One of the challenges presented by a community of faith in a holy site is that the community often uses the site for cultic ritual. Religious services are held within the site. However, as times change and rituals evolve, they sometimes impact the space in which they are to take place. As people become accustomed to sound amplification, music, air conditioning and other conveniences, they may seek to import those features into the holy site, making changes that architectural or historical purists may find troubling. public space rituals. As noted above, the holy sites are also the home to living communities of faith. Many communities include religious rituals and practices that must take place outside the confines of a particular sanctuary or building. Among the Christian practices, this would include processions on Palm Sunday and the Stations of the Cross along the Via Dolorosa. Thus, a holy site need not be simply a 24

Silvio Ferrari, The Religious Significance of Jerusalem in the Middle East Peace Process, in Jerusalem: A City and Its Future 232 (Marshall J. Breger and Ora Ahimeir eds., 2002).

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building or structure – it may also be a public space associated with or in proximity to a building or structure. Categorizing the Holy Sites The foregoing analysis of important characteristics provides a basic understanding or threshold for acknowledgement of a place as a holy site. Supplementing that, in attempting to address the multitude of problems in defining holy sites, religious institutions, and historicarchaeological sites in Jerusalem, it is helpful to divide the sites into categories according to their role in present-day Jerusalem. We are aware from past experience that a site can certainly transfer from one category to another. Thus, an inactive holy site may become active due to external circumstances and severe struggle. Categorical division may also serve to avoid sweeping generalizations when applying various proposals and arrangements to each of the sites. These suggested categorizations help illustrate how the criteria may apply, demonstrate possible distinctions that may justify differing protections schemes, and provide analogical assistance in the analysis of newly emerging or newly proposed holy sites. Iconic Holy Sites25 The first category proposed here is that of central, especially important holy sites that are sacred to all three monotheistic religions, those sites which serve as a focus of attraction and veneration for hundreds of millions of believers the world over. In this category are found the Church of the Holy Sepulchre, the Temple Mount/Haram al-Sharif, and the Western Wall, all of which are located in the “holy basin” of Jerusalem. The holy basin embraces the Old City and its environs, including the Mount of Olives, Mount Zion, and the City of David. They easily satisfy all four categories for a holy site (historic, associated with a particular religious leader, congregational, and site for cultic ritual). 25

Under the frame of analysis proposed above, an Iconic Site would receive the highest possible ranking in all four categories: Historic (significance dates back to the founding of the faith); Figure (associated with a founder); Community (draw international worshipers); and Ritual Space (serve as central locations for faith).

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Cultic Holy Sites26 The second proposed category is that of holy sites in which active and regular worship takes place, mostly due to a tradition of an event or the action of a holy figure connected to it. Churches, synagogues, and mosques used only for gatherings of prayer are not included in this category as they may not be as old (category 1, historic) and are not associated with a particular historical leader (category 2). christianity and the cult of holy sites. Most sites in this category are holy to different streams of Christianity, in which the cult of holy sites has developed more than in Judaism or Islam. Most of these sites are in the “holy basin” of Jerusalem. There are several main holy Christian sites that fall under this category. There are three active Ottoman status quo sites that fall under this category and they include Deir al-Sultan (held today by the Ethiopians and a source of conflict between them and the Copts), Mary’s Tomb in Gethsemane (divided between Greek Orthodox and Armenians), and the Church of the Ascension on the Mount of Olives (held by the Muslims as a mosque). Numerous holy sites held by the Franciscans, representatives of the Catholic Church, include The Church of All Nations and the grotto at Gethsemane, the Dominus Flevit Church on the slopes of the Mount of Olives, the Monastery of the Flagellation and the Church of Condemnation, the Fifth and Seventh Stations of the Cross on the Via Dolorosa, the Ad Coenaculum Monastery on Mount Zion, the Church of John the Baptist and the Church of the Visitation in Ein Karem, the Monastery of ‘St. John in the Desert’ near Even Sappir, the Beit Pagi Church on the eastern slope of the Mount of Olives, the Church of St. Lazarus in al-Azariyeh, and the Sial el-Ganem, which is the Franciscan site at Shepherds’ Fields (the last two are outside the municipal boundary of Jerusalem). Many other holy sites are held by various other Roman Catholic bod26

These sites tend to rank high in all analytic categories, though less so than Iconic. Historic (generally around 1000 or more years old); Figure (associated with a strongly revered religious figure); Community (draws on a large, but not necessarily universal community); and Ritual (serves as a space for worship).

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ies, which include: Pater Noster Church and the Carmelite Convent on the Mount of Olives, belonging to the Carmelite Sisters; the Ecce Homo Convent and the Lithostrotos on Via Dolorosa, belonging to the Sisters of Our Lady of Zion; Church of Santa Anna and the Pools of Beth Hisda, belonging to the Order of the White Fathers; the Third and Fourth Stations of the Via Dolorosa, belonging to the Armenian-Catholics; the Sixth Station of the Via Dolorosa, belonging to the Greek-Catholics; the Dormition Abbey on Mount Zion, belonging to the Benedictine Fathers; the Church of St. Peter of Gallicanto on the eastern slope of Mount Zion, belonging to the Assumptionist Fathers; and St. Eienne (Stephanos) Church on Nablus Road, belonging to the Dominicans. Sites held by the Greek-Orthodox Patriarchate include27: the monastery at Santa Anna (adjacent to the Lions Gate); the Praetorium (prison of Jesus), on Via Dolorosa; St. Charalambos Church (the Eighth Station of Via Dolorosa); Constantine and Helena’s Church in the Greek-Orthodox Patriarchate; St. John the Baptist Monastery in the Christian Quarter; St. Nicodemus Monastery (Deir al-Adas) in the Muslim Quarter; St. Stephanos Church outside the walls near Gethsemane; the Viri Galilei Compound on Mount of Olives; Onphorius Monastery (Hakal Dama), in the Hinom Valley; the Monastery of the Holy Cross; St. Simon Monastery in Qatamon; Mar Elias Monastery on Hebron Road; Beit Pagi Monastry on the eastern slope of the Mount of Olives; St. Lazarus Church and Martha Church in Betunia (alAzariyeh); and Deir el-Rayuat – the Orthodox Shepherds’ Fields. The last two are outside the municipal boundaries of Jerusalem. Holy sites held by the Armenian Patriarchate include: St. James Cathedral and Deir a-Zeituniyeh Monastery in the Armenian Quarter and Beith Caipha Church on Mount Zion. The sole site held by the Protestants is The Garden Tomb on Nablus road, belonging to the Garden Tomb Association. Sites held by the Copts include: the Ninth Station of the Cross on the Via Dolorosa and the Church of St. Helena and Mary’s Apparition (near the Holy Sepulchre). 27

Most of the small Greek Orthodox monasteries in the Old City (about 10) were not included in the list. Most serve as living quarters, but also include a church where prayers rarely take place.

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The sole site held by the Syrian-Orthodox is St. Mark’s Church on the boundary between the Armenian and Jewish Quarters. Sites held by the exiled Russian Church (the White Russian Church) include: the Church of St. Alexander Nevsky near the Holy Sepulchre, Maria Magdalena Church, and the Church of the Ascension on the Mount of Olives. The Israeli Ministry of Religious Affairs holds the Room of the Last Supper on Mount Zion. The variety of ownership and holding rights of these fifty-six sites, the interests of the countries and international bodies behind the various Christian communities, as well as the numerous orders and congregations, point to the obstacles in the way of any proposal backing a special regime for the Christian holy sites in Jerusalem and environs. jewish holy sites. The list of Jewish holy sites (part of them holy also to Muslims) in this category is shorter and includes tombs of sanctified figures. Those sacred to both Jews and Muslims include Rachel’s Tomb, Nebi Samwil (the Tomb of the Prophet Samuel), Joseph’s Tomb near Nablus, and David’s Tomb.28 Among those sacred only to Jews are the Tomb of Shimon the Just in Wadi Joz (around which several secondary holy sites have developed, such as the Ramban Cave and the Small Sanhedrin Cave). Several tombs of important figures in the Mount of Olives cemetery may be added to these four tombs such as the Tomb of Rabbi Ovadiah of Bartenura, the Tomb of Rabbi Haim Ben Atar, and The Tomb of Hulda the Prophetess near the Church of the Ascension on the summit of the Mount of Olives (sacred to Christians, who believe it is the grave of the nun Pelagia, and to Muslims, who believe it is the grave of Rabiya al-Adawiyya, a Muslim holy woman from the beginning of the eighth century). There is no regular Jewish worship at these sites, apart from memorial days and special occasions.

28

Held (along with the Room of the Last Supper above it on the second floor) by the Ministry of Religious Affairs.

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muslim holy sites. The list of Muslim holy sites in this category is very short. It includes Nebi Samwil and David’s Tomb (called in Islam Nebi Daud) mentioned above and to a lesser extent, Rachel’s Tomb (in which no significant Muslim worship was conducted). Islam also sanctifies the Church of the Ascension on the Mount of Olives (which has become a mosque), the Tomb of Hulda/Rabiya al-Adawiyya, and Lazarus’ Tomb at al-Azariyeh, in Muslim hands. None of these has regular Muslim worship and might be more appropriately categorized as “latent” holy sites (see below) if they were not being ritually used by Christians and/or Jews. To some extent, el-Buraq (the Western Wall) is also sacred to Muslims, but it may be seen from a Muslim point of view as part of the compound at al-Haram al-Sharif. No separate Muslim worship has ever taken place there. latent holy sites. 29 The third proposed category is that of “latent” holy sites, in which no regular worship has taken place in the last decades, but which are liable to reassume a place on the map of holy sites. The Gihon Spring is the site where King Solomon was anointed as King (Kings I, 1: 38–45) and where water was drawn for the Temple services (the Spring of the Virgin, according to Christian tradition and the bath-house of Rabbi Ishmael, as it is called in the United Nations lists of 1949). Hardly any religious services are carried out in this place, held today by the association El’ad (acronym meaning “To the City of David” – a Jewish association striving for Jewish settlement in the area of the City of David and Silwan) and by the National Parks Protection Authority. The beginnings of sanctification can be seen in the monthly ceremonies conducted there lately by “El’ad.” The Shiloam Pool at the end of the Shiloah Tunnel (or Hezekiah’s Tunnel) was part of a great church built by the Byzantine Empress Eudokia in the fifth century on the site where, according to Christian tradition, Jesus healed a blind man (John 9: 1–9). In later periods, Jerusalem Jews came to bathe there, believing in the favorable proper29

Latent sites are significant because they score high on features such as Historic and Figure but, for some reason, are weak on Community – though they hold the potential to attract public attention.

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ties of the water. The place was also sanctified by the Muslims, who built a mosque (towering to this day) over the pool.30 Zechariah’s Tomb and Absalom’s Monument, considered by researchers to be Helenistic-Roman-style (second or first centuries b.c.e.) tombs of wealthy Jewish families, were identified in popular tradition with the biblical figures of the prophet Zechariah and King David’s rebel son Absalom. Over the last few decades, there has not been any Jewish worship there (save for a custom in the Jewish community to bring rebel sons there and throw stones on the tombs, as a remedy for their repentance). However, these tombs appear on several Jewish holy sites lists. According to some experts, such as Amnon Ramon, this probably reflects a wish to increase the number of Jewish holy sites in Jerusalem, against the long list of Christian holy sites.31 Cemeteries32 The fourth proposed category is that of cemeteries. The Jewish and Muslim worlds have not always regarded cemeteries as permanent holy sites (and there are several examples in Jerusalem of the evacuation of cemeteries and a change in their designation for other uses). However, lately, the view has been established that cemeteries are holy sites not to be disturbed. About fifteen cemeteries of the three religions exist in the Old City Basin. Holy figures are buried in some of them and attract pilgrims. Sometimes a particular grave unexpectedly becomes the site of pilgrimage. A recent example is the grave of Oskar Schindler – who has achieved popular sanctification following Steven Spielberg’s movie Schindler’s List – in the Catholic cemetery on the eastern slope of 30

31 32

In 2002, the site was transferred to the El’ad Association and the National Parks Protection Authority, who hold it as the exit of the Shiloah Tunnel. It is clear in this case, given the Christian origins of the site and its earlier affiliation with Islam, that the site would have been placed in other hands under different circumstances, i.e., non-Israeli rule in Jerusalem. How this may affect its potential as a future holy site, however, remains unclear. Observation included in his report for the Holy Sites Project. Cemeteries, like latent sites, represent sites with significant potential to evoke emotional and/or religious responses as holy sites, either because someone who is buried there gains popular recognition after their death, because of the history of the cemetery. Depending upon the particular cemetery, it therefore scores relatively high on History and Figure.

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Mount Zion. The most important Jewish cemetery worldwide is of course, the large cemetery on the Mount of Olives, which serves as a year-round focus for Jewish pilgrimage and visits. Historical and Archaeological Sites33 The fifth proposed category is historical and archaeological sites. Ancient prayer sites, such as an ancient church, have been found at some of them. Examples of such are the remnants of the Byzantine Nea (New) Church found in the Jewish Quarter and the remnants of the Cathisma Church of the same period near the Mar Elias Monastery. In most cases, these archaeological sites, excavated by Israeli authorities, have not turned into holy sites managed by the religious communities, but remain as archaeological sites managed by Israeli “secular” authorities. An exception is found in Christian institutions that excavate in areas owned by them. They usually “expand” their holy sites by means of their archaeological excavations. Such “expansion” was also practiced by the Israeli Ministry of Religious Affairs, as mentioned previously, in the Wall Tunnel excavations. Sometimes, an out-of-use holy site is integrated within an historical site. Such an example is the mosque in David’s Citadel Museum. The mosque is integrated into the museum’s exhibit to demonstrate the Muslim and Crusader chapter of Jerusalem’s history. Occasionally, historic or archaeological sites are represented by one side to the conflict as national sites or as holy sites in order to reinforce its claim to the city. A clear example of this is the Israeli archaeological excavation in the City of David or the excavation near the southern wall of the Temple Mount/Haram al-Sharif. Indeed, the latter effort, begun in 1968, not only involved conflict between the Israeli religious establishment and the Muslim Waqf Authority (whose de facto authority over the area was being tacitly challenged because its approval was not sought), it also reflected a conflict within the Israeli side between the minister of religious affairs and the Chief Rabbi (who opposed the 33

These sites receive attention because they score high on Historic, with the potential to attract public attention and develop Community.

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excavation) and the Antiques Authority and other secular scientific institutions.34 Traditions and legends are sometimes mobilized in order to “sanctify” certain sites. Thus, the Jewish lists of holy sites name historicarchaeological sites such as the cave of Zidkiyah (a stone quarry identified in legend with the path of King Zidkiyah’s flight from the Babylonians), the Kings’ Tombs (a large burial compound of a Jewish royal family), and the Matarah Yard (the prophet Jeremiah’s prison, according to tradition), as well as others. Contested Holy Sites Holy sites that are subject to disputes by two or more of the religions or by different groups within one religion represent a special category of holy site. While objective analysis might categorize them as falling under one of the preceding categories, the existence of the conflict over their ownership or control represents a specific challenge that will need to be addressed. A clear-cut case is the Temple Mount/Haram al-Sharif, considered the most holy site in Jerusalem for both Muslims and Jews. A second example is the Holy Sepulchre, with ongoing controversies among the various Christian communities over the different parts for control and possession. Potential tensions also exist in Nebi Samwil and David’s Tomb, holy to both Jews and Muslims, and to some extent, over Rachel’s Tomb. Potential tension between Muslims and Christians exists in the Church of the Ascension on Mount of Olives, held by the Muslims as a mosque, and in Santa Anna Church near the Lions’ Gate (St. Stephen’s gate). Built in Crusader times, this church became, with the conquest of Jerusalem by Salah al-Din, a Muslim Waqf and a Muslim madrassah for Muslim religious studies. In the nineteenth century, due to pressure by the French government, it again became a church. The recent rise in the power of Fundamentalist Islam has caused Hamas activists in Jerusalem to fight for the return of the site to the Muslim Waqf from the hands of the White Brothers. 34

Uzi Benziman, Jerusalem: A City without a Wall 158 (1973).

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Friction appears sometimes between religious people due to the proximity of holy sites. The most familiar case, having already caused several violent incidents, is the proximity of the Temple Mount/Haram al-Sharif to the Western Wall. However, several conflicts have broken out in other places, such as the controversy over the enlargement of the Khanqah Mosque at the expense of Greek-Orthodox and Franciscan structures around the Church of the Holy Sepulchre.35 Expanding the Mosque has impaired some means of access to the Church. This category is clearly the most complex in finding a solution and an arrangement. This issue – and especially the status of the Temple Mount/Haram al-Sharif – is one of the main obstacles in the way of an Israeli-Palestinian agreement. Sacred Spaces One of the problems confronting the current approach to the holy sites has been the tendency toward proliferation and the efforts to designate places of religious significance as holy sites in order to achieve such benefits as increased levels of security and protection. Nonetheless, because of the long association between the holy sites and other religiously significant sites in the past, some recognition must be given to those sites that we may refer to as sacred spaces within the scheme of the recognized holy sites. Based upon general international standards of religious freedom, all sacred spaces should receive significant protection, if not necessarily the same as a holy site – though the ultimate holy sites legal regime may choose to address this category of site as well. Nonetheless, here too we may identify sites of greater or lesser import deserving corresponding adjustments in protection. Some of the more important of these sacred spaces may be categorized as follows. 35

Nadav Shragai, The Churches in Jerusalem: The Waqf Annexed Land and Built Illegally Next to the Church of the Holy Sepulchre, Ha’aretz, April 13, 1997; Nadav Shragai, Dispute Over Whether to Intervene in Dispute Between Waqf and Churches in Jerusalem, Ha’aretz, April 25, 1997; Nadav Shragai, Jordanian Delegation Formulates Compromise in Dispute Between Waqf and Greek [Orthodox] Church in Jerusalem, Ha’aretz, June 26, 1997.

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Christian Sites Accorded Special Status This proposed category of sacred space borders closely upon the holy sites simply because of its importance within the world’s faith traditions.36 These sites are centers of Christian communities in Jerusalem that have been accorded special status over the years. These four important centers, all in the Old City, are the Greek-Orthodox Patriarchate housed in the large Greek monastery; the Armenian Patriarchate in the Armenian quarter adjacent to St. James cathedral; the Latin Patriarchate near Jaffa Gate; and the Franciscan Center of the Custodia Terrae Sanctae at St. Salvador (or St. Savior) Church. To these may be added the smaller communities’ centers: the Greek-Catholic mission, also called the Greek Catholic Patriarchate (near Jaffa Gate); the Lutheran Center near the Church of the Redeemer in the Muristan; the seat of the Coptic Archbishop near the Holy Sepulchre; the seat of the Ethiopian Archbishop near the Khanqah Street in the Christian Quarter; the House of Mar Maron, which is the center of the Maronite community on the border between the Jewish and Armenian quarters; the seat of the Syrian-Orthodox archbishop in St. Mark’s Church; and the Armenian-Catholic Center adjacent to the Fourth Station of the Via Dolorosa. Outside the gates are: the Syrian-Catholic Center (near Nablus Road); the Anglican Center in the St. George Compound (adjacent to the American Colony Hotel); the Rumanian-Orthodox center on Shivtei Israel Street; and the center of the Red Russian Church in the Russian Compound. These centers usually include a church, a pilgrim hostel, a school, and an administrative center. They have no Jewish or Muslim counterparts. Houses of Prayer and Gathering of the Three Religions The second proposed category of sacred space is that of houses of prayer and gathering for the three religions – synagogues, mosques, and churches. According to the Statistical Yearbook of Jerusalem 2000 (published by the Jerusalem Institute for Israel Studies), there are 1204 synagogues in Jerusalem, 73 mosques and 158 churches, but the number may be even higher. Almost every Christian institution, such as 36

These sites rank high on the Community scale.

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school, hospital, or hostel, also includes a church. Synagogues exist in every torah school (yeshiva) and even in private homes. Many mosques have been erected in Jerusalem and its environs in the past few years that have not yet been surveyed. Mosques and Muslim holy sites in Israeli West Jerusalem (such as the Nebi Ukasha in the center of town and the mosques in Ein Karem and Malha) are neglected, and some of them have been sealed off by the Israeli authorities. Religious Schools The third proposed category of sacred space is that of religious schools – “Batei Midrash” (yeshivas) in the Jewish world and “madrassas” in the Muslim world. Jewish yeshivas are considered in Jewish Halakhah (religious law) as holy sites, and some regard their holiness as higher than that of the synagogue, for the yeshiva is both a place of prayer and of Torah study. The Ministry of Religious Affairs lists some 700 yeshivas in Jerusalem. Muslim madrassas are institutions of higher religious studies, built mostly during the Mamluk and Ottoman periods. A number of madrassas exist in the Old City, usually in the hands of the Muslim Waqf. (However, since most of the Old City madrassas no longer serve as schools, but as dwelling places, and given their historic value, their being Waqf property, and the fact that many include a mosque, it may be more appropriate to categorize these madrassas as historical and archaeological sites under the holy sites rubric.) One may add to the Muslim madrassas the Zawiyas (hostels and prayer houses of Muslim Sufi mystics), the Khanqahs (homes of Sufis or Darwishes), and Ribats (pilgrim hostels). About twenty-five such structures exist in the Old City, built in Ottoman and Mamluk times. (Here again, most of these sites today do not serve their original purpose; nonetheless, for those that do not, their being of historical value may justify their recognition as historical and archaeological sites under the holy sites rubric.) Christian monasteries may also be added to this category. They are used to house monks and nuns and always include a church for the use of the inhabitants and visitors. Many of them stand on places traditionally connected with a holy figure or event.

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Application of the Holy Sites Definition Developing an acceptable definition (with analytic criteria for qualification) and categorization of the sites will be an important first step in the negotiation of a new holy sites legal regime. The foregoing discussion illustrates one approach that could be adopted. Using the analytic criteria identified in our analysis of the nature of the holy sites leads to the categories proposed above, which, in turn, represent a suggested graded scale of holy sites in Jerusalem. That is to say, it may be arguable that those sites appearing first among the categories should receive the most substantial protections, while those appearing later in the listing should receive relatively less. Moreover, the categories and the actual sites included in each may be useful in providing analogical yardsticks to supplement the use of the analytic criteria in recognizing and categorizing newly emerging or proposed holy sites. While these categories are useful, individual sites are not fungible – each must be dealt with in ways that are sensitive to its unique balance of interests. In particular, a special arrangement must be found for the four central or iconic holy sites mentioned in the first category. Precedence must also be given for those in the contested category because they represent the greatest threat to the development and stability of any proposed legal regime. The processes of sanctification of a site – the movement from one religiously significant category to a higher status/category – do not always follow official rules and regulations. Often they express the wishes and needs of different strata of the population, and one must therefore be aware of their spontaneous and eruptive qualities. On the other hand, we must be aware of political manipulations around holy sites meant to create religious and national tension and to spur violent confrontations. The whole purpose of developing a new definition for the holy sites is to address this problem. The more detailed and specific the definition of the holy sites is, under the proposed holy sites regime, the greater its potential to help resolve or avoid these tensions and confrontations.

9 Politics and Administration: The Mechanics

Developing a defined understanding of the nature and character of the holy sites represents one half of the holy sites regime paradigm. It sets the scope and defines the basic needs for the regime. The second half of the paradigm falls into the realm of politics and administration. How can the needs of the holy sites be met on the ground? What are the tools to be used by the legal regime to effect its goals? As outlined in Chapters 4 and 5, these political questions fall under four headings: sovereignty, ownership and control, municipal and regional governance, and the international interest. As previously noted, in discussing these issues, the goal of the project is not to offer a definitive solution, but rather to identify the key features of the problem and to suggest possible avenues or approaches to the negotiation for the creation of the regime. Sovereignty There can be little doubt that the question of sovereignty stands as the single largest stumbling block to the development of a legal regime to protect the holy sites. Sovereignty is the natural first question. An essential feature of the holy sites is that they exist as fixed objects within a specific geographic territory. They cannot be moved. As such, the obvious question is who controls that territory as sovereign? To pose the Israeli and Palestinian problem, of which the holy sites are a part, as simply a conflict over territory, clearly fails. It is more than that. The concept of sovereignty, unfortunately, has merged and 145

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become intertwined with ideas of national identity, political ideology, and, more troubling, with religious millenarianism.1 It is a conflict over identity and meaning. Who are these peoples and what does it mean to be a people? The holy sites sit at the heart of this dilemma touching all of these concerns. At the simplest level, the holy sites share in the symbolic meaning accorded to certain areas. They reside within territorial spaces with profound nationalistic associations for Israeli Jews and Palestinians. While a number of contested holy sites reside outside Jerusalem (e.g., Bethlehem, Ramallah, etc.), the vast majority reside within the city limits. And over Jerusalem the two sides have made exclusive and mutually contradictory claims. Jerusalem has become the symbol of nationhood for these two peoples. From the time of its independence, as stated by Prime Minister David Ben-Gurion before the Knesset on December 5, 1949, Jerusalem was held as an “inseparable part of the State of Israel” and its “Eternal Capital.”2 This claim grew to embrace the city as a whole following the 1967 War. As expressed by Prime Minister Menachem Begin at the 1978 Camp David Accords, “Jerusalem is one city, indivisible, the Capital of the State of Israel.”3 While perhaps no longer committed to sovereignty over the whole of Jerusalem, the Palestinian Authority (and the PLO before it) have made similarly strong claims to sovereignty over East Jerusalem, with similar assertions that it is the capital of the Palestinian people.4 These territories, and the holy sites associated with them, also present profound challenges to national identity. This is most clearly illustrated in the case of Israel, which identifies itself as a Jewish state.5 Sharing the holy sites or preserving them in ways that encourage the 1 2 3 4

5

See Gershom Gorenberg, The End of Days: Fundamentalism and the Struggle for the Temple Mount at 225–226, 229 (2000). See Ruth Lapidoth, Jerusalem: Some Legal Aspects, in Jerusalem: A City and its Future 66 (Marshall J. Breger and Ora Ahimeir eds., 2002). Id. at 69. See, e.g., Id. at 71; Menachem Klein, Rule and Role in Jerusalem: Israel, Jordan, and the PLO in a Peace-Building Process, in Jerusalem: A City and Its Future 158 (Marshall J. Breger and Ora Ahimeir eds., 2002). See Declaration of Israel’s Independence 1948, at http://www.yale.edu/ lawweb/Avalon/mideast/israel.htm (last visited February 5, 2005). “We . . . hereby proclaim the establishment of the Jewish State in Palestine, to be called Israel.”

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continued presence of Israeli Palestinians (Muslims or Christians) clearly threatens this Jewish identity. Indeed, the demographic fear presented by the growing Palestinian population in the occupied territories has been a prominent argument in support of Prime Minister Ariel Sharon’s efforts to withdraw from the territories.6 While not as religiously monolithic, Palestinians have also relied upon the holy sites to provide them with a national identity. While largely focused on the Temple Mount/Haram al-Sharif, the Palestinians have also used Christian holy sites (most notably Arafat’s regular Christmas visit to the Church of the Nativity in Bethlehem)7 as symbols of national identity to serve as rallying points for the Palestinian people. For example, the second Intifada is identified as the al-Aqsa Intifada, and it grew out of the perceived threat presented by Ariel Sharon’s visit to the Temple Mount/Haram al-Sharif in 2000. A third factor is that of political belief and political identity. Israel and the Palestinian Authority operate as democratic states (or in the case of the Palestinian Authority as an aspiring state). Liberal democratic ideology holds that the people are the only genuine source of legitimacy in governance. Efforts to control the holy sites, insofar as the effort may impact upon the local residents, raise questions about the relationship between the residents and the governing authority. Finally, the holy sites invoke powerful religious ideologies. Possession and sovereignty has been linked with religious prophesy. Jerusalem, claimed by both sides, is not only at the geopolitical heart of both Israel and Palestine, its identity as the Holy City indelibly links it with the individual holy sites. For some Israelis, possession of the holy sites – indeed the entirety of ancient Israel – is an element of the covenant with God, surrender of which would be an apostasy.8 Related 6

7 8

See Jonathan Friedland, A gift of dust and bones: Sharon’s plan for a pullout owes more to demographic shifts than a belated conversion to peace-making, Guardian, June 2, 2004, http://www.guardian.co.uk /comment/story/0,3604,1229440,00.html (last visited February 5, 2005). Sharon’s deputy, the vice-prime minister Ehud Olmert explains the strategic thinking behind the Gaza plan as being all about demographics. “I want to live in a Jewish state. I don’t want to live in a non-Jewish state.” See Jerrold Kessel, Palestinians rejoice as Arafat arrives in Bethlehem, CNN, Dec. 23, 1995, at http://www.cnn.com/WORLD/9512/Israel_ bethlehem/12–23/ (last visited June 7, 2004). See Moshe Dayan, Story of My Life (1978).

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to this, in an ironic marriage of convenience with these Jewish religious radicals, many fundamentalist Christians support the territorial claims of Israeli Jews as a fulfillment of biblical prophecy set forth in the book of Revelations that heralds the end of time destruction of the Jews and the return of the Messiah.9 Given the foregoing emotional, ideational, and ideological connotations, negotiating over the holy sites with respect to issues of sovereignty is fraught with difficulty. It cannot be addressed simply in terms of logistics or territorial trade-offs. Nonetheless, it must be addressed in a clear and precise way. The original efforts to protect the holy sites arising at the time of Israeli independence focused upon the city itself. As embodied in the 1947 U.N. Partition Plan, Resolution 181, the whole of Jerusalem was to be an international city, as a corpus separatum, modeled, perhaps on Vatican City. While this idea has been periodically resurrected, such a proposal appears highly unlikely. While it may be possible yet to negotiate an arrangement that would allow each of the parties to claim Jerusalem as its capital, linking the holy sites to the fate of Jerusalem would preclude developing any regime for the protection of the holy sites separate from the final peace agreement. Fortunately, developing a legal regime for the protection of the holy sites does not necessarily depend upon the final peace accords. Instead, it requires a clear understanding and articulation of what sovereignty means and what elements are malleable within that definition in terms of satisfying the demands of each of the parties and the larger religious and international parties. One may construct a legal regime that can be accommodated within a final settlement regardless of the actual allocation of territorial sovereignty. Traditional definitions of sovereignty emphasize three features: independence, authority, and title.10 A state possesses sovereignty when it has the autonomy to act independently of the will of another, it wields final authority over all of the subjects within its territory, and ab initio it holds recognized legal title to all of the land within its geographic ter9 10

See Gorenberg, note 1 supra. Enrico Molinaro, Negotiating Jerusalem: Preconditions for Drawing Scenarios Based on Territorial Compromises 15 (2002).

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ritory. This definition is, if not archaic, incomplete. For example, within the context of the Middle East, Israel has already compromised this absolutist understanding in its peace treaty with Jordan, in which Israel recognized the special authority of Jordan over the Muslim holy sites in Israel.11 More generally, modern understanding of sovereignty must, of necessity, recognize the impact of globalization and the ascendance of international law.12 Indeed, new theories of sovereignty stress the impact of global culture in shaping the character and behavior of the state, much in the way sociologists and philosophers recognize that national culture shapes individuals.13 The state not only interacts with other states in the international sphere, it defines itself in relation to those states and other international institutions to which it is intimately linked through culture, trade, or security. The concept of sovereignty of the state over its national territory is similarly misleading when considered in relation to particular parts of the state. In reality, many aspects of national life cannot be governed by a state in isolation from its neighbors. For example, environmental concerns and, particularly significant in the Middle East, water planning and administration depend upon the cooperation of many state actors. While a water source may pass through the territory of one state, it is often the case that the watershed and the dispersion pattern involve others. Similarly, as demonstrated by the second Intifada, security – a prime justification for Israeli sovereignty and control over all aspects of Jerusalem – cannot be controlled on an individual state basis. Ultimately, security, whether from terrorists or weapons of mass destruction, depends upon the collaboration of all of the parties within the region. In this case, the holy sites can be better understood as either a natural resource of the region, such as water or the environment, or as an international security concern. In a practical light, they are a resource insofar as they are an economic engine for the region, drawing thou11 12 13

Ruth Lapidoth, Jerusalem and the Peace Process, 28 Israel L. Rev. 402, 430 (1994). Lapidoth, note 2 supra, at 85; see gen., State, Sovereignty, and International Governance (Gerard Kreijen, ed., 2004). See, e.g., Ryan Goodman and Derek Jinks, Toward an Institutional Theory of Sovereignty, 55 Stan L. Rev. 101 (2003).

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sands of visitors a year to the Holy Land. More deeply, they represent an irreplaceable expression of religion and culture, valuable not only to the parties in residence but to the world as well. Finally, they are a security concern insofar as their contested nature provokes violence or their location can facilitate it through the obligation to allow access. Instead of focusing upon traditional notions of sovereignty, the regime for the holy sites must focus upon the concept of functional sovereignty.14 The state exercises its sovereign rights in collaboration with others. Adopting functional sovereignty as a basic premise for the holy sites legal regime does not prejudge the final allocation of territory as within the sovereignty of either of the concerned parties. It does, however, offer the possibility of limiting the threat posed by sovereignty to the other non-sovereign party. By focusing upon the functional demands of sovereignty – its uses in administering the territory of the holy sites – it may, however, be possible to defuse the emotions surrounding the sovereignty claim. The present represents an opportune time for peace. The people are tired of the conflict, and they are increasingly turning to a focus upon the day-to-day problems of life. In answer to a question about Palestinian demands for a homeland, one Palestinian, Adnan Hamid, answered, “What is homeland nowadays? Homeland is a good hospital . . . a good school . . . a good street. That is what homeland is.”15 Building on this pragmatic appeal, negotiators can also engage people of faith in the creation of confidence-building measures directed toward addressing religious concerns that stand in the way of peace. Specifically, each of the three religions of the Book not only include incentives toward the drive to control the Holy Land, they also embody counter trends critical to traditional understandings of sovereignty. For example, in contrast to the Zionist and religious covenantal nationalists, strands within the Orthodox Jewish community have denied the importance of nation and instead have focused upon the virtues of exile.16 While not going so far as to reject the Jewish state in toto, this 14 15 16

Lapidoth, note 2 supra, at 86. NPR Morning Edition, “Palestinians Vote in Municipal Elections” (Dec. 23, 2004). Ehud Luz, Wrestling With An Angel: Power, Morality, And Jewish Identity 115–173 (Michael Swirsky trans., 2003).

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religious ideal provides support for deemphasizing it as an element of identity. As argued by Martin Buber, the establishment of an “organic Jewish society that fosters human relationships both within and without is far more important than the achievement of Jewish sovereignty per se.”17 According to Buber, “all sovereignty becomes false and vain when in the struggle for power it fails to remain subject to the Sovereign of the world, who is the Sovereign of my rival and my enemy’s Sovereign as well as mine.”18 Christianity also cautions against an overempowered idea of sovereignty, which could, when taken to extreme, become idolatrous.19 As noted by Pope John Paul II, we are increasingly being exposed to the tension between traditional understandings of the state, which are monolithic and monochromatic, and the growing consciousness of ethnic and social identity and diversity.20 The rights of religious and ethnic minorities counter traditional assertions of sovereignty and argue for a new “spiritual sovereignty” that emphasizes a nation’s duties of “living in a spirit of peace, respect, and solidarity with other nations,” and leads away from “an ‘existence with’ mentality and towards an ‘existence for mentality.’”21 Finally, while Islam has traditionally been oriented toward an active identity between the faith and the state, at the same time, the idea of the umma, or a single, overarching community of the faithful, creates a tension with the concept of the individual, territorial state.22 As a religion inclusive of the traditions of Judaism and Christianity, Islam’s ancient tradition of pluralism can be used to ground a modern movement toward inclusion.23 In light of these religious claims, the proposal by Jordan’s King Hus17 18 19 20

21 22 23

Id. at 173. Martin Buber, Nationalism, in The Writings of Martin Buber 277 (Will Herberg, ed., 1956). Daniel Philpott, Revolutions In Sovereignty 262 (2001). Address of his Holiness Pope John Paul II to the 50th General Assembly, Oct. 5, 1995, at http://www.vatican.va/holy_father/john_paul_ii/speeches/ 1995/october/documents/hf_jpii_spe_05101995_address-to-uno_en.html (last visited Jan 25, 2005). . Id See Sohail H. Hashmi, Pan-Islamism, State Sovereignty, and International Organization, in State Sovereignty 49 (Sohail H. Hashmi, ed., 1997). Abdulaziz Sachedina, The Islamic Roots of Democratic Pluralism 139 (2001).

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sein becomes particularly resonant: “Sovereignty [over the holy sites] is of Allah alone.”24 What is left to humanity is the caring for God’s/Allah’s dominion. The powers of the state, in terms of security, urban planning, and social services can then be shared and/or negotiated among the parties. Such a separation has particular merit in its potential to tease apart the emotional issues relating to ownership over the holy sites and the pragmatic concerns of how to protect and administer them. Moreover, while primary functional sovereignty will probably end up in the hands of Israel and the ultimate Palestinian state, functional sovereignty includes the possible involvement of the international community as a party to the legal regime. Ownership and Control of the Individual Holy Sites The holy sites exist as real property. Therefore, they are, at least theoretically, subject to the laws of property and ownership within the state in which they reside. However, under existing status quo arrangements, the ownership is often ambiguous. For example, the Church of the Holy Sepulchre (or of the Resurrection) in Jerusalem, the Church of the Nativity in Bethlehem, and the Tomb of the Virgin at the foot of the Mount of Olives in Jerusalem are not regulated under the normal title property law system. They are governed by a status quo legal regime confirmed by individual treaties between the Holy See and the Israeli government25 and the Holy See and the Palestinians.26 While the ownership of these sites is unclear, possession and use are precisely regulated by the particular legal regime applying there that 24

Quoted in Yitzhak Reiter, Jewish–Muslim Modus Vivendi at the Temple Mount/al-Haram al-Sharif Since 1967, in Jerusalem: A City And Its Future 289 (Marshall J. Breger and Ora Ahimeir, eds. 2002). 25 Agreement between the State of Israel and the Holy See (Legal Personality Agreement), Nov. 10, 1997, at http://www.mfa.gov.il/MFA/MFAArchive/1990_1999/1997/11/Legal%20 Personality%20Agreement-%20State%20of%20Israel-Holy (last visited June 16, 2004). The Legal Personality Agreement was made pursuant to Article 3(3) of the Fundamental Agreement Between the Holy See and the State of Israel, Dec. 30, 1993, Vatican–Isr., 33 I.L.M. 153 (1994). 26 Basic Agreement between the Holy See and the Palestine Liberation Organization, Feb. 15, 2000, at http://www.catholicculture.org/docs/ doc_view.cfm?recnum=2595 (last visited June 15, 2004).

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provides for their shared control by the Greek Orthodox Patriarchate of Jerusalem, the Franciscan Custody of the Holy Land, and the Armenian Orthodox Patriarchate of Jerusalem, as well as, to a much more limited extent, by certain other Ancient Eastern Churches in Jerusalem. Similarly, while the property status of the Temple Mount/Haram alSharif appears unclear, the Israelis and the Muslim authority (the Waqf) in possession of al-Haram al-Sharif operate under a de facto status quo arrangement allowing the Waqf great leeway in its possession and administration of the site.27 Interestingly, the ownership of the Temple Mount/Haram al-Sharif is generally discussed not in terms of property, but of sovereignty. Given the models of religious freedom in the West, particularly in the United States, the idea of private ownership of the individual holy sites by their worshiping congregation has some appeal. It helps avoid problematic entanglements between the religion and the state and thereby supports religious freedom. Treating religious property ownership simply as a form of private property ownership limits governmental discretion. Under principles of rule of law, the state must treat all comparable property owners according to comparable standards of publicly enacted law.28 This option of simple private ownership, however, appears less feasible with respect to the holy sites. First, in many cases, a particular holy site may be subject to conflicting claims, either between different denominations in one faith or by two or more faith traditions. This requires an engagement between the state and the religions in possession or conflict. If the conflict cannot be resolved in a definitive, final way, assigning ownership or control to one of the conflicting parties, then, inevitably, the state’s involvement must be ongoing – lasting for as long as the dispute continues. Even in such settled status quo arrangements as those governing the Church of the Holy Sepulchre, the Church of the Nativity, and the Tomb of the Virgin, the government bears a burden of addressing disputes among the congregations 27 28

Reiter, note 24 supra, at 289. Ronald A. Cass, Property rights systems and the rule of law, Working Paper No. 29, International Centre for Economic Research, at http://ideas.repec.org/p/icr/wpicer/29–2003.html (2003).

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in possession of the site by, for example, undertaking necessary repairs upon which the parties in possession cannot agree.29 Second, and perhaps more importantly, the holy sites are not simply places of worship for individual congregations. They are foundational sites for the three religions involved, important to believers and nonbelievers alike throughout the world. They represent vital links to the religious past for the members of that faith who have demonstrated a willingness to intervene in the Holy Land to protect their interests when they were perceived as being threatened in the past. Sensitivity to this served as one of the impetuses for the creation of the original status quo regime30 and continues to exert influence over the current administration of the sites.31 Similarly, the holy sites serve as cultural icons for secularists throughout the world. Reflecting this international interest, the Old City of Jerusalem was inscribed on the List of World Heritage in Danger in 1982 under the U.N. Convention Concerning the Protection of the World Cultural and Natural Heritage.32 As noted in the inscription statement, the Old City of Jerusalem holds “exceptional value and unique religious and cultural significance.”33 The world as a whole has both religious and cultural interests in protecting and ensuring access to the holy sites not readily accommodated by traditional notions of private property and ownership. Discussing the ownership of the holy sites in many ways mirrors the discussion of sovereignty. In some places, the linkage is explicit – such as the case with the Temple Mount/Haram al-Sharif. Both Israel and the Palestinian Authority have asserted sovereignty claims that, in practice, strongly resemble ownership claims. Moreover, ownership, like sovereignty, represents both a linkage to or assertion of identity (where possession of a holy site equates with nationalistic or religious self per29 30 31 32 33

See Meron Benvenisti, A Place Of Fire 79 (1996). See Lapidoth, note 2 supra, at 62. Lionel Cust, The Status quo in the Holy Sites 64 (Facsimile ed., 1980); Uzi Benziman, Jerusalem: A City without a Wall 103 (1973). Convention Concerning the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, UNESCO Doc. 17/C/106 (1972), 1037 U.N.T.S. 151. Convention Concerning the Protection of the World Cultural and Natural Heritage, World Heritage Committee, 6th Sess., UNESCO Doc. CLT–82/CH/CONF.015/8 (1983), http://whc.unesco.org/archive/repcom82.htm#jerusalem (last visited June 15, 2004).

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ception) and an exercise of freedom. With respect to the holy sites, any qualification upon ownership or possession risks impairing the religious freedom of the community of faith making up the congregation of that holy site. For example, requiring free public access to a particular holy site could violate rules of purity held by the faith community of that site, while denying access denies the religious freedom of the supplicant.34 It may also impair the ability of that faith tradition to use control of the site to make a political statement, as was the case when the Roman Catholic Church closed its holy sites to protest the Israeli government’s complicity in the take over of St. John’s Hospice.35 Again, as with the issue of sovereignty, adoption of a traditional form of exclusive or semiexclusive private ownership (whether labeled as ownership or possession under a status quo agreement) presents significant problems. First, as previously noted, many holy sites are claimed by multiple parties. While some have been shared successfully, the conflict over Temple Mount/Haram al-Sharif illustrates the depths and dangers of conflict over access. Second, insofar as we acknowledge the national and international interests in protecting and preserving the holy sites, so too we must find ways to recognize and accommodate that international interest. Moreover, as was the case with sovereignty, there are conditions that demonstrate that strict interpretations of ownership do not necessarily reflect modern realities and justify limits on private control. The holy sites (like a country in the international context) exist within a social and political matrix. A holy site cannot function without the cooperation of other interested parties. A public means of access must be made available. Zoning laws must accommodate the 34 35

Itzhak Englard, The Legal Status of the Holy Places in Jerusalem, in Jerusalem: Legal Aspects 1 (Ora Ahimeir ed., 1983). See Letter dated 23 April 1990 from the Chargé d’affaires a.i. of the Permanent Observer Mission of Palestine to the United Nations addressed to the Secretary-General, U.N. GAOR, 45th Sess., U.N. Doc. A/45/253-S/21269 (1990), at http://domino.un.org/unispal.nsf/0/b7e 7f0f 769efa1f0 852563d5005d97b0?OpenDocument (last visited June 7, 2004); Ghada Karmi, Jerusalem: A City of All Its Citizens, Center for Contemporary Arab Studies, at http://www.ccasonline.org/symposium /karmi.htm (last visited June 7, 2004); Dumper, supra note 39, at 119; Letter dated 27 April 1990 from the Chargé d’affaires a.i. of the Permanent Observer Mission of Palestine to the United Nations addressed to the Secretary-General, U.N. GAOR, 45th Sess., U.N. Doc. A/45/258-S/21276 (1990), at http:// domino.un.org/ unispal.nsf/ 0/89869bf9e14f467e85256b410073cecb?Open Document (last visited June 7, 2004).

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need to maintain and enhance the site. Security for the site depends upon the collaboration of the congregation in possession and the community. One reaction to this is to simply negate ownership. For example, the international interest in the holy sites has led to the suggestion that they should be “internationalized” or regulated under a Common Heritage of Mankind (or Common Patrimony [sic] of Mankind) legal regime.36 These sites are not simply buildings to be possessed by individual congregations – they hold a special place in the cultural consciousness of all humankind. They need to be preserved and made available not only for all citizens of the world, but for posterity as well. Obviously, the international interest is critically important. It serves as a basis for the holy site project itself. However, there are a number of problems with this approach insofar as it represents a “strong” sense of ownership or control. First, like the proposal to internationalize the city itself, it appears unlikely that either the Israelis or Palestinians will be amenable to such a suggestion. It would go against the strong nationalistic sentiments tied to the holy sites. Second, the legal concept of a Common Heritage of Mankind remains incomplete and relatively unformed under international law.37 As a legal construct, it lacks the content necessary to provide strong guidance or authority for administering the holy sites. It provides no guidance or direction upon the organization or structure of the international authority to be placed in charge and may simply invite the involvement of potentially antagonistic international third parties into the midst of an already complex, conflicted situation. Third, the concept fails to remedy any of the problems presented under a private ownership scheme. The holy sites still remain situated within a political/social environment and are dependent upon the support and services offered by the local authorities. In terms of religious freedom, the concept simply replaces the local governmental authority with an international authority without obviating any of the potential threats to religious freedom. 36 37

Shmuel Berkovitz, The Legal Status Of The Holy Places In The Land Of Israel 10 (1997). Christopher C. Joyner, Legal Implications of the Concept of the Common Heritage of Mankind, 35 Int’l and Comp. L.Q. 190, 197–199 (1986).

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Again, as was the case with the issue of sovereignty, the most likely settlement of this issue involves a functional form of ownership and control by the congregations in residence with some limited shared authority held by local authorities and international participants. Individual control over the site may be shared by coreligionists with supervision by the concerned governments and/or an international body that will guarantee mutual performance and international accessibility. There will, of course, be some resistance to this – particularly by those representing congregations in possession of particular sites. To address this, a number of possibilities exist. First, as with sovereignty, the rhetorical device of identifying ownership with the divine (God or Allah) may help appease the emotional claims of many religiousnationalists. As previously suggested, elements of pride, ego, and/or identity may be closely linked with the site in ways that exceed common rational justification. Second, as in any negotiation, certain tradeoffs or benefits may be offered to induce the party in possession to agree to the shared arrangement. These include the possibility of achieving enhanced security for the holy sites, improved access to the site by, for example, opening current roadblocks or obstructions, and improved municipal services may be offered. These inducements may counterbalance the loss of autonomy incurred by the congregation in possession. Finally, as under the Convention Concerning the Protection of the World Cultural and Natural Heritage, financial incentives may be offered by the international parties of interest to help in the maintenance and protection of the holy sites in exchange for rights of access and limited shared control. Municipal and Regional Governmental Concerns Given that a majority of the holy sites are in Jerusalem, the governance of the city will have an inevitable impact upon any proposed legal regime. In considering municipal services and administration, two types of issues arise. First, are broad governance proposals and their affects. These focus upon the administration of the city as a whole. They affect the holy sites insofar as they answer questions over the overall control over administrative functions that directly address the needs

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of the holy sites. Second, are concerns that arise relating to services or administrative problems that target or specifically affect individual holy sites. Broad Governance In general, broad governance concerns track the discussion of sovereignty. How sovereignty is assigned will affect how the municipality of Jerusalem is governed. In this regard, there are three possible schemas: a divided city, a unified city, or a shared or open city. Each presents different challenges for the development of a holy sites legal regime. divided city. The proposals that sovereignty over the city be divided between the Palestinians and Israelis reflect the mutual desires of both that Jerusalem serve as their national capitals. When this was originally proposed, it appears that the actual intent was to effectively create two separate cities, one Palestinian and one Israeli, reflecting the pre1967 borders.38 Given the international nature of that pre-1967 border, the challenges for the holy sites would be not just creating two separate but complementary holy sites legal regimes that would protect the holy sites of one side located in the territory of the other (along with the separate interests of the Christians in each) – it would require creating some type of shared mechanism that would protect those sites whose location would be impacted by such a distinct separation. For example, access to certain sites could be obstructed due to the way the territory is divided or based upon security concerns. unified city. The unified-city approach was part of the original approach taken by Britain and the United Nations in their proposals to create an internationalized Jerusalem.39 Administration of an internationalized Jerusalem would be easier than administration of an open

38

39

See, e.g., Camp David Accords: Annex and Letters (Letter from Anwar Sadat September 17, 1978), Israel Ministry of Foreign Affairs, at http://www.mfa.gov.il/mfa/peace%20process/ reference%20documents/ (last visited June 16, 2004; Resolution of the Arab Summit Conference at Fez, 6 September 1982, in The Arab–Israeli Conflict and its Resolution: Selected Documents 296 (Ruth Lapidoth and Moshe Hirsch eds., 1992). S.C. Res. 242, U.N. SCOR, U.N. Doc. S/RES/242 (1976).

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city in that the international government would be separate from the existing conflicts between the Israelis and Palestinians. However, such a solution appears highly unlikely. While prior to the 1967 War, Palestinians sought exclusive control over Jerusalem, most contemporary advocates of the unified-city approach are Israelis favoring the continuing exclusive sovereignty of Israel over Jerusalem.40 Instead of focusing upon the interests of the Palestinian Authority as a potential state, these advocates focus upon the interests of the residents of Jerusalem. In considering how to address the problems of Jerusalem as a multiethnic, multi-religious city, a number of commentators have suggested developing a decentralized form of city government, concentrating significant power in boroughs or local neighborhoods.41 Indeed, this was the announced goal of longtime mayor Teddy Kollek.42 The goal would be to satisfy the interests of Palestinians to control their political lives without granting them sovereignty or national status. Clearly, such a multicultural municipal reorganization would facilitate the adoption of a legal regime for the holy sites. Such a reorganization would deemphasize the issue of sovereignty, while supporting the integration of the individual holy sites within their neighborhood of residence. Moreover, a decentralized city government would require the development of multiple interborough mechanisms to coordinate regional activities. Developing such a mechanism for the holy sites would be simply adding another one to a mix of such structures. Insofar as such a decentralized municipal reorganization succeeds in resolving the tension between the Israelis and Palestinians, a holy sites regime would simply advance the overall agenda of this type of organization. 40 41

42

See Amir S. Cheshin et al., Separate and Unequal: The Inside Story of Israeli Rule in East Jerusalem (1999). See, e.g., Shlomo Hasson, The Municipal Organization of the Jerusalem Metropolitan Area, in Jerusalem: A City and Its Future 335 (Marshall J. Breger and Ora Ahimeir eds., 2002); Alon Ben-Meir, Jerusalem’s Final Status Must Reflect Its Uniqueness, 3 Middle East Policy 93 (1994). Teddy Kollek, Sharing United Jerusalem, 67 Foreign Affairs 156 (1988). While many have criticized Kollek and questioned his commitment to actually implementing this approach, see Cheshin et al., note 40 supra, in theory the approach remains a viable possibility.

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While such decentralization may represent an improved environment for the holy sites legal regime, seeking such a reorganization may be difficult. For example, despite Teddy Kollek’s long and public advocacy for such an approach, it never gained the support of the Israeli government.43 Some critics have suggested that the effort was in fact nothing more than cover for the government’s real goal of “changing the facts on the ground” by driving Palestinians out of Jerusalem and replacing them with Jewish settlers. However, it is also possible that it failed simply due to a lack of will. Given the ongoing unrest in the territories, why hope that a localized effort in Jerusalem would succeed? shared or open city. Because it appears unimaginable that Israel will willingly surrender complete control of the Old City (which was exclusively controlled by Jordan prior to the 1967 War) to the Palestinians, that part of the separate cities proposal seeking to reassert the pre1967 urban borders has lost some impetus (even though it may not have been officially dropped).44 However, more significantly, while the idea of two Jerusalems continues to be asserted, it is increasingly linked with the idea of recognizing Jerusalem as remaining a unified, shared, or open city.45 That is to say, while sovereignty over specific parts of the city (particularly where their government buildings are located) would vest in the Palestinians and Israelis respectively, there would be no borders established within the city. Freedom of movement within the city would be unimpaired for Palestinians, Israelis, or tourists. This idea has a surprisingly long history. In 1973, several months before the war, three native Jerusalemites helped found a small leftist party with the slogan, “One city, the capital of two states.”46 Such an 43 44

45 46

See Cheshin et al., note 40 supra. See The Debate at Camp David over Jerusalem’s Holy Places, The Middle East Media Research Institute, Special Dispatch No. 121, Aug. 28, 2000, at http://christianactionforisrael. org/isreport/julaug00/debate.html (last visited June 16, 2004); see also Saul Singer, American Evenhandedness in the Mideast Peace Process: Lessons from Camp David II and the al-Aqsa Intifada, Jerusalem Letter/Viewpoints No. 444, Dec. 15, 2000, Jerusalem Center for Public Affairs, at http://www.jcpa.org /jl/vp444.htm (last visited June 30, 2004). See Permanent Status Issues: Jerusalem, PLO Negotiation Affairs Department, at http://www.nad-plo.org/howjerusalem.php (last visited June 16, 2004). Avishai Margalit, The Myth of Jerusalem, New York Review of Books (Dec. 19, 1991) http://www.nybooks.com/articles/3055?email (last visited Jan. 11,2005).

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arrangement meets the ideational and emotional needs of each. It also would provide the strongest guarantee possible that the city would never again be divided. The most serious challenge to the open city concept relates to the issue of security. Each country has an interest in protecting its borders.47 Some type of mechanism would have to be established to assure that access to the city did not allow free entry into either country. This might be achieved by establishing a formal border surrounding the city. Security arrangements would also have to be established within the city to protect the national interests of each party. Obviously, to accomplish an open city and maintain security would require significant collaboration between the two sides, including many cooperative entities through which to handle not only shared security but also the day to day administration of the city. From the perspective of the holy sites, a logical approach would be to simply create additional collaborative mechanisms to oversee the holy sites. It is hard to imagine this creating any more difficult or intractable problems then those arising in other aspects of shared administration. Routine Administrative Concerns While the issue of the holy sites inevitably provokes discussion of the larger problem of the Palestinian and Israeli conflict, a majority of the day-to-day administrative problems rest at the level of the city, municipal, or regional government. Regardless of which governance applies, whether unified, open, or separate, the government will have to implement mechanisms and systems to meet the needs of a living city. With respect to the holy sites, the local government must meet the needs of the holy sites for common services (such as water, waste disposal, fire and police protection). Issues of concern will include the following: services. At a basic level, the holy sites need access to basic city services. A holy site may be uninhabitable without water, electricity, sewage, and/or garbage removal. While questions of access to the holy 47

Joint Palestinian–Israeli Statement at Taba, January 2001, PLO Negotiations Affairs Department, at http://www.nad-plo.org/ntaba.php (last visited June 30, 2004).

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sites are often raised in relation to the policies of the police, military, or security forces, access can just as effectively be denied by a municipal authority who fails to provide key services, such as street lighting at night or clean and useable streets. This problem is currently evident in the Arab quarters of the city of Jerusalem, affecting Christian and Muslim holy sites.48 security. Among the key concerns raised over the status of Jerusalem is the question of maintaining security. Beyond the larger questions of protecting against terrorism, security also requires addressing problems of crowd management, rowdyism, simple theft, and other police concerns. Given the political sensitivity at some of the holy sites, this requires significant collaboration between local police and the security forces maintained at and by the holy site. law and law enforcement. Related to the issue of law enforcement is the question of what law is applicable to an individual accused of an infraction. There are three options. First, the regime could simply agree to apply the law of the state (or Palestinian Authority) in which the holy site was located. This would allow the flexibility that if territorial changes occurred during the final status negotiations, the regime could easily adapt to the change. Moreover, it simply applies well establish law to address the situations that may occur. The problem is that it reverts to placing significant emphasis upon the issue of sovereignty as opposed to the project’s effort to de-emphasize sovereignty. Moreover, insofar as the holy sites regime is seeking to develop confidence-building measures, this bifurcated approach could counter that effort. Prosecutions of the citizens of one of the two states parties by the other could provoke suspicion and hostility between them. The second approach would be to apply a personal status legal regime.49 That is to say, the applicable law applied to a case would be that of the citizenship of the individual. Such a system could be implemented through transfer of cases between the jurisdictions, so that, for example, Israelis would be tried by Israeli courts, while Palestinians would be tried by Palestinian courts. Alternately, each jurisdiction could simply agree to apply the law of the other jurisdiction, as is com48

Id.

49

See Margalit, note 46 supra.

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monly done in many types of conflicts of law cases. Precedent for personal status law exists in the current practice in Israel to apply family law based upon the personal status (identified with religion) of the individual.50 The problem with this approach is that it emphasizes the differences between the Palestinians and Israelis. Finally, the third option is to adopt a uniform body of laws applicable to the holy sites. Thus, the same laws would apply to everyone in relation to the holy sites regardless of citizenship or place of origin. The difficulty with this approach is that it would require significant cooperation and collaboration between the states parties. They would not only have to agree upon an extensive body of common laws, they would have to train their police and judiciary to enforce it in a coherent and complementary way so that individuals are not treated differently according to whom is handling the enforcement. On the positive side, this would not only address the issue of legal enforcement, it would contribute to the building of confidence under what would become a collaborative structure. taxes. Delivery of municipal or city services costs money. However, while the law is complex and ambiguous, most of the religious institutions in Jerusalem have traditionally been treated as tax-exempt organizations, a position supported by the United Nations General Assembly.51 Consequently, municipal authorities may feel little incentive toward providing significant support. Supporting the expenses of serving the holy sites must be calculated within the broader matrix of the benefits provided by the holy sites as, for example, a magnet for tourism. The issue of financing may, of course, also provide an incentive for governmental collaboration. Specifically, it may be appropriate for the international community to help fund the regime. Clear precedents exist for this, including the United States agreement to provide foreign 50

51

See Hoda Rouhana, Dossier 25: Practices in the Shari’a Court of Appeal in Israel, at http://www.wluml.org/english/pubsfulltxt.shtml?cmd%5B87 %5D=i–87–36655 (last visited Feb. 15, 2005). Excerpts from the Report of the Palestine Royal Commission, 22 June 1937, in 3 The Arab–Israeli Conflict 150 (J.N. Moore ed., 1974) [hereinafter Peel Commission]; Future government of Palestine, G.A. Res. 181 (II), U.N. Doc. A/RES/181(II)(A+B), at 1 (1947) [hereinafter Partition Resolution].

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aid to Israel and Egypt as an element of the peace plan between those two countries.52 More specifically, the global community, through the auspices of the United Nations, has committed itself to help support and maintain World Heritage Sites under the Convention Concerning the Protection of the World Cultural and Natural Heritage.53 planning and development. Decisions regarding proposed development can profoundly impact the holy sites. The location of new roads, urban redevelopment, environmental regulations, and efforts in historic preservation can all interfere with access to the holy sites or with their use. Moreover, the holy sites offer opportunities for economic development within the city as a whole. This potential appears to be inadequately addressed insofar as development efforts for the city of Jerusalem have focused upon the Jewish areas of the city at the expense of the Palestinian.54 interface between the general and the specific. In rendering these services, the municipal government will have to balance the service needs of the holy sites against the needs of the rest of the city. That is the challenge faced by any government. Where that government is democratic, it responds not just to abstract needs or principles, but also to constituencies. Thus, the municipal government must find ways to incorporate the interests of the holy sites and their constituencies within the recognized constituencies represented by that government. Ultimately, the most likely way to accomplish this is through some type of collaborative mechanism including the interests of Palestinians (whether represented by the future Palestinian state or simply through some level of autonomy within the municipal government) and the Israelis. Given the interest of the international community in this issue, some type of international participation also appears to offer promise. The International Interest In developing a legal regime for the holy sites, the Israelis and Palestinians are necessary parties to any negotiation. The holy sites rest in terri52 53 54

See William b. Quandt, Camp David: Peacemaking and Politics 313–314 (1986). UNESCO Doc. 17/C/106 (1972), 1037 U.N.T.S. 151. See Cheshin et al., note 40 supra.

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tories claimed by each. Not only is their cooperation and agreement necessary to achieve a successful regime, insofar as the goal of the legal regime is to facilitate the peace process, meeting their perceived needs may facilitate that larger process. Engaging the two parties in a limited negotiation with reasonable prospects for success may advance their mutual reconciliation through what is, in part, a collaborative structure with confidence-building features.55 While not required, it may be appropriate to engage local religious organizations with well established claims under the current status quo system (such as the Roman Catholic Church, the Greek Orthodox Church, the Armenian Orthodox Church, etc.) as part of the negotiations. They possess a clear interest in the subject. As residents within the region, they will be compelled to live with the consequences of any holy sites legal regime. Moreover, not only do they have legal claims to the holy sites that need to be recognized and that a proposed regime may alter, they are strong political actors in the region. Their local communities can serve as either political advocates or opponents of the proposed regime when that regime is submitted to the two governmental entities for approval. Their connections with the larger international community may also prove influential insofar as the international community becomes involved. When one moves from the local community to the international, the question arises: who needs to be included? It is almost axiomatic in the peace negotiations to date that the parties require the intervention of the international community – most commonly, the engagement of the United States.56 The Holy Sites Project has adopted this position as well. Nonetheless, it is important to evaluate which international parties should be invited to participate. In determining possible nonlocal, international participants to the negotiation for the creation of the holy sites or which should have a role in the implementation of the regime, the negotiators must consid55 56

See discussion of confidence-building measures infra Ch. 7. See, e.g., Itmar Rabinovich, Waging Peace: Israel and the Arabs 1948–2003 (2004); William B. Quandt, Peace Process: American Diplomacy and the Arab–Israeli Conflict Since 1967 (2001); Dennis Ross, The Missing Peace: The Inside Story of the Fight For Middle East Peace (2004).

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er which states have an interest, the nature of that interest, and what role they should play. The former should determine the latter. As anyone who has organized a negotiation knows, the more participants that are involved, the greater the difficulty in obtaining agreement. Yet failing to include parties with a significant interest in the holy sites invites resistance to any proposed regime. One can know neither their specific interests, nor the limits to their willingness to compromise, without their presence. Including all of the parties with a significant interest opens the possibility of developing a regime with a broader basis of cooperation and agreement. Moreover, inviting participation by parties whose interests are not tightly linked with either of the political parties on the ground, Israeli or Palestinian, may provide certain assurances to the two political parties. The international participants may serve as honest brokers57 providing an unbiased perspective on the proposals included in the negotiations or as guarantors that the larger international community will support the implementation of the legal regime through such mechanisms as financial support or international pressure on a noncompliant party. In general terms, the international participants are well known. They have often played a role in negotiations over the holy sites and in the peace process in the past. That does not mean that they are necessary parties to the holy sites negotiation process. That will depend upon the nature of the negotiation and what the negotiators believe will provide the best prospects for achieving the object of the negotiations. Nonetheless, the negotiators need to consider possible international partners. They include state or interstate actors and nonstate actors. State Actors State actors (whether individual states or international organizations, like the United Nations) have been the traditional partners in Middle East peace negotiations. Clearly, they have the legal standing and the resources necessary to contribute to the process. Moreover, since the 57

A term that had been applied to the role of the United States in its efforts to support the peace process. See, e.g., Philip H. Gordon, No Way Out: The Essential U.S. Role in the Middle East, The Brookings Review, Fall 2000, at 26, http://www.brook.edu/press/review/fall2000/ gordon.htm (last visited June 26, 2004).

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goal of the negotiation is to create a legal regime recognizable by the international community, participation by representatives of the international community (either individual states or collective organizations) makes sense. Nonetheless, because the regime is not a comprehensive treaty, international state actors are not a necessary part of the negotiation – merely recommended. State actors can be identified and their interests described as follows: the international community. Acting through the United Nations, the international community has a long-standing interest in the Middle East. The focus of its attention has, for the most part, been guided by the interests of peace. Indeed, peace and security provides it with the legal justification for its actions.58 It has repeatedly addressed the issue of Jerusalem and the holy sites in the numerous resolutions of the General Assembly59 and the Security Counsel.60 Nonetheless, it has separately recognized the Old City as a Cultural Heritage Site under the Convention Concerning the Protection of the World Cultural and Natural Heritage administered by UNESCO.61 Regional groupings within the Middle East, such as the Council of Islamic States, have also expressed interest both out of concern for regional security and religious appreciation. individual states. A number of individual countries have long standing ties in the Middle East that would interest them in the legal regime. Chief among them are: the United States, with its long association with Israel; the European Union, commonly linked with the Palestinians; and Jordan, with a history of involvement with and administration of many of the holy sites. Given its heavy involvement in the peace process, Egypt is also a likely partner. Finally, to involve the group of four, Russia may also be an appropriate party.

58 59 60

61

U.N. Charter art. 1, para. 1; U.N. Charter art. 39, para. 1. See, e.g., Partition Resolution, supra note 4; G.A. Res. 194 (III), U.N. Doc. A/810, at 21 (1948); G.A. Res. 303 (IV), U.N. Doc. A/1251, at 25 (1949). See, e.g., S.C. Res. 50, U.N. Doc. S/801, at 20 (1948); S.C. Res. 54, U.N. Doc. S/902, at 76–77 (1948); S.C. Res. 271, U.N. SCOR, 24th Sess., 1512th mtg. at 5, U.N. Doc. S/RES/271 (1969). See Convention Concerning the Protection of the World Cultural and Natural Heritage, World Heritage Committee, 6th Sess, note 33 supra.

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Non-state Actors Non-state actors (commonly known as non-governmental organizations or NGOs62) are increasingly playing an important role in politics and governance, both nationally and internationally.63 They are able to marshal political power within individual governments or in international organizations and often control the dispersal of significant amounts of material resources. As such, these non-state actors might be involved in the negotiations either as stand-ins for international state actors or as adjuncts. These non-state actors include the following: religions. Each of the three religions of the Book (Judaism, Christianity, and Islam) is present and represented within the holy land. However, they also exist as worldwide phenomena with greater or lesser affinity with those religious groups actually in possession of the holy sites. Moreover, some of these nonaffiliated religious groups have proven themselves to be activists in advancing their interests in the holy sites in ways that may at times prove controversial or antagonistic to efforts toward peace and reconciliation.64 Failing to include them in some way risks allowing them to continue as outside agitators subversive to the regime. secular interests. There are a number of secular non-state actors that might be interested in participating in the holy sites regime. These would include organizations generally interested in peace (e.g., United States Institute for Peace, the Carnegie Foundation) or in culture and cultural heritage (e.g., Ford Foundation). The difficulty with these types of organizations is that they may not be interested in making a long-term commitment to the regime after its negotiation and implementation. Nonetheless, they might help facilitate the negotiations and help identify long-term sources of support. In summary, the international participants, whether state or non62

63

64

While NGOs are increasingly being defined by legal statutes, the use of the term here follows the more informal approach of defining an NGO simply as an organization operating in the area of civil society. See, e.g., Strengthening of the United Nations: an agenda for further change: Report of the Secretary-General, U.N. GAOR, 57th Sess., Agenda Item 53 ¶ 134, U.N. Doc. A/57/387 (2002), revised by U.N. Doc. A/57/387 Corr. 1 (2002). See, e.g., Gorenberg, note 1 supra, at 16.

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state actors, should be chosen according to their interests in relation to the role they would play. Balancing on the Tightrope The political and administrative issues to be addressed under the proposed holy sites regime are complex and rife with emotional and ideological land mines. Issues of sovereignty and ownership and control of the holy sites touch nerves at the heart of the dispute. They challenge the very identity of the parties involved. Nonetheless, these land mines can be mapped and avoided. Focused attention to the holy sites motivated by religious belief offers hope. Issues of municipal administration and international participation can then be used as tools to address the needs of the holy sites, rather than being misused as weapons of control.

part three

Addressing Change – Negotiating Peace

10 Structuring the Negotiation: A Plan of Action

Developing an effective legal regime for the holy sites presents many serious challenges. As history amply demonstrates, it cannot be dictated from outside by the United Nations or by other international actors or forums. Nor is it likely to arise spontaneously from within. Too many interest groups benefit from maintaining the status quo. Change must come from a merger of religious, cultural, nationalist, and international interests. The negotiations over the creation of the regime will be challenging. The following reflects a suggestion on how to organize or structure the negotiations to create the regime, based upon the foregoing discussion of issues and the principles for civil discourse identified previously. We will begin by discussing the general issues of concern that must be addressed in designing the negotiations for the holy sites regime. We will then consider one possible scenario for such a negotiation, offering suggestions for the optimum design. General Issues for Designing the Negotiation The following represent issues that must be addressed in developing a plan for the negotiations. In many cases, they are interactive and interconnected such that the answers to questions raised in one area will impact the design for another. Identify the Necessary Parties The first task is to identify all the parties necessary to the negotiations and to the implementation of the regime. While it may not be neces173

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sary for all parties to participate in every meeting, all must feel included in the process. As previously noted, some parties are necessary. Others are desirable depending upon the overall design and structure of the negotiation. They include the following: national parties. The Israeli government and the Palestinian Authority must agree to any regime as it is likely that the regime will need to be incorporated in the final peace agreement. That doesn’t necessarily mean that government officials must be involved at the outset. Instead, it might be worthwhile pursuing a track-two negotiation: a negotiation using stand-ins for the government, either former governmental officials or individuals with unofficial standing in government circles. (This will be discussed in detail below.) municipal government. Because the holy sites are located within Jerusalem and other local municipalities, representatives of these authorities must be included to address specific municipal issues. These can be drawn from the existing municipal government or may be national party representatives with municipal administration experience. mediators. As evident from past peace negotiations, the national parties are unlikely to achieve a successful negotiation without the assistance of one or more mediators. In the past, these mediators have been governmental representatives – with President Carter serving as mediator during the first Camp David negotiations leading to peace between Israel and Egypt and the prime minister of Norway assisting in the negotiation of the Oslo Peace Accords. Nonetheless, in theory, it might also be possible to engage religious or non-governmental leaders as mediators. In any event, it is recommended that the mediators be drawn from the category of additional interested parties described as follows. These additional interested parties include: holy sites representatives. The religious organizations that hold custody of the holy sites need to participate. Religious representatives from faiths not in custody may also be included – particularly where it may be possible that the world religious community may be called upon to support or help administer “new” holy sites. international representatives. Given the emphasis upon the international community’s interest in the sites, under the concept of

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heritage of humankind and its (their) possible role as mediator(s) and guarantor(s), representatives from the international community need to be included. The most likely representatives for these interests would come from the United Nations, either the General Secretariat or UNESCO, though it could also be drawn from regional powers such as the Arab League, NATO, or others. interested states. In most discussions of the Israeli–Palestinian conflict, commentators (both governmental and non-governmental) identify the United States as a critical player. Others would add Egypt, Jordan, the European Union, and perhaps Russia. Identify Incentives In order to advance the discussion beyond maintenance of the status quo, each of the interested parties must perceive some benefit for themselves. Offering the appropriate incentive to each party is a necessary element of negotiations. Offering the wrong incentive or failing to identify an appropriate incentive may prove misleading to the focus of the negotiation. Moreover, failure to identify the incentives of the participating parties may lead to a harmful misinterpretation of motives. Among those incentives may be the following: peace. The most obvious incentive for the national and international parties is that the development of a successful legal regime for the holy sites would promote peace in the Middle East by removing a particularly contentious issue from the peace process. security for the holy sites. Developing a legal regime acceptable to both sides will both enhance basic every day security (i.e., protection from common theft, disruptive behavior, etc.) and also from politically motivated violence. administrative benefits. A legal regime would assure that each of the holy sites receives basic services (waste disposal, electricity, etc.) and that the surrounding environment supports free access (e.g., providing street lights, removing barriers, etc.). financial support. One of the inducements offered by the United Nations for participation in its program to protect cultural and historical sites is the offer of financial support for necessary repairs and maintenance. Financial incentives could similarly be offered either

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from U.N. coffers or from world religious bodies seeking to support and protect the holy sites. Tracking Negotiations: The Non-Governmental Option In order for the legal regime to succeed, the regime must ultimately be accepted by the concerned parties, the Israeli and Palestinian governments, along with the other governments that may play a role in its implementation. That does not mean, however, that the governments must participate (or participate directly) in the initial negotiations toward the creation of the regime. Indeed, it may be advantageous for them not to. Thus, the negotiations can be structured in a number of ways. The first decision is, of course, whether it should be a governmental negotiation, a track-two negotiation, a non-governmental negotiation, or some combination of the above. A governmental negotiation, involving the concerned parties and other interested states (including the United Nations) has the advantage that the decisions taken in such a negotiation can be implemented by the states involved. The difficulty is that states sometimes feel constrained in their negotiations by their prior commitments and policies. To even discuss certain proposals regarding a particular problem may be politically unpalatable – though the same proposal might be acceptable if presented in a comprehensive agreement involving multiple trade-offs of interests. A track-two negotiation addresses this difficulty by providing the state with the shield of deniability. In a track-two negotiation, the concerned states parties are represented by participants drawn from the private sector who, nonetheless, have strong connections and standing with the government.1 For example, a track two negotiation over security issues might involve retired military or security officers who maintain strong contacts with their former colleagues. This work history along with their current contacts will assure that these representatives are familiar with the concerns of the current administration without in any way binding the administration to any of the discussions of the representa1

See generally supra Ch. 7.

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tives or prospective agreements made by them. Nonetheless, this familiarity with governmental concerns and the respect by which they are held by members of the administration assures that the results of the negotiation will receive a positive hearing by the government. Ultimately, a track-two negotiation serves as a precursor for a governmental negotiation that must be held to confirm and finalize the results of the track-two negotiation. A non-governmental negotiation, as used in this context, is a slightly more removed form of a track-two negotiation. However, instead of focusing upon engaging governmental stand-ins with strong relationships to the current administration or their government, a non-governmental negotiation would identify key actors within civil society with interests in the issues concerned. For example, a non-governmental negotiation on the holy sites regime could involve the participation of religious leaders, academics interested in governance issues, and tourism interest-group representatives among others. Insofar as governments are concerned with satisfying the needs of their constituents, these civil society representatives will wield significant influence over the actions of their governmental officials. Finally, it is probably desirable to combine these various forms of negotiations into the overall negotiation. They can proceed in combination, in parallel, or sequentially. However the negotiations are to be structured, the one essential feature is that the negotiations must be coordinated by a single planning authority (either governmental or non-governmental). This central planning authority can divide the negotiation into discrete specialized issues and tasks, identify the appropriate participants for that negotiation, and organize the appropriate forum for that part of the negotiation. Indeed, given the magnitude of the task and the large number of desirable participants, it will be necessary to divide the project up into smaller working groups. Confidence-Building Measures As previously noted, the first task of the negotiation is to establish a level of trust among the parties. A system of confidence-building measures represents one of the best ways to accomplish this, engaging both

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the participants and the broader community necessary to support a legal regime. Building on existing efforts that have promoted reconciliation offers an opportunity to rapidly advance the negotiating process. Negotiators will need to identify those existing programs that are suitable to supporting the project, enlist their participation, and adapt them to advance the project goals. Additional CBMs may also be required for more specialized tasks, although it is likely that these specialized CBMs will be linked to specific collaborative structures rather than the more general CBMs that are simply intended to build understanding and trust. Collaborative Structures The negotiation will have to design and develop all of the necessary collaborative structures necessary to facilitate the creation of the regime and to administer it upon completion. This will likely involve creating confidence-building measures at the start of the regime process, interim structures to supervise the development of the regime, and the final structures necessary for its operation. Transition from one type to another may take time and the final form of the collaborative structure may emerge from the experience of the confidence-building measures and/or interim structures that may be implemented first. As previously discussed, the final collaborative structures will need to be designed to address the following issues (whether as a part of a larger structure or as a specialized structure): municipal/administrative issues, historic/architectural, economic, (external) dispute resolution, and (internal) dispute resolution. Time Line A time line for the development of the regime and its implementation will need to be developed. Time is a critical factor. Opportunities may be lost by delay. While the negotiations to create the regime may take a significant amount of time, one of the reasons that the Oslo process ultimately failed was that the delays in its reaching the initiation and completion of the final status agreement depleted the process of the

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enthusiasm present at its outset.2 The process began to feel endless and the Palestinians in particular, lost hope that the end would ever come. Thus, the holy sites negotiations must promise a reasonably expeditious time frame within which to accomplish its objectives. Moreover, in order to manage the perception of time, it is important to identify interim milestones along the course of development. They then serve as markers by which to measure the progress made, while, at the same time, they alleviate the common perception in extensive negotiations that no progress is being made. For example, the initial stages of the regime will include the development and implementation of confidence-building measures. These should be initiated at an early stage of negotiations to help build support for the regime and to demonstrate the capacity of the parties to advance the process. They serve both as markers of progress and evidence of accomplishment. Developing the Regime: The Organizing Commission Within the Holy Sites Project, we have avoided the attempt to develop a comprehensive regime that could then simply be implemented by the parties concerned. Such an approach is both presumptuous in conception and risks the possibility that others will seek to use the proposed plan as a basis for coercion or as a club against one side or the other. Far too often in the past, people of undoubted goodwill have offered their ideas only to see them immediately cast aside by the parties involved who had no part in their development. In this section, we violate that effort slightly in offering one design for a plan of action that reflects our understanding of a preferred method of organization. However, while it appears to us to offer the best route for implementation, more importantly, it illustrates the method that can be used to develop other designs according to the interests of the parties involved. This approach starts through the creation of an organizing commission. Designing the overall negotiations for the development of the holy sites regime will require significant organization and coordination, 2

Tanya Reinhart, Israel/Palestine: How to End the War of 1948 13–20 2002.

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regardless of the ultimate structure adopted. For example, even if one attempted to negotiate the regime using a single negotiating group, that group would require significant logistical support to organize meetings and to assemble technical and informational support to supplement the knowledge of those involved. Alternately, efforts to multitrack the negotiation among a number of groups requires that someone decide how to divide the work and coordinate the outputs. In turn, the composition and design of the organizing commission will be heavily influenced by the negotiating structure to be adopted. A design structure composed solely of governmental negotiators will require an organizing commission composed of governmental representatives, while an exclusively non-governmental negotiation will demand a non-governmental organizing commission. Based upon the general negotiating structure that will be proposed below, we recommend the creation of a track-two type of organizing commission. Involving the governments immediately at the outset of the project would be difficult. They are heavily engaged in a variety of initiatives and in the absence of evidence of the potential of this approach to advancing the peace strategy, the project risks being lost or ignored. Moreover, making it a governmental negotiation would restrict the scope of conversation. At the outset, the negotiation efforts should be made to be as open as possible to a wide variety of ideas. Nonetheless, given the importance of cultivating governmental interest and making sure that the project would be acceptable to the governments involved on completion, it is important to involve non-governmental representatives with significant contacts and understanding of government positions and values. Moreover, because parts of the negotiating structure will ultimately be governmental negotiating work groups, a track-two type organizing commission is more likely to be acceptable to the governments involved. The actual organizing commission should be reasonably small. As discussed in Chapter 6, a crucial feature in promoting civil discourse involves the cultivation of personal trust and respect among the negotiators. This can only be accomplished within the confines of a group small enough to support intense personal interaction. It should involve representatives of the major interest groups, both the states concerned

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and the international community. This would include representatives of the Palestinian Authority, Israel, the United Nations, the United States, and Egypt and/or Jordan on the governmental side. It would also be useful to include religious representatives and legal experts familiar with international negotiations and specialized legal regimes. The participants should be selected based upon their general expertise in this area and, ideally, may be selected to represent multiple constituencies (i.e., combining special expertise in religion or law and governmental connections with one of the states concerned or the international community). Designing the Negotiating Strategy and Structure The first task for the organizing commission is to develop the overall negotiation strategy and structure. This involves three interrelated features: issue identification, structuring the negotiation of the issue, and developing the coordinated timeline. Issue Identification Issue identification and structuring the negotiation are intimately interconnected. Specifically, the issues identified by the organizing commission will largely define the nature of the negotiating structure employed to address it. For example, the closer the relationship between the issue identified and specific governmental functions, the more likely the negotiating structure will need to engage actual governmental representatives or track-two governmental representatives. Nonetheless, as a general standard, regardless of the issue and based upon the need to establish personal relationships of trust among the negotiators as discussed previously, the general structure recommended by the Holy Sites Project would be a small, topic-specific working group for almost all issues. Within this report, we have identified many of the key issues related to the holy sites as they have arose in the context of prior peace negotiations. While that listing of issues is useful as a starting point for the organizing commission, the task here is slightly different. In this instance, the object is to identify those issues that must be addressed

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and that will advance the negotiations. For example, while the issue of sovereignty will be an ever-present concern and a subtext for negotiations, it is unlikely that the negotiations over the holy site legal regime could address or resolve the sovereignty question. Instead, the negotiators must focus upon those issues of practical concern that surround sovereignty (such as municipal administration) without necessarily resolving sovereignty. Similarly, the issue of trust between the Palestinians and Israelis will be an issue of concern – but not necessarily of explicit negotiation. Some of the key issues are as follows: defining the holy sites. Defining the holy sites is a central concern of the Holy Sites Project. We have presented one comprehensive approach that may serve as the basis for negotiations on this issue, though it may be subject to modification. Given the topic, the working group should be composed of religious leaders and legal scholars of religion. While this topic could be extremely controversial in application (where it denies benefits to particular sites), it is likely that the general parameters of the definition will be adopted reasonably efficiently. Thus, it may be desirable to structure this work group not only to work on the definition but also to promote public education about the holy sites, thereby acting as a confidence-building measure at the same time. interfaith cooperation. Any proposed legal regime will require the cooperation of all of the religions of the Book. At the outset of the project, this may require little more than a discussion of possibilities and the establishment among the working group of a degree of trust suitable to facilitate addressing the needs of the proposals for the regime as they emerge from other working groups. Here again, at this initial stage, the working group may serve a dual purpose of helping to build trust as a religious CBM. Clearly, this working group should be composed of religious leaders from the region. It may be supplemented by international religious leaders who may serve as mediators among the group. Alternately, this may be a group that could be drawn from existing interfaith groups as a way of building upon their experience and reputations.3 3

See supra text accompanying notes 11–15, Ch. 7.

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archeological/historical. The vast majority of the holy sites are of historical, cultural, and archeological interest. They are also often located in areas of archeological interest and may be built on top of the ruins of even older centers of historical and/or religious interest. A prime example of this is ongoing archeological controversies over the Temple Mount/Haram al-Sharif.4 The task for this working group would be to help develop a comprehensive set of standards regarding archeological excavations and preservation specifically linked to the holy sites. It would also explore the possible relationship between the proposed holy sites regime and international organizations, such as UNESCO, which could be enlisted as sponsors and/or supporters of the regime (financially and morally). The working group would need to be composed of archeologists (academics and administrators), representatives of the governmental administration (either current or former administrators), and international representatives. legal ownership/public access. As noted above, the legal title and ownership of individual holy sites is unclear and often tangled amid competing claims. Ownership also implies control over access, where the Holy Sites Project assumes that one of the major motivations for international involvement is to assure free access to the sites for all people of faith and cultural interest. In some ways, this is one of the more difficult subjects to break out into a working group insofar as obtaining the consent of the religious groups currently controlling the holy sites to agree to a lesser standard of control may only be accomplished through trade-offs, such as providing financial support for maintenance, assuring better municipal services, and other benefits. Nonetheless, this topic deserves the attention of a working group to tackle the basic issues surrounding legal title, ownership, and access. It will naturally involve the leaders of the religious groups currently controlling the major sites. It should also include international religious leaders and possibly international representatives of organizations that might provide technical and financial support for the sites as sites of cultural import (e.g., UNESCO.) economic issues. Establishing a special legal regime for the holy 4

See, e.g., Uzi Benziman, Jerusalem: A City without a Wall 158 (1973).

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sites will entail significant economic costs. However, it is widely acknowledged that the holy sites represent extraordinarily valuable assets for the region in terms of tourism. Thus, a working group should be established to examine the economic issues of concern, particularly how the contributions made by the holy sites in terms of tourism (both in attracting tourists and the services provided by the sites themselves) can be measured and promoted. This information will be important for the governmental negotiators who will have to make budgetary decisions regarding the creation and support of the regime. The group should be composed of professionals in tourism, economics, marketing, and their governmental counterparts (either current or past administrators). municipal administration. The issues relating to municipal administration and regulation are among the most complex. They are so interrelated that one cannot easily tease out specific areas that can operate independent of the general administrative work group. At the same time, they will require so many different and diverse experts that to administer the group as a single work group would violate the general principle of the project to keep the groups small and personal. In this regard, it is perhaps best to design the Municipal Administration working group as an umbrella group for a number of smaller working groups for which it will be responsible for coordinating and overseeing. These smaller working groups would look at issues such as security/policing, city services (garbage, utilities, streets and sidewalk maintenance, etc.), and judicial services. Treating this working group differently may also be justified because it will be the most closely related to the government – either as a specific governmental negotiation or as a special track-two negotiation. international interests. Finally, it will be necessary to form an international-interests working group to explore the role that the international community can and should play in the negotiation. Specifically, it will need to identify international resources to help support the regime, political resources to promote its acceptance in the international community, legal supports for the creation of the regime, and the outlines of a system in which the international community can and should participate in the actual operations of the holy sites regime. It

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should be composed of international religious leaders, governmental officials, and legal scholars. Developing a Plan of Action The foregoing represents a description of the issues that need to be addressed and the types of working-group participants necessary to address those issues. The next task of the organizing commission is to create a timeline for that work. The timeline should target specific goals for the committees, identify which are to be working, and suggest the general direction of the work. The working groups may be active at any one time and may undertake differing tasks as time evolves under the plan. An optimal timeline would entail at least three stages. They are the stages of groundwork, technical development, and political engagement. Groundwork Stage The goal of the groundwork stage is, as the name suggests, to undertake all of the initial start of tasks of the negotiation. These tasks include: organize organizing commission and work groups. The organizing committee must be established and, after adopting an appropriate work plan, help organize the various working groups. confidence-building measures. The role of the confidencebuilding measures is to build support for the holy sites regime. Therefore, those working groups with a CBM role should be organized first. This would include, for example, the interfaith cooperation work group. assemble existing information. There have been a large number of efforts and initiatives in and around Jerusalem that have sought to promote the peace process and or protect the holy sites. For example, as a part of the Oslo process, there were initiatives to promote tourism and economic development.5 5

See Justus R. Weiner, Co-Existence Without Conflict: The Implementation of Legal Structures for Israeli–Palestinian Cooperation Pursuant to the Interim Peace Agreements 26 Brooklyn J. Int’l L. 591 (2000).

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Technical Stage The technical stage refers to the stage of negotiations in which the working groups address the specific technical requirements necessary to meet the problems raised by their work issue. For example, the ownership/access working group will need to develop a number of legal models for resolving the ownership issue while protecting access. The goal for all of the technical working groups will be to identify and develop options that may be considered during the final stages of negotiation. Political Stage The political stage of the negotiation will focus upon the political negotiation and adoption of the holy sites legal regime. While this stage could start as a track-two negotiation, it will quickly need to transition itself into an inter-governmental negotiation. While the foregoing stages of the negotiation work plan are distinguishable and must be managed as such, the actual work of the working groups within the stages may occur either sequentially or concurrently. For example, the technical working groups may start their work during the groundwork stage, working together to assemble the existing information that will support them in the technical stage. Moreover, such collaboration during the groundwork stage will likely build the trust that will help them when they begin the more difficult task of negotiating over the technical options that they are assigned. It is, however, unlikely that the political negotiation can be organized as an intergovernmental group until the work of the project is well advanced and can be presented to the governments involved with some hope for success. The Negotiations The foregoing represents an outline for one possible negotiation strategy/structure to develop a new holy sites legal regime. The specifics are subject to change based upon the opportunities presented at the time the negotiations commence. Therefore, what is important in the foregoing are the principles and concepts supporting the negotiations,

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rather than the specifics of how they are used in this outline. The project will ultimately succeed or fail based upon the success or failure of the effort to engage religion, law, and domestic and international politics as resources for the development of the legal regime.

11 Conclusion

“Jerusalem [lies] literally and figuratively at the center of the IsraeliPalestinian dispute.”1 It rests at the heart and soul of two peoples, embodying their national and religious self-identity. Central to it are the iconic holy sites of their respective faiths. Over time, those sites have become the focal points of attention and the emotional flash points for their conflict. Developing a legal regime to protect the holy sites is not a panacea for all of the ills in this tragedy. The killings and destruction on both sides have undoubtedly taken their toll, creating wounds, open and scarred, that will take a long time to heal. Nonetheless, the process of reconciliation must begin somewhere. They are each realities on the ground. They are two peoples condemned – or blessed – to share a common homeland. A path to peace must be found. The holy sites, because they have become the emotional and religious icons of the conflict, represent a daunting challenge. Some might claim they are insuperable. They also represent a profound opportunity. While overall conflict reaches all aspects of life for each side, ranging from the economic to the social and political – and life itself – the central concern for the holy sites is that they be protected and honored. Moreover, the religions of the Book to which they are central are not only potential sources of provocation in support of the conflict, they offer insights and values that urge peace and can motivate 1

Nicholas Giuyatt, The Absence of Peace: Understanding the Israeli–Palestinian Conflict 121 (1998).

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people of the faith to take the painful steps necessary to achieve that goal. The goal of the Holy Sites Project is to build upon that impetus by explicitly incorporating religious ideas and actors in the process. The failure to include religion helped doom the Oslo process. However, religion and whatever goodwill may be found within it are not enough. People of faith have been working for peace throughout the conflict. That impulse must be channeled and focused through legal and political mechanisms that will give it life and meaning. In this regard, the project has identified the central legal and political issues that must be confronted and for which solutions must be found. The laws that protect the sites, that regulate their ownership and their use, must be reformed. The political systems that legislate, implement, and adjudicate those laws must be adapted to assure each side that their interests are protected and respected. In advancing this process, the project has identified the types of interim steps that need to be taken: developing confidence building measures and collaborative structures. It has also identified the key players to be involved in the process. Moreover, it has attempted to define the role of the international community in the process. International actors have been involved throughout the history of the conflict, though their efforts have had limited effect and their motives have been questioned. In this last regard, the project has sought to identify not the role they should play in the process, but rather the interests that they have that would justify their involvement. Finally, the project has attempted to provide a rough outline for the approach to be taken within the negotiation process. Drawing upon religious, legal, and political examples, the project has advanced a program for the negotiation. Nonetheless, the process ultimately depends upon the individuals, organizations (religious and secular), and the governments involved to accept and undertake the task of seeking peace. It hardly needs saying: failure cannot be an option.

appendix one

International Human Rights Law Institute

Principles Respecting the Holy Sites

A. Mission Statement 1. The purpose of the Holy Sites1 Project is to make a positive contribution toward the establishment of a lasting peace between Palestinians and Israelis and to promote a better understanding and spirit of cooperation between Jews, Christians, and Muslims throughout the region and the world. 2. Developing a special regime for the holy sites in Jerusalem and its environs2 would remove a contentious issue, with both religious and nationalistic connotations, from the political final status negotiations between Palestinians and Israelis and facilitate peace. 3. The holy sites are sacred to one or more of the three monotheistic religions, Judaism, Christianity, and Islam, and are part of the “common heritage of humankind.” Their actual and symbolic significance transcends the Israeli–Palestinian conflict and reverberates throughout the world. Whatever the political future of the city of Jerusalem, these holy sites and their living communities must be protected, and the sites maintained and made accessible to all in a manner acceptable to the local and international communities. The need to accomplish the protection and continued preservation of the holy sites and to ensure their accessibility to 1

2

The term “holy site” is defined as a location within Jerusalem that one of the three monotheistic faiths believes to be of enduring religious significance and which the living communities of faith continue to celebrate through worship, pilgrimage, and reverence. The principles and modalities contained herein, which are applicable to the Jerusalem “Holy Sites,” are also applicable to holy sites located outside of Jerusalem. While the project is focused upon Jerusalem, it may be necessary and appropriate to assure that holy sites outside Jerusalem are similarly protected under a comprehensive plan.

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all cannot be at issue. The future of the holy sites is of concern not only to specific faith communities; it is of universal and timeless interest. 4. The project will lay the foundation for a solution of the issue of the holy sites sensitive to the needs of people of faith and the broader culture of humankind, while respecting the sovereign rights and interests of the parties concerned.3 Moreover, it is recognized that these sites do not reside in isolation. They have their being amidst and as a part of a “living city” that sustains them and must be sustained. 5. Ultimately, it is hoped that developing a special regime for the holy sites will foster unity rather than division between the Palestinians and Israelis by creating a safe environment where Jews, Christians, and Muslims can come together to express their separate religious values and practices with tolerance for their differences and with shared appreciation and mutual respect for the inestimable treasures the holy sites represent. B. Basic Principles Preamble The holy sites are a vital component of the identities and worldviews of the three monotheistic faiths – Judaism, Christianity, Islam – whose faithful comprise nearly one half of the world’s population. Consequently, these sites are of inherent interest and concern to the living communities in and around these holy sites and to such future communities. Given their historic cultural importance in the West and the influence these religions have wielded, they are equally important to all of humankind, irrespective of religious or philosophical persuasion. As such, the holy sites constitute part of the “common heritage of humankind.” The concept of the “common heritage of humankind” is recognized in international law and has, by international consensus, been deemed applicable to the Old City of Jerusalem and should be extended to the holy sites. While the members of the Holy Sites Project recognize the importance of issues of sovereignty and national identity in relation to the governance of the holy sites and their surroundings, we reject a narrow, archaic understanding of that term. Contemporary understandings of sovereignty recognize that every state exists in symbiotic relation to other states and human3

The term “parties concerned” refers to the State of Israel and the Palestine National Authority, and eventually to the state of Palestine.

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ity as a whole. Certain values transcend the state and sovereignty must necessarily accommodate these values, such as those that are generally recognized through such mechanisms as international treaty and customary law. With this understanding, a legal regime founded upon the fundamental human right of religious freedom and the cultural heritage of humankind, implemented through a legal regime to regulate, administer, and finance the obligations imposed by the regime, need not conflict with sovereignty and sovereign interests such as security and social and economic administration. The universal importance of the holy sites imposes solemn responsibilities on the parties concerned, as well as on the world community, to ensure their continued protection and preservation, as well as to assure freedom of access and the exercise of religious freedom for all religious communities. These responsibilities entail, without prejudice to the particular claims of any party to sovereignty over any part of Jerusalem including these holy sites, inter alia, the following: Obligations of the Parties Concerned 1. The holy sites shall continue forever to be the object of respect by the parties concerned and shall be used exclusively for religious and peaceful purposes. 2. No state or legal entity shall exercise exclusive power of control over the holy sites. 3. Access to the holy sites shall be open to worshippers and believers, as well as those seeking enlightenment, learning, and culture in accordance with internationally recognized principles of freedom of religion and also in accordance with the religious norms governing the customary usage of these holy sites by the custodial faith community. 4. The holy sites shall not be seized, appropriated, or forfeited by any state, legal entity, or group without the authorization or agreement of the custodial faith community. Obligations of the Custodial Faith Community(ies) 1. The holy sites shall be administered by their traditional respective custodial faith communities (where applicable) or other custodial faith community (when necessary) in accordance with their own religious beliefs and practices.

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2. The custodial faith communities, in addition to serving the needs of their community, shall take all necessary and reasonable steps to protect and preserve the physical and living spiritual integrity of the holy sites in the interests of humankind, and for the benefit of future generations. 3. The custodial faith communities shall provide and grant access to “public” spaces4 within the holy sites not only to believers within their own traditions, but to all people of faith and others seeking enlightenment. Joint Obligations of the Parties Concerned and the Custodial Faith Community(ies) 1. The religious faith communities and the parties concerned shall discharge the duties arising out of these principles in a responsible and effective way, with a view to achieving the purposes of these principles. 2. The parties concerned, the religious faith communities and the custodial faith community, shall do everything possible to protect and secure the holy sites. C. Implementation5 1. The parties concerned will, to the extent possible, immediately implement the Common Heritage of Mankind legal regime. 2. The parties concerned will immediately initiate the development of the necessary administrative bodies to coordinate obligations between the concerned parties, religious communities, and appropriate international bodies and/or non-governmental organizations. These organizations will both handle administrative tasks and, following the European model of [confidence-building organizations], help build relationships of cooperation and confidence among the concerned parties. Among these will be an organization to evaluate and negotiate the designation of the sites to be recognized as holy sites, both at the initiation of the regime and as an ongoing process. While adopting a liberal definition of what is a holy site, as we have done in this project, and by leaving this as an “open” category subject 4 5

“Public spaces” refers to areas in which visitors may appreciate the Holy Site without intruding upon the cultic or sacred functions of the Holy Site. It is understood that the implementation measures mentioned above will be the subject of further development by subsequent consultative stages of the project and that the further development of these implementation measures may entail a more detailed enunciation of the basic principles.

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to further development invites the possibility of ongoing conflicts, taking the opposite approach, to recognize only a fixed number of sites, not only denies the reality that religion is a living and evolving phenomenon, it may provoke problems by either: (a) promoting the fear that a closed list will forever preclude protection of particular controversial sites or (b) failing to provide means to address emerging problems over holy sites administration. 3. Dispute settlement mechanisms shall also be developed to address issues that the religious faith communities and the parties concerned are unable to resolve by negotiations. Separate mechanisms will be established to address: (1) disputes regarding the duties of the parties concerned to comply with the principles set forth herein and (2) to revolve disputes over rights of administration or control over particular holy sites. 4. The parties concerned shall embody these principles in any peace agreement between themselves and between any one of them and any other party. 5. The parties concerned shall seek to obtain international recognition of these principles in order to guarantee their universal acknowledgment and support.

appendix two

List of Participants: Chicago Consultation of the Jerusalem Holy Sites Project All participants are acting in their individual capacity

Brother Fabian Adkins Commissar of Franciscan Monastery Commissariat of the Holy Land Washington, DC Dr. Javeed Akhter Executive Director The International Strategy Policy Institute Oak Brook, IL Professor Scott Alexander Associate Professor of Islam Director of Catholic–Muslim Studies Catholic Theological Union Chicago, IL Professor M. Cherif Bassiouni Professor of Law DePaul College of Law President International Human Rights Law Institute Chicago, IL Ambassador Salah Bassiouny Former Ambassador of Egypt to the USSR Member of the Board of the Egyptian Council on Foreign Relations Former Director, National Center for Middle East Studies (NCMES)

197

198

Appendix Two

Attorney at Law Advisor, NCMES Cairo, Egypt Mr. Thomas J. Boodell, Jr. Partner Boodell, LeBaron & Trinka Chicago, IL Father Nicholas Dahdal Archpriest St. George Antiochian Orthodox Church Cicero, IL Reverend Stanley L. Davis Executive Director, National Conference for Community and Justice Chicago, IL Professor Yoram Dinstein Visiting Professor of Law DePaul College of Law Chicago, IL Professor of International Law Former President The University of Tel Aviv Tel Aviv, Israel Rabbi Lawrence Edwards Associate Director Inter-Religious Affairs American Jewish Committee Chicago, IL Professor Patty Gerstenblith Professor of Law DePaul College of Law Chicago, IL

List of Participants Mr. Kareem Irfan Chairman Council of Islamic Organizations of Greater Chicago Assistant General Counsel Schneider Electric, Square D Chicago, IL Dr. Michael Kotzin Executive Vice President Jewish Federation of Metropolitan Chicago Chicago, IL Mr. Jonathan Kuttab Attorney at Law Board Member Sabeel Ecumenical Liberation Theology Center Jerusalem Mr. Del Leppke Convenor Chicago Area Churches for a Shared Jerusalem Chicago, IL Mr. Talat M. Othman Chairman Islamic Institute Chairman Grove Financial, Inc. Long Grove, IL Rabbi Yehiel E. Poupko Judaic Scholar at the Jewish United Fund Jewish Federation of Metropolitan Chicago Chicago, IL Professor Rosemary R. Ruether Georgia Harkness Professor of Applied Theology Garrett-Evangelical Theological Seminary Evanston, IL

199

200

Appendix Two

Dr. Ahmad Sbaiti Chairman American Arab Anti-Defamation Committee Washington, DC President and CEO Alshall Group Dallas, TX Reverend Donald Senior, C.P. President Catholic Theological Union Chicago, IL Ambassador Jerome Shestack Former President, American Bar Association Former Representative of the United States to the Commission on Human Rights Wolf, Block, Schorr and Solis-Cohen Philadelphia, PA Professor Ghada Talhami D.K. Pearsons Professor of Politics Lake Forest College Lake Forest, IL Dr. Karel Vasak Former Assistant Secretary General United Nations Education, Security and Cultural Organization Strasbourg, France Rev. Donald E. Wagner Executive Director Center for Middle East Studies North Park University Chicago, IL Rabbi Ira Youdovin Executive Vice President Chicago Board of Rabbis Chicago, IL

List of Participants Additional Consultants/Commentators Prof. Marshall J. Breger Columbus School of Law Catholic University of America Fr. David Jaeger Pontifico Custodia de Terra Santa Jerusalem and Rome, Italy Martin Palmer Secretary-General, Alliance for Religion and Conservation London, U.K. W. Michael Reisman Myres S. McDougal Professor of International Law Yale Law School New Haven, CT David Smock United States Institute for Peace Program for Religion and Peacemaking Washington, D.C. HRH Prince El Hassan bin Talal Amman, Jordan

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annex

Protection of the Holy Places (No. 26), 5727–1967* June 27, 19671

1. The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places. 2. (a) Whosoever desecrates or otherwise violates a Holy Place shall be liable to imprisonment for a term of seven years. (b) Whosoever does anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places shall be liable to imprisonment for a term of five years. 3. This Law shall add to, and not derogate from, any other law. 4. The Minister of Religious Affairs is charged with the implementation of this Law, and he may, after consultation with, or upon the proposal of, representatives of the religions concerned and with the consent of the Minister of Justice make regulations as to any matter relating to such implementation. 5. This Law shall come into force on the date of its adoption by the Knesset. levi eshkol Prime Minister zerach warhaftag Minister of Religious Affairs shneur zalman shazar President of the State * Passed by the Knesset on the 19th Sivan, 5727 (27th June, 1967) and published in Sefer HaChukkim No. 499 of the 20th Sivan 5727 (28th June, 1967), p. 75; the Bill and an Explanatory Note were published in Hatza’ot Chok o. 731 of 5727, p. 156. 1

Protection of Holy Places Law, 21 L.S.I. 76 (1966-67), available at http://www.israelmfa.gov.il./mfa/go.asp?MFAH00kn01.

217

Index

Indexing of specific holy sites is limited to the most important sites or those illustrative of key issues for the project. Abransky, Rabbi Yehezkel 65 Ahmad, Dr. Abd-al-Aziz al-Haj 60 al-Aqsa Mosque 4, 10, 12, 15, 23, 58, 60–61, 95, 126 al-Bardadi, Sheikh Muhammad Hashem 6 al-Husseini, Feisal 60 Allenby, General Edmund 25–26, 41, 42 Arafat, Yassar 12, 13, 54, 60, 147 Aranne, Zalman 39–40 archaeological excavations 61–62, 69, 139, 183 Auerbach, Rabbi Shlomo Zalman 65 Balfour Declaration 28 Bakshi-Doron, Rabbi Eliahu 14–15 Bankler, Raphael 81 Barak, Ehud 12, 56, 61 Bassiouni, M. Cherif 2 Begin, Menachem , 146 Beilin, Yossi 12 Beit Sahour tax revolt 51–52 Ben-Gurion, David 146 Bethlehem, seeks unification with Jerusalem 49–50 British Mandate. See Mandate Buber, Martin 151 Camp David Accords 146 conference 12, 61–62, 67, 174 2000 conference 75, 81

Carnegie Foundation 168 Carter, Jimmy 174 Cave of Shimon the Just 35, 70, 120, 123, 130, 136 Church of the Ascension on the Mount of Olives 25, 47, 55, 130, 134, 137 Church of the Holy Sepulchre 10, 11, 22, 23, 25, 33, 40, 44, 46, 48, 49, 52, 126, 130, 133, 140, 141, 152, 153 Church of the Nativity 10, 12, 23, 25, 33, 34, 54, 147, 152, 153 occupation during intifada 13, 55 Clinton, William J. 61, 67 collaborative mechanisms authority 113 composition 114 dispute resolution (external) 115 dispute resolution (internal) 115–116 economic promotion 115 general 90, 102, 113, 161, 178 historic/archeological 114–115 implementation 116–117 municipal/administrative 114 confidence-building measures academic 109 civic 109, 112 diplomatic 109 general 90, 102, 109–110, 113, 150, 177, 178, 185 implementation 116–117 political 109, 112 religious 109, 110–111

219

220

Index

Convention for the Protection of the World Cultural and Natural Heritage 77, 78, 104–105, 115, 154, 157, 164, 169 Coordinating Council in Israel 110 corpus separatum. See sovereignty Cust, Lionel George Arthur 49 Custodia Terrae Sanctae (Franciscan Custody of the Holy Land) 31, 56, 153 David’s Tomb 32, 36, 121, 136, 137, 140 Dayan, Moshe 40–41, 46, 62–64 Deir al-Sultan 25, 33–34, 47, 49, 120, 134 Ebon, Abba 39 Egypt 167, 174, 175, 181 Eilon, M.K. Beni 11 Elijah School for the Study of Wisdom in World Religions 110 Eliyahu, Rabbi Mordechai 67 Elkayam, Avi 110 Elyashiv, Rabbi Yosef Shlomo 64 Englard, Itzhak 129 Eshkol, Levi 39, 41–42, 46 evangelical Christians 13 European Union 7, 167, 175 final status negotiations firman (establishing status quo) 36 See also Holy Sites Laws First Alexandria Declaration 96 Ford Foundation 168 Foundation for Reconciliation in the Middle East 116 Fruman, Rabbi Menahem 111 Geyer, Alan 5 Gihon Spring 33, 137 Goren, Rabbi Shlomo 63, 64, 68 Gur, Mordechai 62 Hamas 55, 140 Hamid, Adnan 150 Hanka Mosque, construction 56 Haram al-Sharif. See Temple Mount/ Haram al-Sharif Hasmonean Tunnel excavation 61–62, 139 Hazan, Yaako 81 Herman, Tamar 67 Herzl, Theodore 40 Herzog, Chaim 43–44 Herzog, Yaacov 41–42

Holy See. See the Vatican holy sites, administration autonomy/religionists 80 extraterritoriality 80–81 international/UN supervision 79–80 holy sites, categories cemeteries 138–139 contested 140–141 cultic 134–137 historical/archeological 139–140 iconic 133 latent 137–138 See also sacred spaces holy sites, characteristics community of faith 131, 132 conflict over 10–15, 21–23, 123, 140–141 cultic practice 131, 132 holy, nature of 9–10, 128–129 history 8–9, 10, 131–132 legal benefits 13–14 personality 131, 132 See also status quo holy sites, cult of 130–131, 134–137 holy sites, defining application of 144 closed definitions see status quo legal 119–123 negotiation 182 open or descriptive definition, characteristics 128–133 open or descriptive definition, justification 124–127 holy sites laws Decree about the Protection of the Holy Sites(No. 327) 121 Firman of 1852 (et al) 24–24 Jordanian Waqf Law 33 Jordan/Israeli Peace Treaty (Art 9) 60 King’s Palestine (Holy Places) Order in Council of 1924 27, 35, 45, 122 King’s Palestine (Western or Wailing Wall) Order in Council, 1931 30 League of Nations Mandate for Palestine (Art. 13) 26–27 Protection of the Holy Places Law, 5727–1967 14, 23, 44, 45, 48–49, 120, 121 UN Resolution 181(1) [Partition Resolution] 32, 40, 74, 80, 148 holy sites, ownership of functional 157 general 152, 183

Index heritage of humankind 156 private 153–156 sovereignty, claim 154–155 status quo 153, 154, 155 holy sites, principles for protection common heritage of humankind, 104–105, 154, 156 freedom of access 77–78, 125, 183 freedom of worship 76–77, 125 management by religious leaders 78 minority religion status 126–127 tax exempt status 78–79 holy sites problem, nature of absolutist claims 129 accommodation 14–15 archeological/historical 139–140, 183 control 10–11, 26, 124, 183 general 3–4, 8–10, history 10, 131–132 identity 12–13, 147 international interest 13, 41, 43–44, 50–51, 124, 184–185 legitimacy 12 millenarianism 95, 146, 147–148 minority status 127 multiplication of sites 123–124 nationalism 14, 62, 69, 123, 124, 146–147 ownership 91, 152–157, 183 special benefits 13–14 territorial interest 11–12, 94, 123, 124 Holy Sites Project 2–3, 15, 19, 72, 87–94, 95, 107, 110, 114, 125, 181, 183, 190 Intafada al-Aqsa/second 2, 4, 13, 54, 62, 67, 103, 108, 112, 147 First 51–53 International Centre for Reconciliation 116 international community general 164–166 non-state/NGO 168–169 role of 91, 174–175, 184–185 state actors 166–167 Israel Interfaith Association 110 Israeli/Palestinian Interim Agreement. See Oslo accords Israeli policy toward Christian holy sites (1948–1967) 35–37 (1967–1987) 46–51 (1987–2002) 51–57

221

Israeli policy toward Jewish holy sites (post 67) Temple Mount 62–63, 64–68 Patriarch’s Cave 63–64 Western Wall 68–70 Israeli policy toward Muslim holy sites (1948–1967) 37 (1967–2002) 57–62 Jerusalem Van Leer Institute 110 John Paul II, Pope 151 Jordan 2, 160, 167, 175, 181 Jordanian policy toward holy sites (1948–1967) 33–35, 49–50 (1967– ) 62 Joseph’s Tomb 13, 70, 136 Khalidi, Walid 81 King Abdallah (Jordan) 33, 42 King Hussein (Jordan) 39, 56, 151–152 Kollek, Teddy 82, 159, 160 Kook, Rabbi Zevi Yehuda 65 Lauterpacht, Elihu 80 MacInnes, Anglican Bishop 43 MacMichael, Harold 27 Majid, Sultan Abdul 24–25 Mandate 23, 25–30, 48, 54, 68, 73, 74, 113 Marshall, John 79 Mary’s Tomb 25, 47, 130, 134 Mazar, Benjamin 69 modus vivendi over Temple Mount/Haram al-Sharif 58–62 Mughrabi quarter demolition 68–69 municipal administration decentralized administration 159–160 divided city 75, 83, 158 general 72, 82, 157–158, 164, 169, 181 law/law enforcement 162–163 planning/development 164, 183–184 security 162 services 161–162 shared city 83–84, 160–161 taxes 163–164 unified city 82–83, 158–160 Muslim Council 58–60 Narkiss, Uzi 40 Nashashibi, Ragheb 33 Nasser, Jamal Othman 60

222

Index

Nebenzahl, Rabbi Avigdor 64 negotiating the regime 87–92, 186–187 negotiating principles, international law common heritage of humankind 104–105, 154, 156 peace and security 104 rights of peoples 102–103 negotiating principles, religious civil discourse action 99 calls for civil engagement 98 inclusive of diversity 101 multiple forums 102 partial agreement 99 personal 98 process 97–98 start-points of agreement 98–99 time 99–100 trust 100 negotiations, structure groundwork stage 185 incentives 175–176 issue identification 181–185 necessary parties 173–175 organizing commission 179–181, 185 plan of action 185–186 political stage 186 technical stage 186 tracking 176–177, 184, 185 1967 War 39, 44, 46, 57, 73, 119, 146, 159, 160 Nissim, Chief Rabbi Yishak 65 Norway 174 Notre Dame Compound 10–11, 122 Old City 6, 30, 39–42, 44, 46, 48, 71, 75, 119, 121, 133, 142, 143, 154, 160, 167 Oslo Peace Accords 1–2, 95, 99, 174 Peace Process 5, 53–55, 100, 107, 108, 109, 121, 124, 178, 185, 190 Palestinian Authority 54–56, 60, 67, 70, 107, 115, 146, 154, 159, 162 Patriarch’s Tomb 41, 51, 70, 120 Peel Commission 74, 82 personal status legal regime 162–163 Pro-Jerusalem Society 113, 114, 116 Qadis Law 1961 57–58

Rachel’s Tomb 28, 30, 70, 120, 136, 137, 140 Ramban Cave 11–12, 123, 136 Ramon, Amnon 138 religion as “fact on the ground” 89 as peacemaker 5–6, 89, 95–96 principles for peace 3, 89 role of leaders 2, 5, 174, 182, 183 role in conflict 4–6, 10, 95 Road Map 2 Room of the Last Supper 32, 36 Russia 167, 175 Saah, Sheikh abd-el-Hamid el 57–58 Sabbah, Michel 51 sacred spaces Christian 142 houses of prayer and gathering 142–143 religious schools 143 Sahar, Akiva 43 St. John’s Hospice seizure 51, 52–53, 155 Salah, Sheikh Ra’ed 12, 60 Sallah, Sheikh Abu 111 Shapira, Moshe Haim 39–40 Shari’a courts/law 57–58 Sharon, Ariel 4, 62, 147 Shihab Ed-din Mosque 56 Soloman’s Stables, renovation of 60–61 sovereignty corpus separatum 31, 33, 74, 81, 82, 88, 158–159 critique of traditional 149–150 divided city 75. 83, 158 functional internationalization 74–75 functional sovereignty 150–152 general 7, 61–62, 65–67, 72, 73–74, 81, 84, 91, 124, 162, 181 of God/Allah 151–152 identity/ideology 146–148 open city 75–76, 160–161 spiritual sovereignty 150–152 traditional understandings 148–149 Sufi Islamic College 111 Supreme Rabbinical Council Temple Mount ban 64–65 status quo background 21–23 British Mandate 25–30 European recognition 25 general 36, 42, 48, 77, 120, 123 historical emergence of 23–25

Index Israel 33, 35–37, 48–49 Jordan 33–35 UN adoption 30–33 Stewart, Potter 123 Storrs, Ronald 113 Tahbub, Hassan 60 Temple Mount/Haram al-Sharif 4, 12, 14–15, 23, 35, 40, 41, 57, 59, 61–68, 75, 81, 95, 111, 112, 115, 120, 121, 122, 130, 131, 132, 133, 137, 139, 140, 141, 147, 153, 154, 155, 183 Tomb of Shimon the Just. See Cave of Tower of David Museum 112 track-II negotiation 2, 174, 176–177, 184, 185 Turjeman Post Museum 112 United Nations 2, 7, 30–33, 74–75, 77, 79, 94, 104, 119, 124, 158, 163, 164, 166, 169, 173, 176, 181 United States 7–8, 163, 165, 167, 175, 181 United States Institute for Peace 168 Unterman, Chief Rabbi Isser Yehuda 65

223

Vatican, The 11, 27, 44, 50, 74, 81 Israel/Holy. See Accord 56, 152 PLO/Holy. See Accord 56, 152 Wadi Joz 11–12, 123 Walled City, See Old City Waqf 28, 29, 57, 60, 62, 112, 120, 139, 140, 153 War of Independence 1, 46 Warhaftig, Zerah 42, 43, 46, 50, 63, 65, 66 Weizmann, Chaim 40 Western Wall 10, 12, 35, 42–45, 59, 112, 120, 121, 126, 130, 135, 137, 141 riots of 1929 14, 28–29 See also Israeli policy toward Ya’ar, Efraim 67 Yakar Center for Tradition and Creativity 110, 111 Yishuv 40 Young, Iris Marion 103 Zayad, Ziad Abu 84