One of the central obstacles in deliberations toward a permanent Israeli-Palestinian peace agreement is the status of holy sites in Jerusalem.
Yet, the introduction of religious elements in negotiations between secular parties is like placing a bomb in the room where deliberations take place: The use of the term "holy" usually lifts debate from the realm of "rational" conduct and transfers it to a religious arena, which is occasionally mystical, and "irrational" by definition.
What is a holy site? And who defines it as such? A national or international judicial system, which commonly relies on secular, civil society as its source, or the holy scripture of any religion? Or religious and cultural tradition developed over hundreds of years?
Two weeks ago, these questions were pondered in a conference at the University of Haifa attended by Jewish, Muslim and Christian researchers and religious figures. Professor Marshall Breger of the Catholic University of America, who organized the conference with Dr. Yitzhak Reiter of the Jerusalem Institute for Israel Studies and Dr. Leonard Hammer of the Hebrew University, said that the goal of the conference was to prepare fertile ground for deeper intellectual discussion of questions regarding sacred sites. Instead of engaging in battle and flinging claims of "holiness" every time such matters arise in negotiations, Breger believes that the academic community must play a role in moderating public discussion by increasing knowledge of legal, religious and political aspects of the holy sites before serious negotiations are renewed.
Jerusalem is not the sole domain of sacred sites. Throughout the world, there are cities, countries and geographic regions that are defined as "holy" and granted special judicial status. For example, the cities of Mecca and Medina in Saudi Arabia are defined as "holy cities," and the Vatican is a separate state. According to Greek Orthodox tradition, Mount Athos is a "holy mountain" and has been granted the status of a semi-autonomous region within Greece.
Native populations of Australia, the United States and other nations define certain geographic sites, like mountains, forests or lakes, as holy sites, and these locations are protected by law. Thus, Ayres Rock, in Australia, now officially known as Uluru, was declared a nature preserve and handed over to Anangu, its Aboriginal owners, and then leased to the Australian government for an extended period.
However, civil law does not define sacred sites as such. In the U.S., for example, the law leaves this definition in the hands of authorized Native American figures. Israeli law adopts the language of its British predecessors, and relies on an injunction published by the Turkish government in 1852, called the "Ottoman status quo," which lists the holy sites without defining conditions that led to this appellation. In other words, a "holy site" is simply one that appears on the list.
In protocol enacted after the Six-Day War to preserve sacred sites, only 16 locations were defined as Jewish holy sites. Among the most famous sites on this list are the Western Wall, the grave of Shimon Hatzadik in Jerusalem, Maimonides' Tomb in Tiberias, and the tomb of Rabbi Shimon Bar Yohai at Mount Meron.
Dr. Amnon Ramon, of the Jerusalem Institute for Israel Studies, notes that a location "makes" the "sacred" list when at least two religious groups lay claim to the site. As long as a specific site is not the subject of controversy, national legislation is not required to settle claims and, therefore, the site is not officially considered holy.
The source of Ottoman law may be explained by this phenomenon: frequent feuding between Christian sects in Jerusalem - particularly the Catholic and Greek-Orthodox churches - forced the Muslim government to seal the rights of each denomination in law.
The definition of a certain site as holy differs from one religion to another, and there are sometimes even differences within a given faith. Dr. Aviad Hacohen, of the Shaarei Mishpat Law School, identifies two approaches to this issue in Jewish tradition. One is the approach of the Rambam (Rabbi Moses ben Maimon, or Maimonides), who said, "There is no holiness in the world - only in God" (and despite that, Israel declared his tomb to be a holy site.) This leads to the conclusion that sanctity is not inherent in the earth but a function of what happens at a given site. Thus, Mount Sinai, the site of one of the most seminal events in Judaism, did not become a holy site - its holiness ended when the event did. The same is true of the first location mentioned as "holy ground" in the Torah, the site at which God revealed himself to Moses in the form of a burning bush.
The approach of the Ramban (Rabbi Moshe ben Nachman, or Nachmanides), which states that the "holiness of the place is binding," opposes that of the Rambam. This approach was adopted by Rabbi Abraham Isaac Hacohen Kook, the first chief rabbi of Israel. His influence on religious Zionism in the 20th Century probably transformed this approach into a dominant theme in modern Israeli discourse. Kook believed that holiness was inherent in the earth: Man did not make the earth holy and, therefore, man's abandonment of the earth does not rob it of its holiness.
Judge Sheikh Ahmed Natur, head of the Sharia appellate court, presented Muslim religious law and identified two types of Muslim holy sites - graves and Waqf property - whose sanctity is eternal. Waqf property is privately owned property granted or dedicated by its owners to be used in the establishment of religious institutions, like mosques or parochial schools. According to Muslim belief, this dedication is considered to be a charitable act that entitles the donor to eternal rewards in the world to come. Since rewards are eternal, the sanctity of the property is considered to be eternal as well, and it is therefore forbidden to damage the property or transfer it to a different owner.
Christianity attributes supreme significance to three sacred sites: the Church of the Nativity in Bethlehem, the Church of the Holy Sepulcher in Jerusalem and Mary's Tomb in Jerusalem. Many other places in Israel and the Palestinian Authority are also considered holy, because Jesus' presence at these locations represents "evidence" of his acts. The official position of the Catholic Church is that locations protected by law, such as those on the "status quo" list, are sacred sites and their status must not be changed.
Dr. David Jaeger, the Vatican's legal advisor in negotiations with Israel, presented an interesting fact pertaining to the status of holy sites: According to the United Nations resolution on November 29, 1947, Jerusalem is considered a "corpus separatum" that belongs neither to the Jewish or Palestinian state. Therefore, the Jordanian occupation of Jerusalem after the Israeli War of Independence was considered, like the Israeli occupation after the Six-Day War, to be "illegal."
As far as international law is concerned, the status of Jerusalem has not changed since 1947, and, therefore, according to Jaeger, Israel and the Palestinian Authority cannot achieve a bilateral agreement concerning the status of Jerusalem. Israel cannot "give" the Old City to the PA because, according to international law, Israel does not have legal authority over Jerusalem.
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