Israel Court Stumped by Holy Row Over Property Near Church of the Holy Sepulchre

In 1996, the owner of the store over the basement was abducted under orders of Arafat, who was asked by Egypt's Mubarak to persuade him to give basement to Copts - he refused.

Not even 15 years of hearings, centuries-old documents, ancient maps and testimony by archaeological, historical and linguistic experts were enough to help the Jerusalem Magistrate's Court determine who owns a small chamber in the basement of the Church of the Holy Sepulchre in Jerusalem - a Muslim religious trust or the Coptic Church.

Adding to the confusion, the Prime Minister's Office decided last week that the basement is not a holy site.

Coptic cellar - Emil Salman - 30122011
Emil Salman

The strange case began in 1996, when employees of Abed Hirbawi's grocery store in the Old City's Christian Quarter heard voices coming from under the store's floor. When they opened it up to investigate, they saw Coptic monks removing soil. A dispute quickly developed, and one of the monks was even stabbed.

A week later, members of the Palestinian Authority's preventive security service broke into Hirbawi's home and abducted him to Ramallah on orders from then-PA chairman Yasser Arafat, who had been asked by Egyptian President Hosni Mubarak to persuade Hirbawi to give his basement to the Copts.

The kidnapping set off one of the first major crises between the PA and Israel. Benjamin Netanyahu, then in his first term as prime minister, ordered a siege on Ramallah until Hirbawi was released four days later.

Hirbawi told Haaretz two years ago that the PA offered him $2 million in compensation. "I told them it's a matter of my dignity. If the Copts had talked nicely to me to begin with, I might have rented them the basement."

After Hirbawi's release, he and the Budri family religious trust, from which Hirbawi rents the premises, took the Coptic Church to court to demand that it leave the basement.

Because the Copts reached the basement via their chapel in the Church of the Holy Sepulchre, the question was whether the vertical connection through the grocery or the horizontal one through the church conferred the greater claim to ownership.

Meanwhile, the case wended its way from the magistrate's court to the High Court of Justice, which ordered the prime minister to determine whether the basement was a holy place, since a British Mandate-era law that is still in force prohibits the court from ruling on the sanctity of a site.

Last week, the Prime Minister's Office issued its decision, and Jerusalem Magistrate's Court Judge Oded Shaham also ruled - that neither side had proved ownership of the basement.

The most ancient document submitted to the court dated to 1189, when Saladin ruled Jerusalem. According to Reuven Yehoshua, who is representing Hirbawi and the trust, the document states that Saladin turned the room known as the "Patriarch's Hall" into a religious trust. The judge accepted the claim that the grocery was the hall in question, but rejected the document as evidence because it did not specifically mention the basement.

Another argument revolved around the exact meaning of the Arabic word kabu, which appeared in a document from 1623, also submitted by Yehoshua. In modern Arabic it means basement, but the head of the Coptic Church in Jerusalem, Metropolitan Ibrahim, drew the attention of his lawyers, Michael Deborin and Ovadia Gabbay, to the fact that in ancient Arabic, it meant "vault." Linguists were drafted by the Copts to show that the word referred to the grocery's ceiling vaults rather than the basement.

The judge accepted that argument, but rejected the Copts' claim that they had used the basement for centuries and had placed the piles of dirt there to block unwanted access to the Church of the Holy Sepulchre.

The court also rejected a rare document recording an agreement between the heads of the four largest denominations with authority in the church, which was presented to support the Coptic claim.

In response to the court's ruling that the rights to the property are "inherently unclear," Yehoshua said, "The court's job is to solve disputes, and in this case, the court did not resolve the matter: It sent the parties back to continue quarreling over the basement."

But Deborin, representing the Copts, said the ruling proved that the Muslim religious trust had no connection to the basement.

Both sides plan to appeal Shaham's ruling. Deborin said the Copts are also considering petitioning the High Court against Netanyahu's decision.