Two groups of individuals met in a subterranean chamber in Jerusalem’s Old City just over a week ago, in a bid to conclude an extraordinary 20-year dispute.
The first group included businessman Salah Hirbawi, accompanied by a lawyer and engineer. They descended into the cellar through an opening in the floor of a grocery store in the Christian Quarter. Two decades ago, through that same opening, Salah’s father, Abed Hirbawi, had descended and found a group of Coptic monks digging beneath his shop.
A violent quarrel ensued which, within days, had triggered a political, diplomatic and military crisis. The dispute subsequently moved to the legal realm and only recently ended in a victory for the Hirbawi family. But Abed Hirbawi passed away before he could celebrate it.
The second group – comprising several Coptic monks and two Israeli lawyers – entered the chamber though the mazy halls of the Church of the Holy Sepulchre. For years, they tried to prove that the cellar was part of the church and had belonged to them for thousands of years. They wanted to declare it a “holy site,” but failed.
The second protagonist in the affair, Archbishop Anba Abraham – the head of the Coptic Church in Jerusalem – also passed away a few months ago.
The groups met in darkness, beneath a stone vault. With just flashlights for illumination, they spread out their maps and agreed on the location of the wall that will now divide the space. A dispute like this never ends simply with just a handshake – but more on that later.
The dispute over Hirbawi’s cellar erupted exactly 20 years ago. After the elder Hirbawi discovered the monks beneath his store, a violent quarrel ensued between the monks and Palestinian youngsters who had come to support Hirbawi. A week later, a number of armed men from the Palestinian security forces arrived at Hirbawi’s home and abducted him.
It transpired that Palestinian leader Yasser Arafat had promised Egypt’s then-president, Hosni Mubarak (patron of the Coptic Church in Jerusalem), that the merchant would relinquish the chamber. He dispatched his security men to bring Hirbawi to Ramallah, to ensure the presidential promise was kept. When Hirbawi tried to refuse, one of the armed men drew a pistol and fired into the floor near his feet.
They offered Hirbawi $2 million “from Arafat’s personal account,” as he told Haaretz in 2011, in return for relinquishing the cellar. Hirbawi still refused. “I told them it was a matter of honor, that the money didn’t interest me,” he said five years ago.
Prime Minister Benjamin Netanyahu, then in his first term, was angry at the abduction of an Israeli citizen from Jerusalem in contravention of the Oslo Accords, and ordered the Israel Defense Forces to impose a closure on the territories until Abed Hirbawi was released. Hirbawi was freed after being held for four days, and the dispute moved to the legal sphere.
The question under dispute was whether the subterranean space belonged to the joint owners of the grocery store above it – the Palestinian Budeiri family, which owns the property in perpetuity under the family’s religious trust, and the Hirbawi family, which is in possession of the place under a key money contract – or the Coptic Church, which controls one of the halls beneath the Church of the Holy Sepulchre that leads to the cellar.
According to a book written by attorney Reuven Yehoshua, who represents the Hirbawi family, complex legal and historical questions emerged that were considered by no less than 14 judges – among them four Supreme Court justices.
“This is a once-in-a-lifetime case,” notes Yehoshua. “It began when my daughter was born, and is ending just as she is finishing the officers’ training course.”
Deliberations on the case revealed a number of weaknesses in the Israeli legal system. At the outset, for example, judges at magistrate’s and district courts refused to rule on the case, on the grounds that neither of the parties had proved ownership of the space.
At the request of both sides, the Supreme Court sent the case for arbitration to retired Supreme Court Justice Ayala Procaccia. At one of the deliberations, Procaccia revealed that there had been attempts to pressure her.
“Bizarrely,” she told the sides, “I received a phone call from a person I don’t know, who introduced himself as someone who works – I think he said – at the National Security Council and asked to meet with me about this case. I was very surprised and said we were conducting a formal mediation and arbitration proceeding, and asked whether he was connected to the case. He said he wasn’t but was representing the state’s interests.”
Procaccia suggested that the state submit its position formally, but it was never submitted.
In parallel, the sides also considered the question of whether the chamber could be considered a “holy site.” If it could, then by law the decision on the subterranean space would automatically move from the court to the religious affairs minister. Attorneys Ovadia Gabbay and Michael Deborin, representing the Coptic archbishop, tried to prove that the chamber was an integral part of the Church of the Holy Sepulchre and, therefore, is a holy site.
They obtained the support of the rest of the Christian denominations in the wider church complex – no small matter, as the denominations at the Church of the Holy Sepulchre find it difficult to agree on far simpler issues. Gabbay and Deborin submitted a document dating from the 19th century, in which the other denominations asked to pass a sewage line through the cellar, as proof of church ownership.
Hirbawi’s attorney, Yehoshua, could do even better. He submitted a comprehensive study of the history of the space for the previous 3,000 years, in an attempt to prove that the chamber was not used for religious purposes.
According to Yehoshua, during the First Temple period the underground chamber was a quarry, which was enlarged during the time of the Second Temple and afterward served as a burial cave. Its walls were built in the Crusader period, and stand to this day. At that time, it served as an infirmary and subsequently as a dumping ground for leather-working factories.
Yehoshua also submitted a document from 1189, the period of Saladin’s rule in Jerusalem, according to which the Muslim ruler assigned to Muslims “a large chamber known as the Patriarch’s Hall,” which Yehoshua identified as the Hirbawi cellar.
The case also involved lengthy linguistic debate about the word “kabu,” which appears in a religious trust document from 1632. It contained antique maps on which a stone wall is indicated as dividing the cellar between the church and the Muslims.
For their part, the Copts claimed there never was a wall. Instead, they said, there was one large hall, stretching from the church to the area beneath the store.
One key question was whether the “horizontal” rights of the Copts, who control most parts of the hall, superseded Hirbawi’s “vertical” rights. Sources involved in the case have said the judges were reluctant to decide on this issue because of its significance for the entire Old City. The Western Wall tunnels, for example, all stretch beneath Palestinians’ houses. If vertical rights prevail, this could have far-reaching implications.
Ultimately, there was no decision on the holiness of the site, and the petition on the issue has been suspended. Procaccia accepted Hirbawi’s suit, basing herself mainly on the fact that Hirbawi had used the cellar and the Copts had not. She ordered that a wall be erected to separate the two parts of the space, and that the Copts be prohibited from entering the disputed area.
But even the former justice’s decision did not end the dispute. On his very last day in office, Supreme Court President Justice Asher Grunis decided to send the authorization of the mediation agreement to the magistrate’s court and rejected the Copts’ request to revoke the mediation ruling.
And in what turned out to be one of his last acts, Archbishop Abraham – through his lawyers Gabbay and Deborin – filed an appeal at the district court that was also rejected, thus ending the saga.
From the map that Procaccia approved, it was clear that the line for building the wall had to be marked on the stone vault between the two parts of the subterranean chamber. Unfortunately, the surveyor failed to indicate whether the wall should be built from the center of the arch or to the left of it, and so it was unclear which side would lose the 15 centimeters (5.9 inches) – the thickness of the building blocks.
The cellar soon reverberated to the sound of raised voices. “We are going back to the surveyor,” threatened attorney Gabbay. Salah Hirbawi responded, “I am afraid my father is looking down at me from above and will be angry that I gave up 10 centimeters.”
For a moment, it looked as if the agreement was collapsing. But Hirbawi composed himself and called out to attorney Elad Golan, from Yehoshua’s firm, “Forget it, we’ll build in the middle. These 10 centimeters are my gift to the Copts. It’s over.”
Silence prevailed in the subterranean chamber. The monk and Hirbawi shook hands and embraced. And then someone from the Coptic side asked, “Is this going to be a concrete or stone wall?” And then the dispute started up again.