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The Legal Status of the Holy Places in Jerusalem

Published online by Cambridge University Press:  04 July 2014

Izhak Englard
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Extract

The legal problems relating to the Holy Places in Jerusalem are of a very complex and delicate nature. The issue has a long history, and its complexity is the result of turbulent religious, ethnic, national and international conflicts over the Holy Places. The problems were not created by the State of Israel, but the establishment of the Jewish State added new dimensions to the age-old contest. I shall first describe briefly the ideological background of the problem, then analyze its legal aspects and finally illustrate its complexity by a number of Israel court decisions.

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Articles
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Israel Law Review , Volume 28 , Issue 4 , Autumn 1994 , pp. 589 - 600
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1994

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References

1 This was, indeed, the argumentation of the petitioners in the case of The Coptic Patriarchate v. Government of Israel, (1979) 33(i) P.D. 225, at 233, explaining their refusal to reach a settlement with their opponents, the Ethiopian Church, over the possession of two chapels. See infra, section IIIC.

2 See Maimonides, , Mishne Tora, Hilkhot Biyat HaMiqdash, II 1–4Google Scholar.

3 On the historical background, see Zander, W., “On the Settlement of Disputes about the Christian Holy Places”, (1973) 8 Is. L.R. 331Google Scholar.

4 Article LXII, para. 7: “… it is well understood that no alterations can be made in the status quo in the Holy Places”. See W. Zander, supra n. 3, at 333-337.

5 Art. 13 of the Mandate.

6 The Coptic Patriarchate, supra n. 1, at 238, per Landau, J.

7 Thus, the Catholics claim that the Firman of 1757 violated their rights under the Treaty of 1740, by re-establishing the pre-eminence to the Orthodox Church.

8 The Order-in-Council was enacted after the disturbances of 1929. See now Obsolete Legislation (Repeal) Law, 5744-1984 (38 L.S.I. 125), sec. 3: “The Palestine (Western or Wailing Wall) Order in Palestine Council 1931, has not and has never had any effect”.

9 Hugim Leumiyim v. Minister of Police, (1970) 24(ii) P.D. 141, at 208; H.C.J. 257/89, 2410/90 Hoffman v. The Officer in Charge of the Western Wall (not yet published).

10 21 L.S.I. 76.

11 34 L.S.I. 209.

12 The wording of the sections: “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”.

13 This point has been strongly emphasized by Judge S. Levin, in his dissenting opinion in Hoffman v. The Officer in Charge of the Western Wall, supra n. 9.

14 Drayton, , Laws of Palestine (1934) vol. 3, p. 2625Google Scholar, Art. 2.

15 See the extensive analysis of the historical background of the Order-in-Council by W. Zander, supra n. 3.

16 Art. 3 of the Order-in-Council.

17 Under sec. 29 of the Basic Law: Government (22 L.S.I. 257).

18 Hugim Leumiyim v. Minister of Police, supra n. 9. For a discussion of the case, see Klein, C., “The Temple Mount Case”, (1971) 6 Is. L. R. 257Google Scholar.

19 Reshet Kolelei HaIdra Association v. Municipal Court, (1989) 43(iii) P.D. 728.

20 H.C.J. 4185/90 Ne'emanei Har Habait v. Attorney-General (not yet published).

21 The opinion handed down by M. Elon, D.P., gives an extensive survey on the history and religious significance of the Temple Mount. He admits the Court's hesitations in reaching the ruling to uphold the administrative decisions.

22 Thus, recently the Court upheld the Police's decision to prevent the access of individuals who intended to pray while adorning Jewish religious utensils (phylacteries and prayer shawl); 67/93 “Kach” Movement v. Minister of Religious Affairs (not yet published). For a previous decisions in the same spirit: Cohn v. Minister of Police, (1976) 30(ii) P.D. 505; Stanger v. The Government of Israel, (1981) 35(iv) P.D. 673.

23 Supra n. 9.

24 The two major arguments made by the Court to justify its decision not to enforce judicially the right of prayer at the Temple Mount are 1) absence of statutory regulations to specify the actual arrangements between the communities, and 2) the Protection of Holy Places Law relates to freedom of access, but not to freedom of worship; as a result the Court has no jurisdiction over the latter. In my view, the former argument is (too) technical, and the second one spurious, since freedom of access without freedom of worship is an absurdity.

25 Ne'emanei Har HaBait v. Police Commander of the Jerusalem District, (1984) 38(ii) P.D. 449, per Barak, J.; in this case the Court ordered the Police to enable the Jewish group to pray close to one of the Temple Mount gates. According to Justice Barak's view, as expressed in a recently published book, the principle of freedom of religion and worship derives now directly from the Basic Law: Human Dignity and Freedom of 1992, which has constitutional value. See Barak, A., Interpretation in Law, part III (1994) 225, 303, 430Google Scholar.

26 Ne'emanei Har HaBait, ibid.; H.C.J. 1633/93 Jewish Defence League v. Israel Police (not yet published).

27 For a description of the halakhic (religious-legal) aspects relating to the Temple Mount, see H.C.J. 4185/90 Ne'emanei Har HaBait v. Attorney-General (not yet published). According to some Rabbinical opinions, ingress to some limited parts of the site is halakhically permitted. See ibid.

28 Among the series of recent decisions, see H.C.J. 1663/94 Salomon v. Assistant Commander Givati (not published). Here the Court stated that in view of the near and present danger of acts by extremists, substantiated by intelligence, the prohibition to enter the Temple Mount on the Passover holiday (with a Tora Scroll) was not illegal. The Court added that the total prohibition of entrance was exceptional and provisional, until the restoration of relative calm. See also H.C.J. 2592/94 Tenuat Ne'emanei Har HaBait v. Minister of Police (not published) (Jerusalem Day); H.C.J. 3995/94 Tenuat Ne'emanei Har HaBait v. Commander Amit (not published) (Ninth of month of Av). The Court makes an order absolute to enable the entrance of the group without religious utensils and without public prayer, subject to immediate change of decision by the Police in case of near and present danger of disturbance. The Police eventually prevented the group from entering the Temple Mount. See also, H.C.J. 5097/94 Tenuat Ne'emanei Har HaBait v. District Commander of Jerusalem (not published) (Sukkot holiday). The Police eventually again prevented the entrance of the group.

29 On the historical background of the conflict, see Zander, W., “Jurisdiction and Holiness: Reflections on the Coptic-Ethiopian Case”, (1982) 17 Is. L. R. 245, at 247–252Google Scholar.

30 The Coptic Patriarchate v. The Minister of Police, (1971) 25(i) P.D. 225.

31 The Coptic Patriarchate v. The Government of Israel, supra n. 1.

32 See the critical comments on the two cases by W. Zander, supra n. 29.

33 H.C.J. 257/89, 2410/90 Hoffman v. The Officer in Charge of the Western Wall (not yet published), supra n. 9.

34 Regulations for the Protection of Places Holy to the Jews of 1981, as amended (as a result of the disturbances) in 1990, sec. 2(a)(1A): “The following acts are prohibited on the premises of a Holy Place: The holding of a religious ceremony that is not according to the customs of the place and that violates the feelings of the praying public with regard to that place”.