C ENTRO P RO U NIONE Semi-Annual Bulletin A publication about the activities of the Centro Pro Unione “UT OMNES UNUM SINT” Digital Edition A Ministry of the Franciscan Friars of the Atonement Centro Pro Unione Web https://bulletin.prounione.it E-mail bulletin@prounione.it Criteri per una lettura teologica del documento “La missione della Chiesa ortodossa nel mondo” `Centro Conferenze Commenti su “L’importanza del digiuno e la sua osservaza oggi nella Chiesa ortodossa” `Centro Conferenze Dott. Dimitrios Keramidas 22 Commenti su “Il matrimonio ortodosso” `Centro Conferenze Ierodiacono Leonide (B. Ebralidze) 24 In this issue Crisan Alexandru Marius 27 2532-4144 Digital Edition ISSN N. 90 - Fall 2016 E-book Dr. Tamara Grdzelidze The Holy and Great Council of the Orthodox Autocephalous Churches `Centro Conferences Daniel Seidemann The Perils of Religious Radicalization in Contemporary Jerusalem `Centro Conferences Marshall J. Breger The Situation at the Holy Places Today `Centro Conferences James F. Puglisi, SA `Letter from the Director Dr. Bogdan Tataru-Cazaban Le prospettive del Santo e Grande Sinodo della Chiesa ortodossa `Centro Conferenze 15 13 3 2 19Centro Pro Unione Bulletin 2 Centro Pro Unione Bulletin A semi-annual publication about the activities of the Centro Pro Unione The Centro Pro Unione in Rome, founded and directed by the Franciscan Friars of the Atonement, - www.atonementfriars.org - is an ecumenical research and action center. Its purpose is to give space for dialogue, to be a place for study, research and formation in ecumenism: theological, pastoral, social and spiritual. The Bulletin has been pubblished since 1968 and is released in Spring and Fall. IN THIS ISSUE Letter from the Director EDITORIAL STAFF bulletin@prounione.it Contact Information Via Santa Maria dell'Anima, 30 I-00186 Rome (+39) 06 687 9552 pro@prounione.it Website, Social media www.prounione.it @EcumenUnity CENTRO PRO UNIONE A Ministry of the Franciscan Friars of the Atonement DIRECTOR'S DESK N. 90 - Fall 2016 Fr. James Puglisi, SA – Director Centro Pro Unione James F. Puglisi, SA Director Centro Pro Unione Fall 2016, n. 90 / Digital Edition (Web) ›Marshall J. Breger ›Daniel Seidemann ›Tamara Grdzelidze ›Bogdan Tataru-Cazaban ›Dimitrios Keramidas ›Leonide B. Ebralidze ›Crisan Alexandru Marius ›Week of Prayer for Christian Unity he Fall Bulletin is particularly rich this year because of a series of lectures that we sponsored at the Centro in 2016. With the tensions growing in various parts of the world and with religion being used as a sort of “scape goat”, it is beneficial to have some reflections on the contribution that religion makes to the resolution of politically charged scenarios. For this reason we invited two scholars and practitioners to open our minds to different ways of seeing realities that are often distorted by the press or other agents in the world. The first of these presentations is offered by a professor of international law at the Catholic University of America, Prof. Breger. In his conference he lays out for us the situation of the holy places in Jerusalem. He attempts to unravel the complicated historical, political and religious situations attached to the places called “holy” by three religions. The context when seen from the point of view of religion the attempt to resolve the tension in an acceptable way acceptable for all parties is complicated. Following on Breger’s presentation, Daniel Seidemann takes a serious look at the consequences of religious radicalization in Jerusalem today. He is the founder of an organization which seeks to dissipate the tendency to radicalize by identifying those agents which wish to use religion to manipulate the situation and inflame it by emotional means. In the second part of this issue, we dedicate space to the celebration of the Great Holy Synod of the Orthodox Church. With co-operation of two of the Ambassadors to the Holy See, the Centro organized an afternoon exploring the hopes and possibilities for the Synod held in Crete from 19-26 June 2016. In spite of the disappointing news that several of the Orthodox churches were not present to take part in the Synod, the fact that the Orthodox churches, all of them, worked toward the celebration of the Synod for several years is an encouraging sign. Her excellency Tamara Grdzelidze took the lead in presenting the context of the Synod: what was at stake, what was the process of preparation and the unfolding of the Synod as well as hoped for outcomes. His excellency Tataru-Cazaban took up the themes of the diaspora and ecclesiology as well as the period of preparation for the Synod. He finishes his presentation with the hope that the Synod would be an opportunity for authentic “aggiornamento” for the Orthodox Church. Dimitrios Keramidias takes up the discussion of the text “The Mission of the Orthodox Church in the Contemporary World”. This text was an important theological text of the Synod and Keramidis offers a theological analysis of the principal points. Following this major presentation we present comments on two other texts considered during the Synod. The first concerned the value of fasting and its observation today in the Orthodox Church. The second text is the important text on Orthodox marriage. This coming year marks the 50 th anniversary of the Centro Pro Unione’s foundation in 1967. To celebrate we have planned a series of very diverse encounters. We begin with the Paul Wattson/Lurana White lecture which is given by Rabbi Jack Bemporad “Between Past and Future. The Achievement and Challenges since Vatican II”. During the Week of Prayer for Christian Unity, Dr. Tom Best will offer reflections on “The Week of Prayer Faithful Witness – and Challenge – to the Ecumenical Movement”. The Minister General of the Franciscan Friars of the Atonement, V. Rev. Brian F. Terry, sa, will preach during the ecumenical prayer vigil jointly orgainized by the Centro and the Lay Centre at Foyer Unitas. The other events will be announced on our web site so please check frequently. We announce the publication of the 14 th volume of the “Corso Breve di Ecumenismo”: Conosciamo i fratelli (for information see the inside cover). Lastly we gladly announce our Annual Summer course in ecumenism and interreligious dialogue from 26 June to 14 July 2017. You can book on line for the course. Remember to continue to look at our new website (www.prounione.it) for news and activities of the Centro Pro Unione. This Bulletin is indexed in the ATLA Religion Database, published by the American Theological Library Association, 250 S. Wacker Drive, 16 th Floor, Chicago, IL 60606 (www.atla.com). TCentro Pro Unione Bulletin CENTRO CONFERENCES 3 N. 90 - Fall 2016 1 It is an honor for me to join my friend Danny Seidemann in speaking at the Centro Pro Unione on the important subject of the Situation of the Holy Places today. My plan is to review the situation of the Holy Places in Jerusalem. I will largely limit myself to two sites, the Church of the Holy Sepulcher and the Temple Mount/ Haram al-Sharif. I will also discuss the recent role of Jordan in protecting Palestinian interests in the Holy Places and the increase in Russian pilgrimage to Jerusalem. I will close with some comments on the concept of sovereignty and the Holy Places and the sharing of the Holy Places. Finally, I will comment on the continuing and unfortunate “symbolic war” between UNESCO and Israel. The So-Called Ottoman Status Quo The Status Quo is the term given to the “amorphous body of traditional norms, some unclear and others contested” 2 that delineate the rights of various Christian denominations regarding the Holy Sites. The Status Quo was encompassed in firmans or decrees issued by the Ottoman sultans concerning Christian “rights” or “privileges” in the Holy Places (i.e., questions of possession, access, repair, internal administration, etc.). The Status Quo concerned six religion denominations. Specifically, in the Church of the Holy Sepulcher, the Greek Orthodox, Roman Catholics, and Armenians were the major players. The Copts, Syrians, and Ethiopians (Amharics) had usage rights to the Church, but not administrative control and were, therefore, not part of the final agreements over property control. These latter groups are deemed to be yamaklik or minor, dependent communities. History For centuries, the Ottomans oscillated in their preference between the Roman Catholics and the Greek Orthodox depending on the relative importance of their 1 Much of my earlier research in this area has been done collaboratively with Leonard Hammer of the University of Arizona. As always, my research in this area has been sustained both fiscally and intellectually by the Royal Norwegian Ministry of Foreign Affairs to which I am grateful. 2 Raymond COHEN, “Israel and the Holy See Negotiate: A Case Study in Diplomacy across Religions”, The Hague Journal of Diplomacy 5 (2010) 213, 214. European “sponsors” to the Ottoman Porte. As the largest Christian denomination in the Ottoman lands, the Greek Orthodox were well positioned at the Porte and they utilized their influence to achieve a favorable outcome. In a 1740 decree, the Ottoman government, anxious for French military and political support, conferred preeminent rights at Holy Places in Jerusalem and Bethlehem on the Latin Church. The Greeks were furious. In the Church of the Holy Sepulcher, Greek and Franciscan monks attacked each other with candlesticks and crosses. Ottoman officials determined that the internal stability of the empire posed a greater challenge than cultivating relations with Catholic France. Thus, a new decree in 1757 restored preeminent rights to the Greeks. In 1850, the disappearance of a Silver Star in the Grotto of the Nativity in Bethlehem stirred the ever- boiling pot of intra-Christian resentment, provoking the Crimean War. 3 The resulting imbroglio drew all the European powers into the Crimean War, which was ended by the Treaty of Paris in 1856. While the Treaty contains no reference to the Status Quo, 4 Title 9 of the Treaty does 3 A. J. P. TAYLOR, How Wars Begin (UK: Book Club Associates,1977) 42-47. 4 Treaty of Paris, March 30, 1856, in Jacob C. HUREWITZ, Diplomacy in the Near and Middle East: A Documentary Record 1835-1914 (Princeton, N.J.: Van Nostrand,1956) 153-56. The Situation at the Holy Places Today 1 Marshall J. Breger - Professor of Law, Columbus School of Law, Catholic University of America, Washington, D.C. Visiting Professor, Angelicum, Rome Conference given at the Centro Pro Unione, Monday, 9 May 2016 Marshall J. Breger – Visiting Professor, Angelicum, Rome `Marshall J. BregerCentro Pro Unione Bulletin CENTRO CONFERENCES 4 N. 90 - Fall 2016 refer to an 1856 firman, the Hatti Humayun, Paragraph 6 of which reaffirmed earlier firmans that encompassed the arrangements that constitute what we now call the Status Quo. 5 Continuing unrest in the Ottoman Empire led Europe’s great powers to convene the Congress of Berlin in 1878. The resulting Treaty of Berlin decreed that “no alterations can be made in the Status Quo in the Holy Places,” 6 thus “enshrining” the Status Quo principles in international law. The Status Quo was affirmed in the Versailles Peace Treaty 7 and in the British Mandate. 8 In 1993 Israel recognized the Status Quo in the Vatican-Israel Fundamental Agreement. 9 Authority of Tradition The essence of the Status Quo is the authority of tradition. Every action took on precedential value. Thus, if a chair is inadvertently moved from an area “assigned” to the Roman Church to an area under the authority of the Greeks and there is not an immediate protest, the chair becomes the property of the Greeks. The practical effect is that repairs or renovation to Status Quo sites became extremely difficult. In an iconic example, a ladder placed on a ledge was not moved for about 250 years. 10 Further, 5Ibid., 149-53 (providing the English version of the February 18, 1856 firman (styled as Hatti Humayum); see also Enrico MOLINARO, The Holy Places of Jerusalem in Middle East Peace Agreements: The Conflict Between Global and State Identities (Sussex, UK: Sussex Academic Press, 2009) 37-39 (discussing how the firman largely focused on religious equality although some paragraphs dealt with religious buildings). 6 The Treaty of Berlin, 1878, Art. LXII, in R. B. MOWAT, Select Treaties and Documents to Illustrate the Development of the Modern European States-system 1815-1916 (Oxford: Claredon Press,1915) 79-83. 7 These principles can be found in The League of Nations Covenant. 8 Mandate for Palestine, together with a note by the Secretary- General to its Application to the Territory of Trans-Jordan, art. 95, League of Nations, Cmd. 1785, December 1922, available at 2 https://goo.gl/1KLTWp (URL Retrieved: July 3, 2017) 9 See “Fundamental Agreement Between the Holy See and The State of Israel, Dec. 30, 1993”International Legal Materials, 33 (1994) 153; Acta Apostolica Sedis 86 [1994] [hereinafter Vatican- Israel Agreement] at art. 5, sec. 2. 10 It has been called “the immovable ladder.” See Simon Sebag MONTEFIORE, Jerusalem: The Biography (New York, NY: Alfred A. Knopf, 2011) 519. under Sharia law, payment for repairs to a building (such as repairs to a roof) creates ownership rights. Thus, Church windows might not be cleaned for years for fear that Status Quo rights might be affected. The paradigm model of the Status Quo decision- making is that the parties are autonomous and make decisions insulated from the State. But their decision- making is not completely voluntary. The parties “bargain,” as it were, “in the shadow of the law.” 11 However, if the parties cannot reach a compromise, the State may intervene. During the Mandate, the British did intervene when required, such as to repair broken windows. The Christian communities focused on the Status Quo’s “international character” and viewed them as having the quality of permanent rights. The Christian churches, moreover, viewed change in any precedent (however modest) as a Status Quo violation. The Ottomans took a different view. As Karl Marx insightfully noted, they viewed the firmans as an extension of privileges granted by a particular Sultan. 12 Thus, a new Sultan could renegotiate the privileges granted in an earlier firman. Voluntary Agreement Conventional wisdom has it that the priests at the Holy Sites only bicker and fight. 13 But that is 11 For a good explanation of this phenomenon occurring in the context of divorce law, see Robert MNOOKIN and Lewis KORNHAUSER, “Bargaining in the Shadow of the Law,” The Yale Law Journal 88 (1979) 950. 12 In a newspaper article on the Crimean War he stated: [i]t is to be understood that possession here does not mean proprietorship, which is denied to the Christians by the Quran, but only the right of usufruct. This right of usufruct excludes by no means the other communities from worshiping in the same place; the possessors having no other privilege besides that of keeping the keys, of repairing and entering the edifices, of kindling the holy lamp, of cleaning the rooms with the broom, and of spreading the carpets, which is an Oriental symbol of possession. In the same manner now, in which Christianity culminates at the Holy Place, the question of the Protectorate is there found to have its highest ascension. See, Karl MARX, “War Declared - Mussulmen and Christians”, N.Y. Tribune (April 15, 1854), in Karl MARX, The Eastern Question: Reprint of Letters Written 1853-1856 Dealing with the Events of the Crimean War 1 st edition 1897(reprint N.Y.: A.M. Kelley, 1968) 314, 319. 13 As but one of many examples, see Motti FRIEDMAN, “Israeli Police Break up Monks’ Brawl,” Washington Times, Nov. 10, 2008, A13. Marshall J. Breger – Visiting Professor, Angelicum, RomeCentro Pro Unione Bulletin CENTRO CONFERENCES 5 N. 90 - Fall 2016 not necessarily the case. Over the years there have been a number of voluntary agreements between the Franciscans, Armenians, and the Greek Orthodox at the Holy Sepulcher concerning internal matters of restoration and upkeep. These agreements usually are only finalized when the situation becomes in extremis or when the churches fear that the ruling power will “butt in.” Examples of agreements between these groups include: (1) an agreement following the 1927 earthquake allowing the Greeks to pay for repairs to the Katholikon dome; however, the Catholics and the Armenians had to be permitted to make repairs to their own areas of the Church; (2) a February 1952 agreement dividing the cost of repairs to the rotunda dome among the Franciscans, Armenians, and the Greeks, allowing the parties to cover the cost of repairs to each communities’ respective section of the Church, and granting the government permission to make minor repairs, but only with the consent of all three parties; and (3) a 1977 agreement to repair pillars 10, 11, and 12, which also affected an area of Coptic usage. 14 And recently, in 1997, a U.S. Roman Catholic investment banker provided the funds to repair the roof of the Holy Sepulcher, fostering an agreement acceptable to all the religious parties involved. 15 Most importantly, in May 2016 the major communities agreed to repair the Aedicule - Christ’s Tomb 14 R. COHEN, op. cit., 31-32, 100, 213. 15 See e.g., M. BREGER, Introduction, supra note 31, at 19 n. 43. - which was in imminent danger of collapse. 16 As Armenian Father Samuel Aghoyan pointed out, “It was pressure from the Israeli government, which threatened to close the Aedicule to the public because of safety concerns that finally forced the Churches to reach an agreement.” 17 The Church of the Holy Sepulcher Two other recent events occurred at the Church of the Holy Sepulcher that are of interest. One is connected to the water bills for the Church of the Holy Sepulcher. When Gihon, the Israeli water company, sought payment of a $2.3 million unpaid water bill for the Church and blocked the Greek Patriarch’s bank accounts, Church officials claimed a violation of the Status Quo and threatened to notify pilgrims to bring their own bottles of water and, if necessary, to close the churches. 18 In a settlement, “[T] he sides have agreed that the church will pay its own bill backdated to the beginning of 2012. The bills from years 2002 - 2011 will be covered by various government ministries and the Jerusalem Municipality, which the bills previous to that will be cancelled.” 19 A second issue has been the recently concluded lawsuit between an Arab grocer and the Coptic Patriarch regarding the rights to a basement located adjacent to the Church of the Holy Sepulcher. The Patriarch asserted that the basement was part of the Church itself. As it was thus part of a holy place, it was outside the jurisdiction of the Jerusalem District Court pursuant to the Mandate’s 1924 Order in Council that removed jurisdiction of such issues from the courts. Court experts agreed that the area might have been part 16 William BOOTH, “Work Begins to Try to Save Christianity’s Holiest Shrine: Jesus’ Tomb,” The Washington Post, June 20, 2016. 2 https://goo.gl/KiKq7P(URL Retrieved: July 3, 2017) 17 Judith SUDILOVSKY, “Putting Aside Historic Differences,” Jerusalem Report, August 8, 2016, 21-25. 18 Kalman LIEBSKIND, “Dispute Over Holy Sepulcher’s Water Bill,” Al-Monitor, Nov. 9, 2012. 2 https://goo.gl/igo36Z(URL Retrieved: July 3, 2017); Associated Press, “Holy Sepulcher’s Bank Account Blocked in Dispute over Water Bill,” Times of Israel, Nov. 2, 2012. 2 https://goo.gl/pXVYPm(URL Retrieved: July 3, 2017) 19 Stuart WINER, “Church of Holy Sepulcher and Water Authority Settle Financial Tussle,” Times of Israel, Dec. 9, 2012. 2 https://goo.gl/pXVYPm(URL Retrieved: July 3, 2017) `From the left: 1 Fr. James Puglisi - 2 Bishop Brian Farrell - 3 Daniel Seidemann - 5 Prof. Marshal Breger - 6 Rabbi Jack Bemporad Marshall J. Breger – Visiting Professor, Angelicum, RomeCentro Pro Unione Bulletin CENTRO CONFERENCES 6 N. 90 - Fall 2016 of the Holy Sepulcher compound, but it was never used for a holy purpose and had been filled with earth for many years. In the end, the Court decided that it was not a holy place and the case could be heard as a standard property dispute. Interestingly, the court could not reach a decision on the matter, finding that neither the private owner nor the Coptic Church had sufficient ground to prove their claims and pushed the parties to arbitrate. The result in February 2016 was an agreement to split the basement and build a wall separating the Copts and the grocer. 20 The Western Wall As we know, the Western Wall is the sole standing physical remains of Solomon’s Temple. It was not part of the Temple itself, but was part of the retaining wall built to shore up the Temple Mount Complex. As the closest the Jews could get to the Temple Mount itself, it was a place of intense prayer during the exile, when it was dubbed “The Wailing Wall.” After Israel conquered Jerusalem in 1967, buildings around the Wall were destroyed for the creation of a large Western Wall Plaza. Prayer at the Plaza was controlled by an Orthodox Rabbi and the ritual was Orthodox. Fast forward to the late 1980s, when a feminist group called Women of the Wall (WOW), in contravention of Orthodox Jewish custom (some would say law) began to engage in group prayer at the Western Wall plaza (or Kotel) in the women’s section, reading from the Torah and wearing the traditional male prayer garb of tallit, tefillin, and kippah. In Orthodox Judaism, only men can form a quorum for prayer (or minyan) and wear the traditional prayer garb. In response, the government issued regulations to expressly “prohibit the conduct of a religious ceremony which is not according to the custom of the place and which injures the sensitivities of the worshiping public towards the place.” The ensuing controversy concerning the rights of the WOW group to pray at the Kotel led to a number of lawsuits and legislative initiatives. In April 2003, the Israeli Supreme Court determined that an area next to Robinson’s Arch, which is adjacent to the Western Wall, albeit not traditionally seen as part of the prayer area, should be used as an alternative site following renovations (to be completed within 12 months); if that proved to be unsuccessful, then the government 20 10897/96 Bodri v. Coptic Patriarchate Church (decided 25 December 2011, copy of case on file, in Hebrew); Nir HASSAN, “Bitter Dispute Over Church of Holy Sepulcher Center Resolved After Two Decades,” Haaretz, Feb. 22, 2016. must allow for prayer at the Western Wall. 21 The court held that Robinson’s Arch was a “continuation” of the Western Wall and as such could serve as an alternative WOW prayer site following governmental improvements to the area. 22 One might say that the Robinson’s Arch alternative was a kind of “separate but equal” solution. The Robinson’s Arch site was subsequently completed for public prayer use by October 2003. The matter did not end there. WOW continued to pray at the Western Wall and the police turned a blind eye to the matter until April 2013, when the police arrested a number of WOW members for disturbing the public order (a criminal violation). 23 The Jerusalem District Court held that the “custom” of the place under the ministerial regulations was to be understood as going beyond merely Orthodox practices at the site, especially as the Supreme Court in all three WOW cases noted the need for a broader, nationalist-pluralist approach to such an important site. 24 Thus the district court held that the “custom” of the place includes a broad range of pluralistic approaches. 25 Because the right of different religious streams to pray at the Western Wall does not pose the same level of public danger as would, for example, prayer on the Temple Mount - which can have far-reaching consequences - the district court held that WOW cannot be accused of creating a public danger under the criminal law. 26 In an effort to fashion a compromise, Jewish Agency Chairman Natan Sharansky proposed a plan that would extend the Western Wall Plaza all the way to Robinson’s Arch. Theproposal met with approval by the Reform and Conservative movements but was rejected by WOW. 27 In the interim, WOW agreed (“in principle”) to 21 4128/00 Hoffman et.al. v. Government of Israel and others 40(iii) PD 283 (2003). 22Ibid., 318. 23 See 23834/04/13 State of Israel v. Bonnie Ross and others Jerusalem District Court decision of 24 Apr. 2013 (unpublished decision on file with authors) (in Hebrew) [hereinafter Ross case] at 1. 24Ibid., 6. 25Ibid., 7. 26Ibid., 8. 27 Yair ETTINGER, “Sharansky sees egalitarian section at Western Wall within two years,” Haaretz online, 7 May 2013, available at 2 https://goo.gl/13osaa(URL Retrieved: July 3, 2017). Marshall J. Breger – Visiting Professor, Angelicum, RomeCentro Pro Unione Bulletin CENTRO CONFERENCES 7 N. 90 - Fall 2016 pray at the Robinson’s Arch area. 28 In January, 2016, with much fanfare, a proposal was put forward by the Prime Minister’s Office to incorporate the interests of the non- Orthodox streams of Judaism and provide an alternative prayer area near the Western Wall that would impact as well on the WOW situation. 29 This agreement seems to be collapsing. The Israeli government (under pressure from the religious parties) has temporized about implementing the agreement. WOW has recently gone to court to force the government’s hand. 30 Further polarizing the situation, in Fall 2016 scores of eminent non-orthodox rabbis stormed the Western Wall security barrier carrying Torah Scrolls. 31 This issue will not be easily evaded. The Temple Mount/Haram al-Sharif There is a potential tension between the right of access and the prohibition of desecration in determining the extent of an individual’s ability to pray at a holy place according to his or her personal prayer ritual. This personal devotion might well conflict with Section 1 of the Protection of Holy Places Law, which protects the Holy Places from “desecration” or activities that might upset “feelings… [of members of a religion]…towards such places.” 32 28 Judy MALTZ and Yair ETTINGER “Women of the Wall agree in principle to move to new egalitarian space,” Haaretz online 7 Oct. 2013 available at: 2 https://goo.gl/YJNzNT(URL Retrieved: July 3, 2017). 29 The Advisory Team for the Issue of Prayer Arrangements at the Western Wall, Recommendations, Jerusalem, 2016 available at: 2 https://goo.gl/sFHXmY (URL Retrieved: July 3, 2017). The Prime Minister appointed the Advisory Team in 2013. Included in the Advisory Team’s recommendations is a draft regulation to the Holy Places Law to also incorporate the Southern portion of the Western Wall as part of the Holy Place. See also TOI Staff Writers, “After long fight, activists cheer mixed-gender Western Wall plan,” Times of Israel, 31 January, 2016, available at: 2 https:// goo.gl/Dbe2Fb(URL Retrieved: July 3, 2017). Similar to the WOW decision, the Palestinians protested this move to use the southern area. See TOI Staff Writers, “Palestinians cry foul over planned mixed-gender Western Wall section,” Times of Israel, 1 February, 2016, available at: 2 https://goo.gl/Dcj3xU(URL Retrieved: July 3, 2017) 30 Ynet News, “Haredi Parties Threaten to Control the Western Wall Movement,” Oct 7, 2016. 31 Judy MALTZ and Barak RAVID, “Unprecedented Clashes as non-Orthodox Rabbis Bring Torah Scrolls into Western Wall,” Haaretz, Nov. 2, 2016. 32 The statute can be found at www.mfa.gov.il After Israel conquered East Jerusalem in 1967, it returned administrative control over the Temple Mount/ Haram al-Sharif to the waqf. While Israel did not allow the waqf to forbid Jews from entering the Mount, it did allow the waqf to forbid Jewish prayer. At first this distinction mattered little because Orthodox Jewish law forbade Jews from entering the “holy” ground of the Temple Mount for various reasons of spiritual and ritual impurity. However, since 1967 more and more Orthodox Rabbis (many connected with the settlement movement) have “bucked” the Chief Rabbi’s ruling and promoted ascent to the Mount for both spiritual and nationalistic reasons. The question of allowing access yet denying the right to pray is obviously problematic. Does the first right encompass the second? In the Nationalist Circles case, Justice Simon Agranat attempted to maintain the analytic distinction between the right of access and the right to pray. In his view, the freedom of access promised in the Protection of Holy Places Law extends only to entry onto the Temple Mount, but does not include the right to pray. Access is based on the above-referenced statute which provides that “[t]he 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.” Since the 1967 statute does not include prayer, that “right” must be laid down by the executive, not the courts. In the same case, Justice Alfred Witkin advanced an even more gossamer distinction, suggesting that the right of the Jews to pray on the Temple Mount is certain, but that does not mean that there exists also a right to request police protection to enforce it. As Justice Izhak Englard suggested, courts have shifted ideologically from rejecting outright an enforceable right to pray on the Temple Mount to the recognition of an abstract right subject to the needs of public order. Thus, in one recent case, Gershon Solomon v. Yair Yitzchaki, the Supreme Court wrote, “The petitioner, like any other person in Israel, enjoys the freedom of conscience, belief, religious observance and practice. This framework provides him with the privilege of gaining access to the Temple Mount for purposes of worship.” In principle, then, Jews have the right to pray on the Temple Mount, but it is understood as a limited form of right, especially when weighed against the danger to public security. According to this view, the law would ensure access contingent upon an executive (i.e., police) decision that permitting access would not cause a breakdown in public order. The question is, of course, what constitutes public order. The courts have generally taken a very deferential view of the term, leaving it to the judgment of the police as experts. Thus, public order considerations have included not only exigencies of the moment (for example, Marshall J. Breger – Visiting Professor, Angelicum, RomeCentro Pro Unione Bulletin CENTRO CONFERENCES 8 N. 90 - Fall 2016 the inability to protect worshipers at the time of the request), but also deference to police priorities regarding the deployment of their forces throughout the city. From the perspective of legal doctrine rather than of public policy, in some respects the law is unstable. Can one say fairly that there is a right to pray if one is never allowed to effectuate it? Can one have the right to pray “in one’s heart” (i.e. to oneself) but make no visible intimation of praying? Apparently so. The Minister of Internal Security recently opined that one can pray on the Temple Mount so long as one does so silently, moving neither the lips nor the body. One must wonder if this legal position can be sustained. Jordan Redux When Israel took control of Jerusalem and the West Bank after the 1967 war, Jordan continued to claim sovereignty (keeping in place, as example, MPs from the West Bank in the Jordanian parliament). In 1988, under pressure from the Arab League, Jordan renounced its West Bank claims. But it did retain control of the waqf at the Haram al-Sharif. This was consonant with Jordan’s view that the Hashemites are guardians of the Holy Sites in Jerusalem (they were Custodians of the Holy Mosques in Mecca and Medina before being pushed out by the House of Saud). Recognizing this in the 1994 peace today with Jordan, Israel agreed to “respect the prominent role of the Hashemite Kingdom of Jordan in Muslim holy sites in Jerusalem” and to “give high priority to the Jordanian leadership role in these shrines” in any final settlement. 33 What Israel meant by this is unclear. In 2013, Jordan upped the ante, signing an agreement by which the Palestinian Authority formally contracted out to Jordan the protection of Palestinian interests in Jerusalem. On the basis of this agreement and earlier commitments, Jordan has begun to view itself as protector not only of the Muslim Holy Places, but also of the Christian Holy Places as well. King Abdullah restates this whenever he speaks of the Christian Holy Places and complains to the Israeli authorities regarding alleged infractions of the Status Quo. In an effort to tamp down Palestinian violence surrounding the Temple Mount, Prime Minister Netanyahu and King Abdullah of Jordan met secretly in November 2014 and hammered out the so-called “Amman 33 The treaty can be found at 34 I.L.M. 43 (1995). Understandings” to restore calm. 34 The Understandings have never been published, but efforts by Secretary of State John Kerry to solidify the Understandings led to press releases in 2015 outlining their basic framework, 35 which constitute the following: 1)The number of religious Jews ascending the Mount daily was limited. Originally, the number in any one group was five, then ten, then twenty, and, since 2011, fifty at a time. A second group will not go up until the first group descends. 2)Netanyahu agrees on the principle that Jews can visit the Mount but that only non-Jews can pray on the Mount. 36 34 In November 2015, Secretary of State Kerry sought to have the Amman Understandings written down to “clarify” the arrangements. Ben ARIEL, “Report: Kerry Wants Temple Mount Status Quo Put in Writing,” Arutz Sheva (Oct. 20, 2015). 35 U.S. DEPT. OF STATE, “Remarks to the Press with Jordanian Foreign Minister Nasser Judeh,” (October 24, 2015), 2 https:// goo.gl/1aM2MN(URL Retrieved: July 3, 2017); see also “Statement by PM Netanyahu regarding the Temple Mount,” (October 24, 2015), 2 https://goo.gl/n7RNTM(URL Retrieved: July 3, 2017); “Jerusalem Status Quo ‘a paramount concern for us’, King,” Petra News Agency (25 October 2015), 2 https://goo.gl/VeR86y(URL Retrieved: July 3, 2017). 36 It remains an open question whether Netanyahu’s restatement of Israeli policy towards preventing prayer on the Temple Mount conflicts with the traditional Israeli Supreme Court position (in principle) that prayer must be subject to police discretion as to security needs. `Atendees of the Conference - Angelicum students Marshall J. Breger – Visiting Professor, Angelicum, RomeCentro Pro Unione Bulletin CENTRO CONFERENCES 9 N. 90 - Fall 2016 3)The waqf (controlled by Jordan) was to prevent the entry of Palestinian activists bent on violence. And for its part, Israel was to prevent the entry of Jews seeking to pray or otherwise change the so-called Status Quo arrangements. In particular, they feared a “temporal division” of the Temple Mount whereby access is limited to Jews at certain times, and Muslim at other times. This model, of course, is the arrangement imposed at the Temple of the Patriarchs in Hebron. 4)It was agreed that Muslims could pray on the Mount and that non-Muslims could visit, but not pray. The Amman Understandings succeeded in reducing Temple Mount unrest through the first quarter of 2015. However, thereafter, the situation again began to deteriorate. As a result, in fall 2015, U.S. Secretary of State John Kerry had to again intervene with King Abdullah and Prime Minister Netanyahu. The Amman Understandings were reaffirmed. At King Abdullah’s suggestion, the Israelis agreed to place cameras on the Temple Mount to make clear that Israel was not acting to “Judaize” the haram (the cameras were never installed due to objections from the Palestinians who feared Israeli “monitoring”). After the Kerry/Abbas/Netanyahu meeting, the Israeli police introduced a ban on Knesset members visiting the Mount to calm the waters. The Russians Are Coming 1n 1882 the Imperial Orthodox Palestine Society was formulated as a society focused on education. Witnessing the success of Western schools and missionary endeavors in educating and converting the native Arab Christians of the Levant, the Society proceeded to set up schools in the centers of the Orthodox population. In this project they faced an extraordinary amount of opposition from the entrenched Greeks that saw the Russian social activities as a threat to their spiritual monopoly over the indigenous Orthodox population of Palestine. As a result of the traditional animosity between Russians and Ottomans for influence in the Caucasus, and by extension in the Levant, it behooved the Russians to act with circumspection in their dealings with the Greeks. Thus they were unwilling to provoke any direct confrontation. This was in spite of the fact that the Russians had become the chief financial backers of the Patriarchate in the 19th century. The first director of the Imperial Orthodox Palestine Society, Mr. Vasili Khitrovo, confirmed in 1892 that the situation was something similar to being between the devil and the deep sea. 37 After World War I, Russia withdrew from the Middle East. The Imperial Orthodox Society was dissolved (and many of its leaders executed). 37 Samuel J. KURUVILLU, “Church and State Relations in Palestine: Empires, Arab Nationalism and the Indigenous Greek Orthodoxy,” Holy Land Studies 10 (2011) 55, 59. Since 1967 Russia has begun to exert itself in Israel. Some of this came from a concord between the “Red” Communist Russian Church and a majority of adherents of the “White” churches that broke away at the time of the Revolution. A second factor was the return of Sergei’s Courtyard in the Russian Compound to Russian State control in 2011. 38 Athird factor was the increase in pilgrimages from Russia and the former Soviet Union. In 2008 Israel agreed to waive visa requirements for Russian citizens; a recent survey shows Russian Orthodox are the largest number of “tourists” to Israel. 39 The Concept of Sovereignty One of the most contentious issues in the discussion of Holy Places is the legal concept of sovereignty. The claim is often made that “this plot of land is holy to me and therefore I must have sovereignty.” This phrase is often used with reference to the Temple Mount/ Haram al-Sharif. The notion of sovereignty, or “I’m in charge,” reflects the view that sovereignty means the “exclusion of external actors from domestic authority structures.” 40 It reflects, perhaps, a rejection of historical restrictions on state power such as the Ottoman capitulations 41 or the limits on state power laid down in international legal arrangements such as the rules of the so-called Status Quo. The notion of “absoluteness” of sovereignty is a unique notion closely associated with nineteenth century nationalism. It does not reflect historical views of the 38 Associated Press, “Israel Returns Disputed Jerusalem Site to Russia in Goodwill Gesture,” Haaretz, March 21, 2011. 2 https:// goo.gl/fykxMW(URL Retrieved: July 3, 2017) 39 Israel Ministry of Foreign Affairs, “Israel and Russia Sign Agreement Cancelling Tourist Visa Requirement,” Sept. 17, 2008; in 2011 a similar agreement was made between Israel and Ukraine: Ben Hartman, “Israel Expects 200,000 Ukrainian Tourists a Year,” Jerusalem Post, Feb. 10, 2011. 40 Stephen D. KRASNER, Sovereignty: Organized Hypocrisy (Princeton, NJ, Princeton University Press, 1999). Krasner refers to this as Westphalian or Vatellien sovereignty after the 1648 Treaty of Westphalia and the writings of Jean Vattel. See J. VATTEL, The Law of Nations; or Principles of the Law of Nature as Applied to the Conduct and Affairs of Nations and Sovereigns (Joseph Chitty, ed., Philadelphia: T. & J.W. Johnson, 1854). 41 Maurits H. van den BOOGERT, The Capitulations and the Ottoman Legal System: Qadis, Consuls and Beratlis in the 18th Century (Leiden: Brill, 2005). Marshall J. Breger – Visiting Professor, Angelicum, RomeNext >