(cultural diversity and law) silvio ferrari, andrea benzo-between cultural diversity and common...

8/16/2019 (Cultural Diversity and Law) Silvio Ferrari, Andrea Benzo-Between Cultural Diversity and Common Heritage_ Legal …

http://slidepdf.com/reader/full/cultural-diversity-and-law-silvio-ferrari-andrea-benzo-between-cultural 1/360



BETWEEN CULTURAL DIVERSITY

AND COMMON HERITAGE



Cultural Diversity and Law

Series Editor:

Prakash Shah, School of Law, Queen Mary, University of London, UK

Arund the wrld, mst states are faced with difcult issues arising ut fcultural diersity in their territries. Within the legal eld, such issues span acrssmatters f priate law thrugh t public and cnstitutinal law. At internatinalleel t there is nw cnsiderable jurisprudence regarding ethnic, religius andcultural diersity. In additin, there are seeral layers f legal cntrl – frmcmmunal and religius regulatin t state and internatinal regulatin. This

multiplicity f nrm setting has been ariusly termed legal pluralism, inter-legality r internrmatiity and prides a fascinating lens fr academic analysisthat links up t cultural diersity in new and interesting ways. The umbrella fcultural diersity encmpasses arius ppulatin grups thrughut the wrldranging frm natinal, ethnic, religius r indigenus grupings. This series particularly welcmes wrk that is f cmparatie interest, cncerning ariusstate jurisdictins as well as different ppulatin grups.

Also in the series

Legal Reform and Business Contracts in Developing Economies

Trust, Culture, and Law in Dakar

Julie Paquin

Socio-Legal Integration

Plish Pst-2004 EU Enlargement Migrants in the United Kingdm Agnieszka Kubal

Law, Religious Freedoms and Education in Europe

Edited by Myriam Hunter-Henin

Islamic Law in Europe?

Legal Pluralism and its Limits in Eurpean Family Laws Andrea Büchler

The Challenges of Justice in Diverse Societies

Constitutionalism and Pluralism

Meena K. Bhamra



Between Cultural Diversity andCommon Heritage

Legal and Religious Perspectives on theSacred Places of the Mediterranean

COORDINATED BY

SILVIO FERRARI

University of Milan, Italy

AND

A NDREA BENZO

Italian Ministry for Foreign Affairs, Italy

This volume is an initiative of the Sovereign Order of Malta



© Sovereign Military Hospitaller Order of St. John of Jerusalem of Rhodes and of Malta 2014

All rights reserved. No part of this publication may be reproduced, stored in a retrieval

system or transmitted in any form or by any means, electronic, mechanical, photocopying,

recording or otherwise without the prior permission of the publisher.

Silvio Ferrari and Andrea Benzo have asserted their right under the Copyright, Designs and

Patents Act, 1988, to be identied as the coordinating editors of this work.

Published by

Ashgate Publishing Limited Ashgate Publishing Company

Wey Court East 110 Cherry Street

Union Road Suite 3-1

Farnham Burlington, VT 05401-3818

Surrey, GU9 7PT USA

England

www.ashgate.com

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

The Library of Congress has cataloged the printed edition as follows:

Library of Congress Cataloging-in-Publication Data

Between cultural diversity and common heritage : legal and religious perspectives on the

sacred places of the Mediterranean / by Silvio Ferrari and Andrea Benzo.

pages cm. – (Cultural diversity and law)

Includes bibliographical references and index.

ISBN 978-1-4724-2601-7 (hardback) – ISBN 978-1-4724-2602-4 (ebook) – ISBN 978-

1-4724-2603-1 (epub) 1. Sacred space–Law and legislation–Mediterranean Region. 2.

Cultural property–Protection (International law) I. Ferrari, Silvio, editor of compilation.

II. Benzo, Andrea, editor of compilation.

K3791.B48 2014344’.1822094–dc23

2013031202

ISBN 9781472426017 (hbk)

ISBN 9781472426024 (ebk – PDF)

ISBN 9781472426031 (ePUB – PDF)



Contents

List of Figures vii

Notes on Contributors ix

Preface by H.E. Jean-Pierre Mazery xiii

1 Introduction: The Legal Protection of the Sacred Places of

the Mediterranean 1

Silvio Ferrari

PART I: WHAT IS A SACRED PLACE?

2 Towards a Denition of Sacred Places: Introductory Remarks 17

Andrea Benzo

3 The Sacred Spaces and Sites of the Mediterranean

in Contemporary Theological, Anthropological andSociological Approaches and Debates 25

Yuri Stoyanov

4 General Problems of International Law Concerning Sacred

Places 37

Umberto Leanza

5 Finding a Grammar of Consent for ‘Soft Law’ Guidelines on

Sacred Places: The Legal Protection of Sacred Places within

the Existing Public International Law Instruments and Grass-

root Approaches 57

Peter Petkoff

PART II: SACRED PLACES AND RELIGIOUS TRADITIONS

6 Sharing Sacred Spaces: A Jewish Perspective 75

Jack Bemporad

7 Sacred Places in the Christian Tradition 91

Pier Francesco Fumagalli

http://-/?-

http://-/?-



Between Cultural Diversity and Common Heritagevi

8 ‘Gd has made the earth like a carpet’: The Sacred Places in the Islamic Traditin 101

Yahya Pallavicini

PART III THE SACRED PLACES OF THE MEDITERRANEAN

9 Jerusalem’s Hly Sites in Israeli Law 119 Marshall J. Breger

10 Jerusalem as a Hly Place: Christian Sacred Sites in the Hly City 155

Rafael Palomino

11 The Haram Al-Sharif in Jerusalem: An Israeli Law Perspectie 175

Moussa Abou Ramadan

12 Enisaging a Legal Framewrk fr EnsuringSustainable Preseratin f Hly Places with Regardt the Case f Ks and Methia 191

Dušan Rakitić

13 Sacred Places and Religius Institutins in Ksa 243 Baki Svirca

14 The Regime f Munt Aths 273 Charalambos K. Papastathis

15 Sacred Heritage in Cyprus: Blstering PrtectinThrugh the Implementatin f Internatinal LawStandards and the Adptin f an object-oriented Apprach 293

Alessandro Chechi

16 Mecca: The ‘Blessed Heart’ f Islam 319 Simon Page

17 Cnclusin: A Sft-law Apprach t the Prtectinf Sacred Places? 331

Silvio Ferrari

Appendix 337

Index 341

http://-/?-

http://-/?-



List f Figures

12.1 The mst imprtant mnasteries and churches f theSerbian orthdx Church in Ks and Methia 194

12.2 Prizren – Mnastery f Hly Archangels nearPrizren (14th century). The mnastery was ltedand trched in March 2004 203

12.3 Gračanica Mnastery (14th century) 211

12.4 Tw Serbian orthdx Church nuns in frnt fDeič Mnastery after it was burned and trn dwnin March 2004 213

12.5 Fresces f the Gračanica Mnastery: the depictinof Queen Simonida with intentionally made

scratches n her eyes 21412.6 Church f Mther f Gd Hdegetria at Mušutište

(14th century) befre it was demlished in 1999 220

12.7 Remains f the Church f Mther f Gd Hdegetriaat Mušutište (14th century), after it was set n reand destryed by explsies in 1999 220

12.8 Remains f the Deič Mnastery, after it was burnedand demlished in March 2004 229

12.9 The brken altar and ilated altar space f theChurch f the Hly Mther f Gd Ljeiška in Prizren 231

12.10 Charred frnt wall f the Cathedral Temple f theHly Great-Martyr Gerge after the temple was burned and mined in March 2004 231

12.11 UNESCo experts bsere the remnants f theChurch f St. Gerge in Rečani near Sua Reka,which was cmpletely leelled t the grund in thesummer f 1999 233

12.12 The Church f Saint Healers Csmas and Damianin Zčište was leelled t the grund in September1999 with explsies 233

12.13 The rst serice n the day f Saint Healers Csmasand Damian in the restored church devoted to these

saints in Zčište, in Nember 2006 233



This page has been left blank intentionally



Ntes n Cntributrs

Jack Bemporad currently seres as Prfessr f Interreligius Studies at thevatican’s Angelicum Uniersity in Rme and is the authr f numerus bksand articles, including ‘our Age: The Histric New Era f Christian-JewishUnderstanding’ (New City Press, 1996). As directr f the nn-prt Center frInterreligius Understanding (CIU), he has been at the centre f many f thenegtiatins impring the relatinship between Christians and Jews.

Andrea Benzo is Head of the Economic and Commercial Affairs Section of the

Italian Embassy in Riyadh. He hlds a Dctrate in Cann and Ecclesiastical Lawfrm the Uniersity f Macerata, Italy. His main elds f interest are law and religinin the Middle East and the rle f religin in internatinal relatins.

Marshall J. Breger is Prfessr f Law at the Clumbus Schl f Law, TheCathlic Uniersity f America. He has written r edited numerus bks n hly

places issues. During 1987–89 he sered as Alternate Delegate f the US t the UNHuman Rights Cmmissin in Genea and frm 1982–84 as Special Assistant tPresident Reagan and his liaisn with the Jewish Cmmunity.

Alessandro Chechi is a researcher at the Art-Law Centre f the Uniersity fGenea. He is a lecturer in public internatinal law at the Uniersité Cathlique fLille and a reprter fr Italy f the Internatinal Law in Dmestic Curts – oxfrdUniersity Press prject. His elds f research include internatinal cultural heritagelaw, internatinal dispute settlement and internatinal rganizatins.

Silvio Ferrari is Prfessr f Law and Religin at the Uniersity f Milan. He has been visiting Prfessr at the Uniersity f Califrnia (Berkeley, 1994 and 2001),the Institute fr Adanced Legal Studies (Lndn, 1998–99) and the Écle pratiquedes hautes études (Paris, Srbnne, 2004). His main elds f interest are law andreligin in Eurpe, cmparatie law f religins (particularly Jewish law, Cannlaw and Islamic law) and the vatican plicy in the Middle East. He has publishedwidely n these and related areas and is crdinatr f the Hly Places Prject f the

Sereign order f Malta

Pier Francesco Fumagalli is Vice Prefect of the Biblioteca Ambrosiana (AmbrsianLibrary) in Milan. He was secretary f the Cmmissin f the Hly See fr ReligiusRelatins with the Jews (1986–93). He authored a number of books on ecumenismand Judaism, Hebrew and Arab manuscripts, oriental religions and Chinese culture.



Between Cultural Diversity and Common Heritagex

Umberto Leanza is former Professor of International Law in the University of

Rme ‘Tr vergata’ and frmer head f the Legal Serice f the Italian Ministryfr Freign Affairs (1994–2003). He is vice President f the Italian Sciety frthe Internatinal organizatin (SIoI) and legal cnsultant at the Italian Ministryfr Freign Affairs and the Ministry fr the Defense. He is authr f 15 bks,abut 100 articles, essays and cmments n Internatinal Public Law andEurpean Unin Law and editr f abut 10 lumes n the same subject areas.

Yahya Pallavicini is Imam f the Al-Wahid Msque in Milan and vice Presidentf Co.RE.IS (Cmunità Religisa Islamica Italiana). He is President f theSupreme Cuncil fr Muslims in the West within ISESCo (Islamic organizatinfr Educatin, Science and Culture). He is lng-time adisr n Islam t theItalian Ministries fr Interir, Freign Affairs, Culture and Integratin. He isthe author of Islam in Europe (Il Saggiatre 2004), Inside the Mosque (Rizzli2007), The Merciful (Messagger 2009) and Mary’s Sura (Mrcelliana 2010).

Rafael Palomino is Prfessr f Law at Uniersidad Cmplutense de Madridand Member f the Cnsultatie Bard, Internatinal Assciatin fr the Defensef Religius Liberty (IADRL). His research elds include religius freedm,cmparatie law, ciil rights, religius cnscientius bjectin, church-state legalaffairs in the Middle East, educatinal rights and legal research methdlgy.

Charalambos K. Papastathis (*1940 †2012) was Professor of Ecclesiastical

Law at Aristtle Uniersity. He was als a practising lawyer at the Bar fThessalniki fr mre than 20 years. In the eld f ecclesiastical law, his mainareas f research were church-state relatins, religius freedm and the status fMunt Aths n which he was a renwned expert.

Simon Page has studied scilgy, plitical science and internatinal relatinsin Rme and Blgna. His main research interests are in the eld f pliticalscilgy, scilgy f religin, Islamic and Middle East studies, interculturaland interfaith dialgue and the Perennialist traditin in philsphy. He is theauthr f seeral articles n Islam and intercultural dialgue.

Peter Petkoff has studied law and thelgy in Sa, Leeds, oxfrd and Rmeand his research interests are in the area f law and religin, Eurpean CmpanyLaw, Intellectual Prperty and Cmparatie and Internatinal Law. He hastaught EU Law, Internatinal Law and Intellectual Prperty, Cann law and

Islamic Law.

Dušan Rakitić is assistant lecturer in Serbian Legal Histry at the Legal HistryDepartment f the Belgrade Uniersity Schl f Law. He hlds Master f Lawsdegrees frm bth Harard Law Schl and the Belgrade Uniersity Schl fLaw. His research has s far encmpassed legal histrical aspects f religius



Notes on Contributors xi

freedm in Serbia, as well as f capital markets regulatin. In additin, he haswritten extensiely n restitutin issues frm a plicy perspectie.

Moussa Abou Ramadan is isiting Prfessr f Islamic Law at the Uniersityf Strasburg. He is a member f the Israeli Bar, Chair f the Jaffa Assciatinfr Human Rights and a member f the bard f Adalah (The Legal Center frArab Minrity Rights in Israel). He has written extensiely n the status f Arabminrities in Israel, Islamic Law and Shari’a curts in Israel.

Yuri Stoyanov is based at the Department f the Languages and Cultures f the Near and Middle East, at the School of Oriental and African Studies, University of

Lndn, and is currently a Senir Fellw at the Albright Institute f ArchaelgicalResearch and at the Kenyn Institute, bth in Jerusalem. He has wrked n a

number f research prjects fcusing n the status f religius sites as well as thehistry and current situatin f religius minrities in the Eastern Mediterranean,the Middle East and Central Asia.

Baki Svirca is currently wrking at the Institute fr War Crime Research f theMinistry f Justice f Ksa. He sered within the United Natins Missin inKs (UNMIK/PISG), the Ksa negtiating team fr status settlement, theofce f the Prime Minister f Ksa, the Ksa Institute fr Mnuments

Prtectin and the Cuncil fr Defense f Human Rights and Freedms. Hisresearch elds include histry and cultural heritage management, transitinal justice and intercultural dialgue.



Preface

The Mediterranean is cnsidered ‘the cradle f ciilizatin’. At present, alngits shres, ne can nd 20 cuntries and territries, mre than 20 languages andall three mntheistic religins. If there is a place in the wrld where uniersalreligius heritage matters enrmusly, it is the Mediterranean. This regin has anhistrical and cultural richness unparalleled in the wrld.

The Sereign order f Malta beliees in the necessity f safeguarding

religius mnuments and sacred places and presering their utstanding cultural,histrical and spiritual alue, bth fr the cmmunities with which they areassciated and fr all humankind. It beliees that freedm f religin is essentialt strengthen the inter-cultural dialgue.

Hweer, in recent years, anti-religius ilence has been n the rise. Shrines,sacred places and mnuments f wrship hae cme under attack, been damagedr destryed. Thus, safeguarding religius heritage f utstanding uniersal aluef the Mediterranean regin, tday and fr future generatins, requires new frms

f actin, amng them cntinuity in educatinal, cultural and scientic adances.Gernments and plitical authrities tgether with internatinal rganizatinsand ciil sciety all hae a plitical respnsibility and the bligatin t safeguardcultural heritage and cntribute t the peaceful deelpment f the whle regin.

Cnsidering the strng histrical links with the Mediterranean regin, theSereign Military Hspitaller order f St Jhn f Jerusalem f Rhdes andf Malta (als knwn as Sereign order f Malta) has endeaured t help t prtect such uniersal heritage with a iew t maintaining the multi-cultural andmulti-religius character f the Mediterranean while prmting peace and stabilityin the regin.

In 2007, the Sereign order f Malta launched a prject cncerning ‘the prtectin f sacred places in the Mediterranean area’, initing a grup f expertsunder the directin f Prfessr Ferrari f the Uniersity f Milan with a iewt establishing cmmn principles and guidelines fr access t and prtectinf sacred sites f the Mediterranean regin with a uniersal cultural and scialsignicance. In the fllwing year, it apprached the Eurpean Cmmissin and prpsed its prject. Since then, the experts inled hae studied indepth the

histrical and legal characteristics and hae prepared papers n uniersal sacred places f the Mediterranean, which are cllected in this publicatin.

In March 2012, the Eurpean Cmmissin and the Sereign order f Malta jintly rganized a seminar n ‘Prtecting the Sacred Places f the Mediterranean – a Cntributin t the Intercultural Dialgue’, which tk place at the Berlaymnt building in Brussels, under the chairmanship f President Barrs.



Between Cultural Diversity and Common Heritagexi

In Nember 2012, the Republic f Cyprus, during its term f the presidencyf the Cuncil f the Eurpean Unin, and willing t cntribute t a EurpeanUnin that stands as a frce f prgress, peace, stability and scial chesinfr its citizens, its neighburing cuntries and the wrld, has kindly ffered thst an internatinal meeting n the ‘Prtectin and Cnseratin f CulturalHeritage in the Mediterranean: A Cmmn Respnsibility’ in Limassl, Cyprus, in cllabratin with UNESCo and the Eurpean Cmmissin.

I beliee that this lng-term prject n the preseratin f the cultural andreligius heritage is releant and timely fr the future f the Mediterraneanregin which requires a renewed frm f diplmacy, and I am cndent that theexchange f thughts and knwledge initiated with this prject will be able t prduce imprtant utcmes fr the Mediterranean cmmunities and States thatshuld adpt cmmn principles and rules fr prtectin and cnseratin f their

cultural heritage.Let me cnclude by thanking Prfessr Sili Ferrari f the Uniersity f

Milan fr the crdinatin f this ambitius prject, all the experts wh haecntributed t the research, the Eurpean Cmmissin and UNESCo fr theiraluable cperatin, as well as the French Fundatin f the order f Malta andthe Fundatin Baldi f the order f Malta fr their nancial cntributin.

H.E. Jean-Pierre Mazery,

Grand Chancellor Sovereign Military Hospitaller Order of St John of Jerusalem of Rhodes and of Malta



Chapter 1

Intrductin:

The Legal Prtectin f the Sacred Places of the Mediterranean

Sili Ferrari

The Meaning of ‘sacred place’

First f all, what d we mean here? The expressin ‘sacred place’1 by n meanshas a clear-cut and unical signicance. In Chapter 3, Yuri Styan shwshw cmplex the ntin f sacred place is. It is at the crssrads f thelgical,anthrplgical, histrical, scilgical and legal research, each f these tending tdene the bject f its analysis in different terms. After describing the state f theart f the studies n sacred places, Styan cncludes that ‘the multiple religius,

spiritual, scial and plitical functins ascribed t’ sacred places in human scietiesand cultures are reected in the ‘interpretatie and methdlgical ambiguities’that affect these studies, s that it remains uncertain hw much helpful inputthey can pride t legal and plitical initiaties fcused n the safeguarding fsacred places. Een leaing aside any ambitius attempt t frmulate a thereticaldenitin and cncentrating n the mre mdest task f elabrating a ntin fsacred place thrugh the examinatin f the places that are cmmnly qualied assacred des nt help. In Chapter 5, Peter Petkff cntinually ntes that ‘becausef the inherent uniqueness f sacred places, deelping a taxnmy f sacred places is irtually impssible […]. Sacred places range frm thse with eryclearly dened brders and physical specicatins, t gegraphical areas, natinal parks, prcessins, pilgrimages, sacramental places and places where the faithfulcngregate and their spiritual leaders teach’.

These remarks are enugh t deter any reasnable persn frm attemptingt pride a denitin f a sacred place. Hweer, it is necessary t clarify themeaning gien t these wrds in this bk.

The expressin ‘sacred places’ is used here because it is currently emplyed t

indicate places like the Wailing Wall, Mecca, the Basilica f the Hly Sepulchreand s n. Hweer, the bk is deted t ‘religius places’ – that is, sacred

1 on the meaning f ‘sacred places’ and ‘hly places’ see Chapter 2 by Andrea Benz,‘Twards a denitin f sacred places. Intrductry remarks’. Hweer, in this bk thetw expressins are frequently used as synnyms.

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-



Between Cultural Diversity and Common Heritage2

places that hae an explicit religius signicance. Therefre the bk des ntdeal with places that may hae a spiritual signicance but which are discnnectedfrm clearly identiable religius traditins and cmmunities, nr des it dealwith places whse (smetimes exclusiely ‘secular’) sacredness depends n thehistrical r plitical eents that tk place there, like the birthplace f the fatherf a natin, r a battlegrund, fr example.2

Een within this limited ‘religius’ sphere the expressin ‘sacred places’ – asemplyed in this bk – needs t be further circumscribed. Paraphrasing orwelland withut any intentin f disrespect, it is pssible t say that all places aresacred but sme places are mre sacred than thers. The pint is made by YahyaPallaicini in Chapter 8: ‘Althugh it is pssible fr the belieer t participatein the presence and the cmmunicatin with the Lrd f the Wrlds in all themsques and in eery crner f the earth where Gd has made a carpet upn which

t wrship Him, the Muslim knws that the ery same Creatr has chsen certain places abe thers t manifest sme f His signs, like in Mecca, Jerusalemand Medina’. This remark applies equally well t the sacred places f Judaismand Christianity that share with Islam the faith in a God creator who manifested

himself t human beings in specic times and places.3

Again, nce it is accepted that sme sacred places are deemed t be mreimprtant than thers it is impssible t dene precisely what elements differentiatethe rst frm the secnd grup. Sacred places are liing entities and as such are in

cnstant elutin. Pliticians, diplmats and lawyers knw ery well hw difcultit is t dene them and fr this reasn they hae frequently aided any denitinand hae drawn up lists f sacred places, as happened with the sacred places f theHoly Land.4 Hweer, while it is useless t strie fr a denitin, it may be helpfult lk fr sme signs that shw the particular imprtance f a sacred place. Thissearch has been perfrmed in Chapter 2 by Andrea Benz. After establishing that‘n uniersally accepted denitin f sacred place exists’ in internatinal anddmestic legal instruments, Benz prpses a ‘denitin by inductin’ based nfur features that recur in the sacred places cnsidered in this bk (the link t amanifestatin f the sacred; the rle played by a place as a histrical landmark; theeneratin f belieers cming frm different parts f the wrld; the cnsensusdeelped thrugh histry n its sacred character). It is interesting t nte thatsimilar features are recalled in the decisin f the Internatinal Criminal Tribunal

2 on the distinctin between religius and sacred with specic reference t sacred places see the interentin f Catherine Clnna in Andrea Benz (ed.), Proceedings of

the Seminar ‘Protecting the Sacred places of the Mediterranean’ (Brussels, 6 March 2012,order f Malta 2012) 74–6.3 Fr these tw features f sacred places – their religius nature and their utstanding

imprtance – see Article 2 f the Declaration on the Protection and Enhancement of Sacred Places in the Mediterranean Area published as appendix t this bk.

4 See H. Eugen Bis, The Jerusalem Question, 1917–1968 (Her Institutin Press1971).



Introduction 3

fr the Frmer Yugslaia in the Krdic and Cerkez case.5 The Appeal Chamber,reersing a judgment gien three years befre by the Trial Chamber, made adistinctin between the general prtectin prided in internatinal instrumentsfr places f wrship and the special prtectin granted t places f wrship that‘cnstitute the cultural r spiritual heritage f peples’, specifying that ‘cultural rspiritual heritage cers bjects whse alue transcends gegraphical bundaries,and which are unique in character and are intimately assciated with the histryand culture f a peple’.6 Nt always des a single sacred place pssess allthese features, but they all pint in the same directin and gie us sme helpfulindicatins fr appraising the particular sacredness attributed t a specic place.

Starting with the fur indicatrs identied by Benz, a grup f sacred placescan be set apart that hae a special signicance in the religius traditins f theMediterranean. They are the subject f the cntributins cllected in this bk.

The fact that there is n neat line separating these sacred places frm ther placesf wrship and eneratin reects the cntinuity between these tw grups f places, and the wide grey zne between them shuld be regarded as the bufferarea that unites instead f separating places that hae different imprtance but thesame quality, because in the end the sacredness f places ‘deries frm the uses twhich they are put’.7

There is als a gegraphical limitatin that shuld be taken int accunt befrecncluding these intrductry remarks: this bk deals with the sacred places f

the Mediterranean area.It is a fact, recently reafrmed by the Cuncil f the Eurpean Unin, that

‘Eurpe and the Mediterranean regin share a cmmn histry and culturalheritage’8 which als includes its religius and sacred legacy. Many sacred placesf the Mediterranean are assciated with three religins – Judaism, Christianityand Islam – which share a mntheistic creed and beliee in a Gd wh manifestedhimself t humans in specic times and places. These tw elements – mntheismand reelatin – cnstitute the fundatin upn which these religins deelped

5 Prosecutor v. Kordic & Cerkez, ICTY Case N. IT-95-14/2-T (ICTY Judgment,Trial Chamber, 26 February 2001); Prosecutor v. Kordic & Cerkez, ICTY Case N. IT-95-14/2-T (ICTY Judgment, Appeals Chamber, 17 December 2004).

6 Prosecutor v. Kordic & Cerkez, ICTY Case N. IT-95-14/2-T (ICTY Judgment,Appeals Chamber, 17 December 2004), paras 90 and 91. The general and special prtectinmentined by the Curt is the prtectin granted by Articles 52 and 53 f the PrtclAdditinal t the Genea Cnentin f 12 August 1949, and relating t the Prtectin fvictims f Internatinal Armed Cnicts (Prtcl 1), 8 June 1977. Fr a discussin f

these decisions see Marco Ventura , ‘Glbal Laws n Hly Places after Bamiyan and theTwin Twers’, frthcming in the Oxford Journal of Law and Religion.

7 The qutatin is taken frm Chapter 6 by Jack Bemprad in this bk. The cntinuity between sacred places and places f wrship is underlined in Chapter 5 by Peter Petkff.

8 Cuncil Cnclusins n Deelpments in the Suthern Neighburhd, Brussels,21 February 2011, aailable at <www.cnsilium.eurpa.eu/uedcs/cms_Data/dcs/ pressdata/EN/fraff/119420.pdf > accessed 7 April 2013.

http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/119420.pdf







their respectie cnceptins f sacred place. Histry f diine reelatin ffersa chain f eents – all gegraphically lcated – that make a particular placesacred: the mst imprtant sacred places f Judaism, Christianity and Islam arecnnected t a diine manifestatin r cmmand, directly (when it is Gd himselfwh gets in tuch with human beings) r indirectly (when the diine message ismanifested by men and wmen f Gd, like saints, prphets, sages). Monotheism

paes the way (better: shuld pae, as this pint is t frequently frgtten) frrespecting the ‘ther’, as Gd is the same fr all human beings,9 and cnsequentlyfr recgnizing the uniersal penness f each sacred place. This histrical andthelgical backgrund – marked by the dialectics between the particular anduniersal dimensin f sacred places – pens up the pssibility f identifying a prtectin framewrk that takes int accunt the elements f cmmnality shared by the sacred places f the Mediterranean area and distinguishes them frm the

sacred sites reered in ther parts f the wrld.Frm a plitical pint f iew, the deelpment f such a prtectin framewrk

is required by anther fact that marks the sacred places f the Mediterranean:they are s many and s clse t each ther that they are cnstantly in danger f becming elements f cnict. The prximity f the sacred places is such thatsmetimes they physically erlap and the same place is sacred t tw r mrereligins. This frequently gies rise t tensins that need t be preented, r atleast reduced, thrugh an effectie system f safeguards.

After many years f neglect, the Eurpean Unin seems t hae understdthat peace and stability in the Mediterranean regin cannt be attained withutdealing with the issue f sacred places. In 2010 the EU President Manuel Barrscalled upn all the interested parties t cperate in the effrt ‘de faire des grandsites religieux des espaces de paix et de culture’,10 and two years later the EU

Cmmissiner fr Educatin afrmed that ‘the sacred places f the Mediterraneanare an imprtant part f ur [Eurpean] identity’ and can gie a releant‘cntributin t intercultural dialgue’.11 These statements show that there is

a grwing awareness that the Eurpean Unin, tgether with the States f theSuthern shre f the Mediterranean and ther stakehlders, has a precise interestin taking the initiatie t prmte the recgnitin f sme guidelines pridingeffectie prtectin t sacred places and cntributing t the peaceful deelpmentf the whle regin.

This bk intends t be a step in this directin. After a few cntributins that pride a general eriew f the ntin f sacred places in anthrplgical,scilgical and legal studies (Part I), three chapters then examine this ntin

9 The link between mntheism and respect f the ‘ther’ is highlighted in Chapter 6.10 Addressed at the meeting with the Grand Master f the order f Malta, Rme

22 May 2010.11 Andrulla vassiliu, ‘opening Remarks’, in Andrea Benz (ed.), Proceedings of

the Seminar ‘Protecting the Sacred places of the Mediterranean’ (Brussels, 6 March 2012,order f Malta 2012) 8, 10.



Introduction 5

in the light f Jewish, Christian and Islamic thelgical and legal thught (PartII). Understanding the meaning f sacred places in these three religius traditinsis the starting pint fr discussing hw sacred places can be prtected: Part IIIffers a detailed analysis f the legal status f the mst imprtant sacred places fthe Mediterranean. This examinatin aims at identifying a set f legal principles(cntained in the Declaratin published at the end f the bk) that can be appliedt all f them and that can pride a general framewrk within which mre speciclegal measures (if needed) can nd their place. Hweer, befre starting this lng jurney, it is necessary t address tw ther preliminary tpics, discussing whyand hw sacred places shuld be prtected.

The Importance of Sacred Places

The imprtance f sacred places is widely recgnized all er the wrld. Theyhae aluable religius, cultural, plitical and ecnmic signicance: sacred places are a liing testimny f the religius faith f a cmmunity, pride peplewith a sense f identity, play a ital rle in safeguarding cultural diersity, help infstering the scial chesin f a ppulatin and attract millins f pilgrims andisitrs. T gie an idea f the imprtance f the sacred places issue, sufce it tsay that 20 per cent t 30 per cent f the prperties inscribed n the UNESCo

Wrld Heritage List hae been included specically fr their religius r spiritualassociation.12

on the ther hand, sacred places are a catalyst fr cnict, as clearlydemnstrated by the wars in the Balkans after the cllapse f Yugslaia. Precisely because sacred places are imprtant fr building and maintaining the identity fa cmmunity, destrying them is a blw that weakens the strength f the peplewhse histry, culture and religin are symblized by these places.13 Demlishingr desecrating the defeated enemy’s sacred place r, wrse, cnerting it int thecnquerr’s sacred place – the msque int a church and ice ersa – is ne f themst cmmn and age-ld tactics aimed at demralizing the enemy ppulatinand breaking its will t resist.

Fr these reasns, there is wide agreement abut the need fr adequate prtectin f sacred places. Recently UNESCo has underlined that religius andsacred sites require specic plicies fr prtectin and management that take int

12 See the Conclusions, Recommendations and Statement f the ‘Internatinal

Seminar n The Rle f Religius Cmmunities in the Management f the Wrld HeritagePrperties’, Kyi, 2–5 Nember 2010, para III, 2, aailable at <www.kplara.kie.ua/seminar/rap_en.pdf > accessed n 19 April 2013.

13 In the sentence f the Internatinal Criminal Tribunal fr the Frmer Yugslaiaquted at the ftnte 2 (Trial Chamber) it is explicitly stated that the destructin freligius buildings ‘when perpetrated with the requisite discriminatry intent, amunts tan attack n the ery religius identity f a peple’ (para 207).

http://www.kplavra.kiev.ua/seminar/rap_en.pdf







accunt their distinct spiritual nature as a key factr in their cnseratin andthat such plicies cannt be sustainable withut in-depth cnsultatin with theapprpriate stakehlders.14 It has als been recgnized that as the existing standard-setting instruments may nt adequately address the matter, ‘it is particularly timelyt dene an integrated strategy fr the deelpment f a Wrld Heritage ThematicPrgramme fr Religius Heritage in cllabratin and clse crdinatin between all stakehlders, and that this Prgramme shuld create an actin planfr the prtectin f religius heritage wrldwide aimed at enhancing the rle fcmmunities and the aidance f misunderstandings, tensins, r steretypes’.15

While this recent elutin is welcme, appraching the questin f sacred places exclusiely frm the angle f their prtectin may be reductie as itlimits the cntributin they can pride t deelping the traditins f the threemntheistic religins f the Mediterranean and, as a result, t encuraging the

grwth f a healthy ciil sciety. Prtecting sacred places is the precnditin frenabling them t perfrm their religius and ciil rle and s the emphasis shuldnt be placed n prtectin as preseratin but n prtectin as enhancement fsacred places.16

The need t shift frm the rst t the secnd paradigm (frm prtectin- preseratin t prtectin-enhancement) can be better explained by lking at theMediterranean area as a whle as well as at the three mntheistic religins thatdeelped in this part f the wrld.

The cncept f sacred space in the Jewish, Christian and Islamic traditinis based n the tensin between tw principles. These religins teach that the presence f Gd cannt be cnned t a specic place, as Gd inhabits the whleuniverse.17 This teaching, hweer, is nt in cntradictin with the belief thatGd manifested himself in specic places that are termed sacred because theyare directly cnnected t diine reelatin. As already said, the belief that Gd

14 See Initiative on Heritage of Religious Interest , aailable at <www.whc.unesco.

rg/en/religius-sacred-heritage> accessed 7 April 2013.15 Kyiv Statement on the Protection of Religious Properties within the Frameworkof the World Heritage Convention, n. 9 (Nember 5, 2010), aailable at the website listedin ftnte 12.

16 In this perspectie, when dening what shuld be presered, the starting pint is acrrect understanding f ‘the scial-functinal integrity f the place’ and f ‘the functinsand elements that tgether frm the heritage’ (Jukka Jkileht, ‘Cnseratin f LiingReligius Heritage’, aailable at <www.kplara.kie.ua/seminar/rep/7.pdf > accessed

19 April 2013.

17 In this bk Yahya Pallaicini qutes the Kran erse, saying that ‘Gd has madethe earth like a carpet’ t underline that eery place n earth is a pssible sacred spacefr the ritual wrship f Gd. The same pint (the diine presence cannt be limited t aspecic place) is made by Pier Francesc Fumagalli wh mentins a erse frm a Jewishliturgical pem (‘Gd is the Place f the Temple / and the Temple withut a place’) and theGspel passage where Jesus tells the Samaritan wman that ‘true wrshipers will wrshipthe Father in spirit and truth’.

http://www.whc.unesco.org/en/religious-sacred-heritage


http://www.kplavra.kiev.ua/seminar/repo/7.pdf

http://www.kplavra.kiev.ua/seminar/repo/7.pdf





Introduction 7

reealed himself t human beings in specic places is central t the deelpmentf the ntin f the sacred place in these religins. Sacred places, accrding t

Jhn Paul II in 1980, are the ‘gegraphical pint f tangency between Gd and man, between the eternal and histry’.18 They enshrine Gd’s reelatin, but the frmsthrugh which reelatin is expressed are cnstantly reshaped, s that they remainable t reect the grwing understanding f the diine message n the part f thefaithful and t answer the changing needs f the religius cmmunity. This is themeaning f the encunter between the eternal (representing Gd’s absluteness and permanence) and histry (symblizing the relatie and changeable elements thatare part f human nature) eked by Jhn Paul II. The same idea can be expressedin the wrds f Martin Heidegger t dene the nature f wrks f art: ‘creatiecustdianship f truth’. The truth f diine reelatin is entrusted t the faithfulcmmunity, which has the respnsibility t guard it as a living heritage thrugh a

cnstant prcess f frmulatin and refrmulatin f the dctrines, practices andrituals that keep reelatin alie in the belieers’ life. In ther wrds, the identityf the Jewish, Christian and Islamic cmmunities is rted in traditins that g back t Gd’s reelatin: keeping these traditins alie means that their cntent isapprpriated time and again by the cmmunity, thrugh a cntinuus learning andadaptatin prcess.19 All these remarks pint in the same directin: sacred placesare a liing heritage and shuld be prtected and prmted as such.20 Prtectingsacred places then means enabling them t perfrm the functin f cmmunicatin

between heaen and earth that is ital fr the life f a religius cmmunity (as Styan reminds us, sacred places are frequently dened as the meeting pints between heaen and earth).

Prtecting sacred places as the liing heritage f a particular religiuscmmunity, hweer, is nt enugh. They need t be prtected als as centres finterreligius dialgue. It is surprising hw little is the rle played by sacred placesin this eld. Smetimes ne has the impressin that the mre a place is central frthe life f a religius cmmunity, the less a cmmunity is ready t regard that place as a meeting pint with the fllwers f ther religins, in sme cases gingas far as t deny them access t it. In Chapter 7 Pier Francesc Fumagalli ntes

18 Jhn Paul II, ‘Gerusalemme, quante immagini, quanta passine e quale grandemister!’, in L’Osservatore Romano (19 September 1980) 1.

19 I am indebted fr these remarks (including the reference t Heidegger) t JukkaJkileht’s text quted at ftnte 16.

20 Synthesizing the papers cllected in Herb Stel, Nichlas Stanley-Price andRbert Killick (eds), ‘Cnseratin f Liing Religius Heritage’. In Papers from the

ICCROM 2003 Forum on Living Religious Heritage: conserving the Sacred , Rome,ICCRoM, 2005, aailable at <www.iccrm.rg/pdf/ICCRoM_ICS03_ReligiusHeritage_ en.pdf > accessed 15 April 2013, Stel underlines that ‘what distinguishes religius heritagefrm secular heritage is its inherent “liingness”’. In this perspectie ‘the primary galf cnseratin becmes cntinuity itself, based n prcesses f renewal that cntinually“reie the cultural meaning, signicance […] and symblism attached t heritage’, HerbStovel, Introduction, 1.

http://www.iccrom.org/pdf/ICCROM_ICS03_ReligiousHeritage_en.pdf







that ‘cntemprary experience and the histrical experience f the past testiesthat it is nt easy t bestw hliness upn a place in an inclusie way. Indeedthe mst cmmn trend is the ppsite ne, whereby a sacred place – r parts fit – is declared as ne grup’s exclusie pssessin instead f smething that can be enjyed tgether’. In this way the particular signicance f a sacred place frthe faith and identity f a specic religius cmmunity – smething that surelydeseres t be prtected – des nt becme the starting pint fr reaching ut tther cmmunities – smething that surely deseres t be prmted. Althughthis last step, which implies delicate thelgical questins, can be taken nly bythe inled religius cmmunities and shuld nt be frced upn them, a nn-sectarian apprach t the issue f sacred places shuld be based n the awarenessthat identity and dialgue are nt mutually excluding. Fr this reasn, as betterexplained in the fllwing pages, the prtectin and enhancement f sacred places

has t reect a careful balance between their particular and uniersal signicance:nly if bth dimensins are taken int accunt can the plitical and legal measuresaimed at securing the status f sacred places enhance their rle as centres fidentity f a religius cmmunity and, at the same time, as centres f dialgue between different religius cmmunities.21

Besides their religius signicance (mre exactly: because f their religiussignicance), sacred places can pride signicant cntributins t thedeelpment f a ital ciil sciety. Frm this pint f iew, sacred places are nt

nly a surce f tensin and cnict that endanger peaceful cexistence, they canals be an asset fr fstering scial plurality and diersity, tw features that arefrequently regarded as necessary cnditins fr demcracy itself. Exactly becausesacred places are a central cmpnent f the histry, traditin and belief f a particular cmmunity, under certain cnditins they can becme a bridge twardsther cmmunities. Sacred places represent identity and diersity at the sametime. Each is strictly associated with the history and culture of a community and,

tgether, they manifest the ariety f cultural traditins and belief systems f the ppulatins liing in the Mediterranean area. Like many wrks f art, this msaicf diersities – where each tessera reects the features f a particular cmmunity – is extremely delicate: bth its single cmpnents and the erall pattern arecnstantly in danger f being lst, with the cnsequence that intercultural dialguewuld becme much prer and wuld hae a scant chance f rebuilding theMediterranean as a space f peace and security. This explains why safeguardingsacred places is a matter f general interest, nt the cncern f the belieersnly. While religius cmmunities hae the primary respnsibility t maintainthe character of living religius heritage f sacred places, the ptential rle they

can play in fstering intercultural dialgue ges beynd their strictly religiussignicance and is f interest fr the building f a plural and demcratic sciety.

21 In Chapter 8 f this bk, Yahya Pallaicini underlines that ‘the holy placesand cities display universal meanings that transcend local and religious specicities andtherefore they cannot become vehicles for forms of exclusivity’.



Introduction 9

In this perspectie a prtectin system f the sacred places shuld deelp theircapacity t functin as centres f intercultural dialgue. Frtunately there is ninsurmuntable cntradictin between the cultural and the religius dimensin fsacred places: safeguarding the specicity and diersity f each is the best way tenable them t becme elements f bth interreligius and intercultural dialgue.

In any case, if sacred places hae t play a rle in the rapprchement f the twshres f the Mediterranean, cnceiing their prtectin in terms f preseringtheir physical existence is nt enugh. Prtectin f the sacred places needs t bere-cnceptualized in a much mre psitie and practie frm, stressing all theelements that enable them t becme centres f recnciliatin between differentreligius and cultural cmmunities. This task inles respnsibilities that byfar exceed thse f States and internatinal rganizatins and requires the actie participatin f religius cmmunities and, mre generally, ciil sciety actrs.

These remarks help t understand part f the meaning t be gien t ‘prtectinf sacred places’. Hweer, there is a secnd side t this expressin that still hast be discussed.

While sacred places are reasnably well prtected as part f cultural heritage,their religius signicance is still underestimated. Fr this reasn a sund pliticaland legal framewrk fr the prtectin and enhancement f sacred places has nt been fully deelped. In rder t ll this gap, tw questins need t be answered.

First, are the sacred places t be prtected because f their cultural r their

religius signicance? As already said, in many cases the tw g tgether, butit is easy t imagine a different scenari. Presering a sacred place as a museumcan sae mst f its cultural alue but it can be utterly useless fr safeguardingits religius signicance. The sacred places we are speaking f are liing entitiesand as such bth their religius and cultural meaning is largely lst if they arediscnnected frm the life f their cmmunity f faithful, the pilgrimages, festials,religius ceremnies and detinal actiities that are the liing expressins ftheir sacredness. In ther wrds, prtecting the Karnak temples is nt exactlythe same thing as prtecting the Hly Sepulchre r the Wailing Wall: in the rstcase, the cultural dimensin is preailing, while in the secnd the centre stage istaken by the religius dimensin. Cnsequently, als the prtectin system may be partially different and gie mre imprtance bth t the human cmpnent f thereligius heritage and t its link with the needs f religius practice. Frm the rst pint f iew, attentin shuld be paid nt nly t the cnseratin f buildings, but als t the prtectin f spatial structures, enirnmental areas, humanactiities and settlements that surrund the sacred places and cnstitute theirhabitat, in cmpliance with the 1976 UNESCo Recmmendatins Cncerning the

Safeguarding and Cntemprary Rle f Histric Areas. Frm the secnd pint fiew, the interest by religius cmmunities fr the cntinuing use and renewal ftheir sacred places shuld be taken int accunt. Such an apprach wuld fster,n the ne hand, the search fr and deelpment f cnseratin strategies andinstruments that respect the religius character f the place and, n the ther,the inlement f the cncerned religius cmmunities in the cnseratin f




their wn sacred places. As stated in the cnclusin f the ICCRoM 2003 Frum‘Cnsering the Sacred’, smetimes the risks t liing religius heritage ‘mayreect well-meant effrts t presere physical testimnies f faith within bradcnseratin plicies which d nt, hweer, recgnize the specicity f religiusalues’.22 Strengthening the dialgue between cnseratin prfessinals andreligius cmmunities is the best way t ercme this danger.

Secnd, is freedm f religin t be taken int accunt when enisaging a prtectin system f sacred places? Freedm f religin is nt nly a matter thatcncerns cnscience and beliefs: it als regards isible and external manifestatinsf religin. Fr this reasn the right t establish and maintain a place fr wrship andassembly – including the right t isit it and t perfrm ritual and ceremnial actsin it – is generally cnsidered t be part f the right t religius freedm, as statedin Article 6 f the UN Declaratin n the Eliminatin f All Frms f Intlerance

and Discriminatin Based n Religin r Belief and in n. 4 f the UN HumanRights Cmmittee General Cmment N. 22 (48).23 Hweer, freedm f religinis cnspicuusly absent frm the debate n sacred places, which is dminated byan apprach that has magnied their cultural signicance and dwnplayed theirreligius meaning. Histrically, ffences t sacred places hae been understd asa sub-sectin f the ffences t the cultural heritage f a peple r f the whlef humankind, while their character f ffences t the religius freedm f thesesubjects has remained in the shadws. This apprach has led t building the

prtectin system f sacred places int the framewrk f the rules cncerningcultural heritage. As freedm f religin has little signicance in this area, n usewas fund fr the whle set f legal prisins safeguarding it at the natinal andinternatinal leel. As a cnsequence, the leel f prtectin granted t sacred placeswas weakened and, mre imprtantly, their meaning in the religius traditins f theMediterranean was bscured. In the legal systems f the three main Mediterraneanreligins, sacred places mean smething mre than places f wrship: praying in the place where Gd manifested himself, directly r thrugh men and wmen wh actedin his name, is deemed by millins f peple t be a religius bligatin r at leasta recmmended practice. Althugh Judaism, Christianity and Islam teach that Gdcan be wrshipped in eery place, the practice f pilgrimages t sacred places ges

22 Herb Stel, Introduction, in Herb Stel, Nichlas Stanley-Price and RbertKillick (eds), ‘Cnseratin f Liing Religius Heritage’, 9.

23 See Crnelius D. de Jng, The Freedom of Thought, Conscience and Religionor Belief in the United Nations (1946–1992) (Intersentia-Hart 2000) 359–422; Nel G.villarman, ‘The Right t Establish and Maintain Places f Wrship: The Deelpment f

its Nrmatie Cntent under Internatinal Human Rights Law’, in Sili Ferrari and SabrinaPastrelli (eds), Religion in Public Spaces. A European Perspective (Ashgate 2012) 295–322.The link between prtectin f religius freedm and security f sacred places is alsunderlined by sme religius cmmunities. See Prtecting religius freedm and hly sites, aDeclaratin f the Internatinal Cathlic-Jewish Liaisn Cmmittee, New Yrk, 4 May 2001,aailable at <www.atican.a/rman_curia/pntical_cuncils/chrstuni/relatins-jews-dcs/rc_pc_chrstuni_dc_20010504_new-yrk-meeting_en.html> accessed 15 April 2013.

http://www.vatican.va/roman_curia/pontifical_councils/chrstuni/relations-jews-docs/rc_pc_chrstuni_doc_20010504_new-york-meeting_en.html






Introduction 11

back t the rigins f these religins and cntinues t be widespread in ur times.This uninterrupted stream f pilgrims is the best prf that sacred places hae mucht d with religius freedm, which wuld be hampered if a place is destryed rmade inaccessible t peple wh want t isit it nt (nly) as a cultural attractin, but as a religius practice. An effectie legal system cannt aid recgnizing thelink between manifestatins f religius faith and sacred places and lking attheir prtectin thrugh the lenses prided by the prisins that safeguard theindiidual and cllectie rights f religius freedm.

When the legal status f sacred places is discussed, these tw characteristics – their religius signicance and their cnnectin with religius freedm – arefrequently ignred, dwnplayed r misunderstd. As a cnsequence, the prtectin f sacred places has nt yet attained a leel that is adequate fr the newimprtance that religin has acquired in internatinal and dmestic plitics. After

1989 the prcess f de-priatizatin f religin and its frceful re-establishment inthe public sphere has added a new dimensin t the cnicts arund sacred places.The destructin f the Buddhas f Bamiyan in 2001 and f the shrines f Timbuktuin 2012 signals that they hae becme the target f effrts t cleanse whle reginsfrm the presence f symbls that challenge the dminant religin. Sacred placesare nt destryed t weaken the military r plitical strength f the enemy, aswas the case in the Balkan Wars f the 1990s: n Buddhists lied in Afghanistanin 2001. Sacred places are destryed because a place must be puried frm any

impius sign.24

This transfrmatin challenges ld legal patterns f prtectin andrequires a fresh apprach t the whle issue f sacred places. First f all, it requiresa better understanding f what are the features and functins f the sacred placesthat need t be prtected in this new scenari, where the religius signicance fthe sacred places has gained an unexpected and smetimes threatening imprtance.

The Protection of Sacred Places

A recently published UNESCo dcument underlines that ‘cllectiely, thereligius and sacred prperties capture a range f cultural and natural diersity, andeach can singularly demnstrate the spirit f a particular place’.25 This statement

crrectly identies the tw dimensins – particular and uniersal – which shuld be kept in mind when appraching the issue f sacred places.26

24 This new prle f the sacred places issue is underlined by Marc ventura, ‘Glbal

Laws n Hly Places’.25 UNESCo Executie Bard, Reprt by the Directr General n the Fllw-Up tDecisins and Reslutins Adpted by the Executie Bard and the General Cnferenceat Their Preius Sessins, Paris, 18 April 2011, aailable at <http://unesdc.unesc.rg/images/0019/001920/192094e.pdf > accessed n 8 April 2013.

26 Bemprad writes that a ‘key issue in recgnizing the sacred is the relatinship between the particular and the uniersal’, s that ‘n the ne hand, we must gie prper

http://unesdoc.unesco.org/images/0019/001920/192094e.pdf







Sacred places (and this is particularly true fr the sacred places f theMediterranean, as it has already been nted) are frequently cnnected t a particular manifestatin f the ‘sacred’ (Gd, a prphet, a supernatural eent ands n) which tk place at a specic place and time: the sacredness f the place isa cnsequence f this manifestatin. The fact that Gd manifested himself in that place makes the sacred place irreplaceable: therefre each sacred place (giingthis expressin the meaning that has already been discussed) pssesses a uniquedimensin which makes that place an essential cmpnent f the cnstitutienarratie f a specic religius grup.

At the same time, sacred places hae a signicance that cannt be cnnedwithin the brders f a single cmmunity, as they are the manifestatin f atranscendent dimensin which is cnstitutie f the human experience. Eeryreligin has its wn sacred places and this fact indicates that the cnnectin f the

‘sacred’ t a particular place is smething that is shared by all religins. But als peple wh are nt members f any religin hae their wn sacred places: warmemrials, natinal histrical landmarks, utstanding wrks f art, mausleumsand cemeteries are isited and reered by men and wmen wh – independentlyf the fact that they beliee r nt in religin – sense that in thse places thereis smething that ges beynd their indiidual lies and has t d with thefundamental meaning f human existence. This helps t understand that eachsacred place is the particular manifestatin f an experience f the ‘sacred’ that is

shared in different frms by all human beings, because all f them (including thsewh are inapprpriately called ‘nn-belieers’) need a ‘sacred’ centre that giessense and directin t their lies. In ther wrds, each particular sacred place hasa uniersal signicance which is releant als fr peple wh are nt members fthe specic religin cnnected t the eents which made that place sacred r eenfr peple wh are nt members f a religin at all.27

This interplay between the particular and the uniersal dimensins f sacred places – mre precisely, the fact that the uniersal can be apprehended nlythrugh the experience f the particular 28 – must be taken int accunt whenreecting n the best way t prtect them. The specic character f each sacred place – its unique way t manifest the ‘sacred’ thrugh the faith, creed and ritual fa cmmunity f belieers – shuld be prtected because it is irreplaceable: its lsswuld affect nt nly the particular religius cmmunity that is cnnected t it butthe whle f humankind, because the experience f the sacred – which is a central

due t and strengthen the uniersal, while n the ther, we must nt minimize the radical

particularity f a religius traditin’ (Sharing Sacred Spaces, in this bk).27 This pint is underlined in Herb Stel, Introduction, where it is written that ‘effrtst cnsere tangible and intangible liing religius heritage desere particular supprtfr their rle in supprting and testifying t the nature f ur search fr the fundamentalmeaning f human existence’, 9.

28 In Chapter 6 Jack Bemprad underlines that the particular ‘ften cntains theuniersal element’.



Introduction 13

element f the human experience – wuld be imperished. In this perspectie,the destructin f the Wailing Wall, r f the Basilica f the Hly Sepulchre r fthe Dme f the Rck wuld make eery human being prer because ne f the paths that cnnect man t the transcendent dimensin f life wuld be freer lst.

In the last decades, the balance between the particular and the uniersaldimensin f sacred places has shifted dramatically. All er the wrld sacred places are increasingly perceied as the symbl f religius identity f a specicgrup. This is part f a brader transfrmatin affecting religins in many partsf the wrld and stressing their character f identity priders (smetimes incnnectin with ther identity markers such as natinality r ethnicity). As acnsequence, the particular dimensin f a sacred place – its cnnectin t aspecic culture, religin, cmmunity – has been brught t the frefrnt and theuniersal prle which is inherent t the sacred places has been largely frgtten,

with the risk that an excessie ‘assertin f identity, fed by fundamentalism, maylead t the destructin f religius symbls’.29

This change f rle played by religin n the natinal and internatinal stageis a challenge that – as far as sacred places are cncerned – shuld be dealt with primarily n the grunds f internatinal law. The sacred places f the majrityreligin are usually gien sme prtectin by natinal laws and the increasingsignicance f religin as identity prider is likely t increase the leel f this prtectin; n the ther hand, natinal legislatin is unlikely t prtect the places

sacred t minrity religins r, at least, t prtect them t the same degree. In thislast case the best chance fr safeguarding the sacred places f minrity religinsis prided by internatinal law that, in the present situatin, is better placed t pride adequate guarantees fr the uniersal dimensin f sacred places.

This uniersal-particular interplay can als be helpful in reecting n the legalstatus f sacred places. The framewrk aimed at granting their prtectin andenhancement ught t be based n the balance between these tw dimensins,respecting and reecting bth the particular and the uniersal prles presented by the sacred places.

on the ne hand there are the particular rights f a specic cmmunity inrespect f its sacred places: the right t wn, cntrl and manage them, theright t gather fr religius purpses in that place, the right t perfrm religiusceremnies and s n. These rights are manifestatins f indiidual and cllectiereligius freedm and shuld be cnsidered in the light f the prisins detedt the prtectin f religius liberty in internatinal and dmestic law. At the sametime they reect the respnsibility f religius cmmunities, upn which rests the burden t maintain the character f living heritage f a sacred place, and pride

them with the tls required t effectiely manage these places.Hweer, as already underlined, sacred places are nt signicant fr the

members f a religius cmmunity nly: they hae a alue that ges beynd thelimits f a specic cmmunity. Therefre they shuld be respected and prtected

29 Jean-Luis Luxen, quted by Herb Stel, Introduction, 2.




as a ‘cmmn gd’, a heritage f general interest, and nt nly as the prpertyf a particular grup. That culd mean, fr example, granting them sme kindf public supprt (een in cases where they are the sacred places f a minrityreligin), giing them enhanced prtectin in the case f cnict r making themaccessible t all peple wh wish t isit them (respecting, f curse, their naturef the sacred place f a specic religin).

These tw sets f rights need t be harmnized thrugh a careful prcessaimed at minimizing the ptential clashes between the rights f the particularcmmunity n the ne hand and the expectatins f the uniersal cmmunity nthe ther. The recnciliatin f these ptentially cnicting interests culd be particularly challenging because each sacred place is part f a specic histrical,cultural and plitical cntext. It is therefre necessary t apprach the sacred places issue thrugh a prcess that recgnizes the different rles f the parties

cncerned and ffers each f them the pssibility t cntribute t the denitin fa satisfactry strategy fr the prtectin and enhancement f sacred places. Thisis the cntributin that the authrs f this bk hpe t ffer t the debate n thesacred places f the Mediterranean.



PART I

What is a Sacred Place?



Chapter 2

Twards a Denitin f Sacred Places:

Introductory RemarksAndrea Benz

Whereas the expressin ‘hly places’ is used t refer in particular t the mstntable Israeli and Palestinian religius sites, the term ‘sacred places’ seems more

apt in embracing all the sites cered by this research, which are different inrigins, histry and gegraphical lcatin. At the same time, the religius sites thisresearch will fcus n enjy a mre prminent status than ther cmmn ‘placesf wrship’, such as churches, synaggues and msques.

Neertheless, internatinal law des nt pride any denitin fr ‘sacred places’. Against this backdrp, ne may argue that n denitin is needed inrder t prtect sacred places. Whereas this assumptin might hld true frcnentins r laws dealing with specic sites, it becmes less sustainable if

the bjectie is the drafting f a legal tl with a brader scpe and fcusing nthe prtectin f sacred places in general which, in turn, stems frm freedmf religin as a human right. In this case, priding a clear, thugh exibledenitin f the subject f such prtectin can help make legal prisins mreeffectie and fcused, as a clear link is established between these prisinsand thse features that make a place sacred and therefre desering f special prtectin.

Sacred Places in International Materials

Detin t the prtectin f sacred places by internatinal law andintergernmental rganizatins is nt a recent phenmenn. Fr instance, sincethe Cngress f Berlin in 1878 the questin f the sacred places in the Hly Landhas ceased t be settled by the Sultan’s unilateral decisins and has becme thebject f internatinal agreements between the main Eurpean Pwers.

Amng recent internatinal dcuments cncerning sacred places in general, we

culd mentin the ‘Prjet de régime juridique pur les Lieux Saints en Terre Sainte – Patrimine Cmmun de l’Humanité’ (2006) by the ‘Grupe de La Laguna’, the

‘Principles and Guidelines fr the Management f Sacred Natural Sites Lcatedin Legally Recgnised Prtected Areas’ (2008) by UNESCo (United NatinsEducatinal, Scientic and Cultural organizatin) and IUCN (Internatinal Unin




Fr Cnseratin f Nature and Natural Resurces)1 and the ‘Uniersal Cde nHly Sites’ by the ‘Hly Sites Cnference’ (osl 2009).2

The rst instrument was drawn up and adpted by a grup f experts headed by Federic Mayr, Frmer Directr-General f UNESCo, and it has nt btainedany binding legal status yet. In light f the uniersal alue f sacred sites, thisdcument draws an interesting parallel between the cncept f a hly place and thatf cmmn heritage f mankind utlined in the well-knwn UNESCo Cnentinf 1972. The ntin f cmmn heritage f mankind made its rst appearancein a legal dcument in the 1966 ‘Declaratin n the principles f internatinalcultural cperatin’ by the UNESCo General Assembly, but a similar ratinalelies at the rt f the 1959 Antarctic Treaty. By the same tken, sereignty claimsn the Hly Land shuld be ‘frzen’ – accrding t the Laguna prject – and prtecting hly places shuld becme a cmmn cncern f humankind, gien

their uniersal alue. T attain this bjectie, the drafters hae prpsed a newlegal regime. Althugh it des nt aim at replacing the UNESCo Wrld HeritageCnentin system, this has clearly been taken int accunt as a releant mdel.In rder t dene a specic site as a sacred place, this draft makes reference tthe fact that it is cnsidered as such by histry, r traditin r by the religiuscmmunity (r cmmunities) cncerned. Whereas these cmmunities can prpsethe inclusin f a certain site in the ‘Register f cmmn heritage f mankind’ t the cmmittee thereby established, a list f the mst ntable hly places in the

Hly Land was t be added t the nal ersin f the prject, in rder fr them tenjy the status granted by this regime nce it entered int frce, with n need fra prpsal f inclusin. It was added that, ‘… Le régime du patrimine cmmunde l’humanité purra également être appliqué aux Lieux Saints qui ne snt passitués sur les territires d’Israël et de Palestine, à cnditin que l’accrd y relatifsit dnné par l’État sur le territire duquel les dits Lieux Saints snt situés’. The

nal decisin n the inclusin f additinal sites is t be taken by the ‘InternatinalAuthrity f the cmmn heritage f mankind’ thereby established. This cmmitteeis appinted by the United Natins Security Cuncil and cnsists f n mre thanseen members, including representaties f the State f Israel and Palestine andnatinals f thse states haing histrical ties with the Hly Land. Representatiesf religius cmmunities enjy bserer status. The members f the Authrity canals prpse a site fr inclusin but the cnsent f the religius cmmunities isrequired. These are respnsible fr the administratin f hly places whereas theAuthrity is primarily charged with applying the whle regime. As fr prtectin, basic principles include nn-exprpriatin, peaceful use, cnseratin in the interestf future generatins and freedm f access. Territrial states are respnsible fr

the maintenance f public rder and security within hly places. Disputes between

1 This dcument is aailable at <http://data.iucn.rg/dbtw-wpd/edcs/PAG-016.pdf>accessed 24 May 2013.

2 This dcument is aailable at <www.sfcg.rg/prgrammes/jerusalem/Uniersal%20Cde%20n%20Hly%20Sites.pdf > accessed 24 May 2013.

http://www.sfcg.org/programmes/jerusalem/Universal%20Code%20on%20Holy%20Sites.pdf






Towards a Denition of Sacred Places 19

states parties and religius cmmunities shall be settled by the Authrity. N legalstatus is explicitly freseen fr the dcument; althugh, as the drafters argue in theirexplanatry nte, a bilateral treaty between Israel and Palestine under the aegis fthe Security Cuncil wuld be the mst suitable slutin.

The UNESCo/IUCN guidelines are aimed at helping prtected area managersin guaranteeing an adequate degree f prtectin t areas f land r water whichare the bject f wrship by lcal and indigenus cmmunities – and als bymainstream faiths – gien their peculiarities. Here, a sacred site is dened as ‘anarea f special spiritual signicance t peples and cmmunities’; they are deemedas desering urgent supprt since they ‘remain utstanding assets f the whle fhumanity’. The need fr cntinuus cperatin with the religius cmmunitiescncerned is als stressed. The primacy f traditinal custdians is recgnizedwith a iew t prmting cperatin between them and prtected area managers

as a prerequisite fr the enhanced cnseratin f these special places. MuntAths is mentined as an example f a sacred natural site accrding t the IUCNcategries.

A ‘Cde n Hly Sites’ was drawn up in 2009 by the ‘Hly Sites cnference’, assembling religius leaders and academics and rganized by ‘one Wrld inDialgue’ and the ‘osl Center fr Peace and Human Rights’. The Code has beenendrsed by interfaith netwrks, religius cmmunities and leaders such as the‘Religins fr Peace Wrld Cuncil’, the ‘Wrld Sikh Leadership’, the President

f the ‘All India Imam organizatin’, the ‘Wrld Cuncil f Churches’ and theRussian orthdx Church – Mscw Patriarchate. As a rst implementatin fthis Cde, a tw-year pilt prject has been launched in Bsnia Herzegina, in partnership with the Inter-religius Cuncil (IRC) f Bsnia and Herzegina, anindependent NGo.3

In the preamble, the drafters acknwledge the great alue attached t hlysites by peple all er the wrld, irrespectie f their religius afliatins. Theyals recall internatinal cnentins n freedm f religin and belief, culturalheritage and prtectin f ciilians in armed cnicts. Hly sites are bradlydened as ‘places f religius signicance t particular religius cmmunities’,such as places f wrship, cemeteries and shrines, incrprating their immediatesurrundings when these frm an integral part f the site. They are designated assuch by each religius cmmunity accrding t its custms. Cmmunities enjythe right t establish and maintain their hly sites and shall be cnsulted regardingthe public prmtin f such places fr turist, scientic, educatinal and ther purpses. Regarding prtectin, the dcument calls fr the preseratin f hlysites, freedm f access, recnstructin and ‘memrializatin’ f destryed sacred

places as well as prtectin frm desecratin. Exprpriatin and natinalizatinf parts f a hly site are permitted, prided that the religius cmmunitiescncerned are equally represented and cnsulted n all aspects f the prcess.Their agreement is required in the case f archaelgical excaatins. As far as

3 See <www.sfcg.rg/prgrammes/jerusalem/hlysites.html> accessed 24 May 2013.

http://www.sfcg.org/programmes/jerusalem/holysites.html

http://www.sfcg.org/programmes/jerusalem/holysites.html




the duties f territrial states are cncerned, public authrities shall nt arbitrarily prhibit the residence f freign persnnel cnnected with the sites. When sacredsites are shared amng different cmmunities, natinal authrities shall pridefr arrangements whereby all members are granted equal access. Educatin and public speech shall be riented twards the acknwledgement and prmtin fthe signicance f hly sites.

The draft fresees the creatin f mnitring bdies endwed with an adisryrle fr its implementatin at the lcal, reginal and natinal leel. Such cmmitteesshall cnsist f representaties f religius cmmunities, public authrities andther releant institutins. They shall draw up a list f hly sites t fall under the prisins f the cde, adise natinal authrities and settle, thrugh their gdfces, any dispute er the status f a sacred place. Besides mnitring bdies,an internatinal cmmittee is prided fr which is charged, inter alia, with

mnitring the implementatin f the guidelines, prmting the adptin f thecde in all releant fra and reprting n ilatins f its prisins. Nthing isfreseen abut its membership. The Cde fllws the sft-law mdel and it seemst hae been cnceied particularly fr war-trn regins and ccupied territries,since there are arius references t the duties f an ccupying pwer, damagedsites and the need fr stressing the spiritual alue rather than any strategic,territrial r military signicance f sacred places.

Amng the internatinal legal instruments dealing with sme particular sacred

places, Reslutin 181/1947 f the United Natins General Assembly n thePalestinian Questin and sme reslutins f the Eurpean Parliament n MuntAths desere special attentin. In the rst dcument, een thugh n fcialdenitin is gien, ‘the unique spiritual and religius interests lcated in the cityf the three great mntheistic faiths thrughut the wrld, Christian, Jewish andMslem’ is stressed.

Whereas in the 1972 UNESCo Cnentin Cncerning the Prtectin f theWrld Cultural and Natural Heritage we can nly nd a reference t ‘sites whichare f utstanding uniersal alue frm the … ethnlgical r anthrplgical pint f iew’, the 2005 operatinal Guidelines n the selectin f WrldHeritage sites explicitly refer t a direct and tangible assciatin ‘with eents rliing traditins, with ideas, r with beliefs, with artistic and literary wrks futstanding uniersal signicance’ althugh ‘the Cmmittee cnsiders that thiscriterin shuld preferably be used in cnjunctin with ther criteria’.

on the 7th f May 1981 the Eurpean Parliament passed a reslutin4

calling fr initiaties in supprt f Munt Aths, taking int cnsideratin ‘…la traditin culturelle, religieuse et histrique du Mnt Aths, ensemble unique

dans le mnde chrétien d’une Cmmunauté iante et actie, dnt l’histire et laie curent près de 11 siècles’, and the fact that ‘le prblème de la cnseratinet du déelppement indispensable de cette Cmmunauté mnastique relèe nnseulement de la Grèce, mais aussi de tute la Cmmunauté et du mnde ciil

4 J.o./C.E., C-144/15-06-1981.




en général, cmme il relèe autant de tut les chrétiens que des rthdxes’.Likewise, another resolution,5 fllwing the res which brke ut n Munt Aths,was appred by the Eurpean Parliament after cnsidering that ‘le Mnt Athscnstitue un mnument religieux et archélgique unique et sans équialent danstute l’Eurpe, ainsi qu’un symble représentatif de la spiritualité et des aleursincarnant les idéaux eurpéens’.

Sacred Places in Literature and Religious Traditions

Een thugh mst f the existing wrks n sacred places hae been written withspecial attentin t the Christian sites in the Hly Land, the denitins they prideals aim at embracing sacred places f different religins lcated in dierse areas.

Accrding t Bernardin Cllin,6 ‘sacred places’ are ‘mnuments r sites speciallyand perpetually wrshipped by faithfuls fr an eent linked t them, in general thememry f the funder r an eent in his life’ [my translatin]. In Jean-DminiqueMntisy’s7 denitin a ‘sacred place’ is ‘… a well dened sanctuary, the spiritualinterest f which has been histrically entrenched by the members f ne rmre religins and which cmmemrates an eent linked t these religins’ [mytranslatin]. In the same fashin, accrding t Reiter/Erdegian/Abu Khalaf, ahly site is ‘a place, whether r nt it is enclsed within a building, which is

enerated by mst f the fllwers f a religin because f its assciatin with afunding gure f that religin’.8 Paolo Pieraccini,9 while priding n particulardenitin, mentins the frequent relatins with Eurpean histry and the centralrle played in internatinal plitics as main features f sme Christian sacred places in the Hly Land. These denitins shw hw crucial is the rle played byreligius cmmunities, thrugh the centuries, in priding a place with a sacredcharacter: this sacredness ‘is the inherited alue that makes religius heritagedifferent frm ther types f heritage’.10 Such spiritual meaning pre-exists secularlaw n the prtectin f sacred places and has t be taken int accunt when

5 Procès Verbaux 28 II (pe 144.654) 13-09-1990.6 Bernardin Cllin, Pour une solution au problème des Lieux Saints (G.P. Maisnneue

et Larse 1974) 43.7 Jean-Dminique Mntisy, Le Vatican et le problème des Lieux Saints (Franciscan

Printing Press 1984) 8.8 Y Reiter, M Erdegian and M Abu Khalaf, ‘Between Diine and Human: The

Cmplexity f Hly Places in Jerusalem’, in Mshe Ma’z and Sari Nusseibeh (eds),

Jerusalem: Points of Friction, and Beyond (Kluwer Law Internatinal 2000) 109–10.9 Pal Pieraccini, Gerusalemme, Luoghi Santi e comunità religiose nella politicainternazionale (Edizini Dehniane 1996) 3–6.

10 Gamini Wijesuriya, ‘The past is in the present. Perspecties in caring fr buddhistheritage sites in Sri Lanka’, in Herb Stel, Nichlas Stanley-Price and Rbert Killic (eds),‘Cnseratin f Liing Religius Heritage’, Papers from the ICCROM 2003 Forum on Living Religious Heritage: conserving the sacred (ICCRoM 2005) 31.




drafting internatinal r municipal nrms n this matter since ‘a hly place isdistinguished frm any ther, its signicance based n a unique character that nhuman actin can cnfer’.11

In the Jewish iew, the cncept f hliness is cnnected mre with land thanwith specic sites, as highlighted in the Encyclopedia Judaica.12 Accrding t the Mishnah, it is the land f Israel that enjys the highest degree f hliness. Hweer,histry prides strng eidence shwing that Jews, as well as Christians andMuslims with their hly cities and places, hae always seen sme particular sitesas desering special wrship because f their crucial rle in religius histry. Inadditin t this, accrding t Jewish schlars a ‘sacred place’ is a well-dened physical space, haing a particular identity which renders it distinguishablefrm the surrunding enirnment. By the same tken, Islam als acknwledgesthat sme places hae been chsen by Gd t manifest himself t mankind and

therefre enjy a higher degree f sanctity.

A Denition by Induction

Since n uniersally accepted denitin f ‘sacred place’ exists, the nly slutint ercme any prblem f terminlgy culd be fund by shaping a ‘denitin by inductin’. Frm the abementined examples it is pssible t draw up a list

f particular features characterizing a ‘sacred place’. The presence f ne r mref them allws us t speak f a ‘sacred place’, instead f a mre cmmn placef wrship:

1. a link t a manifestatin f the ‘sacred’ (Gd, a prphet, a supernaturaleent and s n) which tk place there: that is the case f sme sacred places in the Hly Land and Mecca;

2. an imprtant rle played in the histry f a religin as a permanent landmarkand which makes it unique: that is the case, amng thers, f Munt Aths;

3. the fact that it is the bject f eneratin and interest nt nly fr lcalcmmunities but als fr belieers frm different parts f the wrld andeen fr members f different religins. Such a status gies it a uniersaldimensin: that is the case, fr instance, f the orthdx Sanctuaries inKs;

4. the fact that a general cnsensus within the religius cmmunity (rcmmunities) cncerned, r thrughut histry and traditin has deelpedto consider it as such.

Such a denitin, fcused n histry and religius traditin, is meant t becmprehensie enugh t cer all thse sites that desere special prtectin, een

11 See supra, ftnte 8.12 Encyclopedia Judaica (Keter Publishing Huse 1971) l. 8, 921.




if each f them has sme features that make it unique.13 Gien that the prtectinf sacred places stems frm freedm f religin, religius law and traditin playa fundamental rle that cannt be neglected when dening the nature f a sacred place. At the same time, a ‘secular’ denitin is needed t establish what the bjectf such special internatinal prtectin shuld be and t ensure that such a regimeis tailred t the specic characteristics f these places, n the basic assumptinthat ne cannt effectiely prtect smething which is nt clearly identied in itsmain features.

13 Nnetheless, it is nt meant t be exclusie and the reader will nd ther denitinsf a sacred place thrughut this bk itself.



Chapter 3

The Sacred Spaces and Sites f the

Mediterranean in Cntemprary Thelgical, Anthrplgical and ScilgicalAppraches and Debates

Yuri Stoyanov

In the last tw decades r s a range f tpics related t secular and religiusattitudes t sacred space and sites hae been receiing increasing attentin andaried, smetimes cntradictry, treatment in legal, thelgical, anthrplgicaland scilgical analyses and debates. With a predminant fcus n the histricaland cntemprary religi-plitical rle and dierse usages f sacred space and places, these expanding multi- and inter-disciplinary debates hae eled against

the backgrund f arius recent signicant deelpments n the internatinalscene such as the grwing pliticizatin and radicalizatin f certain currentsin wrld religins, the prcess f the depriatizatin f religin and its frcefulreinstatement in the plitical and public space. The cnsequences f this prcessinclude multiplying utbreaks f religiusly mtiated and religiusly justiedstate-spnsred grup and indiidual plitical ilence, triggered n ccasin byinterreligius strife in and arund sacred sites and places f wrship. The emergence(and re-emergence) f such inter-cnfessinal fault-lines and ashpints at sacredsites smetimes signal the ilent terminatin f religius cexistence and/rsharing at the respectie sites r the appearance f new religius authrities andactrs seeking t ‘purge’ the sacred space (which they claim t legitimately wnand manage) frm ‘alien’ religius presence and practices.

These cnicts er sacred space in general hae caught internatinal plitical,diplmatic and military decisin-makers, security analysts, pinin-frmers andacademic plitical science think-tanks by surprise and unprepared. At least untilthe end f the Cld War these gures hae largely subscribed t the (until eryrecently) prealent thesis f an irreersibly adancing glbal secularizatin, as

the anticipated uniersalizatin f the alues and institutins f secular humanismand Western mdernity were suppsed t bring abut the prgressie decline freligius inuence n the sci-plitical and sci-cultural spheres. There is anincreasing awareness that the encunters and interactin between the glbalizingand secularizing utcmes f Western-drien mdernity and the religi-pliticalfrces f cunter- and de-secularizatin hae been reactiated and deelped in




new directins since the late 1980s. This further interactin was gien an extradimensin by the debates n the current rle f religin in wrld plitics and inter-ciilizatinal cnfrntatin and/r dialgue in the wake f the articulatin and ppularizatin f Samuel Huntingtn’s and Francis Fukuyama’s respectie thesesf the ‘Clash f Ciilizatins’1 and ‘The End f Histry’.2

Ntwithstanding the intense and far-reaching debates in the public sphere, the bulk f schlarly discussin prked by the theries f Huntingtn and Fukuyamatk place in the eld f plitical science. With the publicatin f Jnathan Sacks’The Dignity of Difference: How to Avoid the Clash of Civilizations in 2002,3 the

debate n the ‘clash’ r ‘dialgue’ f ciilizatins was brught int the sphere fthelgy (mre specically, histrical and mral thelgy), with a strng fcusn the releance f Jewish religius, scial and plitical histry in wider sci-cnfessinal framewrks. Sacks appealed fr updated and subtler paradigms in the

manner in which the three Abrahamic mntheistic religins iew and appracheach ther and interpret and treat the nn-Abrahamic religius wrld. Such paradigms are expected t make it pssible fr religius authrities and leaders, aswell as fr lay peple, t acknwledge the religius and spiritual integrity f thsewh d nt prfess their respectie faith,4 rather than t feel threatened by theencunter with ther religisities. In this way they shuld be able t achiee mrecndence in their wn religisity5 and thus cnceptualize a shared and cgnitiespace fr the religius differences, acknwledging them as surces f alues and

human creativity.6

Bth the inuential ‘Clash f Ciilizatins’ and ‘Dignity f Difference’ mdelsand discurses hae been utilized in the nging disputes n and appraches tthe phenmenn f the resurgence f pliticized and prphetic religin and thecrisis f the uniersal secularizatin thery, including the increasingly tpical prblems f inter-cultural and interreligius cnicts r bridge-building andsharing related t sacred space and hly places. The tpicality f the ariusissues related t the multiplicity f ld and new threats t sacred sites arise frmthe dierse nature f these threats, as sacred places hae increasingly suffereddestructin and damage nt nly in cnict and pst-cnict situatins, but as aresult f aggressie cmmercial deelpment, mass turism and een incautiusarchaelgical excaatins. Cnsequently, in additin t the arius guidelines fthe releant internatinal cnentins, recent new internatinal legal, heritage and

1 Samuel P. Huntingtn, ‘The clash f ciilizatins’ [1993], Foreign Affairs 22; Id.,The Clash of Civilizations and the Remaking of World Order (Simn & Schuster 1996).

2 Francis Fukuyama, ‘The End f Histry?’ [1989], The National Interest 3; Id., The End of History and the Last Man (Free Press 1992).3 Jnathan Sacks, The Dignity of Difference: How to Avoid the Clash of Civilizations

(Cntinuum Internatinal Publishing Grup, 2002).4 Sacks, The Dignity of Difference, 4–5.5 Sacks, The Dignity of Difference, 65–6.6 Sacks, The Dignity of Difference, 13–15, 53–5.



The Sacred Spaces and Sites of the Mediterranean 27

inter-disciplinary initiaties (such as the Groupe de La Laguna prject fr a legalregime fr the hly places in Israel and the Palestinian Territries f 20067 and

the Uniersal Cde n Hly Sites f 2009-2011)8 hae addressed the need t ndnew instruments, strategies and plicies t secure the prtectin f sacred places.

The subject-matter f sacred space and places has lately been subjected ntnly t thelgical, but als t anthrplgical and scilgical analyses and it iscertainly wrth explring whether the cntributins f these three disciplines tthe study f this prblematic can be usefully integrated int similar future inter-disciplinary initiaties fcused n the safeguarding f sacral heritage. Appraches, perspecties and cnclusins in the treatment f sacred places in these disciplineshae aried mre than smewhat and the fllwing expsitin intends tsummarize the main trends and state f research n the prblematic.

Signicantly, within the eld f anthrplgy a characteristic applicatin f

ersins f a ‘clash f ciilizatins’ cnict-fcused apprach t the balance f pwer in intercmmunal relatins arund sacred sites and its drmant, ccurringand cntingent tensins and shifts, with their ptential fr expulsie ilence,is discernible in the much-discussed recent thesis f ‘antagnistic tlerance’(underlying the sharing f religius sites in Suth Asia and the Balkans), adancedin the anthrplgical studies f Rbert Hayden9 and Rn E. Hassner’s subsequentarguments fr the essential ‘undiisibility’ and ‘unshareability’ f sacred places.10

on the ther hand, alternatie eling anthrplgical appraches t the patterns

f negtiating and bridging differences and intercmmunality at mixed hly places hae shwn that cnict-priritizing mdels are nt sufcient t analyseand d justice t the multi-layered sci-religius elds f interactin at suchshared sites.11

Brught thus int the frefrnt f the intense discussin and debates n thenging re-religicatin f plitics and religiusly mtiated plitical ilencewithin the mdern state and in inter-state relatins, the issue f sacred spaceand sites hae attracted the renewed interest f cntemprary thelgical, legal,

7 Dcument aailable at<www.fund-culturadepaz.rg/spa/03/DoCUMENToS/SANToS_LUGARES_2006.pdf > accessed 30 April 2013.

8 Dcument aailable at: <http://http://www.rfp-eurpe.eu/index.cfm?id=353568 accessed 7 February 2014.

9 Rbert Hayden, ‘Antagnistic Tlerance: Cmpetitie Sharing f Religius Sites inSuth Asia and the Balkans’ [2002], Current Anthropology 205; Id., ‘Religius Structuresand Plitical Dminance in Belgrade’ [2005], Ethnologia Balcanica, 214.

10 Rn E. Hassner, ‘T Hale and t Hld: The Plitics f Sacred Space and the

Prblem f Indiisibility’ [2003], Security Studies 1; Id., War on Sacred Grounds (CrnellUniersity Press, 2009).11 See, fr example, the cntributins in Dinigi Albera and Maria Curucli (eds),

Sharing Sacred Spaces in the Mediterranean: Christians, Muslims, and Jews at Shrinesand Sanctuaries (Indiana Uniersity Press 2012); Glenn Bwman (ed.), Sharing the Sacra:the Politics and Pragmatics of Inter-Communal Relations around Holy Places (BerghahnBks 2012).

http://www.fund-culturadepaz.org/spa/03/DOCUMENTOS/SANTOS_LUGARES_2006.pdf


http://http//www.rfp-europe.eu/index.cfm?id=353568

http://http//www.rfp-europe.eu/index.cfm?id=353568






anthrplgical and scilgical critical enquiry. As the Mediterranean area (andthe adjacent Arabian peninsula) cmprise the lcatins f the paradigmatic hlysites f Judaism, Christianity and Islam, studies n the sacred gegraphics12 and

pilgrimage circuits f the Mediterranean hae fcused predminantly n theattitude t and cncept and structuring f sacred space in the Abrahamic religins.The explratin f the ntin f sacred space in religius wrldiews has already becme ne f the main tpics f religius studies, especially in the disciplinesf histry f religin and phenmenlgy f religin. The explratin f sacredspace in religius studies has been much indebted t Rudlf ott’s13 and Mircea

Eliade’s14 seminal treatments f the religius mind and the phenmenn f sacralityand hliness. In ott’s inuential understanding f the sacred/hly/numinus itrepresents a uniersal transcendent reality which is the essence and ‘innermstcre’ f all religins and religius experience and while it can be acknwledged

and apprached, it eludes strict denitins.15 One of the concerns of suchreappraisals is whether a differentiatin can be established between tw differenttypes f sacrality: the ‘awesme hly’ (which culd be seen as characteristic fearlier r mre ‘primitie’ frms f religin) and the ‘ethical hly’ (understd asa supremely eleated mral purity arusing a sense f mral reerence) and whatthe nature f their relatinship and its chrnlgy is.16

A fully deelped thery prpsing a recnstructin f the mechanismsthrugh which religius cultures translate such iews and experiences f the sacred

int their rganizatin and rientatin f sacralized space has been cnsistentlyfrmulated and elabrated in the well-knwn studies f Mircea Eliade. By applyingthe sacred-prfane dichtmy (central t his study f religin) t sacralized space,Eliade emphasizes its hetergeneity, as sme f its spatial pints are seen thae been the lci f diine manifestatins thrugh thephanies, hierphanies,miraculus ccurrences and s n. Epitmizing the differentiatin betweencsms and chas, such sacred places sere als as ariusly cnceptualized andrepresented axis mundi – passages and cmmunicatin channels between differentstrata f reality, indeed ‘meeting pints between heaen and earth’, ‘a pint f junctin between earth, heaen and hell’, ‘the nael f the earth, a meeting place

12 on the methdlgy and terminlgy f the study f ‘gegraphics’ f religin, seeJamie Sctt and Paul Simpsn-Husley (eds), Sacred Places and Profane Spaces. Essaysin the Geographics of Judaism, Christianity and Islam (Greenwd Press 1991); RbertH. Stddard and Alan Mrinis (eds), Sacred Places, Sacred Spaces. The Geography of Pilgrimages (Lusiana State Uniersity 1997).

13 Rudlf ott, The Idea of the Holy (Humphrey Milfrd 1925 [1917]).14 Mircea Eliade, Traité d’histoire des religions (Payt, 1953); Id., The Sacred andthe Profane. The Nature of Religion (Willard Rpes Trask tr, Harcurt, Brace & Wrld,1959); Id., Le mythe de l’éternel retour. Archétypes et repetition (Gallimard, 1969 [1949]).

15 ott, The Idea of the Holy, 4–5, 7.16 Jhn W. oman, ‘The Sphere f Religin’ in Jseph Needham (ed.), Science,

Religion and Reality (The Macmillan Cmpany, 1925) 285–95.




fr the three csmic regins’,17 priding the religius mind with the sacred centrearund which it can prceed with the creatin f the rdered csms. The qualities,symblism and imagery attributed t such sacralized spaces and sacred centres/axes are accrdingly transferred t and reected in the architecture, icngraphyand status f the man-made religius buildings (sanctuaries, shrines, temples ands n), palaces and cities assciated with the respectie sacred places.18

The Eliade perspectie n sacred space and places has been applied withdiffering degrees f perceied success r failure t a ariety f religius culturesand currents which in the case f the Abrahamic faiths hae ranged frm nrmatieIslam19 t Jewish mysticism20 and Cnstantinian perid-Christianity is-à-iscntempraneus nn-Christian Ne-Platnism and Graec-Rman religisity.21

The Eliade thery f hly space (as related t the dichtmies f sacred-prfane andcsms-rder) hae generated sme extensie debates within religius studies and

attracted critical reassessments n methdlgical grunds and/r n the basis fanalysis f empirical csmlgical and csmgraphic material f arius religiustraditins nt taken int accunt by Eliade.22 Such reassessments have also offered

alternatie appraches t the prblem and denitin f sacred space as in the case fJnathan Z. Smith’s dichtmy f ‘lcatie’ and ‘utpian’ isin f space23 (Smithdenes sacred site as ‘a place f claricatin (a fcusing lens) where men and gdsare held t be transparent t ne anther’)24 and Christph Auffarth’s distinctin between a lcally xed shrine and a site which acquires a sacred character thrugh

17 Mircea Eliade, Patterns in Comparative Religion (Sheed and Ward, 1958) 358.18 Mircea Eliade, Traité d’histoire, 315–332; Id., The Sacred and the Profane, 20–65,

116–160; Id., Le mythe de l’éternel retour , 17–35.19 Clintn Bennett, ‘Islam’, in Jean Hlm and Jhn Bwker (eds), Sacred Place

(Pinter Publishers – distributed in the US and Canada by St Martin’s Press, 1994) 88–114.20 Haia Pedaya, ‘The Diinity as Place and Time and the Hly Place in Jewish

Mysticism’, in Benjamin Z. Kedar and R.J. Zwi Werblwsky (eds), Sacred Space: Shrine,City, Land: Proceedings of the International Conference in Memory of Joshua Prawer

(Macmillan – Israel Academy f Sciences and Humanities, 1998) 84–110.21 Ilinca Tanaseanu-Döbler, ‘Mircea Eliade and Cncepts f Hly Places in LateAntiquity’ [2009], Archaeus. Studies in the History of Religions, 281.

22 See, fr example, Jnathan Z. Smith, ‘The Wbbling Pit’ [1972], The Journalof Religion, 134 – reprinted in Jnathan Z. Smith, Map is not Territory: Studies in the History of Religions (Brill, 1978) 88–103; Christph Auffarth, ‘Sind heilige Stättentransprtabel? Axis mundi und sziales Gedächtnis’, in A. Michaels (ed.), Noch eineChance für die Religionsphänomenologie? (Peter Lang AG, 2001) 235–57; Daid Cae,‘Eliade’s Interpretatin f Sacred Space and its Rle Twards the Cultiatin f virtue’, in

Bryan Rennie (ed.), Changing Religious Worlds: The Meaning and End of Mircea Eliade (State Uniersity f New Yrk Press, 2001) 235–48; Tanaseanu-Döbler, ‘Mircea Eliade andCncepts f Hly Places’.

23 Smith, ‘The Wbbling Pit’.24 Jnathan Z. Smith, ‘The Bare Facts f Ritual’ [1980], History of Religions

112 (reprinted in Jnathan Z. Smith, Imagining Religion: From Babylon to Jonestown

(Uniersity f Chicag Press, 1982) 54.




cultic bserances.25 While clearly demnstrating that the Eliadean perspectielacks uniersal applicability (being based n select eidence, smetimes strippedf its immediate religius and histrical cntext), these reappraisals als suggestthat it remains a useful general heuristic tl in the study f religin, and newappraches and theries f sacred space can be frmulated in criticism, reisin rrenement f its theretical and idelgical premises.26

Whether drawing n, elabrating r plemicizing against such cexistingschlarly appraches t the phenmenn f hly space, thelgians and religiushistrians hae lately been cntributing signicant new material and bseratinst the explratin f this prblematic in Jewish, Christian and Islamic cntexts.This grwing study f the spatial dimensin f the early, medieal and mdernAbrahamic faiths’ discurses n sacrality and hliness and their geographia sacra,

especially in the Mediterranean, are essential t understanding the religi-plitical

backgrund f the current inter-Abrahamic tensins and recnciliatin effrtser shared r currently (but nt histrically) mn-cnfessinal sacred places inthe regin. This can be clearly demnstrated, fr example, by a brief discussinf the nel thelgical and ecclesiastical appraches t and apprpriatins fsacred space and religiusly signicant sites in Palestine (marking Gd’s acts andepiphanies in histry), frmulated and implemented in the curse f the elingChristianizatin f the Rman Empire during the 4th century.

While a number f facets f Jewish, Christian and Muslim attitudes t sacred

space and their interactin still await mre systematic inestigatin, it is nweident that they d nt represent essentially static and unchangeable stances buthae undergne a series f transmutatins. one f these crucial transmutatinsin the Christian case ccurred during the Cnstantinian and pst-Cnstantinian perids in the 4th century, in the wake f Cnstantine the Great’s (306–37) and hisc-Emperr Licinius’ (308–24) issue f the Edict f Milan in 313 and the ensuinglegitimizatin and institutinalizatin f the Christian Church in the RmanEmpire. This led t the realrizatin f the sites f epiphanies and hierphanies inPalestine (as recunted in the New and old Testament) as places f special and insme cases paradigmatic religius signicance fr Christendm.27 These sustained

Christian Rman endears, initiated riginally by Cnstantine the Great and hismther St Helena (c.255–c.330), t Christianize Palestine prmted detinal pilgrimage and actiely erected churches and mnasteries, marking the expandingsystem f sacred and pilgrimage centres in the Hly Land. The Christian ‘re-discery’ and infatuatin with the physical Hly Land and Jerusalem, underlain by the Church’s supersessinist thelgy recgnizing itself as the ‘True Israel’ r

25 Auffarth, ‘Sind heilige Stätten transprtabel?’, 254.26 Fr suggestins fr such a cnstructie use f Eliade’s thery f hly space and

places, see Tanaseanu-Döbler, ‘Mircea Eliade and Cncepts f Hly Places’, 297–301.27 See, fr example, Peter W.L. Walker, Holy City, Holy Places? Christian Attitudes to

Jerusalem and the Holy Land in the Fourth Century (Clarendn Press 1990); Jan E. Taylr,Christians and the Holy Places: The Myth of Jewish-Christian Origins (Clarendn Press 1993).




the ‘New Israel’ triumphant er the rejected ‘old Israel’, led t the urishing fPalestinian mnasticism in the 5th century and the eleatin f the Jerusalem Seet a Patriarchate in 451.

The transfrmatin f Christian secular and ecclesiastical elites’ attitudes t theHly Land and its sacred sites nd patent and frceful expressin in Cnstantinethe Great’s stance and statements n Jerusalem and Mamre (the site f Gd’sappearance t Abraham in Genesis 18:1–8 and where the patriarch had built analtar t the Lrd accrding t Genesis 13:8), as reprted by his imperial aplgist,Eusebius f Caesarea (c.260–c.340). Bth Jerusalem and Mamre are described in hisletters t bishps in Palestine as primrdially hly places (by diine decree), whsesacredness had been cncealed and then reealed again.28 In the case of Mamre, as it

was the place where ‘the cultic bserance f the hly law’ was riginally initiated,it needed t be puried frm all impure frms f wrship practiced subsequently

at it and restred t its ‘ancient hliness’.29 Signicantly, despite the effrts f the plitical and clerical elites f the newly Christianized Rman Empire t makeMamre an exclusie sacred space, at the leel f ppular pilgrimage and eneratinits status and appeal was actually internatinally enhanced and it cntinued t be ashared Abrahamic site and magnet fr a ariety f religius grups.30

In the emerging and crystallizing ntins and cnceptualizatins f sacred spacein the early Christian Rman Empire the principal hly sites f Palestine thus playeda much augmented rle in its new plitical thelgy and were eleated as inherently

and in sme cases primaeally sacred places in the ‘imperial-nrmatie’ space fits ecumene. These cncepts f the ntlgically sacred nature f the singled-utfremst hly sites f Palestine clearly cntrasted with cntempraneus nn-Christian attitudes t sacred sites, precincts and temples in the Graec-Rmanwrld, as exemplied and implemented by the last Rman pagan emperr, Julianthe Apstate (361–63), during his campaigns t restre the prestige and italityf paganism and reerse the tide f the Christianizatin f the empire. In Julian’sfunctinalist apprach t the sacrality f temples and cultic sites they are ntintrinsically sacred but acquire a temprary sancticatin thrugh the presencef the respectie gds, crrect cultic bserances and human religius attitudes.31

Indicatie f the dynamics f ritual space in Late Antiquity, including the questin

28 See the analysis f Cnstantine the Great’s articulatin f the newly elingChristian attitudes t sites such as Jerusalem and Mamre as the primal and diinelyinstituted hly places and the dialectic f the cncealment and reelatin f their hliness,in Tanaseanu-Döbler, ‘ Mircea Eliade and Concepts of Holy Places’, 285–90.

29 Eusebius, Life of Constantine, 3: 52–3.

30 See, fr example, Aryeh Kfsky, ‘Mamre: A Case fr a Reginal Cult?’ in AryehKfsky and Guy Gedalyah Strumsa (eds), Sharing the Sacred. Religious Contacts andConicts in the Holy Land, 1st–15th Century (Ben Zi Institute 1989) 19–30.

31 on Julian’s functinal and exible attitudes t temples as sites f tempraryhierphanies and meeting-pints between the gds and their human wrshippers,representing the gds but nt diine as such, see Tanaseanu-Döbler, ‘ Mircea Eliade andConcepts of Holy Places’, 290–296.




f the extensin f sacrality frm the temples/sanctuaries t the cities sering astheir locations,32 these iews f the last Rman pagan emperr shw arius pintsof continuity with Hellenism and Platonism as well as some innovative ideas which

desere further explratin, especially against the backgrund f cntempraneusChristian theries and practices f sacralizatin f cultic sites.

This summary f research n the frmatie perid f the creatin f the newand enduring mdels f Christian sacred space and places (against the backgrundf cntempraneus nn-Christian Graec-Rman mdels and Jewish-Christianrelatins in Palestine in Late Antiquity) was intended t shw the main apprachest the thelgical deelpments and religius histry underlying these seminalchanges in Christian discurses n spatiality and geographia sacra in which certain

places began t play a mre literal rle f being physical sites f Gd’s acts andinterentin in histry. These altered spatial cnstructs and spiritual gegraphy f

Christianity becme thus inextricably linked t its cncepts f histricity whichit shares with Judaism and Islam and is central t the self-cnceptualizatin and perceptin f the three Abrahamic faiths. An awareness and further study f thecntinuities, interrelatins and mutual dependencies between the Abrahamicreligins’ thelgies f histricity and sacred space is thus indispensable tunderstanding f the inter-Abrahamic tensins and cmpeting spatial claims,especially in early and high medieal Palestine and Jerusalem.

The culminatin f these inter-Abrahamic rialries er sacred space and sites

during the perid f the Crusades and Cunter-Crusades has been the subject fintense study and debate. The Crusading era cnicts were preceded, hweer, bysme less explred but signicant episdes such as the reprted Jewish attemptt reclaim and resacralize the lst hly lcus f Judaism, the Temple Munt, inthe wake f the Persian Sasanian cnquest f Jerusalem in 614 and the pssibleendeaur f Emperr Heraclius (610–41) t repssess the Temple Munt frChristianity upn its return t East Rman/Byzantine cntrl in 628.33 These

insufciently claried episdes were fllwed by the better explred prcess fthe Umayyad Islamic re-sancticatin and transfrmatin f the Temple Munt(fllwing the Umayyad annexatin f Jerusalem in 638) int the sacral enclsuref Haram al-Sharif, the high pint f which was the building f the Dme f theRck, with its manifest supersessinist and missinary ramicatins.34

32 J. Buffartigue, ‘Les illes saintes dans la isin religieuse de l’empereur Julien’in Béatrice Caseau, Jean-Claude Cheynet and vincent Dérche (eds), Pèlerinages et lieux saints dans l’Antiquité et le Moyen Âge. Mélanges offerts à Pierre Maraval (Assciatin

des Amis du Centre d’Histire et Ciilisatin de Byzance 2006) 90–96; Tanaseanu-Döbler ,‘ Mircea Eliade and Concepts of Holy Places’, 295–6.33 See the analysis f the state f eidence and research n these tw episdes in Yuri

Stoyanov, Defenders and Enemies of the True Cross (Austrian Academy f Sciences Press2011) 52–3, 68–9.

34 See the analysis in Rbert G. Hyland, Seeing Islam as Others Saw It: a Surveyand Evaluation of Christian, Jewish, and Zoroastrian Writings on Early Islam (Darwin




In additin t the prgressing explratin f this spatial dimensin f theinteractin between inter-Abrahamic faiths, a grwing number f thelgical andreligi-histrical studies hae als fcused n the prenance and chrnlgy fthe internal deelpment f the cexisting (and smetimes cmpeting) mdelsf sacred spaces and places within each f the Abrahamic religins. Apart frmidentifying a series f predictable analgies between these mdels in Judaism,Christianity and Islam, these studies hae highlighted sme interrelatedthemes, patterns and largely new areas f inquiry f cnsiderable releance tanthrplgical, scilgical and legal appraches t hly sites, including thecntemprary and tpical dimensin f this prblematic. Regarding Judaism,fr example, such subjects and areas include the histrical interactin betweenidelgical (Biblical and rabbinic) functinal sacred space in Judaism, thedichtmy between single and multiple sacred spaces (als related t the prcess

f the hierarchical rganizatin f Jewish geographia sacra and the centralizatin/unicatin f hly space in Jerusalem and the Temple). other such spheres f studywith respect t Judaism include the messianic understanding f the idelgicalstrata f sacred space and its signicance fr the transitin t functinal hlyspace as well as the deelpment f cntrasting spatial discurses and practicesappraches in the Jewish diaspra such as the demcratizatin f sacred spaceamng the orthdx cmmunities is-à-is the re-emphasis f its exclusiityamng the Prgressie and Hasidic grups.35 The study of the fundamentally

imprtant Biblical rts f the cncepts f the sanctity f place has drawn attentint sme imprtant dichtmies in arius Biblical strata such as that between asacred place where Gd dwells and where he reeals himself t humankind, rthat between the sanctuary-based lcalized and hierarchically rganized sanctityf ‘Gd’s dwelling’ and its ‘mbile’ sanctity ersin f the Tabernacle,36 the latter

raising the crucial questin whether any gegraphical site f diine reelatin can be cnsidered inherently sacred and/r its sanctity can achiee sme permanencethrugh the maintenance f wrship.37 Mtiated by the eentual centralizatinf sacred space in the Temple in Jerusalem, the thelgical justicatin f thetransitin frm the principles f ‘mbility and impermanence’ t ‘stability and permanence’ prceeded als with arius rhetrical strategies t extend the sanctityf the Temple t the city itself.38 Perceptins and descriptins f the MediterraneanSea as a ‘diine mythlgical entity’, essentially a ‘sacred sea’, in West Semitic

Press 1997) 311–2; Guy Gedalyah Strumsa, ‘False Prphet, False Messiah and theReligius Scene in Seenth-Century Jerusalem’ in Markus Bckmuehl and James C. Paget

(eds), Redemption and Resistance: the Messianic Hopes of Jews and Christians in Antiquity(T & T Clark 2009) 292–3.35 Seth Kunin, ‘Judaism’ in Hlm and Bwker, Sacred Place, 115–48.36 Sara Japhet, ‘Sme Biblical Cncepts f Sacred Place’ in Kedar and Werblwsky,

Sacred Space, 55–72.37 Sara Japhet, ‘Sme Biblical Cncepts f Sacred Place’, 69–70.38 Sara Japhet, ‘Sme Biblical Cncepts f Sacred Place’, 70.




(Amrite/Canaanite) traditins and their resnances in Biblical and Talmudicliterature has als begun t attract sme schlarly attentin.39 Apart frm the studyf the thelgical implicatins f the surces fr the chrnlgy and elutinf such Biblical ntins f the sanctity f sites f Gd’s dwelling and reelatin(which need als t be treated against the backgrund f the dichtmy f thetw crucial facets f sacrality – immanence and transcendence), mre histricallyriented research has highlighted the changing and cnicting cnceptualizatinf the Temple in Jerusalem during Hellenistic and Rman rule in Palestine andthe Near East. During these perids the cultic space f the lcal temples f theclnized peples sered as repsitries f their ethn-religius heritage andidentity and thus pssessed natinal and plitical dimensins and ptential whichthe Hellenistic and Rman rulers endeared t neutralize in a ariety f ways andwith different strategies. In the case f Jerusalem, the grwing rle f its temple

as a ‘natie lcal hly space’40 was challenged by the Hellenizers’ attempts tuniersalize it, while during his reign Herd (37–4 BCE) attempted t implementat the Temple Munt ‘a Jewish kind f uniersalism’41 within the framework of the

Jewish diaspra. The resultant pliticizatin f the hly space f the Temple andJerusalem had majr religi-plitical implicatins and cnsequences.

Further interesting research questins regarding the spacializatin f belief inthe nrmatie mntheisms f early Judaism and Christianity, n ne hand, andcntempraneus plytheistic religins, n the ther, are psed by the eident

cntrast and interfaces between the recgnitin f nly ne centre fr required pilgrimage in the frmer, and the ‘inbuilt multiplicity f pilgrimage centres’in the latter.42 other areas f inquiry f increasing imprtance t the study fspatiality and sacrality in Judaism, Christianity and Islam include the netwrksand hierarchical interrelatins between the key and paradigmatic hly places fthe Abrahamic faiths and sacred sites f lcal and reginal signicance. Thiseld is als related t the thery and practice f transpsitin f sacred space inancient, late antique and medieal cultures (which culd als mark, especiallyin the sphere f religius experience, the transfer f sanctity frm a permanentlysacred centre t a ritually sanctied place f temprary sacrality),43 and the

cnsequent ‘Jerusalemizatin’ f sacred spaces in Christendm.44 The extensin

39 See, fr example, Abraham Malamat, ‘The Sacred Sea’ in Kedar and Werblwsky, Sacred Space, 45–54.

40 Drn Mendels, ‘The Temple in the Hellenistic Perid and in Judaism’ in Kedarand Werblwsky, Sacred Space, 77.

41 Mendels, ‘The Temple in the Hellenistic Perid’, 79.

42 R.J. Zwi Werblwsky, ‘Intrductin: Mindscape and Landscape’ in Kedar andWerblwsky, Sacred Space, 14.43 Jnathan Z. Smith, ‘Cnstructing a Place’ in Kedar and Werblwsky, Sacred

Space, 24–5.44 See, fr example, the cntributins in A. Lid (ed.), New Jerusalems.

The Translations of Sacred Spaces in Christian Cultures/Novye Ierusalimy. Perenesenie sakralnykh prostranstv v. khristiianskoi kul’ture (Indrik 2006).




f sanctity frm the respectie sacred place r cultic site t the city, area, landscaper the whle land in which it is lcated is als a phenmenn which is recurrentlyattested in Abrahamic religius cntexts and merits further clse inestigatin.Finally, the transfer f ‘Hly Land’ and ‘Prmised Land’ cabulary and imageryin the creatin f the theretical and practical territriality f the ‘secular sacredspaces’ r ‘hallwed lands’ in mdern natinalist idelgies (and their antecedentsin medieal Christian plitical thelgies)45 has als been attracting increasingattentin acrss a range f disciplines, ranging frm religius histry t pliticalscience.

Apart frm this expanding research int the rts and Nachleben f Biblicalmdels f hly space in the ther Abrahamic faiths, inestigatin f such nn- biblically deried mdels in nrmatie, mystical and ppular Christian and Muslimtraditins has als been deelping, enriching ur understanding f the plurality f

surces fr the sacral spatial dimensin in Christianity and Islam. Ntwithstandingthis grwing and crss-disciplinary interest in this prblematic, it has nt deelpedsufciently as yet fr mre detailed histrical typlgies f the use f sacred spacein Judaism, Islam and Christianity t be prpsed fr schlarly debate. Furthermre,while remaining imprtant fr the disciplines f phenmenlgy and histry freligins, the categries f sacred space and places rarely enjy any currency in theanalyses f religius behaiur cming frm scial anthrplgy and scilgy freligin which hae nt been cnducie t either inter-disciplinary inestigatin

f the prblematic r t enhancing its status within the study f religin. Indeedarchaelgists, heritage experts, anthrplgists and scilgists wrkingrespectiely n the archaelgy, heritage preseratin and site management andintercmmunal relatins at sacred places frequently nd it difcult t accept andemply, in the arius cncrete dimensins f their wrk, the thelgical and phenmenlgical denitins f and appraches t sacred space. Dubts abut theusefulness and applicability f thelgical interpretatins f hly space (with allthe ensuing epistemlgical and ntlgical issues) in the arius methdlgicalframewrks hae led t the adptin f mre scilgically riented interpretatie perspecties n the spatial dimensin f religin, further enriched by the abundantand dierse material accumulated in the last century by the multi-disciplinary studyf sacred sites f nn-Abrahamic wrld religins and indigenus peples arundthe glbe. Such perspecties usually draw n the scilgical apprach t anddenitin f sacrality f Émile Durkheim (1858–1917) in which it is a relatinaldescriptie categry referring t ‘things set apart and frbidden’,46 whse qualityf sacredness is nt intrinsic but reects the judgement f the respectie grup

45 Fr example, n the ntin f ‘Hly Russia’ in pre-Petrine Russia as being centeredn the Hly Land, bth in terms f earthly gegraphy and spiritual reality, see Richard M.Price, ‘The Hly Land in old Russian Culture’ in R.N. Swansn (ed.), The Holy Land, Holy Lands, and Christian Culture (The Bydell Press 2000) 250–262.

46 Émile Durkheim, The Elementary Forms of the Religious Life (The Free Press1967 [1912]) 62.




or society.47 Being thus ‘metaphysically neutral’,48 the Durkheimian scilgicalntin f sacrality has been seen by a number f archaelgists and anthrplgistsas a better classicatry and categrizatin tl in their wrk n material culturerelated t the archaelgy and anthrplgy f religin and cult (especially inspheres such as the use f exclusie and inclusie space) r the restrictins n andregulatins f human behaiur at sites set apart and separated frm the surrundinglandscape due t a special religius r ther signicance attached t them.49

It seems eident that the ariety f cncerns and methds in the existingthelgical, anthrplgical and scilgical appraches t sacred sites displaycharacteristic interpretatie and methdlgical ambiguities which arise ut fthe multiple religius, spiritual, scial and plitical functins ascribed t them inhuman scieties and cultures. This highlights the need fr a mre inter-disciplinaryapprach which may balance these perspecties and cmplement the existing and

emerging legal discurses, initiaties and guidelines regarding sacred space andsites and gie them extra dimensin and depth.

47 See the analysis f Durkheim’s apprach t and denitin f the sacred inW. Paden, ‘Befre “the Sacred” Became Thelgical: Rereading the Durkheimian Legacy’[1991] Method and Theory in the Study of Religion, 10–23.

48 Paden, ‘Befre “the Sacred” Became Thelgical’, 16.49 See, fr example, Jane Hubert, ‘Sacred Beliefs and Beliefs f Sacredness’ in

Daid L. Carmichael, Jane Hubert, Brian Reees and Audhild Schanche (eds), Sacred Sites,Sacred Places (Rutledge, 1994) 8–19.



Chapter 4

General Prblems f Internatinal Law

Cncerning Sacred Places1

Umbert Leanza

Introduction

Thrughut histry, members f arius cmmunities all the wrld er hae ftenassciated a particular signicant histrical r allegrical eent that ccurred in the past with a particular site. Such a site was regarded as hly and was enerated inshared rites and traditins passed frm generatin t generatin. This explains whymembers f lcal cmmunities hae lng since been cmpeting with ne antherer the pssessin, cnditins f access t and wrship rights er hly places.

All the hly places – such as Jerusalem, the vatican, Mecca, Munt Aths andthe orthdx hly places f Ks – f the three main mntheistic religins

hae a ery cmplex and articulated histry which is ften marked by the exercisef sereign functins by different pwers succeeding each ther in the cntrlf the territry where these hly places are lcated. But the fundatin f natin-states in Eurpe, the clnisatin f entire cntinents by mst f the EurpeanStates, the cllapse f the ottman Empire after the First Wrld War and lastly thedeclnisatin prcess starting frm the Secnd Wrld War gae a new dimensint claims f sereignty er sme hly places, while these claims becamestrnger and strnger.

1 This study aims at identifying the main aspects and the mst immediate prblemsf each hly place and tries t trace ut sme ideas fr a pssible slutin. It is the result fthe wrk f a research grup crdinated by Prfessr Umbert Leanza – frmer Prfessrf Internatinal Law at the Uniersity f Rme ‘Tr vergata’ and nw Jean Monnet Chair

at the II Uniersity f Naples. The research grup is cmpsed f Prfessr Daid Attard,Uniersity f Malta; Prfessr Marian Aznar, Uniersity f Castellòn (Spain); and PrfessrIda Caraccil, II Uniersity f Naples. on accunt f Prfessr Sic’s unexpected demise,Prfessr Talitha vassalli di Dachenhausen f the Uniersity f Naples ‘Federic II’ has

jined the grup. Ms Stefania Lucente, Ph.D. student at the II Uniersity f Naples, hashelped in researching the legal dcumentatin. Cncerning the rganizatin f the researchwithin the grup, Prfessr Leanza is respnsible fr the analysis f multilateral agreementsf a uniersal character; Prfessr Attard is respnsible fr the analysis f bilateralagreements; Prfessr Aznar is respnsible fr the analysis f multilateral agreements at theEurpean leel; Prfessr Caraccil is respnsible fr the analysis f unilateral State actsand decisins; and Prfessr vassalli is respnsible fr histrical recnstructin.




In particular the general acceptance f the cncept f the full sereignty f theState within its territry and the recgnitin f the right t self-determinatin f any ppulatin under an alien r racial sway gae, and gies, rise t ppsite actins:n the ne hand the maintenance f the acquired sereignty and n the ther handthe effrt t gain self-gernment and thus t relt against the territrial State.

Fr sme hly places – where these tw ppsite tendencies ccur – thissituatin lgically undermines pprtunities t reach an accepted slutin by the parties cncerned. Similarly at risk are attempts t establish ad hoc regimes nt based n the principle f sereignty but, n the cntrary, n sme kinds f self-gernment r self-administratin in rder t guarantee free access t and freeutilisatin f the hly places as well as freedm f religin.

Framework, Structure and Aim of this Chapter

This chapter aims t analyse the existing regime fr each hly place, namelythe vatican, Munt Aths, Mecca (r Makka), the hly places f Ks andJerusalem in the light f internatinal law.

Secndly, the study will ascertain whether the existing regimes present smegrey areas and, if this is the case, it will deal with such specic legal prblems andtheir cnsequences fr peaceful relatins within a certain gegraphic area r fr

internatinal peace and security.Thirdly, this chapter will enisage pssible slutins (either a single slutinr different nes, gien the particular prblems n the grund) which may allwa hly place t maintain and deelp its religius functin and eentually t help pacicatin between different ethnic r religius grups. These slutins culd be based n existing internatinal agreements. This seems t be the easiest slutin,especially when the cntrasts n a certain hly place are particularly intense. The pssibility f suggesting new prisins cannt anyway be excluded.

Holy Places and International Law de jure condendo

Tday cntemprary internatinal law requires – less by means f cnsuetudinarylaws and ery much ia multilateral agreements – a series f limits t statesereignty in rder t prtect sme alues that are cnsidered fundamental by theinternatinal cmmunity, such as human rights, the enirnment r the cmmnheritage f humankind. These ‘new’ limits t state sereignty indirectly pride

‘strnger’ prtectin fr the hly places frm arius iewpints that belng t thereasning behind these limitatins f sereignty.

As hly places are places where religius faith is expressed, the internatinal prtectin f human rights, and amng these f freedm f religin, is signicant.The bjectie f guaranteeing that these hly places can cntinue t exercise theirhigh religius functin is pursued by means f these rights.



General Problems of International Law Concerning Sacred Places 39

It is well knwn that at the uniersal leel the 1948 Uniersal Declaratinf Human Rights (whse cnsuetudinary scpe is nw agreed) and the 1966Internatinal Cenant n Ciil and Plitical Rights, and sme agreements at thereginal leel such as the 1950 Eurpean Cnentin n Human Rights, recgniseand defend nt nly freedm f religin but als the right t manifest ne’s religinr belief in teaching, practice, wrship and bserance whether indiidually andcllectiely, in public r in priate.

Schlars unanimusly recgnise that there are n interpretatie dubtsas regards the meaning f freedm f religin, althugh uncertainty may ariseregarding the s-called neighburing rights, such as respect fr the freedm fassembly r freedm f assciatin. Beynd that, hweer, it is eident thatrespect f religius freedm is the respnsibility f the territrial State. Thismeans that such respect can be jepardised when the State’s attitude faurs a

limitatie interpretatin f religius freedm (fr example, bearing in mindreasns cnnected t natinal security), r where religius freedm is ilated.

In situatins f this type it is therefre necessary t pride ad hc regimeswith mre r less intense limitatins n the sereignty f the territrial State inrder t guarantee a mre autnmus regime fr the hly places.

In hly places mnuments hae ften been built er the centuries t praiseand wrship Gd. Many pride great examples f human ingenuity, and they arerepresentatie f a fundamental cultural phase f architecture, painting and s n.

This type f cultural heritage is ften prtected by the 1972 UNESCoCnentin cncerning the Prtectin f the Wrld Cultural and Natural Heritage,which establishes a regime f prtectin thrugh the inscriptin f the heritagesites n a special list. The territrial State is respnsible fr any UNESCo WrldCultural and Natural Heritage site within its brders and has a series f bligatinst presere and prtect the site s that it can be handed dwn t the futuregeneratins (withut excluding the State’s right f enjyment f the site). Thesebligatins are carefully mnitred by the UNESCo Wrld Heritage Cmmittee.Alngside these bligatins there are imprtant mechanisms f nancial aid frthe territorial State.

It is signicant that Jerusalem (in 1982), the painted churches f the Cyprusregin f Trds (in 1985), Munt Aths (in 1988), the vatican (in 1988–1900)and sme mnasteries in Ks – such as the Dečani Mnastery (in 2004–06) –and the Church f the Natiity f Jesus Christ and the Pilgrim’s Rute (in 2012)were all inserted in the system f prtectin prided fr by the Cnentin f1972 and they can therefre tday be cnsidered as Wrld Heritage sites. At thesame time, hweer, it seems clear that the religius signicance f such sites in

relatin t their insertin n the list is irtually nil: when Jerusalem was included,ne f the reasns mentined was its imprtance fr sme lifestyles. Religiusfaith has thus been reduced t a ‘lifestyle’ with implicit reference t the three greatmntheistic religins.

Hweer, UNESCo tday als prtects intangible cultural heritage and culturaldiersity, thrugh the Cnentins f 2003 and f 2005 respectiely. Een thugh




these tw agreements d nt expressly safeguard religins as such (thrugh the expresswill f excluding them frm the legal prisin) the agreements are neerthelesssuitable fr prtecting sme manifestatins f religius faith that are culturally feltas bnds fr a certain human cmmunity (fr instance, a type f religius prcessinthat has been held fr centuries n certain anniersaries r frms f transmissin freligius faith). Here t, then, a certain – albeit indirect – prtectin is prided thly places by means f religins that express themseles in such places r thrughthe ways in which the religius faith and its transmissin is manifested.

Finally, it is necessary t remember that this regime, specic t peacetime,is supprted by an internatinal system f prtectin f cultural heritage intime f war which is expressed in the 1954 Hague Cnentin and its prtcls – the last f which was adpted in 1999. The aim f this 1999 Prtcl is treinfrce the mechanisms f prtectin already in frce, which is cmpleted

with the incriminatin as a war crime (by internatinal cnsuetudinary law) fthe intentinal destructin f religius buildings (1907 Hague Cnentin Iv).In this regard, the vatican, with Italy’s full cnsent, was inserted n the – erylimited – list f heritage that enjys special prtectin under the terms f the 1954Cnentin n prtecting cultural heritage during armed cnicts.

It is a pity, hweer, that the destructin f religius buildings in rder tannihilate whlly r in part a natinal, ethnic, racial r religius grup is ntexpressed as a crime f gencide accrding t the Cnentin n Gencide f

1948. Indeed this pssibility was explicitly excluded, as emerges frm the wrk preparatry t the Prtcl.Such prtectin prhibiting the destructin f religius buildings, amng

thers, whse ilatin entails respnsibility fr war crimes, exists nt nly in thecase f internatinal armed cnicts, but als fr internal armed cnicts whichtday are mre numerus. It seems eident that als this regime fr times f warcntributes twards prtecting hly places, as religius heritage, placing themutside military bjecties and priding fr the graer respnsibility f the Staterdering the attack and f the agents f the attack.

Description of the Existing Legal Situations of Holy Places and

Identication of Recurrent Legal Problems

Fr the abementined reasns, cntemprary internatinal law des nt pridefr a cmmn r unique regime fr hly places. Therefre sme hetergeneusslutins hae been fund t guarantee freedm f access t the hly places and

freedm f religin. In sme cases the regime f a hly place is determined by a bilateral agreement between the releant religius entity and the territrial Statecncerned, in ther cases by unilateral determinatins and the fllwing internalrules and regulatins discretinally adpted by the territrial State cncerned.

In this cntext the absence f regimes established by multilateral agreements r by internatinal rganisatins reslutins – either reginal r uniersal – has t be




underlined. At this leel few results hae been attained and just seeral prpsalshae been put frward twards the adptin f a specic regime fr hly places.Therefre sme general rules cntained in seeral multilateral agreements, alreadyin frce, can be easily applicable t hly places, reducing the risk f lacunae.

The Vatican

The creation of the current Vatican State descends from the Lateran Treaty of

11 February 1929, between the Kingdm f Italy and the Hly See. The treatysettled the questin f the relatins between Italy and the Hly See. Knwn as theRman Questin, this prblem arse in 1870 when the newly frmed kingdmf Italy annexed the Papal State. In 1871 the Italian gernment granted t PpePius IX and his successrs the use f the vatican and the Lateran palaces as well

as a yearly incme f 3,250,000 Lira as indemnity fr the lss f sereignty andterritry. The Church, claiming the necessity fr independence frm any plitical pwer in its exercise f spiritual jurisdictin, rejected this settlement, and ppesthereafter cnsidered themseles prisners in the vatican, a small, limited areainside Rome.

Negtiatins fr the settlement f the Rman Questin began in 1926 betweenthe gernment f Italy and the Hly See, and in 1929 they culminated in anagreement knwn as the Lateran Treaty, signed n behalf f King Victor Emmanuel

III f Italy by Prime Minister Benito Mussolini and n behalf f Ppe Pius XI byPietr Cardinal Gasparri, Papal Secretary f State. These agreements included a plitical treaty, the s-called Cnciliatin Treaty, which created the State f theVatican City and guaranteed full and independent sereignty t the Hly See. ThePpe was pledged t perpetual neutrality in internatinal affairs and t abstentinfrm mediatin except when specically requested by all parties t a dispute. Alsagreed n were a Cncrdat establishing Rman Cathlicism as Italy’s fcialreligin and a nancial arrangement awarding a mnetary cmpensatin t theHly See as a way t settle all its claims against Italy arising frm the lss ftempral pwer in 1870. In 1984 a reised treaty was signed, the s-called villaMadama Agreement that, amng ther things, ended the Church’s status as theState-supprted religin f Italy.

Cncerning sereignty, with Article 3 f the Cnciliatin Treaty Italyrecgnizes the full wnership and the sereign authrity and jurisdictin fthe Hly See er the vatican, whse bundaries are set frth in a map calledAnnex I. As a cnsequence, Article 4 frbids any intervention in the Vatican

City n the part f the Italian gernment, r any authrity ther than that f

the Hly See. Mreer, under Article 12 Italy recgnizes the right f the HlySee t passie and actie legatin, accrding t the general rules f internatinallaw and all priileges and immunities. Relating t passie legatin, freigndiplmats accredited t the Hly See hae priileges and immunities recgnized by Italy within the Italian territry. But full sereignty is als recgnized twardsindiiduals. As a matter f fact all persns haing permanent residence within the




vatican City are subject t the sereignty f the Hly See (Article 9). Specic prisins cncern the cperatin in judicial matters, the prtectin f the Pntiffand the status of cardinals.

At the same time the tw Cntracting Parties undertake t establish nrmaldiplmatic relatins with each ther, by accrediting an Italian ambassadr t theHly See and a Papal Nunci t Italy, wh is the dyen f the diplmatic crps.

Accrding t Article 24, the Hly See can exercise its sereignty ininternatinal matters, but it shall nt take part in any tempral rialries betweenther States, nr in any internatinal cngresses, sae and except in the eent fsuch parties making a mutual appeal t the pacic missin f the Hly See. Thevatican City has t be cnsidered as a neutral and inilable territry.

Cncerning prperties and their regime, they shall enjy, accrding t the treaty,the status f extraterritriality (Articles 13–16). Sme f these prperties are: the

Basilica f St Jhn Lateran ( Basilica di San Giovanni in Laterano); the Basilica ofSt Mary Majr ( Basilica di Santa Maria Maggiore); the Lateran Palace, university

and adjining buildings; certain buildings n the Gianicolo Hill, amng them theBambin Gesù Hspital; sme ancient palaces in Rme; sme areas and buildingsutside Rme: the Pntical Palace, in the twn f Castel Gandolfo, and the area

of Santa Maria di Galeria, where the antennas of Radio Vaticana are located. The

area was dnated by Italy t the Hly See in the 1950s. Each f thse tw areas isactually larger than the vatican City itself. Three basilicas utside Rme hae been

ceded t the Hly See but they d nt enjy any extraterritrial status accrding tArticle 27 f the Cncrdat. These are the Basilica of the Holy House at Loreto;

the Basilica f St Francis at Assisi and the Basilica of St Anthony at Padua.

It shuld be remembered that the Fundamental Agreement, signed in 1993,grants the Hly See functinal sereign rights er arius Christian hly sitesin Israel. This agreement is nwadays in curse f renegtiatin.

Cncerning the use f the hly areas within the vatican City, rst f all, freedmf access t the vatican City has been fully recgnized fr St Peter’s Squarewhich cntinues t be nrmally pen t the public and is subject t superisin by the Italian plice authrities. But shuld the Hly See cnsider it necessaryt temprarily prhibit the public frm free access t St Peter’s Square, fr the purpse f special ceremnies, the Italian authrities must withdraw beynd theuter lines f Bernini’s Clnnade and the extensin theref (Article 3). Theartistic and scientic treasures existing within the vatican City and the LateranPalace are pen t schlars and isitrs, althugh the Hly See is free t regulatethe admissin f the public theret (Article 17). Secndly, the territry frming thevatican City is free frm any charge and frm pssible ccupants.

At the same time, Italy prides fr an adequate water supply t the vaticanCity; for connection with the State railways; for direct connection with other States

by means f telegraph, telephne, wireless, bradcasting and pstal serices in thevatican City (Article 5). In accrdance with the prisins f internatinal law, itis als frbidden fr aircraft f any kind whatseer t y er vatican territry(Article 7). The gds arriing frm abrad fr destinatins within the vatican City,




r utwith its bundaries fr institutins r fces f the Hly See, are allwedtransit er Italian territry free f payment f any custms (Article 20).

At the same time, the Cncrdat – signed in 1929 tgether with the CnciliatinTreaty – regulates religius aspects, and all its prisins are centred n therecgnitin f free exercise by the Cathlic Church f its spiritual pwer t beguaranteed als by the duty fr Italy t impede in Rme whatseer may beincnsistent with its status f centre f the Cathlic wrld and place f pilgrimage(Article 1). That means again freedm f access t the Hly places in Rme andthe full exercise f the religius functins f the Cathlic Church withut anyinterference by the Italian gernment. very detailed prisins regulate the statusf ecclesiastics and ecclesiastical entities (Articles 2–8, and Article 29). other prisins cncern the effect f religius marriages in Italy and the teaching f theCathlic religin in schls (Articles 34–7).

The villa Madama Agreement f 1984 des nt change this situatinsubstantially. It renews the statement f the full sereignty and reciprcalindependence f bth Italy and the Cathlic Church, and the recgnitin f thefunctin f eangelizatin f the Cathlic Church in the wrld and all relatedfreedms (Articles 1 and 2). on these bases sme changes were intrduced in thespecic discipline f marriages and in the treatment f ecclesiastical entities.

The afrementined discipline descending frm bilateral agreements wasincrprated int the Cnstitutin f the Italian Republic in 1947. The Cnstitutin

recgnises a specic legal character t the Lateran Treaty and cnsequently des ntcnsider it as an rdinary internatinal treaty. The same prisins were inserted inthe basic rules f the vatican City State (Fundamental Law f 7 June 1929 replacedsme years ag by the Fundamental Law f 26 Nember 2000). Furthermre,the rules of the Vatican City State often make reference to the Lateran Treaty, as

it cntains the basic framewrk prisins fr this State in cnnectin with Italy.other agreements regulate arius aspects and matters cncerning the relatins

between Italy and the Hly See.Mre recently, in 2001, the Eurpean Unin cncluded a mnetary cnentin

with the vatican City State in rder t adapt the existing regime t the entryint frce f the Eurpean Mnetary Unin. In particular the Cnentin wasstipulated by Italy n behalf f the Eurpean Unin. The Eurpean Cmmissinand the Eurpean Central Bank were assciated in the negtiatins. Accrdingt this agreement Eurs can be utilised as fcial currency within the territry fthe vatican City State and it can issue Eurs, haing legal circulatin within theEurpean Mnetary Unin.

Lastly, in 1988–1990 the vatican was registered in the Wrld Cultural Heritage

List.In cnclusin, the bilateral system that regulates the status f the Cathlic hly

places in Italy can be cnsidered a gd slutin, taking int accunt tw elements:n the ne hand, the gegraphical situatin f the vatican City State as an enclave

State within the Italian territry, s that the duty t guarantee its independence andfreedm f exercise f the high functins f the Cathlic Church can rest nly n




Italy; and n the ther hand, the fact that the vatican hly places are situated in aState like Italy where the dminant religin is Cathlicism and which has a fullyCathlic traditin. This latter aspect enables the system t functin well. Therefrethe necessity t enlarge the legal basis f the discipline at the multilateral leeldes nt actually exist.

Mount Athos

The administratin f the Hly Muntain thrughut its centuries-lng histry,frm the time when mnastic life there was fcially rganised by the issuing fthe Typikn f the Byzantine Emperr Jhn Tsimiskes in 972 dwn t the present,has always been gerned by a sui generis plitical and ecclesiastical arrangement.This can be seen ery clearly frm imperial chrysbulls (decrees) and ‘Typika’,

Patriarchal sigillia (dcuments), the rmans f Sultans, the ‘General Regulatins’f the Ecumenical Patriarchate and all subsequent legislatin.

Nwadays, by irtue f the Treaties f Neuilly f 1919 (Articles 42–7), Sèresf 1920 (Article 27) and Lausanne f 1923 (Article 2), Greek sereignty erMunt Aths fcially replaced Bulgarian sereignty. All that remained wast settle Greece’s relatins with the Hly Muntain and t draw up an internalarrangement fr the administratin f the mnastic cmmunity. Sme yearslater, in 1925 the Charter fr the Hly Muntain f Aths was adpted. It was

riginally drafted by a e-member cmmittee in May 1924 and was adpted bythe Extra-rdinary Duble Synaxis f the twenty Ruling Mnasteries. It was thensubmitted t the Greek gernment which, after deferring it fr further elabratint a special cmmittee that tk int accunt the amendments prpsed by theEcumenical Patriarchate, prceeded t its raticatin by the Legislatie Decreef 10–16 September 1926. This decree cntains ther prisins regulating therganisatin, the administratin and the exercise f justice n the Hly Muntain.

T sum up, the ‘Charter fr the Hly Muntain f Aths’ cdies regulatins andadministratie dispsitins stemming nt nly frm written surces but als frmtraditin and custm. This is the case f: i) the prisins f imperial chrysbulls,the Patriarchal sigillia, the Firmans f the sultans and s n which hae nt beenrescinded by the Charter; ii) the prisins f the Extra-rdinary Twenty-MemberSynaxis. These prisins are issued fllwing releant delegatin by the Greekgernment, but in rder t enter int frce they hae rst t be submitted t theGernr f the Hly Muntain and then be ratied by the Minister f FreignAffairs, unless such prisins deal with matters f a purely spiritual nature, inwhich case they are submitted t the Ecumenical Patriarchate fr appral; iii) the

Internal Regulatins f the mnasteries and sketes (mnastic settlements), whichare appred by the Hly Cmmunity and the Ruling Mnasteries, prided, fcurse, that they are nt incnsistent with the prisins f the Charter f the HlyMuntain; and i) custms which hae nt been ablished.

While these rules were incrprated int Greek legislatin, the general principles gerning the status f Munt Aths were incrprated int the 1927




Greek Cnstitutin. Tday, Article 105 f the Greek Cnstitutin f 1975/1986,currently in frce, reprduces the cntents f existing prisins n the status fMount Athos.

Therefre, cncerning sereignty, accrding t Article 105, the MuntAths peninsula – extending beynd Megali vigla and cnstituting the regin fAghin ors – is subject t Greek sereignty but, in accrdance with its ancient priileged status, is a self-gerned part f the Greek State.

But Greek sereignty is limited by sme cnditins; rst f all the prhibitinf any exprpriatin. Secndly, the administratin f all the mnasteries isattributed t their representaties cnstituting the Hly Cmmunity.

At the same time, freedm f religin – referred t thrugh the wrd ‘spiritually’in Article 105 – is subject t the direct jurisdictin f the Ecumenical Patriarchate.All peple leading a mnastic life theren acquire Greek citizenship withut

further frmalities, upn admissin as nices r mnks. Administratie aspectsf the life within the mnasteries are under the superisin f the Greek State.

Cncerning the internal administratin f Munt Aths, the Hly Muntainis administered – accrding t the status which it enjys – by the twenty RulingMnasteries, amng which the whle f the Munt Aths Peninsula, whseterritry is nt subject t exprpriatin, is diided up.

These mnasteries are termed ‘Ruling’ nt nly because this is the name whichthey are gien n the Hly Muntain and because they gern themseles in

accrdance with their wn Internal Regulatins, but because subject t them are allthe dependencies n the Hly Muntain. They are called ‘Ryal and Patriarchal’ because they were either funded r they were put under the prtectin f kings r patriarchs, and ‘Starpegic’ because a crss sent by the Ecumenical Patriarchateis located in them. Thus the monasteries are ranked in a hierarchical order, which

cannt be changed. It shuld be underlined that ne mnastery is Serbian andanther ne is Bulgarian.

The administratin is carried ut by representaties f the mnasteries, whmake up the Hly Cmmunity. The Hly Cmmunity f the Hly Muntain, whichhas its seat at Karyes, is a permanent bdy which cnsists f a representatie feach f the twenty Ruling Mnasteries. These representaties are elected by themnasteries frm which they cme in accrdance with their Internal Regulatins,at the latest within the rst tw weeks f the mnth f January eery year.Candidates fr the fce f representatie must be drawn frm amng the brthersf the mnastery, be at least 30 years f age and be knwn fr the blamelessnessf their lies, preference always being gien t thse with thelgical training anda general educatin. Their term f fce is ne year, but this may be extended if

their mnastery re-elects them. The Hly Cmmunity meets in regular sessinthree times a week, and in extrardinary sessin as the need arises.

N change is allwed in the system f administratin r in the number f themnasteries, nr in their rank in the hierarchy r their psitin in regard t theirdependencies. It is prhibited fr heterdx r schismatics t lie n the HlyMountain.




The detailed determination of the Athonite institutions and of the manner of

their peratin is settled by the Charter f the Hly Muntain which, in cnsultatinwith the representatie f the State, is drawn up and ted fr by the twenty RulingMnasteries and ratied by the Ecumenical Patriarchate and the Greek parliament.

The bserance f Athnite institutins is, in spiritual matters, under thesupreme superisin f the Ecumenical Patriarchate and, in administratiematters, under the superisin f the State, which is exclusiely respnsible frthe maintenance f public rder and security. The abementined pwers f theState are exercised by a gernr, whse rights and duties are determined by law.Als determined by law is judicial pwer, exercised by the mnastic authritiesand the Hly Cmmunity, as well as the custms and tax priileges enjyed by theHly Muntain (Article 105 f the 1975/86 Cnstitutin).

Thus, by irtue f this prisin f the Cnstitutin, tw administratie

authrities must cexist n the Hly Muntain: a ciil administratie authrity anda mnastic administratie authrity. T the rst belngs the Gernr f the HlyMuntain, wh is appinted by a Legislatie Decree riginating frm the Ministerfr Freign Affairs, under whse jurisdictin he/she is placed. The Gernr’ssuperisin extends nt nly t thse matters which cncern public rder andsecurity, but als t the bserance f the Charter f the Hly Muntain. He/sheals draws the attentin f the Hly Cmmunity t infringements cmmitted byany mnastic authrity n the Hly Muntain. In the exercise f these duties, the

Governor comes into contact with the Holy Community and the other monasticauthrities by crrespndence. In the eent f his absence r f sme impedimentt the perfrmance f his duties, his secretary acts fr him. The Gernr is alsrespnsible fr the wrk carried ut by the fcials within his jurisdictin, thatis, the plice frce and the Gernr’s staff in the executin f the decisins fthe Hly Cmmunity and f the mnastic authrities (Articles 3–5, LegislatieDecree 10/16 September 1926).

The indiidual administratie rgans and the cllectie rgans f each f thetwenty Ruling Mnasteries are subject t the mnastic administratie authrity,with a iew t safeguarding the self-administratin which the Hly Muntainenjys. The general administratie rgans f the Hly Muntain are the HlyCmmunity, the Hly Epistasia and the Extra-rdinary Twenty-Member Synaxis.

In earlier times, these mnasteries were diided int ‘cenbitic’ and‘idirrhythmic’, depending upn the way they were rganised and administered.Tday they cntinue nt nly t gern themseles, in accrdance with the prisins f their Internal Regulatins which are adpted by the mnasteriesthemseles and ratied by the Hly Cmmunity (the superisry authrity), but

als t manage their wn prperty and nancial affairs. Tday, all the mnasteriesf the Hly Muntain, with n exceptin, are cenbia.

The particular status f Munt Aths is dealt with by a jint declaratin annexedt the Final Act f the Treaty f Accessin f Greece t the Eurpean Cmmunity.This Jint Declaratin gies releance t this status at the Eurpean leel byrecgnizing it and assuring that Member States will take it int cnsideratin due t




its spiritual and religius nature. An analgus jint declaratin cncerning MuntAths was deliered at the time f the Greek signature f the Schengen Agreementf 1985 and the Cnentin f 1990, haing the same cntents as the preius ne.

In 1988 Munt Aths was registered in the Wrld Cultural Heritage List.In cnclusin, the status f Munt Aths is particularly well structured. on the

ne hand, it is characterized by Greek sereignty under certain limitatins. Thissereignty has been established by multilateral peace treaties after the First WrldWar, when Greece replaced the Bulgarian Kingdm and the ottman Empire inexercising sereign pwers in certain territries. S it is based n a multilateralacceptance and recgnitin. This sereignty has always been reiterated (als inthe Greek cnstitutins) and the reasn fr this reiteratin lies in the necessity tcnrm and frmalize it denitiely t territries which were preiusly under the pwer f ther States. on the ther hand, t guarantee freedm f religin and in

particular freedm f rganizatin f the mnastic life – accrding t ancient rulesand custms deelped alng the centuries – a srt f administratie autnmyhas been awarded t the twenty Ruling Mnasteries f Munt Aths. The legalframework for this administrative autonomy is enshrined in internal rules or

internal arrangements between the mnastic entities and the Greek gernment.But these internal rules and arrangements were in a certain way ‘cmmunitarised’when Greece became a member f the Eurpean Cmmunity.

Mecca (or Makkah)

The mst sacred place in Islam is the city f Mecca (r Makkah), which is lcatedin the western part f Saudi Arabia abut 121 kilmetres inland frm the prt cityf Jidda in the Hejaz prince. Althugh it was clearly a sacred place fr centuries befre the time f Muhammad (c.570–632 C.E.) and includes the famus Ka’ba,a cube-shaped building said t hae been built by the Hebrew patriarch Abrahamand in whse suth-eastern crner the enerated ‘Black Stne’ can be fund,suppsedly gien t Abraham by the Angel Gabriel, the city’s sacredness in Islamderies primarily frm the fact that it was the Prphet’s birthplace.

The reelatins cntained in the Kran include the ‘Fie Pillars f Islam’, nef which asserts that eery Muslim shuld make a pilgrimage, called the hajj,to Mecca at least once in his or her lifetime. Thus the city annually hosts two

millin Muslims frm all er the wrld. Wearing a white rbe called an ihram,

the pilgrims are expected t circle the Ka’ba seen times, t run anther seentimes between tw hills, Safa and Marwa, t spend frm nn until sunset n ahill in the valley of Arafat, to throw stones at the devil in the valley of Mina and

t sacrice sheep and gats.Since the time f King Abdulaziz (1876–1953), the Saudi mnarchy has

wrked at the imprement and extensin f the Mecca Hly Msque and thePrphet Msque t cpe with the increasing numbers f pilgrims.

The full management f the hly places in Mecca is carried ut by the Saudigernment as the Custdian f the tw Hly Msques. It als ersees the




printing f the Kran and gies tp pririty t initiaties t benet Muslims aller the wrld. Actually it makes this kind f supprt aailable thrugh specializedagencies established fr this reasn, namely the Internatinal Islamic Aid Agency,the Internatinal Islamic Wrld Assembly, the Tw Hly Msques Establishmentand the Saudi Agency fr cllecting the dnatins.

In particular, Article 24 f the Saudi Arabia Basic Law (a srt f cnstitutin)states that it is up t the State t maintain and sere the tw Hly Msques. It mustensure the security and safety f all thse wh isit them s that they may be able tisit r perfrm the pilgrimage and ‘Umrah’ (minr pilgrimage) in cmfrt and ease.

Under Saudi law, nn-Muslims are nt permitted t enter Mecca. The Saudigernment uses a erse f the Kran as cnrmatin fr this law. Accrdingt this erse, nn-Muslims must be preented frm entering Mecca as they arecnsidered t be impure (Kran, 9:28).

In cnclusin, in the case f Mecca we face a cmpletely unilateral regime,deriing frm the Basic Law f Saudi Arabia and the Kran. The situatin isexplained by the cntinuus cntrl by Muslim pwers (in the past and nwadays)er the hly places f Mecca and by the fact that Saudi Arabia still is a thecraticState where religius prescriptins are at the same time legal rules.

The Kosovar Monasteries

The medieal mnasteries in Ks and Methia represent the mst ntableexample f the orthdx culture f Serbs. The mst ancient buildings arecharacterized by tw styles: the Western Rmanic and the Eastern Byzantine.Amng them the mst famus is the Mnastery f Dečani, 12 kilmetres utsidePeć. Its cathedral is the biggest medieal church in the Balkan area and it has the biggest Byzantine fresc cnsered up t recent times.

Until the humanitarian catastrphe in the secnd half f the 1990s, thesemnasteries did nt hae a special status within the Serbian State. The situatinchanged dramatically after 1999 with the deplyment f NATo trps in the cntextf the peace-supprt peratins knwn as KFoR t help maintain a safe and secureenirnment and freedm f mement fr all citizens, irrespectie f their ethnicrigin. After NATo frces dre ut Yugsla trps amid deadly ghting withthe majrity ethnic Albanian ppulatin, the UN Interim Administratin Missin(UNMIK) tk er in 1999. It carries ut many functins, including thse relatedt the dialgue with Serbia n prisins cncerning six areas: plice, curts,custms, transprt and infrastructure, bundaries and Serbian patrimny.

The recent independence f Ks, declared n 17 February 2008, changed

the legal situatin again. Fllwing the declaratin f independence, NAToreafrmed that KFoR had t remain in Ks n the basis f UN SecurityCuncil Reslutin 1244, unless the United Natins Security Cuncil decidestherwise. In June 2008, NATo agreed t take n new tasks in Ks t supprtthe deelpment f prfessinal, demcratic and multi-ethnic security structures.Thrughut Ks, NATo and KFoR cntinue t wrk with the authrities and,




bearing in mind its peratinal mandate, KFoR cperates with and assists the UN(UNMIK), the EU – in particular EULEX, the EU Rule f Law missin in Ks – and ther internatinal actrs, as apprpriate, t supprt the deelpment f astable, demcratic, multi-ethnic and peaceful Ks.

Cnsequently the prtectin f mnasteries f Ks still falls within thetasks f KFoR nwadays, een thugh sme new prisins hae been insertedint the new Cnstitutin f Ks.

Initially, KFoR’s mandate (based n UN Security Cuncil Reslutin(UNSCR) 1244 f 10 June 1999 and the Military-Technical Agreement (MTA) between NATo and the Federal Republic f Yugslaia and Serbia) was put in place t deter renewed hstility and threats against Ks by Yugsla andSerb frces; establish a secure enirnment and ensure public safety and rder;demilitarize the Ks Liberatin Army; supprt the internatinal humanitarian

effrt; and crdinate with and supprt the internatinal ciil presence. KFoR’s presence has been crucial in maintaining safety and security fr all indiiduals andcmmunities in Ks. Tday, KFoR cntinues t cntribute t maintaining asafe and secure enirnment in Ks fr the benet f all citizens.

In particular, KFoR’s tasks initially included assistance with the return rrelcatin f displaced persns and refugees; recnstructin and demining; medicalassistance; security and public rder; security f ethnic minrities; prtectin fcultural heritage sites; brder security; interdictin f crss-brder weapns

smuggling; implementatin f a Ks-wide weapns, ammunitin and explsiesamnesty prgramme; weapns destructin; and supprt fr the establishment fciilian institutins, law and rder, the judicial and penal system, the electral prcess and ther aspects f the plitical, ecnmic and scial life f the prince.

Special attentin cntinues t be paid by KFoR t the prtectin f minrities.This includes the prtectin f cultural heritage sites such as mnasteries anddnatins including fd, clthes and schl supplies.

The same task cnsisting f prtectin f cultural heritage led t the insertinf the Dečani Mnastery in the Wrld Cultural Heritage List f UNESCo in2004. Fllwing this registratin, the Prisinal UN administratin fr Ks(UNMIK) established a special UNMIK Reprting Zne in April 2005 arund theDečani Mnastery where KFoR cntinues t cntrl the existing rad and wherethe municipal authrities hae t take measures t prtect the mnastery in fullcnfrmity with the prisins cntained in the UNESCo Cnentin f 1972.

The 2007 Prpsal fr the Settlement f Ks, which subsequently failed, paid particular attentin t the prtectin f the cultural and religius heritagein Ks. In particular, under the Settlement, Ks wuld hae n fcial

religin. The Settlement prided als fr the autnmy and prtectin fall religius denminatins, their prperty and their sites; and fr additinalsecurity and certain ther frms f prtectin, rights, priileges and immunities,including guarantees against exprpriatin, full discretin in the management ftheir prperty, prperty recnstructin and access t their premises fr rthdxmonasteries.




T this end the Settlement stated that the internatinal military presence wuldcntinue t pride security fr the nine majr Serbian religius and histric sitesuntil a decisin is made t transfer this respnsibility t the Ks Plice Serice.Lastly, the Settlement established 45 prtectie znes arund the mst prminentchurches and mnasteries, as well as histrical mnuments, while a mnitringcuncil with lcal and internatinal participatin was established t mnitr andfacilitate implementatin f the Settlement.

Independence was declared by Ks in 2008 after a ery exhaustie seriesf negtiatins under which the afrementined Settlement brkered by the UNSpecial Eny failed t be agreed n because Serbia was nt able t cuntenancethe principle f Ks independence, een with the degree f internatinalsuperisin and limitatins enisaged in the UN Special Eny’s prpsal.

Mst f the prisins cntained in the afrementined Settlement hae been

accepted and therefre incrprated int the Cnstitutin f the newly independentKs. While this Cnstitutin recgnizes the full sereignty f Ks, at thesame time it has a duty t presere the cultural and religius heritage (Articles 2and 9). In ther wrds the religius heritage is put under Ks’s sereignty but this State frmally cmmits itself t prtect it. It is eident that any real effrtt prtect this cultural heritage is fully discretinary fr Ks except in thecase f bligatins internatinally assumed. In this regard the insertin f theDečani Mnastery in the UNESCo List is ery imprtant because it grants t the

UNESCo Cmmittee fr the Wrld Cultural and Natural Heritage a srt f cntrln the fulllment f the duty t prtect.Mreer Articles 38 and 39 f the Cnstitutin recgnize freedm f religin

and the prtectin f religius autnmy and religius mnuments. Therefre theyaim at guaranteeing freedm f access t the hly places as well as freedm f usethereof.

In cnclusin, the regime fr hly places in Ks and Methia, een thughits rts are in a UN Security Cuncil Reslutin, appears t be slightly weakfr arius reasns. First f all, the cntents f the regime hae t be taken intcnsideratin: a simple duty t presere religius mnuments and t maintainthem in their current cnditins and nthing mre is different frm what we haeseen befre fr the vatican r fr Munt Aths. Secndly, it shuld be cnsideredthat n internatinal binding instrument (either bilateral r multilateral) – exceptthe UNESCo Cnentin f 1972 – establishes a discipline fr these religiusmnuments meaning that the effectieness f prtectin may be at risk. Thirdly,the situatin in the eld, after massie ilatins f human rights in a srt f ethniccleansing, is ery delicate and maybe nly the deplyment f KFoR can aert

pssible attacks r the destructin f the orthdx mnuments.

Jerusalem

The situatin f Jerusalem is an exceptinal ne in that it is far frm being sleddue t the cntemprary presence f different claims t sereignty by Israel,




Jrdan and the Palestinian Authrity and, at the same time, the tentatie slutinsf the cnict between Israel and the Palestinian Authrity drafted by the United

Nations.

As is well knwn, in 1517 Jerusalem and its enirns were cnquered by theOttoman Turks, wh kept cntrl f the area until 1917. During almst the entireottman perid Jerusalem remained a princial, thugh religiusly imprtant,centre as it did nt lie n the main trade rute between Damascus and Cairo.

In 1917, after the Battle f Jerusalem, the British Army ccupied the city andat the Conference of Lausanne in 1922 the League f Natins entrusted the United

Kingdm with administering the Mandate fr Palestine. The situatin betweenArabs and Jews in Palestine was nt peaceful: in Jerusalem, in particular, riots

ccurred in 1920 and in 1929.

As the British Mandate fr Palestine was expiring, the 1947 UN PartitinPlan recmmended ‘the creatin f a special internatinal regime in the Cityf Jerusalem, cnstituting it as a corpus separatum under the administration

of the United Natins’. The internatinal regime (which als included the cityof Bethlehem) was t remain in frce fr a perid f ten years, whereupn areferendum was t be held in which the residents were t decide the future regimeof their city.

Hweer, this plan was nt implemented as the 1948 war erupted, the British

withdrew from Palestine and Israel declared its independence. Israel and Jrdan

cncluded an Armistice Agreement, diiding Jerusalem int tw parts. After theestablishment f the State f Israel, Jerusalem was declared its capital. Jrdanfrmally annexed East Jerusalem in 1950, subjecting it t Jrdanian law. only theUnited Kingdm and Pakistan frmally recgnized such annexatin which, withregard t Jerusalem, was n a de facto basis. Jrdan assumed cntrl f the hly places in the old City. Cntrary t the terms f the agreement, Israelis were deniedaccess t Jewish hly sites, many f which were desecrated. Jrdan allwed nlyvery limited access to Christian holy sites.

After Israel ccupied East Jerusalem in the 1967 Six-Day War, access t Jewishand Christian holy sites was restored, while the Temple Munt remained under

the jurisdictin f an Islamic waqf . The Moroccan Quarter, which was located

adjacent t the Western Wall, was acated and razed t make way fr a plaza frthse isiting the walls. Since the war, Israel has expanded the city’s bundariesand established a ring f Jewish neighburhds n acant land east f the Green

Line.

Hweer, the takeer f East Jerusalem met with internatinal criticism.Fllwing the passing f Israel’s Jerusalem Law which declared Jerusalem,

‘cmplete and united’, capital f Israel, the UN Security Council passed aresolution that declared such a law ‘a ilatin f internatinal law’ and requestedall Member States t withdraw all remaining embassies frm the city. The status

f the city, and especially its Hly Places, remains a cre issue in the Israeli-Palestinian cnict. Jewish settlers hae taken er histric sites and built n landcnscated frm Arabs in rder t expand the Jewish presence in East Jerusalem,




while prminent Islamic leaders hae made claims that Jews hae n histricalcnnectin t Jerusalem, alleging that the 2,500 year-ld Western Wall wascnstructed as part f a msque. Palestinian Arabs enisage East Jerusalem as thecapital f a future Palestinian state and the city’s brders hae been the subject f bilateral talks.

It is interesting t fcus n the internatinal regime enisaged by theafrementined UNGA Reslutin 181.

Cncerning the status f Jerusalem and its hly places, the Reslutinconsiders them as a corpus separatum lcated neither in Israel, nr in Jrdan. Sit enisages a srt f sui generis regime strictly dened by internatinal law andstrictly subjected t internatinal cntrl. Therefre the Reslutin excludes anyfrm f State sereignty in faur f an internatinal regime.

In more detailed terms, this Resolution tries to maintain the status quo by

priding that the existing rights in respect f hly places and religius buildingsr sites shall nt be denied r impaired and specically recgnises full liberty faccess, isits and transit in the hly places, in cnfrmity with existing rights, tall residents and citizens f anther State and f the City f Jerusalem, as well ast aliens, withut distinctin as t natinality, subject t requirements f natinalsecurity, public rder and decrum. Similarly, freedm f wrship is guaranteedin cnfrmity with existing rights, subject t the maintenance f public rder anddecorum.

Fr the same reasn, the Reslutin states that the hly places and religius buildings r sites must be presered with their sacred character. If at any time itappears t the gernment that any particular hly place, religius, building rsite is in need f urgent repair, the gernment may call upn the cmmunity rcmmunities cncerned t carry ut such repairs. The gernment may carry it utitself at the expense f the cmmunity r cmmunities cncerned if n actin istaken within a reasnable time.

The Reslutin deals with the prblem f taxatin, excluding any taxatinin respect f any hly place, religius building r site which was exempt frmtaxatin n the date f the creatin f the State and prides that n change inthe incidence f such taxatin must be made which wuld either discriminate between the wners r ccupiers f hly places, religius buildings r sites, rwuld place such wners r ccupiers in a psitin less faurable in relatin tthe general incidence f taxatin that existed at the time f the adptin f theUNGA’s recmmendatins.

Mreer the Reslutin recgnises, inter alia, freedom of conscience and the

free exercise f all frms f wrship, subject nly t the maintenance f public

rder and mrals, the right f each cmmunity t maintain its wn schls frthe educatin f its wn members in its wn language and t prhibit any kind fdiscriminatin between the inhabitants n the grunds f race, religin, languager sex.

Cnsequently, except as may be required fr the maintenance f public rderand gd gernment, n measure must be taken t bstruct r interfere with the




actiity f religius r charitable bdies f all faiths r t discriminate againstany representatie r member f these bdies n the grund f his/her religin rnationality.

N exprpriatin f land wned by an Arab in the Jewish State (by a Jew in theArab State) is allwed accrding t the Reslutin except fr public purpses. Inall cases f exprpriatin full cmpensatin as xed by the Supreme Curt shall be paid preius t dispssessin.

The central gure within this system is the Gernr, t be appinted by theTrusteeship Cuncil and accuntable t it. He/she must be selected n the basis fspecial qualicatins and withut regard t natinality. He/she cannt, hweer, bea citizen f either State in Palestine. The Gernr represents the United Natins inJerusalem and exercises n their behalf all pwers f administratin, including thecnduct f external affairs. He/she is assisted by an administratie staff classed as

internatinal fcers as per Article 100 f the Charter and chsen wheneer practicablefrm the residents f the city and f the rest f Palestine n a nn-discriminatry basis. A detailed plan fr the rganizatin f the administratin f the city wuld hae been submitted by the Gernr t the Trusteeship Cuncil and duly appred by it.

Cncerning the hly places, the Gernr f the City f Jerusalem has the rightt determine whether the prisins f the Cnstitutin f the State in relatint hly places, religius buildings and sites within the brders f the State andthe religius rights appertaining theret are being prperly applied and respected,

and t make decisins n the basis f existing rights in cases f disputes whichmay arise between the different religius cmmunities r the rites f a religiuscmmunity with respect t such places, buildings and sites. He/she must receiefull cperatin and such priileges and immunities as are necessary fr theexercise f his functins in the State.

It is well knwn that the Reslutin has neer been applied and that theInternatinal Peace Cnference f Madrid in 1993 did nt reach any slutin nthe regime f Jerusalem. As a matter f fact the Cnference excluded this aspectfrm negtiatins.

In this cntext, Jerusalem was registered in the UNESCo Wrld CulturalHeritage List in 1982 fllwing a request fr registratin adanced by Jrdan.Further, Jerusalem is nt registered under either the Jrdanian r Israeli culturalheritage.

Fr its part, the Hly See cncluded agreements with Israel (n December 30,1993) and the Palestinian Authrity (n 15 February 2000) respectiely t prtectthe rights f Cathlics.

The effectie management and cntrl f the hly places in Jerusalem is

carried ut, therefre, by the Israeli gernment which adpted the Prtectinf hly places Law in 1967 and nwadays the sereignty n the hly places inJerusalem is exercised by Israel. The aim f the 1967 law is t criminalize certainactins in rder t prtect the hly places frm desecratin and any ther ilatinand frm anything likely t ilate freedm f access t members f differentreligins t the places that are sacred t them r their feelings.




Amng the arius regimes cncerning hly places, the mst prblematic hasalways been Jerusalem, mainly because it has becme an imprtant cmpnentf the mre general prblem f self-determinatin and independence in the lightf internatinal law. But this prblem is als cnnected with ethnic, cultural andreligius differences. If ther regimes seem t wrk psitiely, the situatin fhly places in Jerusalem is at dds with any frm f peaceful cexistence and itrepresents a risk in the maintenance f peace and internatinal security.

Some Preliminary Reections on a New Legal Framework for the

Regulation of Holy Places

Frm the iewpint f internatinal law, the main weakness f the legal chices

n the status f hly places cnsists f their fragmentatin and diersity (thsein frce and thse nt yet in frce), s determining quite different legal regimeshly placeeen thugh all hly places perfrm the same rle f places f wrship.It shuld als be nted that these differences depend n the different cntextsf each hly place and that diersied regimes can better take int accunt the particular features and prblems f each ne. What prpsals can be put frward by an internatinal lawyer, bearing in mind, mst imprtantly, the unresledand disputed situatin f the hly places in Jerusalem and the risk f new ethnic

cnicts er the cntrl f the orthdx mnasteries in Ks?Seeral slutins can be enisaged. The best ne in terms f the effectienessand incisieness f the regime is certainly that f arriing at bilateral agreements between the interested States as regards freedm f access and frms f sharedmanagement f the sites themseles in rder t guarantee religius freedm. Theachieement f these bilateral agreements is by n means simple. It shuld cmeabut ia the diplmatic mediatin f the United Natins r f the EurpeanUnin, rganizatins that culd als assume the rle f ‘guaranteeing pwers’fr the respect f the bligatins. The ‘guaranteeing pwers’ shuld mnitr theirbserance t preent the bilateral agreements frm giing rise in the future tfrms f ‘creeping sereignty’ that culd lead t further territrial and/r inter-ethnic cnicts.

An alternatie wuld be a multilateral agreement whse purpse wuld bethe specic prtectin f hly places and sites, in irtue f their full religiussignicance. on the theretical leel, hly place internatinal law sering thesehly places wuld act as mediatr between claims t sereignty, claims tself-determinatin, the right t religius freedm and the prtectin f religius

heritage which wuld culminate abe all as cultural heritage. on the practicalleel, this bjectie wuld be achieed nly by prtecting the fllwing: theintegrity f the hly places and sites; their enjyment; their hly character; thefreedm t administrate them; the bnds between belieers, hly places and placesf wrship; and the reslutin f cnicts regarding the use f hly places andsites.




Frm this standpint, the internatinalizatin f the hly places and siteswuld appear t be the preferable slutin. Neertheless, internatinalizatinwuld entail the chice f the regime t be applied t that heritage nly frmthse that already exist – which are nt suitable fr hly places and sites. Analternatie ptin is the denitin f a new regime whse applicatin wuld beentrusted t an internatinal rganizatin r t a bdy with a high spiritual prle.The idea f establishing a srt f cmmn general regime fr the entire categryf hly places shuld be taken int cnsideratin. As a matter f fact, it is wrthcnsidering if a gd slutin wuld be t dene the categry f hly places bydetermining their features and characteristics, and establishing a cmmn regimefr them. This cmmn regime culd be the basis either fr the deelpment fmre precise and detailed regimes fr each hly place r fr the cmpletin f theexisting regimes, thus aiding any lacunae legis. Therefre, a slutin culd be

the drafting f a new multilateral treaty under the auspices f UNESCo, dedicatedt the prtectin f hly places. In fact, if we cnsider that nne f the UNESCoCnentins deals with religius heritage expressly, it seems pssible t cer thisgap ia a new cnentinal instrument.

But at the same time this slutin culd pre ery hard t pursue. The debatesn the cncept f religin during the negtiatin f the UNESCo Cnentin nIntangible Cultural Heritage f 2003 are still fresh in ur minds and they remindus f the different pinins f States n the subject. Mreer the cnsequences,

n a plitical leel, stemming frm the inclusin f a place in the categry fhly places can be wide-ranging and can alter a certain fragile balance f pwers.And, nally, what abut the regime? Wuld it be a regime t prtect the buildingsand the surrunding areas r a regime t prtect certain religius custms and practices? In this case there is the risk f pening a Pandra’s Bx.

S d different slutins seem mre persuasie? Accrding t this apprach,the cncept f the cmmn heritage f mankind and, in particular, the cnceptf wrld cultural heritage culd be applied t hly places as utlined by theUNESCo Cnentin f 1972, withut any frmal treaty mdicatin. In faurf this slutin there is als the fact that all the abe-examined hly places –except Mecca – are already included in the Wrld Cultural Heritage List under theUNESCo Cnentin f 1972.

This slutin culd be a deelpment f the ‘New Glbal Strategy’ adpted by UNESCo in 1994 in rder t braden the denitin f Wrld Heritage t better reect the full spectrum f the wrld’s cultural and natural treasures andt pride fr a cmprehensie framewrk and peratinal methdlgy frimplementing the Wrld Heritage Cnentin. This new isin ges beynd

the narrw denitin f heritage and stries t recgnise and prtect sites thatare utstanding demnstratins f human cexistence with the land as well ashuman interactins, cultural cexistence, spirituality and creatie expressin.This brad denitin wuld als include thse sites whse mnumental impactis nt particularly eident, but which testify t the fundamental steps f humancexistence, r f particularly tragic mments in human histry. In this way, fr




example, inclusin in the list was justied fr Auschwitz Birkenau, a German Nazi Cncentratin and Exterminatin Camp (which is withut architectural merit but which is f enrmus signicance) and fr the Island f Le Mrne, whichsignies the perid f the slae trade. Neertheless, in recent years this practice by the Wrld Heritage Cmmittee has been criticised. This practice is – rightly –cnsidered as a deiatin frm the bjecties f the 1972 Cnentin. At the sametime, as it is a stratagem, it reduces the symblic impact f the heritage, which insme way has t be ‘disguised’ as a mnument.

Mre specically, the drafting and the adptin f a single prtcl n hly places as cultural heritage can be prpsed. As an alternatie t this, the adptinf arius prtcls – ne fr each hly place – culd be suggested. one r mre prtcls culd pride fr a mre cmplete and detailed regime fr hly placesthan that already established by the UNESCo Cnentin f 1972 itself. As is

well knwn, the regime under the afrementined Cnentin is quite weak andis ery respectful f States’ sereignty since the main duty f States Parties ist maintain all cultural and natural heritage sites/places registered n the Listand t endeaur by all apprpriate means, and in particular by educatinal andinfrmatin prgrammes, t strengthen appreciatin and respect by their peples.At the same time States hae t keep the public bradly infrmed and t reprt tthe Wrld Heritage Cmmittee any dangers threatening this heritage as well as theactiities carried ut in pursuance f this Cnentin.

In particular the prtcl(s) culd set the rules n access, use and prtectinf eery hly place and, if necessary, culd als establish a respnsible bdy(fr example a bard r cuncil) t guarantee public security and public rder aswell as the administratin f the single hly place.

The regime culd be applicable bth in times f peace and in war. UNESCoshuld be the cmpetent UN agency but it is als pssible t enisage a rle fr theEurpean Unin and/r the United Natins. The rle f a ‘Prtecting Pwer’ culdals be cnsidered – taking inspiratin frm the past and in particular frm the lawf armed cnicts. This Pwer culd be called upn t guarantee and mnitr therespect f the engagements assumed. This rle culd als be played by an inter partes entity, such as the order f Malta, especially as far as the prtectin f theChristian hly places in Jerusalem is cncerned.

Anther slutin, which might be een easier t achiee than the thers wuld be t braden the applicatin Guidelines f the 1972 UNESCo Cnentin, asthese Guidelines are peridically changed. It wuld be pssible t insert int theseGuidelines a ‘Glbal Strategy n hly places and sites’ whse aim wuld be tguarantee the full recgnitin f their specic alues and build strnger specic

prtectin. This slutin wuld be lesser than the thers, but it wuld certainly bemore immediate.

Finally, the mst ambitius bjectie wuld be t guarantee freedm f accesst hly places, their special functin, freedm f religin, the safeguarding fthese places fr future generatins and the peaceful cexistence between lcalcmmunities and pilgrims.



Chapter 5

Finding a Grammar f Cnsent fr ‘Sft

Law’ Guidelines n Sacred Places: TheLegal Prtectin f Sacred Places withinthe Existing Public Internatinal Law

Instruments and Grass-rt Appraches1

Peter Petkoff

But will God indeed dwell on the earth? Behold, the heaven and heaven of

heaens cannt cntain thee; hw much less this huse that I hae builded?1 Kings 8:27, KJB

Introduction

There are multiple legal tls under internatinal law designed t dene sacred places, t prtect their physical integrity, their functin and freedm f access tthem. Yet, ery few f these tls hae pred particularly successful in prtectingsuch places, nr has an attempt been made t elabrate a cmprehensie public plicy fr their prtectin which integrates rather than islates these differenttls. This chapter explres the benets f deelping a sft law apprach2 to the

1 An expanded ersin f this chapter is published in Law and Justice [2011] 167, 242 Sft law instruments range frm treaties, which include nly sft bligatins (‘legal

sft law’), t nn-binding r luntary reslutins and cdes f cnduct frmulated andaccepted by internatinal and reginal rganisatins (‘nn-legal sft law’), t statements prepared by indiiduals in a nn-gernmental capacity but which purprt t lay dwninternatinal principles. The Uniersal Declaratin f the Rights f Peples, adpted 4 July1976, fr example, was drafted and adpted nt by States but by eminent internatinallawyers frm dierse legal cultures. Sectin 3 f this Declaratin is n ecnmic rights

and includes rights t permanent sereignty, the cmmn heritage f mankind, equity ininternatinal trade and the right f peples t chse freely their wn path t deelpment.A number f denitins f sft law hae been suggested. Sme writers refer nly t nrmsin hard law frm, usually a treaty but with ague r weak requirements, and characterizethis as ‘legal sft law’, while thers cncentrate n instruments in nn-legal frm, frexample reslutins f internatinal rganisatins and cdes f cnduct, termed ‘nn-legal sft law’. Fr the purpses f this chapter the authr refers t sft law in the sense f

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-




prtectin f sacred places and assesses the existing legal instruments in rdert cnsider the pssible shape and directin that such a sft law apprach mighttake.

Sacred Places as a Distinct Category

Because f the inherent uniqueness f sacred places, deelping a taxnmy fsacred places is irtually impssible in the same way that creating an exhaustie listf types f religin r belief r religius symbls is als impssible. Sacred placesrange frm thse with ery clearly dened brders and physical specicatins, tgegraphical areas, natinal parks, prcessins, pilgrimages, sacramental placesand places where the faithful cngregate and their spiritual leaders teach. Whether

they are static r dynamic, it appears almst impssible t identify patterns t tthese randmly selected types f sacred place int brader categries. It des ntcme as a surprise, therefre, that law is generally uncmfrtable with deelpingcmprehensie regimes f sacred places. The existing regimes are ery specicr relate t specic places and d nt attempt t deelp cmprehensie unifrmstandards f prtectin f ‘the Sacred’. The mst prminent frm f prtectin isgien t places f wrship, that is, places where religius cmmunities cngregate.I hae purpsefully departed frm the use f ‘places f wrship’ as the centre f

my enquiry and hae chsen a nn-legal term ‘sacred/hly places’. In this way Iam able t enquire int frms f prtectin f places which d nt necessarily t,r fall utside, the categry f places f wrship and/r f the categry f a placeand yet may be assciated with features which arius legal tls ften attribute t places f wrship. Dening what might be a hly/sacred place/space is prbablythe tpic f a different article.

Fr the purpses f this chapter I will be cncentrating n places, spaces andeents which may be perceied in sme way as extensins f the legal categryf places f wrship but are ften apprached thrugh the lens f legal tlsther than freedm f religin r belief, fr example. In rder t d this I haeintrduced int the discussin a wider cncept f ‘sacred place/space/eent’ asan bject f worshipful signicance fr belieers and/r nn-belieers which issmetimes identical r similar t, and smetimes extends beynd, the leel feneratin assciated with a place f wrship and therefre extends beynd thelegal categry f a place f wrship. In ding s this chapter enquires t whatextent such bjects f wrshipful eneratin are apprached differently frm andsimilarly t places f wrship frm different perspecties f internatinal law and

whether they shuld be apprached primarily thrugh the lens f existing legal

statements prepared by indiiduals in a nn-gernmental capacity which systematize andrecnceptualise the existing internatinal legal tls releant fr the prtectin f sacred places, as well as the ery cncept f sacred places with a iew t prducing a luntarycde(s) in the area f legal prtectin f sacred places.



Finding a Grammar of Consent for ‘Soft Law’ Guidelines on Sacred Places 59

tls r whether a new frm f prtectin reecting the existence f a separatebject f prtectin wuld be necessary instead.

Therefre this chapter prides an eriew f releant existing internatinallegal instruments and enquires int similarities and differences in the prtectin fsacred places such as eents: pilgimage rutes/prcessins (which are frequently perceied thrugh the lens f freedm f manifestatin f religin r belief),unique sacred shrines (Jerusalem, Mecca, Munt Aths, the vatican City Stateand s n), sacred landscape and places mre generally perceied as places fwrship in the strict sense (churches, msques, synaggues, prayer rms). Theauthr feels that appraches which distinguish sacred places fr their uniqueness(Mecca, Jerusalem) and places f wrship fr their cmmunality (churches,msques, synaggues, prayer rms) is a false distinctin and is nt particularlyhelpful since eery sacred place may be perceied as a place f wrship and sme

places f wrship may als be perceied as sacred places. As a result the textcntinuusly tries t aid a denitin f sacred place and instead intrduces a brader (nt necessarily legal) categry which absrbs different frms f legal prtectin f places and eents which culd be cnstrued as sacred places in thewider sense; enquires int the ways these different frms f prtectin relate tne anther and t the wider cncept f sacred places; and asks whether a mretransparent picture f these different and yet intercnnected frms culd sere as a pssible blueprint f a sft law fr prtectin f sacred places bradly understd

thrugh existing and perhaps new legal tls.The chapter des nt necessarily present a case fr a new categry f prtectinunder internatinal law. Instead it is in the rst place an enquiry int the ways inwhich different, and smetimes erlapping, legal tls are applied in the prtectinf different, and smetimes erlapping, bjects which culd be bradly describedas sacred places. Secndly it enquires int the ways in which these different, andyet related, appraches culd be made mre transparent thrugh a frm f sft lawfr the prtectin f a brader categry f sacred places, which wuld pride asystematic eriew f the existing hard law legal tls and the way they mayintercnnect in a multi-layered fashin in the area f legal prtectin f sacred places.

Multiple identities f sacred places and their cmplex relatinships (religius,cultural, ciic r een strategic), ften triggering cnicting and cntestedhrizntal and ertical sereignty claims, are nt easy t explain as legal entities.Cnsideratins such as whether sacred places shuld be taxed, audited, dependentn planning laws r insurance laws, included in the register f listed heritage sitesr subsidized by the annual budget f the state are n lnger dependent n the

law, but t a large extent n the cmmitment the plitical cmmunity chses tarticulate in relatin t such places – can it affrd t hae them tax-exempt andt let the cmmunities in charge f such sites deelp a cnsiderable leel fautnmy which will make the general rules abut scial security, public safetyand planning laws nn-binding fr such cmmunities? A list f further questinsften emerges in the cntext f such deliberatins:




• Hw des a hly place differ frm a place f wrship?• Should the law take into account any such difference?

• Shuld access t a hly place be administered in the same way as mregeneral places f wrship?

• Shuld access t hly places fr multiple religins be different frm accesst places f wrship f ne religin?

• What abut access t places f wrship f ne religin built n grundcnsidered hly by ther religins?

• Shuld religius law be taken int accunt when cnsidering access t places f wrship sharing places f wrship?

• Shuld sft law deal with the cmplex difculty that principles f religiuslaw cannt nrmally erride mandatry prisins f primary legislatin?

• What is the balance between religius autnmy and state interference in

legal prtectin f hly places?• Are idisyncratic legal narraties, which take int accunt the different

ways hly places/places f wrship culd be perceied, apprpriate?• Can it affrd t treat all sacred places equally r shuld sme places be

granted special status? And why?

The answers t such questins are ften drien by security cncerns, cncern frheritage prtectin, human rights arguments r arguments f religius autnmy.

very rarely special cases, such as Jerusalem, the vatican and Munt Aths, areregulated by eclectic legal nrms, which reect the cmplexities f their legalstatus.

In the effrt t reduce the nature f sacred places t ne r anther aspect ftheir multiple identities, internatinal as well as municipal law cnditins theirlegal status t a specic substantie denitin, categry f place r area f law.This denitin culd be shaped by the way in which internatinal r municipal lawcategrizes a particular subject matter r by a particular plicy-drien agenda t place such subject matter within r utside the specic cncern f the law.

There has nt, hweer, been an attempt t deelp a nn-binding narratie by way f guidelines which wuld apprach sacred places thrugh their multipleidentities and sere as a mdel fr legal reasning that wuld see these identitiesin cnjunctin and nt in islatin. In this chapter I wish t shw hw many fthe aailable tls under internatinal law, and sme f the legal tls tangentialt, but cnnected with, internatinal law, culd sere t deelp such guidelines,which culd generate a mdel fr integrated multi-dimensinal perspecties in plicy-making in relatin t legal prtectin f sacred places.

There has nt been a clear and transparent way t integrate the existingInternational law instruments. It is not clear how they relate to one another

een t internatinal lawyers and it is nt clear whether they culd r shuld beapplied in cnjunctin. A sft law culd prpse a way in which these differentand smetimes cmpeting appraches culd be applied in cnjunctin. There iseidence that there will nt be a sufcient cnsensus fr deelping a ‘Freedm




f Religin r Belief’ cnentin fr the prtectin f places f wrship underinternatinal law. The guidelines fr teaching religin in schls and draftinglaw n religin cmmissined by the oSCE (organizatin fr Security andC-peratin in Eurpe) are gd examples f the way frward in this respect.3

These guidelines are nt legally binding and, despite being cntrersial, hae been immensely inuential in Member States fr suggesting hw a particular issuecan be apprached thrugh the lens f internatinal law. In the cntext f sacred places, a sft law by way f a systematic cmmentary n existing apprachesfrm within the existing legal instruments, as well as frm within theretical perspecties n sacred places and their legal status, culd set ut in a clear andtransparent way a narratie f hw sacred places can be perceied by law andculd perfrm a functin similar t that f the oSCE guidelines.

A sft law text, withut harmnizing the different practices, culd suggest an

intellectual framewrk within which legal issues relating t sacred places culd be apprached in a brader and mre cmprehensie manner, in the rst instanceas an intellectual tl and nly secndarily as a pssible future legal framewrk.varius frms f sft law, by way f guidelines rather than declaratins, are mrelikely t achiee change, transfrming legal thinking at the leel f the judiciary,executie and legislature.

Thus this chapter will present aailable tls and the ways they relate r shuldrelate t ne anther in a wider sft law narratie. The starting premise will be that

it prtects any places where freedm r religin r belief is exercised and perhapsshared – frm the ery bius sacricial places t the family hme as a sacred place/sacred space.

Legal Tools for Protecting Sacred Spaces

Freedom of Religion or Belief

The aailable legal tls under internatinal law which articulate aailable sacred places’ prtectin cabulary thrugh the lens f freedm f religin r beliefas a fundamental right can be fund in the Internatinal Cenant n Ciil andPlitical Rights (ICCPR),4 the Eurpean Cnentin n Human Rights (ECHR),5

the American Cnentin n Human Rights (ACHR),6 the African Charter on

Human and Peples’ Rights7 and in the Uniersal Declaratin f Human Rights

3 oSCE ‘Tled Guiding Principles n Teaching Abut Religins and Beliefsin Public Schls’; ‘Guidelines Fr Reiew of Legislatin Pertaining T Religin orBelief’<www.sce.rg/dihr/13993> accessed 19 July 2011.

4 ICCPR 1966 999 UNTS 171 (ICCPR).5 ECHR 1950 213 UNTS 221 (ECHR).6 ACHR (n 10) Article12.7 African Charter (n 10) Article8.

http://www.osce.org/odihr/13993

http://www.osce.org/odihr/13993




(UDHR),8 as well as the 1981 Declaratin n the Eliminatin f All Frms fIntlerance and Discriminatin Based n Religin r Belief (1981 Declaratin nReligius Intlerance).9

The right t freedm f religin psitiely includes the right t manifest ne’sfaith in wrship ‘alne r in cmmunity’. The cncept f a prtected place fwrship appears t be articulated thrugh the legal tls aimed at prtectingfreedom of association and manifestation in the ICCPR. The General Comment

N. 22 n freedm f religin issued by the Human Rights Cmmittee refers t‘the cncept f wrship … including the building f places f wrship’.10

Article vI in the 1981 Declaratin includes the right t wrship and assembleand ‘t establish and maintain places fr these purpses’. It is neertheless a rstattempt t speak f centres f religius detin in brader terms, aiding the usef culturally specic terms such as hly, sacred and f wrship. The text speaks

exclusiely f places, thus delineating the intangible dimensin f sacred spacesfr the purpses f legal prtectin under internatinal law.

UDHR specically delineates the right t freedm f religin r belief in Article18. The forum externum aspect f Article 18 includes ‘freedm, either alne r incmmunity with thers and in public r priate, t manifest his religin r beliefin teaching, practice, wrship and bserance’, a mild cncessin t grup rights.

Despite the fact that the Declaratin has the status f sft law, the widespreadacceptance f the UDHR shws that many f its prisins hae achieed the

status of international customary law.As a further deelpment frm UDHR, Article 18(1) f the ICCPR prtects the

indiidual and cllectie manifestatins f a religin, placing particular emphasisn fur frms:

• wrship• bserance• practice and• teaching.

Similarly t UDHR, actie exercise f this right is usually exercised in ‘public’ inthe sense f the utside wrld and thus it is basically subject t limitatins.

General Cmment N. 22 attempted t relate the text f Article 18 ICCPR tsacred places:

The cncept f wrship extends t ritual and ceremnial acts giing directexpressin t belief, as well as arius practices integral t such acts, including

the building f places f wrship, the use f ritual frmulas and bjects, thedisplay f symbls and the bserance f hlidays and days f rest.

8 UDHR (adpted 10 December 1948) UNGA Res 217 A(III) (UDHR).9 Declaratin 1981, UNGA Res 36/55 (25 Nember 1981) UN Dc A/RES/36/55.10 UNCHR ‘General Cmment 22 (1994) UN Dc HRI/GEN/1/Re.7 [4].




The mst pwerful legal tl fr enfrcement f freedm f religin r beliefremains Article 9 ECHR. With regard t prtectin f sacred sites, the ECtHRrequested states t preent discriminatry practices against sme religins.11 ‘TheCurt emphasized far mre rigrusly than the Eurpean institutins themseleseer hae, the psitie bligatin n states t prtect these rights and freedms by effectie, reasnable, and apprpriate measures’.12 Protection of Scared Places

and Minrity prtectinHaing had an internatinal human right as ur starting pint ne ‘almst naturally’mes t minrity prtectin as an apprach which is next in line with indiidualhuman rights prtectin.

The phrase ‘religius minrity’ applies t any grup adhering t a dened setf religius beliefs.13

Releant frms f minrity prtectin are utlined in Article 27 ICCPR, the

General Cmment N 23,14 the Declaratin n the Rights f Persns belnging t Natinal r Ethnic, Religius, r Linguistic Minrities (1992 Declaratin) 1992,15

the Genocide Convention,16 Article 14 ECHR 17 and in the Eurpean FramewrkCnentin fr the Prtectin f Natinal Minrities (Eurpean FramewrkCnentin).18

The principles thse legal tls pride include an bligatin fr StateParties nt t deny persns belnging t minrities the cmmn ‘practice ftheir religin’ because ‘minrity rights enrich the fabric f sciety as a whle’,19

cmmn ‘enjyment f their cultural life’, the cmmn ‘practice f their religin’and the cmmn ‘use f their language’, the prmtin f minrity identity, participatry rights in ‘cultural, religius, scial, ecnmic and public life’ andestablishment f minrities’ assciatins. Such principles underpin the cllectiedimensin f thse rights with encuragement f the cmmunal enjyment f

11 Metropolitan Church of Bessarabia and Others v Moldova (2002) 35 EHRR306; Canea Catholic Church v Greece (1999) 27 EHRR 521; Holy Monasteries v Greece

(App n 13092/87, 13984/88) (1995) Series A n 301; Manoussakis and others v Greece (1997) 23 EHRR 387 [47]; Agga v Greece (App n 50776/99, 52912/99) ECHR 7 octber2002 [52, 53]; Cyprus v Turkey (2002) 35 EHRR 731 [246].

12 Paul M. Taylr, Freedom of Religion: UN and European Human Rights Law and Practice (CUP 2005) 244.

13 Yram Dinstein, ‘Freedm f Religin and the Prtectin f Religius Minrities’,in Daid A. Reidy and Mrtimer N.S. Sellers (eds), Universal Human Rights: Moral Orderin a Divided World (Rwman & Littleeld 2005) 147–9.

14 UNCHR ‘General Cmment 23’ (2004) UN Dc HRI/GEN/1/Re 7 [1].

15 UNGA Res 47/135 (18 December 1992) UN Dc A/Res/47/135.16 Cnentin n the Preentin and Punishment f the Crime f Gencide 1948 78UNTS 277 (Gencide Cnentin).

17 ECHR (n 10) Article14.18 Eurpean Framewrk Cnentin fr the Prtectin f Natinal Minrities

(signed at Strasburg 1.II.1995) ETS n 157.19 UNCHR ‘General Cmment 23(1994) UN Dc HRI/GEN/1/Re.7.




rights withut discriminatin. Case law and General Cmment n Article 27require the prtectin f minrity identity and the aluing f diersity as partf the essential ‘fabric’ f cmmunities and states. Nwak argues that Article 27 prides minrities with a lex specialis t practise their religin, publish theirown literature and found cultural institutions.20 Sacred Places, Humanitarian Law,

Rules f War and Heritage Prtectin.Anther prminent apprach in cnnectin with the prtectin f places f

wrship which fcuses specically n the fabric f sacred sites is the ntin thatthe state preseres sacred sites in rder t maintain peace and t preent religiushatred. Taken in islatin this apprach reerses the perspecties f religiusfreedm and fcuses n prtectin f religin and sacred sites, nt becausereligius freedm is gd but because peple burn each ther’s huses because ftheir religin and the state has a duty t preent religius ilence.

Protection of Sacred Sites as Protecting Cultural Sites

In internatinal humanitarian law, places f wrship are included in the prtectinf cultural prperties during armed cnicts.

The 1954 Hague Cnentin expands upn the nrms f the 1907 HagueCnentin, which established that in bmbardments by naal frces all thenecessary measures must be taken by the cmmander t spare, as far as pssible,

sacred edices, buildings used fr artistic, scientic purpses and histricalmnuments by adding seeral new features t the law f cultural prperty.21 It

denes cultural prperty as mable r immable prperty f great imprtancet the cultural heritage f eery peple, such as mnuments f architecture, artr histry, whether religius r secular. An ‘Internatinal Register f CulturalPrperty under Special Prtectin’22 was created, featuring mnuments f particular imprtance that qualify fr special prtectin. There are three categriesf prperty t which special prtectin is t be gien:

• a limited number f refuges intended t shelter mable cultural prpertyin the eent f armed cnict;

• centres cntaining mnuments;• ther immable cultural prperty f ery great imprtance.

20 Manfred Nwak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel 1993) 505.21 Daid Meyer, ‘The 1954 Hague Cultural Prperty Cnentin and Its Emergence

int Custmary Internatinal Law’ [1993] B U INT’L L J 349, 352. Cnentin fr thePrtectin f Cultural Prperty in the Eent f Armed Cnict (adpted 14 May 1954,entered int frce 7 August 1956) 249 UNTS 240 (The Hague Cnentin 1954) Article 1.

22 Hague Cnentin 1954 (n 237) Article 8.




These prperties can be placed under special prtectin if tw cnditins arefullled and respected:

• the prtected prperty must be situated at an adequate distance23 from any

large industrial centre r frm any imprtant military bjectie;• the prtected prperty must nt be used fr military purpses.24

T date, cultural sites in fur states (the vatican City, 18 January 1960; Austria,17 Nember 1967; Germany, 22 April 1978; and the Netherlands, 12 May 1969)hae been entered in the register at the request f thse states, a ttal number feight refuges as well as the whle f the vatican City State.25

The Geneva Conventions Relative to the Protection of Civilian Persons in Time

f War, 1949 (hereafter the Genea Cnentin), had a fundamental inuence n

the drafting f the 1954 Cnentin and prhibits:26

(a) t cmmit any acts f hstility directed against the histric mnuments,works of art or places of worship which cnstitute the cultural r spiritualheritage f peples;

(b) t use such bjects in supprt f the military effrt;

(c) t make such bjects the bjects f reprisals.27

Prtcl I prhibits acts f hstility directed at prperties which cnstitute the‘cultural r spiritual heritage’ f peples and extends prtectin t a number fsacred sites.28 At the insistence f a large number f states, hweer, ‘places fwrship’ was returned and supplemented with the current language f ‘cultural rspiritual heritage’. The ICRC nted that spiritual imprtance may exist een in theabsence f cultural imprtance, and that ‘spiritual’ was written int Prtcl I tcer such situatins, but nt t extend prtectin t lcal churches r msques.29

Prtcl II als cers situatins f nn-internatinal armed cnict and cntains

23 Ibid. Article 8(1)a.24 Ibid. Article 8(1)b.25 UNESCo, ‘Internatinal Register f Cultural Prperty under Special Prtectin’

<http://unesdc.unesc.rg/images/0014/001407/140792E.pdf > accessed 15 July 2011.26 Ibid. 21.27 Prtcl Additinal t the Genea Cnentins f 12 August 1949, and relating t

the Prtectin f victims f Internatinal Armed Cnicts 1977 UNYB 95.28 Article 53, the Prtcl Additinal t the Genea Cnentins f 12 August 1949,and relating t the Prtectin f victims f Internatinal Armed Cnicts (Prtcl I),8 June 1977.

29 Internatinal Cmmittee f the Red Crss, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC, Genea1987) 646.




a prisin fr the prtectin f cultural prperty. It prhibits ‘any acts f hstilitydirected against histric mnuments, wrks f art r places of worship which

cnstitute the cultural r spiritual heritage f peples, and t use them in supprtf the military effrt’.30

The Secnd Prtcl t The Hague Cnentin expands the existing legal tls by priding ‘enhanced prtectin’ aailable fr immable and mable cultural prperty, and a regime f criminal sanctins. It identies tw categries f warcrimes specically relating t cultural prperty and intrduces a 12-persn inter-gernmental cmmittee31 fr the Prtectin f Cultural Prperty in the Eent fArmed Cnict, which is empwered ‘t establish, maintain and prmte the Listf Cultural Prperty under Enhanced Prtectin’.32

The Declaratin Cncerning the Internatinal Destructin f Cultural Heritagewas adpted by the General Cnference f UNESCo in 200333 as a fllw-up t

the reslutin entitled Acts Cnstituting a Crime against the Cmmn Heritage fHumanity.34 This declaratin adances the cause fr framing a cnentin whichspecically sets ut the prisins fr the prtectin f sacred sites at all times.

Property Rights

Priate prperty rights play a central part in the assertin f a stable legal statusf sacred places. Right t prperty is stated as a fundamental right nly under the

UDHR 35

and has failed t nd a place in the internatinal human rights cenantssuch as the ICCPR and the ICESCR.36 This was partly due t the failure amng theState Parties t reach any agreement n an acceptable text.37 Article 17(2) pintsut that prperty rights are nt abslute and under certain circumstances this rightculd be withdrawn, thugh nt arbitrarily. Hweer, the reginal human rightstreaties38 hae incrprated the right t prperty as a fundamental right, withutany unjust interference frm the State as t its use. Frms f state interferencein the free exercise f prperty rights releant t sacred places fall within thefllwing categries:

30 Prtcl Additinal t the Genea Cnentins f 12 August 1949, and Relating tthe Prtectin f victims f Nn-Internatinal Armed Cnicts 1977, 16; Gregry M. Mse,‘The Destructin f Churches and Msques in Bsnia-Herzegina: Seeking a Rights-BasedApprach t the Prtectin f Religius Cultural Prperty’ [1996] Buff J Int’l L 180, 185.

31 Secnd Hague Prtcl 1999, Article 24(1).32 Ibid. Article 27(1)(b).

33 UNESCo 32nd Sessin (2003) 32 C/Res 33 Annex.34 UNESCo 31st Sessin (2001) 31 C/Res 26.35 UDHR (n 23) Article 17.36 ICESCR 1966 993 UNTS 3 (ICESCR).37 UNGA ‘Reprt f the Secretary-General’ 2929 (1955) UN Dc A/2929, 65–7.38 Article 1 f the First Prtcl t the ECHR, Article 21 ACHR and Article 14

AFCHPR cer the prtectin f rights t prperty.




• Curtailing access t sacred sites fr adherents f a particular religin, andin many States, these prcedures are used t restrict the cnstitutie – bth tangible and intangible – aspects f religius practice, which are ntnecessarily explicitly cered by rights-based mechanisms; these aspectsmay cmbine teaching, practice and bserance as well as a relatinshipwith a particular place and time, static and dynamic, including prcessinsand pilgrimages;

• Using planning permissin;• Registratin prcedures t limit the free exercise f religius faith thrugh

wrship n sacred sites;• Creating natinal parks n the site f priate religius fundatins which

transfrms the nature f hly places/places f wrship.39

Many cnentins and declaratins hae mentined the right t prperty farius grups.40

Eurpean, Inter-American and African Charters cntain prisins n the rightt prperty.41 Article 1 in Prtcl I t the ECHR guarantees the right t prperty by priding fr:42

• The principle f peaceful enjyment f prperty;• The prhibitin n depriatin f pssessins except in the public interest,

and subject t ‘the cnditins prided by law and by the general principlesf internatinal law’;• Recgnitin that the State is entitled t cntrl the use f prperty in

accrdance with the ‘general interest’.

Article 21 ACHR states that eeryne has the right t the use and enjyment f their prperty but these can be depried fr reasns f public utility r scial interestsand ‘accrding t the frms established by law’.43 Bth the Inter-American Curtn Human Rights (IACrtHR) and the Inter-American Cmmissin n Human

39 Paul M. Taylr, Freedom of Religion, 242.40 Internatinal Cnentin n the Eliminatin f All Frms f Racial Discriminatin

1965 660 UNTS 195 Article 5; Declaratin n the Eliminatin f Discriminatin againstWmen 1967 UNGA Reslutin 2263 (XXII) Article 6; Cnentin n the Eliminatin fAll Frms f Discriminatin Against Wmen 1979 1249 UNTS 13 Articles 15 and 16; ILo

Cnentin (N. 107) Cncerning the Prtectin and Integratin f Indigenus and otherTribal and Semi-Tribal Ppulatins in Independent Cuntries 1957 328 UNTS 247; ILoCnentin (N 169) Cncerning Indigenus and Tribal Peples in Independent Cuntries72 ILo Bulletin 59 1989.

41 Prtcl I ECHR Article 1, ACHR Article 21 and AFCHPR Article 14.42 Marckx v Belgium (App n 6833/74) (1979) 2 ECHR 330.43 ACHR Article 21(1).




Rights (IACHR) hae ensured the rights f Indigenus peple t claim their prperty rights er sacred lands.44 Eclectic Appraches.

In additin t appraches which stem frm the use f specic instrumentsfrm within public internatinal law there are als mre idisyncratic, eclecticfrms f regulatin f the legal status f sacred places which stems frm thespecic cultural, histrical and legal backgrund. The bius case studies whichcme t mind are spiritual centres f particular signicance fr ne particularreligin, seeral religins r seeral diided branches f the same religin. In theMediterranean the bius case studies are the vatican, Munt Aths, Jerusalemand Mecca. Apart frm the familiar internatinal law instruments, thse places aregerned by dmestic law and by Jewish, Islamic and Cann law as well as by bilateral treaties. In a similar fashin Islamic law and public law perate in Mecca.Internatinal law, Italian public and ciil law, Cann law and particularly public

ecclesiastical law (ius publicum ecclesiasticum) cer the status f the Hly See,while Cann law and Greek public law and ciil law shape the status f MuntAths. This erlap between internatinal law, cnstitutinal law and religius lawis nt uncntrersial but prides, in sme cases, an imprtant perspectie n the prtectin f places f wrship. A careful study f the strengths and weaknessesf these regimes is a gd starting premise t study the different legal systems.Parallel claims f sereignty, different legal mechanisms and different rightsare perceied frm different, cexisting and ften cmpeting psitins. These

regimes seem t share a perceptin f the prtectin f sacred places as a multi-layered, ften multi-jurisdictinal, legal phenmenn, which has been achieedthrugh the effrt and cncessin f all parties inled. While internatinal lawis equipped fr this purpse, it has failed t achiee such a multi-layered apprachin relatin t sacred places.

Grass-root Approaches

Anther apprach regarding prtectin f places f wrship is that f grass-rts transitinal justice (Rwanda, Sri Lanka, Nrthern Ireland, Suth Africa,Mzambique, Guatemala, East Timr), which seeks t deelp a grammar fcnsent which each party culd accept.

New appraches f the grass-rt/traditinal justice hae identied therelatinship between religius language, the language f religius freedm and

44 Mayagna (Sumo) Indigenous Community of Awas Tingni v Nicaragua Judgmentf 31 August 2001 Inter-Am Ct HR (Ser C) n 79 (2001); Maya Indigenous Communitiesof the Toledo District v Belize Case n 12.053 Reprt n 40/04, Inter-Am CHR (12 octber2004) oEA/Ser.L/v/II.122 Dc 5 Re 1; Peter W. Edge, Religion and Law: An Introduction(Ashgate 2006) 129. Edge brings ut the nature f the sacred sites f indigenus peple asthese sites are nt bunded and the religius cmmunity is nt in the traditinal relatinshipwith the land as that attributed t a landwner.




the language f recnciliatin in cases in which traditinal cncepts are used tdeelp a grammar f cnsent where internatinal law r cnstitutinal law haefailed (in the case f clnialism, and ttalitarian r authritarian dmestic regimeswith therwise fully functining legal systems): traditinal ‘religius’ laws andtraditinal ‘religius’ nrmatiity shape the transitin, the new legislatin andinuence ther actrs within the recnciliatin prcess.

A grass-rt traditinal apprach t dispute reslutin was intrduced basedn traditinal religius beliefs and the authrity f the lisan in East Timor. The

Cmmunity f Sant’Egidi helped the peace talks and the prmtin f anamnesty which wuld fster frgieness and recnciliatin fllwing cnictin Mzambique and Guatemala. In Guatemala the Cathlic Church participatedactiely in the peace talks. In Suth Africa the traditinal African cncept f ubuntu

was recalled in the prisinal cnstitutin as an ethical cncept which transcends

established and failed plitical categries. Magamba spirits and ceremnies inMzambique and the Acholi rituals in Nrthern Uganda played a central part inthe prcess f recnciliatin.45

The grass-rts apprach has ptential and limitatins because it dependslargely n the cnsent f the parties inled. But s des internatinal law.While such an apprach can be implemented mstly in cmmunities that alreadyhae a cmmn wealth/culture, this is n less the case fr the implementatin finternational law.

These uncnentinal legal tls seem t be ery effectie in establishing anrmatie cmmn grund. While this is nt necessarily a slutin, they create acommon environment and connections in areas where international or constitutional

law need t regain a lst legitimacy. These grass-rt appraches did nt undermineinternatinal law but added a new dimensin t internatinal law in transitinalscieties as prmting justice and peace and internatinal human rights standards.Such appraches marked a departure frm the applicatin f internatinal law asa due diligence check and deelped a grammar f cnsent, which did nt ablishthe receptin f internatinal law r a cncept f cnstitutinal law, but was ablet embrace them mre cndently.

Frm religius perspecties sft law tends t be cntrersial and treated withsuspicin and yet at the same time wuld seem t be familiar territry. What wecnsider tday t be sft law is what shaped the early histry f Cann law, aswell as Jewish and Islamic jurisprudence, and is the frmat within which majrreligius legal traditins still perate. Sft laws tend t prpse practices but dnt necessarily intrduce mnlithic legal structures. Mreer such sft law presents legal tls with which religius grups are likely t be mre familiar, a

nn-cdied ariety f legal strategies ranging frm techniques fr legal reasningt manuals fr litigatin. After all, these frms are what different legal traditins

45 Rinald Cristfri, Il fattore religioso nella giustizia di transizione (Tesi diDttrat di Ricerca, Uniersità degli Studi di Milan, Scula di Dttrat Filsa deldiritt, 2010).




share with pre-13th-century Eurpean law, Rman law, Islamic law, Jewish lawand Cann law. Christian legal thinking is nly t familiar with it frm its greatcanonical collections, which, at least until Liber extra, are effectively a soft law.

The law t be applied was nt t be fund in any dened crpus f texts and theapplicable precepts might be fund anywhere thrughut the inherited Msaicand Christian tradition.46 Een if ne culd nd the releant passages, they ftenappeared t speak in discrdant ices. The ultimate authrity f the law f theChurch rested n the cntinuus peratin f a Legislatr whse purpses were beynd judicial reasning, and whse judgements culd nt be identied preciselywith thse f any f His ministers. His supreme cmmand, cnstantly reasserted,was t le ne’s neighbur as neself. The authrity f Gd’s agents deried frmthe inisible peratin f grace, which had t be suppsed t underpin their frmalcmpetence but in practice might nt. ‘Christ’s grace is s free that it cannt be

dened by any merit r fce held by men, but purs itself ut where it will, hwit will and t whm it will’.47 T nd Gd’s law then, ne might search acrss a bundless sea f texts, f custms r sacred narratie, yet end in the unknwabledepths f His will.48

The legal tls I hae discussed s far hae nt brught us clser t deningsacred places as a legal categry. Each f the legal tls has been shwn t haeits wn ptential and limits in dealing with this categry. This nly reinfrces theneed fr multiple legal tls t deal with the questin f legal prtectin f places

f wrship.It is imperatie t nd a new narratie twards a cmplex apprach t determinethe apprpriate legal tls fr prtectin f sacred places – whether this particularsacred place shuld be iewed thrugh the lens f belief-manifestatin (as a placef wrship) r whether it wuld be mre apprpriate t iew it as a mre cmplexentity which may hae legal existence beynd the belief-expressin perspectiesf freedm f religin r belief and may include ther releant areas f law. If the priate prperty dimensin is emphasized, culd restrictins be impsed thrughstandard priate prperty dergatins – thrugh planning law, health and safety,enirnmental law and s n? Wuld a freedm f religin r belief claim +manifestatin + priate prperty + minrity prtectin argument be mre likely taddress the cmplexity f a particular legal challenge? In an attempt t d all this,a sft law apprach seems t be in a strnger psitin t articulate cmprehensie,ersatile and inclusie applicatins f the existing legal instruments. This culdtake seeral frms – a cmprehensie cmmentary f exiting internatinal andther releant legal tls, taking int accunt what belieers hae t say abut

46 Martin Brett, ‘Finding the law: the surces f cannical authrity befre Gratian’,in Per Andersen, Helle vgt and Mia Munster-Swendsen (eds), Law before Gratian: Law inWestern Europe c. 500–1100: Proceedings of the Third Carlsberg Academy Conference on Medieval Legal History 2006 (DJoF Pub 2007) 51–5.

47 Ibid.48 Ibid.




places f wrship (thelgical statements r eidence f a genuine belief that a place is sacred), expert witness reprts whether a place is sacred, judicial actiismand s n. Hweer, there is always a ptential challenge t perceptins that ne place is mre sacred than the ther – a temple vis-a vis a chapel, a religius buildingwhere sacramental wrship takes place a building where the cngregatinmerely prays and the preacher teaches (synaggue, msque), a place an eent(festial, pilgrimage), a building space (Sacred Wrld, Sacred Landscape).Despite the inherent suspicin f religius cmmunities in relatin t any frmf legal prtectin and ptential interference n behalf f the State, pendingthe reslutin f uneasy questins such as why shuld a secular State pridespecial accmmdatin fr sacred places r hw far such accmmdatin shuldextend cnsidering that sacred places culd in sme circumstances be cnsideredas specic as the priate family hme, a sft law apprach wuld at least begin

t cntemplate bius and less bius difculties in articulating such pssibletensins and prject bius and less bius slutins.

We are unlikely t deelp a uniersal taxnmy f legal prtectin f hly places due t the unique nature f the subject matter. In this respect any exercisewill be an effrt t present a train f thught abut pssible appraches in thecntext f legal prtectin f sacred places. It may shw the ways a prblemculd be apprached but will nt necessarily tell us a specic way f resling the prblem. It des, hweer, utline the ways certain things culd r culd nt be

apprached. What it des nt d and shuld nt d is t simplify and generalize themeaning f a religius cmmunity in rder t leae the drs pen fr ther andnew frms f the sacred t enter and t be prtected. It is unlikely that ur ntins,intuitins and cncepts f the sacred will meet with existing legal framewrks.But there is n pint in waiting fr this t happen either. This is why a sft law ina narratie frm f a general cmprehensie cmmentary f existing legal tlsis an imprtant step twards changing perceptins, changing frms f pliticaland judicial reasning withut which any future hard law fr prtectin f sacred places is likely t fail in exactly the same way it has failed in the past.



PART II

Sacred Places

and Religius Traditins



Chapter 6

Sharing Sacred Spaces:

A Jewish PerspectieJack Bemprad

Inestigating what cnstitutes a sacred space and hw sacred spaces are iewedwithin each particular religin may be ne f the mst effectie ways f enhancing

and realizing better interfaith understanding.Each religin has its wn dctrine f what cnstitutes a sacred space. In

Judaism, we nd such discussin rst and fremst in the Hebrew Bible, but alsin a ariety and great number f rabbinic and Jewish philsphical and mysticaltexts. A brief reiew f these texts may help t rient us with respect t the arietyf prblems that we are facing, but als pride a fundatin fr ur recgnizingthat we must take seriusly the sacred space iews f ther religins.

The Ideal of Humanity that Comes from Religious Monotheism

The cncept f humanity, which cmes frm the mntheistic religins, mustunderlie all ur discussins (including the examinatin f the ethical fundatinf ur legal framewrks) and is a cntributin that religin makes t ethics. Itis by making explicit what mntheistic religins imply – what it means t be ahuman being when Jews and Christians say that man is made in the image f Gd,r when Jews and Muslims say that a persn wh saes ne life saes the whlewrld and that he wh destrys ne life destrys the whle wrld – that builds upthe uniersal dimensin which must be acknwledged in each persn.

Within the cntext f mntheistic religins the ideal f humanity isfundatinal, since it is a basis fr respecting ‘the other’. Hermann Chen hascgently argued that mntheism is nt simply the rejectin f many gds butrather the rejectin f many peples. It is a rejectin f the multiple deities whichhae the same ices as human beings in cnict with each ther, lrding it erne anther and thus separating peples, natins and religins. That Gd creates

all human beings, male and female, in the diine image, that each indiidual is asul that cnnects them t the Diine, thereby giing them intrinsic wrth, makesall human beings united as a human family.1

1 Hermann Chen, Religion of Reason (Schlars Press 1995) 238.




It is mntheism that makes it pssible t cnceie f a wrld at peace, as isclear frm the teaching f the Prphets Isaiah and Micah:2 ‘They shall beat theirswrds int plughshares, their spears int pruning hks, natin shall nt liftswrd against natin nr learn war any mre’ (Isaiah 2:4; Micah 4:3). Malachisummarizes this when he states, ‘Hae we nt all ne father, hath nt ne Gdcreated us, why d we deal treacherusly brther against brther?’ (Malachi 2:10).

Withut such a mntheistic fundatin, the ery respect fr ‘the other’ wuld be impssible. As Psalm 82 delegitimizes the deities fr their immrality, s Gdmust be a Gd wh is the mdel fr justice and righteusness.

When the Bible states in the bk f Leiticus that ne shuld le ne’sneighbur fr he is like yu (Le 19:18), what it basically says is that ne shuldinestigate ne’s wn inner self, ne’s wn inner reality, and recgnize that thatreality is als part and parcel f the reality f the other. It means that ne shuldlove, value and care for the Other as one strives to know, value and care forneself. In ding this, ne begins t recgnize the other in a new and differentmanner. It is nt simply the fllwing f what Hillel said when he stated, ‘dn’t judge yur fellw human being until yu stand in his r her place’. What he saidwas that yu hae t lk at the other frm the pint f iew that he lks at yu.By standing in the place f the other, yu see yurself in the way the other iewsyu, and by recgnizing this, ne can hae a fundatin fr prper understandingand dialgue.

Ming frm the cncept f ne humanity (and nt many different peples),the idea f sacred (r hly) spaces can be used as a means f recnciliatin,since eery religin has a iew f sacred spaces, and prides dctrines as twhat cnstitutes a sacred space and hw such spaces t int its wn religiusunderstanding.

T start, all human beings hae a sense f the sacred. There is the need twrship, t adre, t cherish, t sense a reality that we cannt een imagine, letalne fully grasp with ur wn minds. The questin then arises as t hw weunderstand ur wn, and especially the other’s understanding f this cncept fsacred space, and hw these spaces can be used as symbls f recnciliatin. Frinstance, Ppe Jhn Paul II’s relutinary isit t a Rman synaggue in 1986was a landmark adance in the recgnitin f ‘the other’s’ sacred space.

In anther example, spaces were shared fr cmmn ends in the ciil rightsmement, nt simply in meeting halls, but als in sanctuaries. It is n surprisethen that the prphet Isaiah prclaimed, ‘My huse shall be called a huse f prayer fr all peples’ (Isaiah 56:7).

Anther key issue in recgnizing the sacred is the relatinship between the

particular and the uniersal. Since this can hae signicant meaning, we hae temphasise and clarify what we mean by the particular element and the uniersalelement.

2 Excerpts frm the Bible are taken frm The Holy Bible, Revised Standard Edition

(oxfrd Uniersity Press 2002).



Sharing Sacred Spaces: A Jewish Perspective 77

It is nly by cperating and wrking tgether fr the cmmn gd that wecan achiee the peace that is s necessary fr all f us. I als think that ne f theuniersal elements in any debate, n whateer tpic, must be this primary humancnditin: we are all human beings, we all need help, nt nly frm ne anther, but als in religius terms, frm Gd, frm The Diine, frm the supernatural andfrm all that transcends us. Fr instance, all f us face the dimensin f the sacredin ur lies and the incapacity t be cnnected t it is ne f the greatest tragediesthat can befall human beings. This was clearly enunciated by Ams (Chapter 8:11–12) when he indicated:

I will send a famine n the land, nt a famine f bread nr a thirst fr water, butf hearing the wrds f the Lrd. They shall wander frm sea t sea and frmnrth t east, they shall run t and fr t seek the wrd f the Lrd, but they

shall nt nd it.

We can see fr eery religin that the wrd ‘sacred’ is a precius heritage, and wecannt allw urseles t be rbbed f it, fr the wrd ‘sacred’, and all assciatedwith it, has a precise meaning, and these meanings hae ecatie pwers that prceed frm the part they hae played in the histry f humanity: and thiscnstitutes the particular element, which als ften cntains the uniersal element.Surprisingly, Edward Caird’s wrds relating t natinalism can als be applied t

the sacred:3

… there is needed a cmmn histry, the memry f great deeds dne, great trialsundergne, great experiences f srrw and jy encuntered tgether. Thus thesaying: ‘Happy is the natin which has n histry,’ is almst self-cntradictry;fr a peple withut histry can neer rise t any real natinal unity. The ties fnatinality hae generally been welded nt in peace but in the strm f battle,nt in rest and enjyment but in much effrt and suffering. A natin is nt brnin a day, nr withut the lng and seere thres which attend all spiritual birth.It is a slw and cntinuus struggle with the natural bstacles f its psitin,with ther natins, and with the elements f diisin in itself, by which a peplegradually grws cnscius f itself, f its independent life, and f the line fthught and actin which is peculiarly its wn.

on the ne hand, we must gie prper due t and strengthen the uniersal, while,n the ther, we must nt minimize the radical particularity f a religius traditin.In this connection I would like to comment on the nature of the sacred. When we

talk abut the sacred, we are talking abut a religius term that transcends manycategries. It is nt smething we can play with, r smething that we can easilycntrl r manipulate r easily categrize. It is smething that we dete urselest in many respects; that has the feature f giing us a fundatin and helps us

3 Edward Caird, Lay Sermons (James MacLehse and Sns 1907) 101.




recgnize urseles. S we see that we shuld nt minimize its pwer and itsmeaning!

It is the sacred that is at wrk in the ealuatin f thse aspects that gie ameaning t life. We ask the questins, ‘What is truly Sacred t us? What is thesacred that we share as human beings?’ I think that when we talk abut the sacred,we are speaking abut smething that ranges beynd pleasure r use, smethingthat cannt be reduced t the cntingent and the practical. When we becme awaref it, we perceie smething that is ultimate, which denes reality and whichenables us t transcend the rdinary daily life f the appetites and the senses.

I beliee it is the sacred, r, as in Judaism, we can call it the hly, that prducesin bth ethics and aesthetics a dimensin that wuld therwise nt be there. Frexample, my prfessr, Hans Jnas, discussing persnal sacrice, said smethingthat I beliee t be essential. He said:4

We must, in ther wrds, distinguish between mral bligatin and the muchlarger sphere f mral alue. (This, incidentally, shws up the errr in thewidely-held iew f alue thery that the higher a alue, the strnger its claimand the greater the duty t realize it. The highest are in a regin beynd dutyand claim.) The ethical dimensin far exceeds that f the mral law and reachesint the sublime slitude f dedicatin and ultimate cmmitment, away frm allreckning and rule – in shrt, int the sphere f the hly. Frm there alne can

the ffer f self-sacrice genuinely spring, and this surce f it must be hnredreligiusly.

This means that the sacred nt nly denes where we reach the highest, but it alsgies ethics its abslute dimensin.

The Two Elements of the Sacred

But we must draw a distinctin between tw elements f the sacred. Withut thiswe shall nt manage t understand it fully.

The rst element is what Jhn oman, in his great wrk The Natural andSupernatural , calls ‘awesme hly’.5 A descriptin f this wuld be the seminalwrk by Rudlf ott, The Idea of the Holy, in which he speaks abut thenuminus, the fascinating, the terrible, the frightening, recgnizing what it isthat is awesme and dangerus. And he tried, tgether with ther elements f thesacred, t incrprate them int the awesme hly. The ther element is the ethical

4 Hans Jnas, Philosophical Essays From Ancient Creed to Technological Man

(Uniersity f Chicag Press, Midway reprint 1980) 119; see als Jnas, Mortality and Morality. A Search for the Good after Auschwitz (edited by L. vgel, NrthwesternUniersity Press 1992).

5 Jhn oman, The Natural And The Supernatural (Cambridge Uniersity Press 1931).




hly. Bth Jhn oman and A.A. Bwman hae criticized ott fr being erlycncerned with the awesme hly, nt recgnizing sufciently the degree t whichthe ethical hly transcends and incrprates it.

While it is true that ott himself acknwledges the ethical hly, he des ntgie it the dimensin as d thse wh see the ethical hly as the main thrust fmntheistic religins. ott clearly states that the awesme hly des nt fullyreect the Biblical iew. He says:

The enerable religin f Mses marks the beginning f a prcess which frmthat nwards prceeds with eer increasing mmentum by which the numinusis thrughut ratinalized and mralized, i.e., charged with ethical imprt, untilit becmes the “hly” in the fullest sense f the wrd. The culminatin f the prcess is fund in the prphets and the Gspels.6

In criticizing ott, Bwman explains:

Hliness cmbines mrality with religius awe. But if s, it is difcult t thinkf mrality as an abslutely independent ingredient, mechanically cmpundedwith the ther ingredient, and itself deid f numinus signicance. T treat itas such is t render its assciatins with the numinus fr eer [sic] unintelligibleand t reduce religin t a meaningless and indefensible cllcatin f unrelated

cnstituents. The questin frces itself irresistibly t the frefrnt: Is nt thisabslute distinctin between mrality represented as altgether ratinal and thenuminus cnceied as altgether nn-ratinal, the prduct f abstract analysis,and f a certain cnfusin between the theretical standpint f ethics and the practical standpint f mrality? May it nt be (and des nt the whle lgicf the argument cmpel us t assume) that the mral life itself, as distinct frmany reasned system f mrality, is smething int which the numinus entersdirectly with all the awfulness that characterizes man’s sense f deity in thewrld f his experience?7

Oman clearly shows that in the awesome sacred, sentiment determines value, while

in the ethical sacred it is alue that determines sentiment (oman, 1931: 66). omanstates: ‘Was it nt precisely by an appeal t a higher sense f the hly that the prphets set up against it the rst truly ratinal and ethical religin?’ (Ibid.: 63).

Indeed, it is oman’s great insight that prgress in religin cmes with therecgnitin f the false sense f the hly. The starkest cnfrntatin f theawesme and ethical hly is seen in the Prphet Micah (6:6–8):

6 Rudlf ott, The Idea of the Holy (translatr Jhn N. Harey, oxfrd UniersityPress 1923) 111.

7 Archibald A. Bwman, Studies in the Philosophy of Religion (vl. I, MacMillan1938) 240–41.




[6] ‘With what shall I cme befre the LoRD, and bw myself befre Gd nhigh? Shall I cme befre him with burnt fferings, with cales a year ld?

[7] Will the LoRD be pleased with thusands f rams, with ten thusands friers f il? Shall I gie my rst-brn fr my transgressin, the fruit f my bdyfr the sin f my sul?’

[8] He has shwed yu, o man, what is gd; and what des the LoRD require fyu but t d justice, and t le kindness, and t walk humbly with yur Gd?

The burden f oman’s bk is t indicate in what way the prgress f religin isan attempt at transfrming (while at the same time presering), the awesme hlyint the ethical hly (oman, 1931: 444):

Nr des any prgress whlly delier frm smething f awe in reerence rfrm sme dependence upn material embdiments f the sacred, thugh thefrmer shuld be exalted t the sublime and the latter t the symblical. The oldTestament is, n the whle, a recrd f prgress in bth.8

Sacred Spaces: A Jewish Perspective

As mentined abe, it is the mntheistic religins that make central the ethicalhly, and enisin it as incrprating and qualifying the awesme hly.

Since in Judaism the same Hebrew wrd, Kadosh, in its arius cnjugatins,is sometimes translated holy and sometimes derivatively translated Sacred, or

Sanctify, confusions may arise. The root, kuf daled shin, can be translated inmany ways, as smething, ath, relatinship, cnditin, way f life r set asidefr a special purpse. In this sense, it is ften translated as sacred (Exdus 30:25;Deuternmy 26:13 and s n), r t sanctify (Numbers 27:14; sanctify is used tgie prper respect). It is imprtant (and cnfusing, as well) t nte that the samert is used with respect t idlatrus practices. S II Kings 10:20 states, ‘sanctifya slemn assembly fr Baal’ (Cf. Isaiah 66:17).

Hweer, what is mre signicant and unique in bth Biblical and rabbinicJudaism, is the deastating critique f f what can be characterized as the‘awesme’ hly. Fr example, there are numerus situatins in which ne wuldexpect ‘reerence, respect, r fear’ f the awesme, and yet nne is exhibited.In Genesis, Laban is pursuing Jacb, since his ‘husehld gds’ are missing. It

appears Rachel has hidden them under her saddle; in shrt, she is sitting n them.Hardly an apprpriate way t treat gds f any kind!

There are seeral passages I wuld like t pint t, amng many, where theawesme and numinus character f the situatin is clearly manifest, but where the

8 See oman, p. cit. Appendix A as well as 59–73.




respnse is ttally unexpected. In the rst, Jacb is eeing frm his brther. He stpst rest. He has a dream where all the prmises f his future destiny are enumerated.He wakes up and a numinus situatin is described. Hw awesme is this place.Gd is present and I did nt knw it. The respnse in Genesis 28:10–22 is amazing:

[10] Jacb left Beer-sheba, and went tward Haran. [11] And he came t acertain place, and stayed there that night, because the sun had set. Taking nef the stnes f the place, he put it under his head and lay dwn in that place tsleep. [12] And he dreamed that there was a ladder set up n the earth, and thetp f it reached t heaen; and behld, the angels f Gd were ascending anddescending n it! [13] And behld, the Lrd std abe it and said, ‘I am theLrd, the Gd f Abraham yur father and the Gd f Isaac; the land n whichyu lie I will gie t yu and t yur descendants; [14] and yur descendants

shall be like the dust f the earth, and yu shall spread abrad t the west and tthe east and t the nrth and t the suth; and by yu and yur descendants shallall the families f the earth bless themseles. [15] Behld, I am with yu andwill keep yu whereer yu g, and will bring yu back t this land; fr I willnt leae yu until I hae dne that f which I hae spken t yu’. [16] ThenJacb awke frm his sleep and said ‘Surely the Lrd is in this place; and I didnt knw it.’[17] And he was afraid, and said, ‘Hw awesme is this place! Thisis nne ther than the huse f Gd, and this is the gate f heaen.’

[18] S Jacb arse early in the mrning, and he tk the stne which he had putunder his head and set it up fr a pillar and pured il n the tp f it. [19] Hecalled the name f that place Bethel; but the name f the city was Luz at the rst.[20] Then Jacb made a w, saying, ‘If Gd will be with me, and will keep mein this way that I g, and will gie me bread t eat and clthing t wear,[ 21] sthat I cme again t my father’s huse in peace, then the Lrd shall be my Gd,[22] and this stne, which I hae set up fr a pillar, shall be Gd’s huse; and fall that thu giest me I will gie the tenth t thee’.

Instead f being erwhelmed by the awesmeness f the situatin, Jacb beginst bargain with Gd and gie him 10 per cent f what he receies. There is ntmuch awe in his reaction.

In a secnd example, Mses encunters smething miraculus – a bush that burns and is nt cnsumed. He is tld t take ff his shes, because the land upnwhich he stands is hly grund, and Gd speaks t him. Gd reeals himself tMses, implring him t g t Pharah and sae the Children f Israel frm their

suffering. The setting is awesme indeed, but here again, the respnse in Exdus3:11–4:17 is amazing. Mses exhibits n fear r trembling, but instead ffers anumber f excuses as t why he is nt willing t take the task upn himself untilGd erpwers him.

In yet anther example, Abraham recgnizes that in relatin t Gd he,Abraham, is but ‘dust and ashes’, (Genesis 18:27). Nnetheless, when Gd appears




What Biblical Judaism has dne is t hae cnsistently dealued r utrightrejected what was claimed t be sacred r reered in the surrunding religins.S, a fundamental principle f bth Biblical and rabbinic Judaism is the rejectinf idlatry, paganism and the sacred f the surrunding religins. A clear examplef this in the Bible is the ridiculing f Balaam the seer, wh, haing been hiredto destroy Israel with a curse, needs a sword to kill his own donkey and who,

suppsedly a ‘seer’, cannt een see the angel brandishing a swrd in his path,which his dnkey plainly sees (Numbers 22:30–34).

There are numerus places in rabbinic literature that reject idlatry. S theMechilta gies the example f a discussin:

A certain philspher asked R. Gamaliel: It is written in yur Trah: ‘Fr I theLrd thy Gd am a jealus Gd’. But is there any pwer in the idl that it shuld

aruse jealusy? A her is jealus f anther her, a wise man is jealus fanther wise man, a rich man is jealus f anther rich man, but has the idl any pwer that ne shuld be jealus f it? R. Gamaliel said t him: Suppse a manwuld call his dg by the name f his father, s that when taking a w he wuldw: ‘By the life f this dg’. Against whm wuld the father be incensed?Against the sn r the dg? Said the philspher t him: Sme idls are wrthwhile. ‘What makes yu think s?’ asked R. Gamaliel. Said the philspher:There raged a re in a certain prince but the temple f the idl was saed.

Was it nt because the idl culd take care f itself? Said R. Gamaliel t him:I will gie yu a parable: T what is this cmparable? T the cnduct f a kingf esh and bld when he ges ut t war. Against whm des he wage war,against the liing r against the dead? The philspher then said: ‘Indeed, nlyagainst the liing’. Then he said again: But if there is n usefulness in any fthem, why des He nt annihilate them? Said R. Gamaliel t him: But is it nlyne bject that yu wrship? Behld, yu wrship the sun, the mn, the starsand the planets, the muntains and the hills, the springs and the glens, and eenhuman beings. Shall he destry His wrld because f fls? ‘Shall I utterlycnsume all things frm ff the face f the earth? Saith the Lrd’ (Zeph. 1.2). – The philspher als said t him: Since it causes the wicked t stumble, whydes Gd nt reme it frm the wrld? – But R. Gamaliel cntinued saying:Because f fls? If s, then since they als wrship human beings: ‘Shall I cutff man frm ff the face f the earth?’11

As illustrated, what culd legitimately be seen as sacred frm a Biblical perspectiewas put in a cntext that stressed the ethical in earlier references t Abraham,

Mses and Jb. Perhaps the clearest example f this was the desacralizatin f the

and Scilgical Perspecties, St Thmas Aquinas Uniersity – Angelicum, Rme 14–15December 2011).

11 Jacb Z. Lauterbach, Mekilta (l. II, The Jewish Publicatin Sciety f America1933) 244–6.




temple in the prphetic teaching f the Prphet Jeremiah, and mst prminently inhis temple sermn (Chapter 7:1–10, 14; 26:9).

The wrd that came t Jeremiah frm the LoRD:

[2] “Stand in the gate f the LoRD’s huse, and prclaim there this wrd, andsay, Hear the wrd f the LoRD, all yu men f Judah wh enter these gatest wrship the LoRD’. [3] Thus says the LoRD f hsts, the Gd f Israel,Amend yur ways and yur dings, and I will let yu dwell in this place. [4]D nt trust in these deceptie wrds: ‘This is the temple f the LoRD, thetemple f the LoRD, the temple f the LoRD’. [5] ‘Fr if yu truly amend yurways and yur dings, if yu truly execute justice ne with anther’, [6] if yud nt ppress the alien, the fatherless r the widw, r shed inncent bldin this place, and if yu d nt g after ther gds t yur wn hurt, [7] then I

will let yu dwell in this place, in the land that I gae f ld t yur fathers freer. [8] ‘Behld, yu trust in deceptie wrds t n aail’. [9] Will yu steal,murder, cmmit adultery, swear falsely, burn incense t Ba’al, and g after thergds that yu hae nt knwn, [10] and then cme and stand befre me in thishuse, which is called by my name, and say, ‘We are deliered!’ – nly t g nding all these abminatins? [11] Has this huse, which is called by my name, becme a den f rbbers in yur eyes?”

Generally, hly has the meaning f separatin frm the rdinary; mre specicallyfrm all that is deling, degenerating, unwrthy r, signicantly, idlatrus, sincethe battle with idlatry and all that it implies is central t Judaism. The leitmtif can be seen in Exdus 12:12 where Gd brings judgement n the gds f Egypt andthere is the categrical rejectin f any ruler wh makes himself a gd (see Ezekiel’scriticism f the Prince f Tyre, Ch. 28:2,9). Further, Gd specically rejects all thatis identied with the immrality f the pagan cults (Deuternmy 18:9–14):

[9] When yu cme int the land which the LoRD yur Gd gies yu, yushall nt learn t fllw the abminable practices f thse natins. [10] Thereshall nt be fund amng yu any ne wh burns his sn r his daughter asan ffering, any ne wh practices diinatin, a sthsayer, r an augur, r asrcerer, [11] r a charmer, r a medium, r a wizard, r a necrmancer. [12]Fr wheer des these things is an abminatin t the LoRD; and because fthese abminable practices the LoRD yur Gd is driing them ut befre yu.[13] Yu shall be blameless befre the LoRD yur Gd. [14] Fr these natins,which yu are abut t dispssess, gie heed t sthsayers and t diiners; but

as for you, the LORD your God has not allowed you so to do.

of curse, the Bible des nt inent the wrld that it describes. It inherited a tribal, plytheistic wrldiew and there are remnants f these elements, such as secndSamuel 6:6–9 r II Kings 3:26–7. Furthermre, as mentined abe, the Bibleuses similar wrds fr the pagan and Jewish sacred bjects. The Bible inherited




and incrprates sacred places f wrship, places, utensils, estments and s n(see in particular the Priestly material in Exdus, Leiticus and Numbers).

The mst signicant Biblical passage with respect t the ethical hly is fundin Leiticus 19:2: ‘Say t all the cngregatin f the peple f Israel, Yu shall behly; fr I the Lrd yur Gd am hly’.

The chapter itself cmbines ritual and ethics but the ethics is prminent andcentral because it details what it means t be hly. The Jewish traditin hasinterpreted this passage in term f hliness as separatin. Urbach, in his landmarkwork The Sages, clearly expresses this n page 482:12

In the Pentateuchal sectin ‘n which mst f the essential parts f the Trah aredependent’ the Lrd said t Mses: ‘G say t the Children of Israel: My children, just as I am abstinent, s must yu abstain (frm sin); just as I am hly, s must

yu be hly’. Hliness and abstinence are attributes f Gd and it is His will thathis creatures shuld (als) cleae t them, and He een helps them, if they begint walk in His ways. A similar expsitin was gien t the erse, ‘May He sendfrth thy help frm the sanctuary’ [qdesh, literally hliness] – ‘n accunt f thehallwed deeds yu hae perfrmed; ‘and supprt thee ut f Zin’ (Psalms 20erse 3 [2]) – n accunt f the distinguished acts yu hae dne.

Then, n page 368, Urbach states:

When the mnipresent enjins a new precept upn Israel, He endws them withnew hliness. Hliness means abstinence, as is stated in the Sifra: ‘Ye shall behly’ means: Ye shall be abstinent’ … ‘the frmulatin f the benedictin ‘whsanctied us by His cmmandments and cmmanded us …’ The sanctity is, as itwere, withdrawn frm the precept itself and transferred t the act f the preceptand t him that perfrms it. The cmmandment is thus ided nt nly f anymagical-mythical quality, but als f its ery ritual-cultic basis.

Hermann Cohen, in Religion of Reason on page 343 explains:

‘Blessed art thu o Eternal ur Gd, King f the Unierse, wh has sanctiedus by his cmmandments’. This wrding might seem t suggest that it is thrughbedience t the cmmandments themseles that ur hliness is brught abut.With this, hweer, the cmmandments wuld lse their symblic character andassume that f the sacrice. Hweer, in anther place in the prayer it says:‘Sanctify us with Thy cmmandments and purify ur heart’. Here again the

symblic character is made unmistakenly clear. The pwer f sancticatinis not in the commandments themselves; instead God is asked to further our

sancticatin and let it be achieed thrugh the cmmandments.

12 Ephraim E. Urbach, The Sages: Their Concepts and Beliefs (Harard UniersityPress 1987).




The clearest descriptin f Hliness as separatin is fund in Rth’s excellent chapterentitled ‘Imitati Dei and the Idea f Hliness’ in his Is There a Jewish Philosophy?.13

Rth, being philsphically sphisticated, is ery careful t interpret Imitatio Dei with respect t hliness in a manner that des nt cmprmise Gd’stranscendence. Rth here, citing mre surces than Urbach, writes in the spirit fMaimnides and als Hermann Chen, a iew made explicit by Pma:14

The rst and fundamental riginality brught by mntheism is the faith in neGd, wh abslutely transcends the wrld, created by Him. Such a Gd, in his[sic] sereign liberty, smetimes makes himself [sic] present t man, wh can praise, thank, and inke Him, but can neer cnstrain Him with his rites. All fcreatin is entrusted t man, bth indiidual and cllectie, s that he can assumefull respnsibility fr it. This new perspectie, in which Gd transcends the wrld

and the wrld is fully entrusted t man’s respnsible actin, is what I refer twith the ntin f the ‘hly’, which I again use as a wrking sense, withutclaiming t justify it, as shuld be dne, frm the etymlgical, phillgical,histrical, and scientic perspecties. The ‘sacred’ is the perspectie by whichman is cntinually anguished by the pssible effects f pwers that are immanentin the wrld and superir t him, s that he must therefre seek, thrugh rites,the pssibility f persuading r cnstraining such pwers t desist frm pssibleharmful effects and instead supprt him in the pursuit f his wn ends. The ‘hly’

is a radically different, indeed ppsed perspectie, by which man, n the basisf his faith in the abslutely transcendent Gd, is entirely free and autnmusin his actin in the wrld, and recgnizes himself as the nly ne respnsible frhis wn actins and their effects, and des nt recgnize any plitical, ecnmic,religius, r natural pwer abe himself that des nt cme frm Gd. Fr thisreasn, the categries by which man measures himself and his dignity in thesacral perspectie are ‘purity’ and ‘impurity’, by which he is either able r ntt ritually enter int the interested exchange with the diine. The categries bywhich man measures himself in the perspectie f hliness are ‘gd’ and ‘eil’:‘He has tld yu, o man, what is gd’ (Micah 6.8). ‘Hliness, which is uniquelyattributed t Gd, is, n the ther hand, the archetype and ideal fr man’s mralactin: ‘Be hly, because I, yur Lrd am Hly’ (Leiticus 19.2).

In his article n Chen’s Dctrine f the Hly Spirit, Pma qutes Chen:15

… when cmmenting n Gd’s cmmand in the biblical expressins: ‘I will behallwed amng the children if Israel’ (Leiticus 22:32), ‘Ye shall sanctify me’,

13 Len Rth, Is There a Jewish Philosophy? (vallentine Mitchell & C., Ltd. 1999)16–19 and, especially, 25.

14 Andrea Pma, Holy vs Sacred: Elements for Reection, p. cit.15 Andrea Pma, Yearning for Form and Other Essays On Hermann Cohen’s Thought

(Springer 2006) 308.




‘Him shall ye sanctify’ (Isaiah 8:13), ‘Sanctify yurseles … and be ye hly’(Leiticus 11:44), Chen wrte: ‘The hly spirit in man becmes alie insfaras man sancties himself. And in this self-sancticatin he accmplishes thesancticatin f Gd. Fr what culd hliness in Gd mean if it were nt thearchetype (Urbild) fr the actin f man?’

Perhaps the mst exhaustie discussin f the prblem f the hly in Jewish perspectie is in the ne bk f Menachem Kellner, Maimonides’ Confrontationwith Mysticism.16 Here Kellner traces the distinctin between the substantial rintrinsic hly, which can be related t the awesme hly, and the functinal rdesignated hly, which is akin t the ethical. on page 88, Kellner maintains thatthe intrinsic r substantial hly is

… the idea that, hweer it becmes hly, a hly place, persn, time, r bject is,nce hly, bjectiely different frm prfane places, persns, times, and bjects… sanctity is real, it inheres in sacred places, etc., it is intrinsic t them; it is, nemight say, part f their metaphysical make-up … Hly places, persns, times,and bjects are ntlgically distinct frm (and religiusly superir t) prfane places, persns, times, and bjects. This distinctin is part f the unierse.

In contrast Maimonides held a different view of holiness, a view which we

beliee is the predminant iew in Judaism. Hly places, persns, times, andbjects are in n bjectie way distinct frm prfane places, persns, times,and bjects. Hliness is the name gien t a certain class f peple, bjects,times, and places which the Trah marks ff. Accrding t this iew hliness isa status, nt a quality f existence. It is a challenge, nt a gien; nrmatie, ntdescriptie. It is institutinal (in the sense f being part f a system f laws) andhence cntingent. This srt f hliness des nt reect bjectie reality; it helpscnstitute scial reality. Hly places, persns, times and bjects are indubitablyhly and must be treated with all due respect, but they are, in and f themseles,like all ther places, persns, times, and bjects. What is different abut themis the way in which the Trah cmmands that they be treated. Their sanctityderies frm the uses t which they are put; in that sense, it is telelgical …

Kellner summarizes this psitin n page 90 in ne shrt sentence:

‘Israel is hly when it behaes in certain ways. Hliness n this iew is achallenge and nt a gift’. (Kellner’s ftnte: ‘Een 2 Sam. 6 and 1 Chrn.

13, ften thught f as teaching that the ark f the cenant had sme srt finherent and dangerus hliness, d nt teach that. Uzziah’s death was nt anautmatic cnsequence f his haing tuched the hly ark; it was a punishment

16 Menachem Kellner, Maimonides’ Confrontation with Mysticism (The LittmanLibrary f Jewish Ciilizatin 2006).




by Gd fr haing dne s. Similarly, with the accunt in 1 Sam 5: the sufferingsf the Philistines were inicted by Gd as punishment and warning. There isnthing f Indiana Jnes in the biblical text itself’.)

Stephen Schwartzchild, in his inuential paper n ‘Shekhinah and Eschatlgy’,17

stresses this distinctin, taking the side f Maimnides and Chen:

There can be n dubt that als thrughut Jewish histry the temptatin teer tward such literalist understanding has ften exercised its dubius charms,especially amng mre mystically inclined religinists – e.g., in Gnsticism,Phil, Christianity, Kabbalah, Sabbateanism … Nt nly d such tendenciestake what shuld be used as petic metaphrs literally; in the prcess they alshypstatize them, i.e., the shekhinah as a term f art fr Gd’s le, care, and

nearness becmes a ‘meta-physical’ ntic entity that, if it is nt actually a part, raspect, f Gd, insinuates itself as an intermediary between Gd and humanity.The Talmud itself warns f such hypstatizatin – fr example, by adding thecautinary term ‘kiyakhl’ – ‘as it were’, etc. It was nrmatiely understdthat therwise bth Judaism’s thelgical transcendence as well as its abslutemonotheism are at risk.

I think that Rth’s categrical afrmatin that hly refers t a cautinary rather than

expressly psitie actin is due t the same cncern that Pma and Maimnideshae t safeguard the Transcendent character f the Deity. But it als stems frm amre critical interpretatin f the texts cited by Schechter,18 who, in his masterful

study f rabbinic thught, iews the negatie character f hliness as secndaryt the psitie, which simply repeats rabbinic references which speak f Gd perfrming specic acts, such as isiting the sick, burying the dead and s n, whichcan be imitated. I d nt think there need be any cntradictin, since the Rabbisspecically state that the Scriptures speak in the language f man and qualify such blatant anthrpmrphisms with such expressins as kiyakhl (as if t say) andl’hadil (t make a basic distinctin). Schechter wuld be the last t iew suchstatements as anything but ways in which human beings are enjined t behae.Hliness thus is t separate frm eerything that is degrading, idlatrus, unethical.

Working to Turn Sacred Places into Places of Reconciliation

What we hae t try t d here, then, is t nd a way f integrating these tw

elements, the awesme hly and the ethical hly, and t nd ways that the sacred places can als be a place f recnciliatin. It is t the great credit f the Bible

17 Menachem Kellner (ed.), The Pursuit of the Ideal Jewish Writings of StevenSchwarzschild (State Uniersity f New Yrk Press 1990) 238–9.

18 Slmn Schechter, Aspects of Rabbinic Theology (Schken Bks 1961) 202–5.




t hae jined the ethical and the hly, s that if smething is hly, it cannt beunethical, and if smething is ethical, it has the dimensins f the hly.

oman has clearly summarized the true nature f the hly:

Thus a right respnse t the highest and a right search fr the real sacred –the true, the beautiful and the gd, in the wide meaning we hae gien thewrds – are necessarily inseparable … all absluteness, withut which truth ismere useful infrmatin, mrals mere expedient actin, beauty mere pleasingf the senses, is frm being in the Supernatural. By n matter f additin fnatural alues f pleasure and prt can they becme sacred and by n mannerf exalting natural feelings can they be hly. Nr can we say, ‘Treat eeryneas an end in himself’, unless there is a sphere in which he has this wrth: frmanifestly he is not so in the merely natural.

In this perspectie, I wuld like t add this: I remember when I was studying fr therabbinate in 1954, and at the time I had a cnrmatin serice in my cngregatin.Eeryne inited their friends t the religius ceremny, but nt ne f their nn-Jewish friends attended. At that time, ministers f religin, whether Prtestant rCathlic, rarely spke t each ther, nr wuld they eer set ft in a synaggue.That was just nt dne! In reality, the rst time that ministers f religin spket each ther in large measure in the United States was during the ciil rights

mement, and later n with the mement prtesting nuclear tests.What brught abut a radical change was the decisin taken by Ppe Jhn PaulII t isit a synaggue. That gae rise t an interesting dialgue. Sme peple saidthat the Ppe shuld nt enter the synaggue wearing a crss. Jhn Paul II replied,‘If yu want me t cme and sit dwn n a seat withut the crss, I will cme.And it will be a persnal isit. But if yu want me t cme t yu as the Ppe, hwculd I d that withut the crss?’

In a ash, a synaggue became a place eeryne culd g t. It was a placethat was recgnised r re-cgnized in a whlly new manner in eery sense f theterm. I think that it was this that laid the fundatins fr the path f recnciliatin.

I am prfundly cninced that we must wrk hard t nd the way t enablea sacred place t becme a place f recnciliatin. Is it s strange t think thatthe wrld’s religius leaders might nd cmmn paths by ging tgether t isitarius sacred sites and saying t ne anther, ‘We re-cognize the other’?

Such recnciliatin, I beliee, will be achieed much quicker and mre easilyif the functinal designatie manner f interpreting the Hly takes precedenceer the intrinsic ntlgical Hly. Finally, whateer part the numinus, awesme

hly still retains, and it must retain aspects f it, is cmpletely subserient t theethical holy.

T the extent that there exists a cmmn humanity, and insfar as we recgnizesacred sites fr urseles, and that by ding s we cannt deny thers their wnsacred places, let us g tgether t seek the path f recnciliatin. That is the taskawaiting us.



Chapter 7

Sacred Places in the Christian Tradition

Pier Francesco Fumagalli

By reising tpics already incrprated int the Jewish traditin, the corpus of

the Christian New Testament presents a series f cmplementary cncepts abutsacred r ‘hly’ places, cnsistent with the literary genre, the time and thse peple t whm the texts were addressed. The corpus ranges frm the Gspels,

with editins f texts subsequent t the destructin f the Temple in the year70 AD, t the Letter to the Hebrews which clearly presuppses the hliness fthe Temple, t the Epistles f Paul didactic and exhrtatie, aimed at buildingthe rst Christian cmmunities between the years 45 and 65 A.D., ending withthe Apocalypse, which, in the midst f persecutin arund the year 100 A.D., setits gaze full f hpe twards ultimate truths and the City f Gd, with n temple besides that f the sacriced and resurrected Lamb.

These multifrm and meaningful isins, in which the traditinal Jewish

cncept is cnstantly present – expressed, implied, reinterpreted r plemicallycntrasted – sustained the faith f the rst cmmunities wh had t deal bth with being rejected by the Synaggue and with the pagans’ destructin f the Temple. In this dramatic context , Jesus’s wrds t the Samaritan wman may be the bestway f summarizing the Christian psitin: ‘Beliee me, wman, a time is cmingwhen yu will wrship the Father neither n this muntain nr in Jerusalem. YuSamaritans wrship what yu d nt knw; we wrship what we d knw, frsalatin is frm the Jews. Yet a time is cming and has nw cme when the truewrshippers will wrship the Father in spirit and truth, fr they are the kind fwrshippers the Father seeks. Gd is spirit, and his wrshippers must wrship inspirit and in truth’ (Jhn 4:21–25).

Aspects of the Christian Tradition and Problems which Remain Unsolved

In the tw centuries fllwing the generatin f the Apstles, until the turning pint when Cnstantine the Great (274–337) granted freedm f religin,

Christianity quickly spread thrughut the Rman Empire; but it was abe allafter the initiatie f Helena, Emperr Cnstantine’s mther, in 324, that the HlyLand and the hly places f Christianity began t beregarded in a different light.With her pilgrimage t Jerusalem, Helena gae a decisie bst t the building fits churches, f which the basilica f Bethlehem, still in existence, is an elquentexample. on the ther hand, the Ecumenical Cuncil f Nicaea, summned by




Cnstantine in 325 A.D., expresses tw ppsing cncepts at the same time. Therst is the necessity t enerate the physical and histrical places relating t thecentral eent f redemptin – the incarnatin, passin, death and resurrectinf Jesus Christ. The secnd is the disdainful dismissal f the histrical placescnnected with the preius Jewish traditin, which is repudiated in its entiretyas a result f the accusatin f Deicide frmulated against the Jews as a peple.1

The dichtmy that separates Christian hly places frm Jewish nes was tlast fr apprximately 17 centuries. It can be cnsidered as essentially ercmethanks t the turning pint represented by the Secnd vatican Cuncil (1962–65),summarized in paragraph 4 f the Declaratin Nostra Aetate (‘In our Time’-28 octber 1965) n nn-Christian religins. Alngside this dichtmy, which isa cnsequence f the millenary Christian-Jewish cntrersy, we must nt frgetthe ther and n less signicant ne that cntinues t separate sacred and prfane

places accrding t the classical Rman and Greek traditin, which implies anunresled tensin between Greek-Platnic anthrplgy and the Jewish-Christiancnceptin f Salatin that becmes ‘esh and bld’ (basar wa-dam).

A Spiritual Temple

Examining these different cnceptins f hly places, frm ancient times t

nwadays, we wuld like t nd a cmmn thread that culd unite – in a Christianinterpretatin – these iews that can smetimes appear s distant frm ne anther.A pssible unifying interpretatin may be fund in the idea f the Church as acmmunity in which each belieer can be cmpared t a liing stne f a hly place, and the heart f the belieer becmes the tent chsen by Gd in which tdwell. Similar cmparisns are frequent in Biblical literature, frm the Prphetsf Israel (Isaiah 60; Jeremiah 30–31; Ezekiel 36–7), t New Testament writings(Jews 10:5–10; Ephesians 2:20–22; 1 Peter 2:1–10 and parallel passages), up tthe Apocalypse (chapters 21–2). They can be fund in the Church Fathers f therst centuries and als in the medieal Jewish, Christian and Muslim mystics,frm Ibn Paquda t Al-Ghazali.

A sacred place is always cnnected t a further mystery, t a diine Presencethat can neer be cnned t any ne place, accrding t the classical thesis fGd’s ineffability, the Abslutely other, sung in a Jewish liturgical pem: We- Hu a-Maqom shel maqom / we-en la-Maqom meqomo (Gd is the Place f theTemple / and the Temple withut a place). This may be why there was nthing but emptiness in the Hly f Hlies in the Temple at Jerusalem, as in the Hly

1 The famus Map of Madaba – a wnderful 6th-century msaic prtraying thecities and sanctuaries f the Hly Land, drawing inspiratin frm Eusebius f Caesarea’sOnomasticon, cmpsed in 330 – is ne f the mst expressie isual dcuments f thecnceptin f time as regards hly places; cf. M Piccirill and E Alliata (eds) The Madaba Map Centenary 1897–1997.




n the ther hand, we can experience a real, respectful and inclusie plurality,and where there is n pretence f resering an exclusie and unical symblfr any specic grup r place. That is maybe why the principal hly placesf Christianity riginally remained utside f any sacred space: the ‘Hill fthe Skull’ (Golgotha), memrial f the place f atrcius trment and deathf Jesus f Nazareth, was an impure spt far frm the Temple f Jerusalem;nearby, in what was a funerary garden, the Hly Sepulchre f Christ was itselfals an annymus and sad place, sae fr the glry f the Resurrected onewh made the life f all humanity urish again. Nt far away, in the Biblicalland f Ephrathah near the Tmb f Rachel, is anther humble cae Sumptuuslydecrated later by Cnstantine, this cae was the birthplace f Jesus, remindingus f the wmb f the virgin Mary, the true hly place f the Incarnatin fthe Wrd, the Father’s nly begtten Sn. Fllwing this path that is bth at

the same time physical and spiritual, we are inited t reach the heart f the‘sacred place’ that is characterized by the fullness f the Hly Spirit that theannuncing angel reeals t Mary f Nazareth. Thus hliness is brught back tits wn anthrplgical, ecclesilgical and thelgical rts, the surce f allthe symbls f hliness that tuch physical places, transfrming them within andenabling them t participate in the manifestatin f diine le that knws n bundaries in humankind and in the unierse.

The Change Brought About by the Second Vatican Council (1962–65) and its

Consequences

The pastral and thelgical renatin f the Church that started with the Secndvatican Cuncil and that is still in prgress has fstered the emergence f smeimprtant new aspects emphasized in the discussin cncerning hly places.Increasingly imprtant t this discussin nwadays are ecumenical pints f iew,f the dialgue between Christians and Jews and amng ther religins, and thereceptin f the anthrplgical, scilgical and histrical pints f iew typicalf the cntemprary era.2 In particular, we can bsere that thelgical, scialand plitical issues are tightly intertwined when we reect n the hly placesenerated by Judaism, Christianity and Islam tgether, as is the case f Hebrn rJerusalem.3

2 These different pints f iew can be seen in many f the interentins in the

II Internatinal Training Curse and the interdisciplinary Adanced Training Curse, nw published inCATERINA FOPPA PEDRETTI, Per una cultura di pace in Terra Santa (Towards aculture of peace in the Holy Land (Edizini Terra Santa, 2010).

3 Cf. Jerusalem and Rome. Two Cities in the Mirror of History, in Italy – Israel: the Last 150 Years (Cnference prceedings, Jerusalem 16th–17th May 2011, Crriere dellaSera Fundatin 2012) 25–31, 327–33; and the cnference The City of God and its People(Gazzada, 3 September 2012).



Sacred Places in the Christian Tradition 95

In the last few decades the Cathlic Church has becme mre receptie tthe many ices cming frm the cultures and the religins in the wrld. TheChurch heeds and cllabrates with Judaism, especially as regards the Hly Landand the hly places: Jerusalem, Bethlehem, Nazareth and all the places f Jude-Christian reelatin in general. In 2001 this cperatin bre fruit with a CmmnDeclaratin n Hly Places. This was the result f the dialgue that had beenging n fr 40 years between Christians and Jews, and it des nt nly cncernthe mntheistic Mediterranean religius traditins, but als all the religiustraditins f the wrld. The Internatinal Cathlic-Jewish Liaisn Cmmitteethat assembled in New Yrk had expressed the hpe that belieers f all religinsculd cperate and prtect religius freedm and hly places fr all faiths.4 The

ecumenical and interreligius inspiratin that perades this text brings it eryclse t the uniersalist spirit that we can recgnise in sme f the texts f the

Secnd vatican Cuncil, and in particular in Nostra Aetate.The Preamble reminds us that:

In recent years, inter-religius and anti-religius ilence hae been n the rise.In sme places thusands f peple hae been killed and thusands mre lefthmeless r een made refugees. Assassinatin f religius leaders and laywrkers has becme a frequent ccurrence. Shrines, mnuments and husesf wrship hae cme under attack, been damaged r destryed. The rights f

many hundreds f thusands f belieers hae been ilated. The ffenders areccasinally indiiduals. Mre ften they hae been grups, whether mbs,terrrist rganizatins, r peple with authrity: plice, military persnnel reen gernments. We are trubled by assaults n religius freedm whereerthey ccur. We are all the mre disturbed when members f ur wn religiuscmmunities hae been the ffenders. Assembled fr this Internatinal Cathlic-Jewish Liaisn Cmmittee meeting, we afrm nce again befre Gd and thewrld cmmunity ur cmmn cmmitment t the prtectin f religiusfreedm and t the security f hly places.

The jint dcument then stresses the serius perils that can derie frm hstilitythat uses religius diersity as a pretext:

Tragically, as religius cmmunities fall int estrangement r antagnism, thehly places f each cmmunity ften becme the target f ilence r engeanceinstead f eneratin and reerence. Peple act ut their cntempt and angerthrugh arius frms f ilatin: ccupatin, desecratin, een destructin.

S t, when hly sites are used fr military purpses, their sacred character is

4 Cf. Protecting religious freedom and holy sites, a Declaration of the International

Cathlic-Jewish Liaisn Cmmittee, New Yrk, 4 May 2001 <www.atican.a/rman_ curia/pntical_cuncils/chrstuni/relatins-jews-dcs/rc_pc_chrstuni_dc_20010504_ new-yrk-meeting_en.html> accessed 29 April 2013.










deled. one grup can take physical pssessin f the hly place f anther anderadicate traces f its earlier identity. objects f eneratin can be defaced. Hly places hae been reduced t rubble.

It is fr this reasn that Jews and Christians hae made it a cmmn gal t prtectreligius freedm and the rights that this entails, by stating that:

Religius freedm is realized thrugh the exercise f specic rights. Amngthese are: freedm f wrship, liberty in public manifestatin f ne’s belief andthe practice f ne’s religin, the freedm f religius cmmunities t rganizethemseles and cnduct their wn affairs withut interference, the right texpress the scial implicatins f ne’s beliefs, the right t hld meetings, andthe right t establish educatinal, charitable, cultural and scial rganizatins in

keeping with the religius rientatin f ne’s wn religius traditin.

Finally, we can unite in making a specic appeal t the authrities, nt nlyreligius but als ciil and military, fr the uniersal benet f any religiusfamily and fr peace:

Gernments and plitical authrities bear special respnsibility fr prtectinghuman and religius rights. Thse respnsible fr law, rder and public

security shuld feel themseles bliged t defend religius minrities and tuse aailable legal remedies against thse wh cmmit crimes against religiusliberty and the sanctity f hly places. Just as they are prhibited frm engagingin anti-religius acts, gernments must likewise be igilant lest by inactinthey effectiely tlerate religius hatred r pride impunity fr the perpetratrsf anti-religius actins. Armed frces shuld be igilant in aiding ilentactin against religius minrities and attacks against places f wrship andholy sites. In the interest f securing religius liberty, in times f cnict, armed persnnel shuld be trained t respect the rights f religius minrities andhly sites and held accuntable fr their actins. Shuld cnicts arise betweenlegitimate defense needs and religius immunity, ways must be fund t aid,r at least, minimize the infringement f religius rights.

Hw imprtant it is fr the children f Abraham that all belieers, withutdistinctin, be allwed t freely and peacefully practice their faith is expressed inthe nal incatin:

In cntinuus prayer, we lk frward t the time when all peple shall enjythe right t lead their religius lies unmlested and in peace. We lng fr thetime when the hly places f all religius traditins will be secure and when all peple treat ne anther’s hly places with reciprcal respect.




The same subject, with special reference t Jerusalem and t the Hly places, isfrequently dealt with als in the meetings f the Internatinal Dialgue Cmmitteethat brings tgether the Hly See’s Cmmittee fr Religius Relatins and theChief Rabbinate f the State f Israel. Their wrk started in the summer f 2002under the jint presidency f Cardinal Jrge Mejía and the Chief Rabbi f Haifa,Shear-Yashu Chen, and it has already achieed signicant prgress er the last10 years.5

Holy Places and Secular Pilgrimage

Anther pprtunity t express the Christian psitin n hly places in a newway was the Great Jubilee in the year 2000. In anticipatin f this eent, a papal

dcument specically prpsed a reectin n pilgrimage and hly places,cmbining secular and religius pints f iew. In this text it is pinted ut thatwhen we examine scial phenmena, een if we d nt d s frm a specicreligius perspectie, we must acknwledge that always and eerywhere in thewrld ther sacred times and spaces c-exist, and these crrespnd t numerusand different cnceptins f the human and f the diine.

It is pssible t cnsider as places f pilgrimage and meditatin nt nlyJerusalem and Rme, Mecca and Benares, Luang Prabang and Lhasa, but als

memrials f terrible tragedies like Auschwitz, Hirshima r Grund Zer, nt tspeak f the new pssibilities f cnnecting with irtual places n the internet.6

The fact that s many different examples f ‘hly cities’ and hly places exist bth thrughut the histry f humanity and nwadays, all f them expressinsf different ideas f the relatinship f man with diinity raises questins fr bthanthrplgists and belieers, whateer their creed. It is useful at least t reectn sme f the different perspecties that lead t different ways f cnsideringthe hliness f a city r a place. The thughts that Saint Augustine expressed in De Civitate Dei (City f Gd), referred t in the preiusly cited Pilgrimage inthe Great Jubilee of 2000, are nce mre releant, tgether with the subject f peregrinatio (pilgrimage) as applied t the current path f humankind tday:

A true and real netwrk f itineraries is therefre extending thrughut ur planet.Sme are religius in the mst direct sense f the term. Their gals are cities and

5 Cf. Walter Kasper, ‘The Cmmissin fr religius relatins with the Jews and the

Internatinal Cathlic-Jewish Liaisn Cmmittee’, in Philip A. Cunningham, Nrbert J.Hfmann and Jseph Sieers (eds), The Catholic Church and the Jewish People. Recent Reections from Rome (Frdham Uniersity Press 2007).

6 See chapter v f The Pilgrimage in the Great Jubilee 2000, Pntical Cuncilfr the pastral care f migrants and itinerant peple (25 April 1998) <www.atican.a/rman_curia/pntical_cuncils/migrants/dcuments/rc_pc_migrants_dc_19980425_ pilgrimage_en.htm> accessed 29 April 2013.

http://www.vatican.va/roman_curia/pontifical_councils/migrants/documents/rc_pc_migrants_doc_19980425_pilgrimage_en.htm









shrines, mnasteries and histrical centers. In ther cases, the search fr spiritualalues is manifested by ging twards natural sites f rare beauty, islands rdeserts, summits r depths f marine abysses. This cmplex gegraphy f themement f humankind cntains in itself the germ f a radical desire fr atranscendent hrizn f truth, justice and peace; it gies witness t a restlessnesswhich has fr its prt the innity f Gd, where peple may refresh themselesfrm their anguish. The march f humankind, therefre, ntwithstanding itstensins and cntradictins, participates in the ineitable pilgrimage twards theKingdm f Gd, which the Church is cmmitted t annunce and fulll withcurage, lyalty and perseerance, being called by his Lrd t be salt, leaen,lamp and city n the muntaintp. only in this way wuld pen paths in which‘le and lyalty nw meet, righteusness and peace nw embrace’. In thisitinerary, the Church becmes a pilgrim with all men and wmen wh search

with a sincere heart fr truth, justice, peace; and een with thse wh wanderelsewhere because – as Paul, citing Isaiah, recalls – Gd afrmed: ‘I hae beenfund by thse wh did nt seek me, and hae reealed myself t thse wh didnt cnsult me’. All peples and all indiiduals can therefre direct themselestwards this aim f the Kingdm. They may als express their adhesin bymeans f the explicit and symblic gesture f a pilgrimage t the arius‘hly cities’ n Earth, that is, t the places f the spirit where the message ftranscendence and brtherhd resunds strngest. Amng these cities shuld

als be included thse places desecrated by peple’s sin and later n, almst utf an instinct f reparatin, cnsecrated by pilgrimages. Let us think fr instancef Auschwitz, emblematic place f trture f the Hebraic peple in Eurpe, theShoà, r f Hirshima and Nagasaki, land deastated by the hrrr f atmicwar. But, as preiusly stated, tw cities acquire the alue f a sign, nt nlyfr Christians but fr eeryne: Rme, symbl f the uniersal missin f theChurch; and Jerusalem, hly place and enerated by all thse wh fllw theway f the Abrahamic religins, the city frm which the Law and the raclef Yahweh will g ut. This indicates the nal destinatin f the pilgrimage fthe whle humankind, that is, ‘the hly city … cming dwn frm Gd ut fheaen’. We shall adance twards it in hpe singing: ‘We are a peple that iswalking / and walking tgether we want t reach / a city that will neer end, /withut pain r sadness, / city f eternity’. Just as the Church appreciates the perty f the Buddhist pilgrim mnk, the cntemplatie way f the Ta, thesacred itinerary f Hinduism in Benares, the ‘pillar’ f pilgrimage t the surcesof his faith characteristic of the Moslem, and every other itinerary towards the

Abslute and twards his brthers, She jins all thse wh, in a ferent and

sincere way, dedicate themseles t the serice f the weak, the refugees, theexiles, the ppressed, and undertake with them a ‘pilgrimage f brtherhd’.7

7 The pilgrimage in the Great Jubilee 2000, p. cit., nn. 30–31.




The Holiness of Zion

We culd cntinue t reect n the subject f Jerusalem, the hly city, by startingwith an apprpriate prphetic text by Jeremiah:

Return, O faithless children, says the LORD; for I am your master; I will take

yu, ne frm a city and tw frm a family, and I will bring yu t Zin. AndI will gie yu pastrs after my wn heart, wh shall feed yu with knwledgeand understanding. And when yu hae multiplied and increased in the land, inthse days, says the LoRD, they shall n mre say, ‘The ark f the cenant fthe LoRD’. It shall nt cme t mind, r be remembered, r missed; it shall nt be made again. At that time Jerusalem shall be called the thrne f the LoRD,and all natins shall gather, in the name f the LoRD in Jerusalem, and they

shall n mre stubbrnly fllw their wn eil hearts. In thse days the huse fJudah shall jin the huse f Israel, and tgether they shall cme frm the landf the nrth t the land that I gae yur fathers fr a heritage.

Jeremiah 3:14–18

Jeremiah’s appeal aimed abe all at the cnersin f all f Israel and Judeaaway frm sin and injustice. The meeting f all peples in Jerusalem is linked tthis cnditin, and it is a subject that will reappear later n, with arius nuances,

als in the Christian and Muslim traditins. The Jewish peple, wh hae nwreturned t the land f their Fathers and hae re-established natinal independencethere, cnsider this and similar prphecies as haing been partially fullled as the‘beginning f the urishing f ur redemptin’ (reshit tzemikhat geullatenu). SaintPaul’s reectin, n which the Christian cnceptin f the Hly Land was basedin subsequent centuries, was t hae a strng inuence n the Church Fathers.These included Saint Gregry f Nyssa (d. 394) wh, in his treatise ‘The ideal fthe perfect Christian’, applies Saint Paul’s text in Ephesians 2 t the Christians,new men that hae been rebrn in Christ, s as t becme ‘abdes f peace’:‘we urseles will embdy peace and we will shw that this epithet f Christ istrue and authentic als within urseles’ (PG 46:259–62). Starting frm the samePauline text, Saint Augustine instead refers t the Church, temple and city f Gd:‘He made tw peples int ne Church and became fr them its crnerstne, andthus was truly a peace-maker.’ (Comment on the Psalms, Psalm 126:2, CCL 40,1857–58). Later n, Muslim interpretatin was t ech sme f these pints fiew abut Jerusalem, but particularly highlighting the relatinship f Jerusalemwith the Last Judgement and with the Paradise f belieers.

Alngside these traditinal psitins, which are rted in the Mediterraneanenirnment, there are nwadays ther schls f Western philsphy, as wellas ther csmlgies and ther cultural and spiritual iews, be they Buddhist,Indian r Chinese; they are becming increasingly imprtant in the fact that ta certain extent they reeal interesting analgies and differences with respectt these iews f Jerusalem. Nnetheless, neither the traditinal Mediterranean




iews nr analgus nes that emerge in ther cultures f the wrld appear trespnd adequately and satisfactrily t all the aspiratins fr peace and justicethat they in fact hae in cmmn beynd their specic differences. It culd thus becncluded that the ideal f a recnciled Jerusalem, a place f hliness and peacepen t all peples, may remain unfullled and may een be Utpian. Hweer,if we try t grasp the alues and the mst releant aspects f all these differentcncepts f the wrld, f the city f Gd and f mankind as well as f the meaningf histry, we may perhaps cnsider this ethical dimensin as the guarantee thatthis ideal shuld n lnger be Utpian: it is meant t becme a cncrete hpe,capable f lighting the ways f peples twards the way t peace, jy, truth and justice, twards sharing and reciprcity, in which the city f Gd and the city fman are actually achieed. Saint Augustine’s thught n pilgrimage cited in theabe-mentined Pilgrimage in the Great Jubilee of 2000, with the subject f

peregrinatio, can nw be applied t mdern timesand apply t the path f mankindtday; it culd inspire new legal frmulas capable f mre adequately interpretingthe safeguarding f specic ‘hly places’. Cardinal Carl Maria Martini, pastrand father f the Ambrsian Church fr er tw decades, as well as a deeplyserius schlar and praying pilgrim in Jerusalem, dedicated this passinate prayert this city that stands between the earth and the sky:

Between new skies and new earth stands the new Jerusalem that we d nt build

but which cmes frm Gd, and it is splendid, described as the beled spuse,the abde f Gd and men. Fr this new Jerusalem the Lrd is truly a citizen fmankind as we are his: ‘They will be His peple and He will be the Gd-with-them’. It is the frmula f the alliance brught t its fullness, f an alliance thathas been fullled at last, and that is pren nce again with the wrds: ‘I will behis Gd and he will be my sn’. This alliance implies that Gd, ging back t thewrds f Daid, annunces t eeryne in the diine birth f Jesus. […] O Lord, let us welcome the celestial Jerusalem that comes from you. Make it so that, by praying together for the peace of the earthly Jerusalem, we can see the holy citythat comes from the sky and for which God is God-with-us.8

8 Carl Maria Martini, Verso Gerusalemme (Towards Jerusalem) (Feltrinelli 2002) 156–7.



Chapter 8

‘Gd has made the earth like a carpet’:

The Sacred Places in the Islamic TraditionYahya Pallavicini

‘Gd has made the earth like a carpet’.1 This verse from the Islamic Revelation

can symblically represent smething that Islamic dctrine teaches abut

the sacredness f space: cnsidering eery place n earth as a pssible sacredspace fr the ritual wrship f Gd, the Lrd f the Wrlds (rabb al-‘âlamîn).Furthermre, in a traditin, Prphet Muhammad says that Gd has made the eartha ‘place f prstratin’ (masjid ) and a ‘means fr puricatin’ (tahûr )2 for the

Muslim cmmunity: the wrld as a whle is a sacred place where the belieerscan wrship Gd. This prfund symblism shuld nt be interpreted as a pliticalslgan twards the Islamizatin f the wrld, but rather as a reminder t cnsiderthe whle earth as a sacred space in which eery liing being, faithful t the sacred

law f his/her religius cmmunity, must fllw his path f ritual cnsecratinand existential sacralizatin and discer spiritual cmmunin in the immanenceof the Creator.

The land was cered with a carpet t dignify the adratin f belieers, whthus becme respnsible bth fr the earth and fr the carpet: just as they musthnur the respnsibilities f life, tgether with the rituals f their religin. Aswe shall see in the symblism f the msque, there are places that assume a aluethat is suitable fr withdrawal, ritual cmmunin and spiritual cntemplatin, andthey are distinguished frm ther areas and frm ther mre utward frms andleels like a huse, a street, a schl, a park, an fce, a muntain, a hspital,a sea, a cemetery r the sky. In these spaces, a Muslim shares mments in timeand experiences with ther beings f ther faiths wh, in their different ways, allcntribute t the grwth f knwledge and t wrking tgether fr the gd f allhumanity.

Study and work, and sickness and health are actions and situations that follow

each ther in the places f the earth that welcme us. Accrding t the teaching fMuslim masters, actins inspired by right intentin are hly actins: they sanctify

wheer carries them ut and make hly the places in which these actins are perfrmed, as mentined by a fundamental prphetic saying, ‘Actins hae alue

1 The Kran, 71:19.2 Cllected by Al-Bukhârî in his Sahîh.

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-




nly accrding t their intentins’.3 Situatins like perty, wealth, yuth r ldage are sent by Gd t test us and are pprtunities t change and mature, restringa mre puried and higher sanctity in bth peple and the land where they lie.The Kran says:

He is Wh created Death and Life, that He may try which f yu is best in deed:and He is the Exalted in Might, oft-Frgiing.4

Sacred space is space that fllws a diine rder f hspitality. This diine rder isnt a merely passie hspitality, but has made Man a guest n earth, carrying utan actiity that ensures the cmmunicatin and the handing n f all that is ital inthe sacred, at all times, in all places. When Man fllws this traditinal situatin,he cmes int harmny with sacred csmlgy, but when, instead, he frgets the

sacred nature f the earth, f his wn life and f the lies f ther peple, he becmes part f the cause f human disrder.

All this happens fr a sacred reasn that links Man t the earth r t the clayfrm which he is made, but, abe all, links him t the presence f the breath fthe diine spirit (ar-rûh) that gae life t Man. The Kran talks seeral times abutthis diine breath in Man that makes him created ‘accrding t the Merciful’s frm’(‘alâ sûrat ar-Rahmân),5 that gies him the pssibility and ability t knw Gdand the essence f eerything. Fr example, it is said in the sura f Prstratin:

Such is He, the Knwer f all things, isible and inisible, the Exalted (in pwer), the Merciful; He Wh has made eerything which He has created mstgd. He began the creatin f man with (nthing mre than) clay, and made his prgeny frm a quintessence f the nature f a uid despised: but He fashinedhim in due prprtin, and breathed int him smething f His Spirit, and Hegae yu hearing and sight and hearts: little thanks d yu gie!6

That is why als the masters make a cmparisn between sacred place and humancnstitutin, and say that the bdy f the ne wh has realized the diine presencein himself is a temple. But when Man denies the sanctity f the spirit, he deniesthe matrix f life itself and cnsiders the earth as thugh it were mere clay: theignrant man thinks that the wrld has always existed, r that it was createdaccidentally, withut any sacred quality.

The Islamic Revelation teaches Muslims that the earth and man were created

frm nthing but the hly will f Allah. Accrding t traditinal Islamic teaching,Man is the administratr f the earth’s sacred hspitality. A Muslim ‘dwells’ n the

3 Cllected by Al-Bukhârî and Muslim in their Sahîh.

4 The Kran, 67:2.5 Cllected by Ahmad ibn Hanbal in his Musnad . Anther ersin, better knwn,

states that ‘Gd has created Adam accrding t His frm’.6 The Kran, 32:6–9.



‘God has made the earth like a carpet’ 103

earth, accrding t the meanings expressed in the Kran with the wrd sakana: he

circumscribes his wn space in which he ffers his intentin t be f serice withinhis sacred jurisdictin. His jurisdictin is limited t this circumscriptin which, intime, cincides with the cycle f his existence in religin and, in space, cincideswith eery place he has lied n earth, where he has carried the sacred presencef the spirit that is within him. The space is nt sacred because it crrespnds ta religius jurisdictin r because it is inhabited by a belieer, but because it isinhabited by the Spirit guarded within the sacred space f the faithful serant wh,in turn, is guarded within the earth that he dwells in, sakana. The root s-k-n is also

the rigin f the Kranic term sakîna, which has a parallel in the Hebrew shékhinah

and, in bth languages, assumes the meaning f the sacred immanence f Gd, fGd’s calming presence in the heart f the belieers as well as n the earth:

And He helps thee with a pwerful help. It is He Wh sent dwn great Peace(as-sakîna) int the hearts f the Belieers, that they may add faith t their faith;fr t Gd belng the Frces f the heaens and the earth; and Gd is Full fKnwledge and Wisdm.7

It is this presence alne, in the stillness f true peace, that can ensure the fullsanctity f eery place.8 The same term is als the rigin f the phnetic symbl sukûn which, in Kranic grammar, indicates the nn-calizatin f a letter, and

exactly represents the effrt and sacrice that Man must make: t silence earthly passins in rder t make the Hly Wrd resund thrughut eery place. Inreality, eery place and eery aspect in the existence is full f the diine presenceand mercy; nthing can exist utside f the sacred rder f the Hly Wrd f Gd.The Kran states:

T Gd belng the East and the West: Whitherseer yu turn, there is the Facef Gd. Gd is all-Perading, all-Knwing.9 In anther erse, Gd says: ‘I amwith yu anywhere yu are’.10

The famus Muslim thelgian and mystic Abû Hâmid Al-Ghazâlî (1058–1111)used t say that there is nthing, in the whle f existence, but Gd’s Qualities

7 The Kran, 48:3–4.8 It is interesting t nte that sme Islamic traditins tell that when Abraham and

Ismail were rebuilding the Ka‘ba in Mecca, as Gd had cmmanded them t d, they began

t dig the earth until they fund the antique and primrdial fundatins f the temple thatAdam’s descendants had built in their time. Gd manifested His sakîna with a cloud in the

sky whse shadw cered the riginal temple traces. In ther ersins, the sakîna has the

frm f a swirling wind that shws Abraham where he must rebuild the Ka‘ba, by rllingitself up like a snake arund the fundatins f the riginal temple.

9 The Kran, 2:115.10 The Kran, 57:4.




and Actins: each part f the Creatin is an expressin, a ‘sign’ (âya) f Gd’somniscience, All-Mightiness and Wisdm. Anther great Muslim teacher and philspher, Al-Fârâbî (872–950), paraphrasing sme Kranic erses, wrte: ‘TheCreatr – excellent is His greatness – is the ruler f the wrld and nthing canescape His knwledge, nt een a grain f mustard, and His pridence des ntneglect any part f the wrld’.

Fr many peple, ging int a msque and discering hw Muslims lie intday’s wrld is t walk between mdernity and the sacred, between prejudicesand cultures and between stries in the news and riental extica. The results fthis isit and f these meetings depend largely n ur willingness t pen up, tengage with each ther and ercme ur precnceptins, ur imaginings and ur psychlgical reseratins, t truly enter int an Islamic sacred place and t get tknw at rst hand the principal aspects f what it means t be a Muslim.

The Universality of the Islamic Ritual Space

In the East, msques are as cmmn as churches in the West and we can easilyrecgnize a ariety f styles, sizes and cnstructin techniques accrding t thehistrical, artistic and cultural perid f the time. This successin f histrical perids and architectural styles is further enriched by the deep cultural diersity

that has been a feature f the cnstructin f eery msque utside the Arab wrldin Turkey, Persia, the Indian subcntinent, in Sutheast Asia, in Sub-SaharanAfrica and een in Eurpe and America. Just like Muslim cultures wrldwide,Islamic msque art features a ariety f interpretatins and languages that exactlyrepresent the uniersality f Islam: a religin based n precise and identicaldctrinal principles fr all the faithful, but fully respecting the different histrical,legal and plitical cntexts in its applicatin.

S nt all msques are the same, but all Muslims pray fllwing the same basic rules in whateer msque they nd themseles. A msque can be simply theutline f a series f stne markers pen t the sky fr the prayers f nmads intheir stps in the desert, r be built n piles in Malaysia, hae the typical shapef a traditinal Chinese pagda, be simple r nely decrated with msaics andPersian ceramic tiles. A msque can be built with straw and mud in Central Africa,r be inside the temple f the Pharahs in Luxr, inspire the style f the cathedralsin Spain, be carried ut by Mrccan wrkers during the last century in Paris r becme a wnder f the wrld and a symbl f eternal le, like the Taj Mahal inIndia.

In Fez, Tunis, Kairuan, Dakar, Jerusalem, Baghdad, Damascus, Alepp,Jakarta, Kuala Lumpur, Granada, Crdba, Saraje, Istanbul, Kazan, Tehran,Qm, Islamabad and, especially, in Cair, Medina and Mecca, msques hae been built that hae included areas fr the study and analysis f Islamic dctrine. It isthe wrk carried ut fr centuries by masters and their pupils and by teachers andstudents in these areas that has helped t spread the deelpment f traditinal




Islamic sciences thrughut the wrld and, in many cases, t create a netwrk fknwledge that cnnects the wisdm f the East t the West. In these cases, msquesare nt simply a ritualistic meeting place fr Muslims but, utside prayer times,they are hme t Kranic schls, uniersities, places knwn internatinally frintellectual debate, thelgical training schls and centres fr spiritual guidance.

The Symbolism of the Mosque

Large curtyards with beautiful funtains are placed befre the main entrance frthe faithful in many msques in the East. These are spaces within the msquearea that are separate frm the prayer hall because it is here that the faithful must perfrm their ritual ablutins: the washing f certain parts f the bdy in rder t

purify a Muslim and make him/her ready fr prayer. These curtyards are, t smeextent, a passage zne: we are inside the msque cmplex but still utside the hallf the msque.

The faithful hae left the wrld f daily respnsibilities utside the msque’scurtyard walls and are abut t enter the wrld f spiritual cmmunicatin in the prayer hall. The curtyard and the ablutins represent the place and the necessaryactin fr leaing the cares f this wrld and preparing neself fr cntact with theother wrld, the higher wrld, the wrld f the Lrd f the Wrlds. The water which

the hands use to moisten the mouth, nose, face, arms, head, ears, neck and feetsymblically cleanses impurities frm the main parts f the bdy f the belieer.

Sn after, he will hear and recite the sunds f the sacred language, mehis hands, arms, head and feet, carrying ut a series f mements that tgethercnstitute the secnd pillar f Islam, ritual prayer (al-salât ): the mst eident fthe daily practices f a Muslim.11 After prayer, when he leaes the hall, a Muslimnds himself in the same curtyard frm which he has entered and, eery nw andthen, he feels the need t stp in silent reectin r start a cnersatin with thermembers f the cmmunity and t accmpany them t the exit, paing the way frthe practical effect f the grace receied during the ceremny that will inspire himin his return t his public and priate duties. If ritual prayer is central fr eery belieer’s spiritual life, ritual wrship withut reectin and meditatin risk beinga purely mechanical actin depried f any spiritual inlement, because theinner cncentratin helps the belieer t inspire all his life and nt nly his prayer

11 Accrding t a famus traditin the practice f Islam is based n e pillars

which are: testifying (al-shahâdah) that there is n gd but Gd and that Muhammad is themessenger f Gd; daily prayer (al-salât ); almsgiing (al-zakât ); fasting during Ramadan(al-sawm); the pilgrimage t Mecca (al-hajj) fr thse wh hae the capacity. The salât ,secnd pillar f Islamic wrship, is mre than an indiidual prayer. It is a precise ritual actinrelated t spiritual eleatin and intimacy with the Lrd f the Wrlds. Prphet Muhammadsaid that ‘the salât is the spiritual ascensin (mi‘râj) f the belieer’. He als pinted ut thisdegree f cntemplatin and inner-peace: ‘The freshness f my eye is in the salât ’.




in accrdance with the Will f Gd. S the Prphet Muhammad stated that ‘anhur f meditatin is better than seenty years f wrship’.12

The Symbolism of a Muslim

Eery belieer can pray alne r in a grup, at hme, at wrk r in a msque.An Islamic traditin reminds the faithful f the majr spiritual benets that arereceied when the prayer is dne cllectiely in a msque.13 Scholars advise

Muslims, when pssible, t make the effrt t g t sme specially prepared prayer place nearby t d their prayers. During the prayers, they recmmend nding asense f belnging t the cmmunity f belieers, f ging beynd their nrmalhrizns, t share a fraternal sense f the cming tgether f peple wh d ntknw each ther but wh, in brief mments f prayer, are linked tgether by the

duty f wrshipping the one Gd and by the desire fr His Mercy.

verily, this cmmunity f yurs is a single cmmunity, and I am yur Lrd,therefore adore Me!14

The depersnalizatin f the indiidual in cmmn prayer is able t put the persnal pint f iew int perspectie and bring each indiidual belieer t the recgnitinf a dimensin that ges beynd the indiidual. This is nt t articially interrupt

their wn ccupatins, but t change their pridential integratin within a rhythmthat is cnrmed by that intense spiritual cncentratin that eery Muslim feels particularly during his e ritual prayers at hme, alne r with the family, rwith clleagues in the wrkplace r places f study r in the msque next t anindenite number f peple f different races and cultures that, fr a few briefmments f that day r all ne’s life, becme cmpanins in prayer. A Muslim’scmpanins in prayer can be friends r relaties but, nce they enter a msque,they t spread themseles ut amng the faithful t pray next t anther persn,ften a stranger wh, just like him, at that mment f the day, has heard the callof the muezzin, and interrupted his business, gne int the curtyard fr ritualablutins and entered the msque t pray t Gd in the way f Islam.

Empty Space and Sacred Presence

Inside the msque, the prayer hall can be an pen space r can be decrated withclumns r withut arches and, especially, must nt hae seats. Symblically, the

interir f a msque must be empty, because all the aailable spaces will be lled

12 Cllected by Al-Suyûtî.13 The Messenger f Gd said: ‘Prayer in cngregatin is better than the prayer f a

man by himself by twenty-seen degrees’. Cllected by Mâlik, Al-Muwatta’ .14 The Kran, 21:92.




by the faithful during prayer. Physically, the msque is a place that is lled by thefaithful ding their prayers in parallel rws:

‘verily, Gd les thse wh ght in His Cause in rws (ranks) as if they wereas slid structure’.15

‘By thse wh range themseles in ranks! And by thse wh are strng inrepelling (eil)! And by thse wh prclaim the Remembrance (f Gd)!’16

The dispsitin f Muslims in their ritual cmmn prayers, in ranks behind theimam, is mdelled n the dispsitin f the angels behind the Spirit f Gd in theheaens. Spiritually, the msque and the faithful is a blessed place where the Wrdf Gd resunds with the reading f the erses f the diine Reelatin cntained

in the Hly Kran.Frm childhd nwards, eery Muslim learns sme parts f the Kran by

heart in the same sacred language that Allah, the name f Gd in Islam, used. TheKran is therefre the Wrd and Language f Gd, and Muslims wh recite theKran are repeating the same sunds f the diine language. During the e daily prayers, eery Muslim gies new ice t the Reelatin and recalls fr his wnsake, fr the cmmunity united tgether and fr the place they are gathered, thespiritual presence f the Reealer, the presence f Allah.

When an Islamic space is used exclusiely as an empty receptacle taccmmdate Muslims in prayer and when these faithful empty themseles ftheir persnal cncerns in rder t inke the presence f Gd, this space is calleda msque. What lls the msque is the faithful, what lls the faithful in the msqueis the presence f Gd wh answers the calls and prayers f His serants.

In Islam, any space that cntains a sign f the diine Reelatin is sacred, any place where the presence f Gd is inked, any place where there is a deut belieer r a simple being. The life f eery persn is sacred and, if this persnacts cnsciusly and respnsibly because f this hnur, his wn actins are sacred.When a Muslim decides t hnur his diine rigin by giing himself t a mmentf ritual detin, the place where he nds himself, f curse, becmes cnsecrated.The msque and the man wh prays there are bth sacred spaces that gie themselesup t the reafrmatin f the miracle f the religius message, the gift f the Wrd fGd as reealed t the Prphet and passed n t his cmmunity f fllwers.

As we said befre, eery Muslim can perfrm his ritual prayers anywhere,as lng as it is clean and free f human images.17 The bedrm r the liing

15 The Kran, 61:416 The Kran, 37:1–3.17 Accrding t a statement f Prphet Muhammad, ‘Angels d nt enter in a place

where there are images f liing beings’. The Masters f Islam explain that this prhibitinaims at aiding risks f distractin f the wrshipper frm the Presence f the Unique Gd by images that might be taken as idls.




rm f the huse can becme a sacred space at the time f prayer; a rm in thewrkplace can be used if necessary. In ther wrds, there is n abslute necessityfr a Muslim t nly pray in a msque, cnsidering it as the nly sacred placewhere ritual prayer can be dne. If there were t be a preference, it is still subjectt the natural rder f public and priate duties that belieers must still be sure ffullling in the sciety in which they lie.

Eery place and eery actin is sacred in Islam if dne in bedience ta religius perspectie, if it has a right and cnscius intentin. T be a gdMuslim, it is nt sufcient just t g t the msque t pray, particularly if yuspend the rest f yur time nt liing a life f respect and spiritual sensitiity: nris it acceptable t cause disrder r cnfusin by frcing yur prayers n thers in places and situatins that are nt suitable fr prayer.

The sacredness f places in Islam inles nt nly a space dedicated t prayer,

but als a dimensin f the belieer that bears witness t the sacredness f life atall times and in all places. Within this perspectie, Muslims dedicate at least emments f their day t their ritual duty, entering a state f interir and exterircnsecratin. As we hae seen, the sacredness f a persn and a place cmes frmthe desire t inke the presence f Gd in the persn praying and in the place inwhich he perfrms his daily wrship. S, his bedrm r the rm in which hends himself, r the msque he has gne t, becme hly and wrthy f being the place fr his ritual prstratins, his sujûd , the Masjid , the Msque.

Macrocosm and Microcosm: Relating and Hospitality

With this perspectie clear, the life f the faithful inside the msque assumes thequality f a natural religiusness in which, befre r after the prayers, the yungand the ld, and wmen and children can pause, alne r with thers, t meditatein silence, t read the Hly Bk, t study, t cnerse and een t eat and play.Withut either cnfusing the mre intimate character f the rituals r failing t participate in all the specic areas f cntemprary sciety, the members f theIslamic cmmunity are used t spending time in the msque seeral times a week,and this partly brings tgether many aspects f daily life and renews the erysacredness f all these aspects f life, withut articial barriers between what isinside the msque and what is utside the msque. This is nt t cnfuse themsque with a schl, a huse, a restaurant r with a cultural r scial centre, butit wuld be a mistake t see it as a temple cut ff frm the wrld, indifferent tchanges in the cuntry and strictly cnned t a mnastic seclusin.

on the ther hand, as I wrte 15 years ag, the rst city f Medina itself tkits present name nly after the arrial f the Prphet Muhammad: until just shrtly befre, it was knwn as the asis f Yathrib. It was the sacred presence f thePrphet that inspired the deelpment f a new ciilizatin and a new city, and anew time and a new sacred place where families, nmadic and sedentary peplesand arius religius cmmunities came tgether in emulatin and cperatin




in brtherhd, mutual respect and spiritual harmny, bth in time f war and intime f peace. Fr years nw, we hae been seeing the frmalist and aplgeticidelgizatin f this uniersal mdel f Medina, with a literal interpretatin prmted by thse wh are cninced that it is enugh t articially rebuildexclusiely cnfessinal neighburhds r Islamic ghetts in rder t gie asacred character t an area and its inhabitants. Mreer, this is nthing less thanmaking a cmplete sacrilege f histry, f place, f religin and f the faithful.

Sacred Symbols

It is imprtant t say that religius symbls stand fr spiritual meanings that mustnt be denied, belittled r distrted just because smene wants t explit them

fr plitical, idelgical r persnal pwer. Fr what cannt be tlerated is theexplitatin f the sacred alue f the symblic unierse f religins fr wrldlyends like the manipulatin f cnsensus and pwer. Symbls are the signs bywhich the transcendent becmes immanent and, at the same time, the way andmeans that, frm the rder f creatin, lead us back t spiritual reality, whichwuld be therwise impssible t interpret because f its super-ratinal character.Symbls are a basis fr a synthetic knwledge that allws belieers t ascendspiritually and intellectually frm the multiplicity f creatin t the unity f the

Creatr:

Gd dth guide whm He will t His Light: Gd dth set frth Parables fr men:and Gd dth knw all things.18

T g further int the Islamic teachings cncerning the sacredness f space, wecannt frget that sme particular sacred spaces hae a special imprtance amngthe thers. The basis f sacredness is the pssibility f wrship, and therefre, aswe described, the symblism f the Muslim and that f the msque are the mdelfr the cnsideratin f sacredness f space in general. A teaching f the Prphetsays, ‘D nt prepare yurself fr a jurney except t three Msques: the SacredMsque (al-Masjid al-Harâm), the Faraway Msque (al-Masjid al-Aqsâ) and myMsque ( Masjidî )’.19 The ‘Sacred Msque’ is the Temple f Mecca, als calledthe Huse f Gd (bayt Allâh), the Faraway Msque is the sanctuary in Jerusalemwhere the Kran says the ascensin f the Prphet started, and nally the Msquef the Prphet is the Great Msque in Medina. Mecca, Medina and Jerusalem arethe three main Holy Cities in Islam.

18 The Kran, 24:35. An example f Islamic perspectie twards symbls can beseen in Al-Ghazâlî’s wrk Mishkât al-anwâr , ‘The tabernacle f lights’, where he describesthe different leels f meaning and the crrespndences frm the frmal and utwarddimensin t the spiritual and inward ne.

19 Related by Al-Bukhârî.




Mecca, the Primordial Temple

Mecca, r the Nble Mecca (makkah al-mukarramah), is the place where the pilgrimage (al-hajj), fth pillar f Islam, takes place. Indeed it is there that thetemple t the ne Gd is lcated, knwn as the Kaaba and established by Abrahamin a alley that the Muslim traditin states t be the same place where Adam,rst prphet and man, built the rst temple fr diine wrship n earth after thefall frm Paradise. The Kran says, ‘The rst temple eer set up fr mankindwas indeed the ne at Bakkah: rich in blessings and a surce f guidance t thewrlds’.20 The Prphet Abraham, alng with his sn Ishmael, built the new templein the same place as the rst, its structure inspired by the Sakîna, the sanctifyingand peaceful presence f Allah that is s present in that place. This reminds us thatthe establishment f a sacred place must be carried ut under the inspiratin f the

hly presence.Mecca represents the centre f the wrld, the place in which the spiritual axis

that supprts creatin is manifested. It is a primrdial place, where the belieer cantaste the transcendence and absluteness f his Lrd. This taste can be accessedthrugh the ritual f the great and the small pilgrimage (‘umrah). In the tawâf ,the circumambulatin f the Kaaba, the pilgrim captures the ntlgical status fcreature that is submitted (muslim) and that circulates with all ther beings arundthe divine centre. In the say’ , the ritual run between the hills f Safa and Marwa,

the belieer learns the science f the rhythm f spiritual incatin that unites andties the interir with the exterir. In the drinking frm the spring f Zam Zam,which miraculusly emerged at the feet f the yung Ishmael thanks t an angelicinterentin, the belieer discers that he can hae access t an inexhaustiblespiritual funtain that ws frm the centre f the wrld.

As fr this sacred place, being present within it fr the pilgrimage demands a particular ritual cnditin. Wheer intends t g t Mecca fr Hajj r ‘Umrah,

there being n ther reasn t g there since the exclusie presence f Allah isthe purpse f the place, must enter a particular sacred state (ihram) befre eenappraching the land where the temple is t be fund. It is a state that cnsists fabandning rdinary clthes and shes in exchange fr a dress cmpsed f twsheets f white clth that are nt sewn. This ritual, sacred state is an analgusfrm f the mment in which the belieer enters the state f cannical prayer that,whereer it may be perfrmed, is always riented twards the Kaaba.

This place and these rites are the sites in which the belieer nds the primrdialityf the religin (dîn al-trah) and the eternity f Gd, that is shwn in His unity andabsluteness. It is als the same place where the Prphet Muhammad was brn

and where the Reelatin was sent dwn t his pure heart during Laylat al-Qadr ,the night f Destiny, the eent that marked the start f the cycle f manifestatinsf the Seal f Prphecy and f the traditinal frm brught abut by it, namelyIslam. Clse t the alley f the Sacred Msque, within the haram of Mecca, is

20 The Kran, 3:96.




Jabal an-Nûr , the Munt f Light, where the cae f Hira can be fund. It was inthis cae that the Prphet Muhammad was in spiritual retreat when the Kran wasreealed thrugh Jibrîl, Gabriel. The cae is a symbl f the heart, the centre fthe being where direct cmmunicatin ccurs between creature and the Lrd fthe wrlds (rabbu al-alamîn).

Medina, the City of the Prophet

If the character f the sacred Msque f Mecca is determined by the cncentratinf the absluteness f the ne Gd, the Msque f the Prphet (al-masjid an-nabawî ) in Medina gathers the light f the diine immanence that radiates frmits chsen and blessed receptacle, the Prphet Muhammad: hence the name ‘theRadiant City’ (al-madînah al-munawwarah). The current msque cers the

entire extensin f the Yathrib asis at the time in which the Prphet Muhammadhad chsen it as the place fr his emigratin (al-hijrah) and refuge frm the persecutin that he was being subjected t in Mecca. Within this msque there isthe ld msque f the Prphet, including the pulpit (minbar ) frm which he heldthe Friday sermn, as well as his tmb which, accrding t his wn request t be buried in the place where he died, was the abde f his wife, Aisha.

Pilgrims cming frm Mecca after cmpleting the rituals f Hajj or ‘Umrah

nd in the isit and the greeting f the Prphet a renewed fullness f the diine

radiance that fllws the cncentratin experienced in Mecca. If Mecca was themetaphysical anticipatin f the Last Day and the annihilatin befre the diineMajesty, the presence f the Prphet in his city is the access t the dimensin fimmanence, f the diine richness and frgieness that radiate frm the entireunierse, reiifying the life f the belieers in all its aspects. In a ery well-knwn erse f the Kran, Gd addresses the Prphet, saying:

We hae nt sent yu except as mercy (rahma) t the wrlds.21

The presence f the Prphet is understd as true spiritual inuence (barakah) andnt merely as a memry, a presence that the belieer cntinues t understand as a signf the pssibility f guidance, f prtectin and f radiance that Gd bestws upn the belieers. Between the hme f the Prphet and his minbar (pulpit) there is a place,nw fund inside the msque, knwn as rawda, literally ‘garden’, that accrding tthe ery wrds f the Prphet is ‘a piece f paradise n earth’. The pilgrims arrie atthe rawda frm the right, the place where the pulpit can be fund. A few at a time,they reach it t carry ut the ritual prayer f greeting t the place (tahiyyat al-masjid ),

facing twards Mecca, with the pulpit f the Prphet t their right and the Prphethimself resting near his cmpanins, Abu Bakr and ‘Umar, t their left.

21 The Kran, 21:107.




Jerusalem, ‘The Holy’

Jerusalem is the third sacred city f Islam. In Arabic it is knwn either as baytal-maqdîs, the ‘hme f sanctity’, r simply as al-Quds, ‘the Hly’. Like Mecca,there is a cnergence f arius eents in sacred histry: the Rck f the Sacricef Abraham, the lcatin n earth that Gd prmised the peple f Mses andAarn, the temple rdered by Gd t Daid and built by Slmn, the presenceand the teaching f the prphets sent amngst the children f Israel, up t Zakaria,the virgin Mary and the preaching f Jhn the Baptist and Jesus.

Hweer, in the Muslim traditin Jerusalem is especially linked t the PrphetMuhammad’s night jurney and celestial ascensin (al-isrâ’ wa-l-mirâj). one nightthe Prphet was wken up by the angel Gabriel while he was in the sacred msquein Mecca. He was led t Jerusalem where he began his ertical ascensin thrugh

the heaens up until being in Gd’s presence, at the distance f ‘tw arches r less’,22 t then return t earth in the reerse rder. Fr Muslims, this jurney represents themdel spiritual jurney that was cmpleted by the Seal f the Prphets, the cmpletespiritual realizatin that is the mst eleated gal t which the belieers can aspire.

The cnnectins between the places f this jurney with the places f thesacred histry are signicant. The end pint f the hrizntal jurney, that isals the starting pint f the ertical ascensin, crrespnds t the small caehidden beneath the rck f Abraham’s sacrice, upn which the Dme f the Rck

(qubbat al-sakhra) can nw be fund. The Dme stands n the esplanade f themsques, its west side aligned with the Temple f Slmn which was destryed by the Rmans in the year 70 after Christ.

Mre explicitly than ther places, Jerusalem represents cnergence twardsthe unity f the Reelatins and f the belieers f Abrahamic mntheism. Thisis nt nly fr the pridential cnergence f the signs f the sacred histry that preceded the Seal f Prphecy, but als because Jerusalem is the symblic placef the eschatlgical eents: fr the cming f the Messiah that, fr Christiansand Muslims, will cincide with the secnd cming f Christ; the place f thenal battle between the belieers f the end f time and the Antichrist; and the beginning f the eents that will clse the frmer cycle f humanity in rder tpen the ne that will fllw.

The Sacredness of Creation

Althugh it is pssible fr the belieer t participate in the presence and the

cmmunicatin with the Lrd f the Wrlds in all the msques and in eerycrner f the earth where Gd has made a carpet upn which t wrship Him, theMuslim knws that the ery same Creatr has chsen certain places abe therst manifest sme f His signs, like in Mecca, Jerusalem and Medina. Creatin

22 The Kran 53:9.




belngs t Gd and fr this reasn it is sacred in its entirety. Sme masters cmparethe wrld t a mirrr in which Gd reects Himself ‘t manifest t Himself Hismystery’.23 Fr a Muslim, wanting t articially separate the creatin frm theCreatr, withut recgnizing the sacredness that He has bestwed upn creatin,wuld be t misunderstand Gd in His immanence, in His mirrr.

Hweer, this des nt mean that all spaces are equal. Eery place, just likeeery time, manifests a specic pridential character that distinguishes it frmthers. Cmplete sacredness des nt mean simplicity r unifrmity. Fllwingthe maieutic f Reelatin, the belieer learns t deal with cmplexity as a pridential richness, recgnizing that the arieties f the differences f creatinreect diine innity withut exhausting it. If Gd is always the wner f eery place, His presence is accessible t belieers at arius leels and in ariusways. In Islam the leel and nature f sacredness are uniersally determined by

the Reelatin. In the sacred places f Islam, the stages f sacred histry ndcnergence with the belieers’ rituals f wrship. These becme the means bywhich the teachings and spiritual blessings can be accessed and brught alie bythe lied presence f the prphets and saints in thse places. The right intentinf belieers allws the sacredness f a place r f a symbl t becme functinalrather than merely being an imaginary prjectin, an idl.

In a sacred hadith Gd says, ‘I was a hidden treasure and I wanted t be knwn,s I created the wrld’. If the sacred space is a space that fllws a diine rder

f hspitability, then creatin is the space f His knwledge, the ery purpse fhuman life. In this symblic and spiritual perspectie, the sacred places in theentire sacredness f creatin are seen as signs that reeal smething abut thenature f the wrld, f urseles and f ur Lrd, cnfrming t the Kranic erse:

We will shw them our signs in the hrizns and within themseles until it becmes clear t them that it is the truth. But is it nt sufcient cncerning yurLrd that He is, er all things, a Witness?

The hly cities are an example f the sacred symblism f space, and the isit bythe pilgrim is a way nt nly t discer the blessings f each f them, but alst knw the science f space in the ftsteps f the Prphets. It is neerthelessimprtant t stress that we cannt take the symblism in a schematic way, merelyassciating Mecca with the transcendence f Gd, Medina with the immanence fthe Prphet, and Jerusalem with the eschatlgical call f the End f Time. Allahis eerywhere the same, and eerywhere He is the one wh must be wrshipped,nt the single differences r the places: we must nt assciate anything with Him:

T Gd belng the east and the west. Whereer yu turn, there is the Face fGd. Witness, Gd is Innite, All-knwing.24

23 In particular Muhyi al-Din Ibn ‘Arabi, in The Wisdom of the Prophets.

24 The Kran, 41:53.




Universal Meaning of the Three Holy Cities and Sacred Jurisdiction

Mecca, Medina and Jerusalem are nt the nly sacred places r the nly msquesthat are particularly transparent t spiritual radiance. The spiritual blessings radiatefrm the entirety f the traditinal meanings and symbls. Amngst these signs,the sages are fundamental, the ‘peple f the Remembrance f Gd’ (ahl al-dhikr), recgnized by Muslims as inheritrs f the prphets, as guides and mdels fr theMuslim cmmunity. Thrugh the numerus saints in different places and timesand frm arius ppulatins and languages,25 God has allowed the maintenance

f the cnstant radiatin f light and knwledge in arius temples and placesfrm orient t occident. The places where these saints lied and taught, and wheretheir bdies nw rest, hae becme centres f the radiatin f sacred knwledge.Damascus, Kairuan, Fez, Cair, Baghdad, Istanbul, Knya, Nishapur, Qm,

Najaf, Karbala, Delhi, Singapre and many thers hae cnstituted centres fradiatin f traditinal knwledge.

one must bear in mind that the hly places and cities display uniersalmeanings that transcend lcal and religius specicities and therefre they cannt becme ehicles fr frms f exclusiity. The sacredness f the space and ftime occurs when the intention and concentration are turned solely towards God,

regardless f the place r the circumstances in which ne nds neself, in rdert carry ut the tasks that we are respnsible fr in this wrld. The challenge f

ur time is t nd the way t relate, in a cnscius and cnstructie way, t thearius jurisdictins f the sacred, thse f religius frms, spaces and times,withut relatiism, withut exclusieness and withut indifference. In this task,what can be f help fr nding the crrect rientatin is the capacity t discer athree-dimensinal rder f reality. A spiritual jurisdictin depends n the breadthand the leels f radiance f spiritual blessing. If, n the ne hand, there canntsimply be a material, mechanical r spatial understanding, n the ther there has t be an understanding that such blessings can be effectie and cncrete fr the lcaland tempral cntext in which the belieers lie.

Mreer, we cannt frget that Mecca, Jerusalem and Medina are places f permanent residence fr few peple. Fr the majrity f the belieers in this wrldthese places are the destinatin f pilgrimages, and they cntinue t representinterir ‘spiritual abdes’ (manâzil ) in which the mst sincere aspire t remaineen when they lie, wrk and pray in Milan, Rme r elsewhere. Physical andtempral distances frm central places are nthing but a test fr the belieers frmtheir Lord.

The sacred dynamic f the pilgrimage als teaches the imprtance f the

mement, frm which the understanding f the space cannt be separated. Thethree sacred cities mentined here highlight the sacredness f these places, thankst a different particular mement fr each and yet necessary t all. Fr Mecca,

25 The Kran says, ‘We hae nt sent any messenger except speaking the languagef his peple’, Kran 14:4.




the Huse f Allah is bth the place in which Gd descends frm Heaen t Earthand is the centre arund which the belieer walks and then runs, turning in circlesand appraching the centre; whereas Safa and Marwa shw their character thanksnly t the ritual run between them. Jerusalem is the place where the spiritual jurney becmes ertical. Medina is the city that welcmed the Prphet frm hisemigratin, frm the rescissin f tribal ties and cming under the prtectin f anexclusiely spiritual cmmunity. The mement ccurs in space but als in timeand therefre there are three dimensins that cannt be separated frm ne antherin rder t reach the bjectie f knwledge and actin in the times and spaces thatthe belieers nd themseles in. The prf f knwing hw t gather the alue fspace and time is that f knwing hw t me in harmny with their character,t knw hw t behae as icegerents (khalîfa) f Allah n earth, being actualsymbls f the spiritual realities and f the superir truths that belng t Gd and

at the same time radiating their benecial inuence.The attempt t seer the cnstitutie relatinship between Earth and Heaen,

and between Man and Gd by separating what is ntlgically united deries frman anti-traditinal perspectie designed t ppse the spiritual currents that haegien life t symblic and genuine artistic frms frm the beginning f time.

It is therefre necessary t rediscer the deeper meaning f traditinalsymblism and, at the same time, be able t interact cnstructiely with the pluralism f religins, ideas and men. As regards the issue f Islam in Italy, it wuld

then nt nly be a questin f encuraging the psitie integratin f immigrantcmmunities twards achieing full citizenship, but als a questin f recgnizingthe fcial, authentic and natie presence f the Italian Islamic cmmunity s thatit can rganize its wn wrship and sacred places withut discriminatin.

In this perspectie, we are glad that ur Al-Wahid Msque in Milan has been selected as a mdel f best practices by the Islam Cmmittee f the ItalianMinistry f the Interir as we cnsider this recgnitin als as a mdel fr therespect f new sacred spaces wned and managed by the recent Eurpean Muslimcommunity. COREIS Italiana (the Italian Islamic Religius Cmmunity), tgetherwith the European Council of Religious Leaders (ECRL), fully supprted the‘Uniersal Cde n Hly Sites’ adpted at the internatinal cnference ‘HlySites’ in Trndheim, rganized by the Center for Peace and Human Rights in

osl in July 2009 and participated in March 2011 in the meeting hsted by theEurpean Cmmissin in Brussels and rganised by the Sereign order f Maltan ‘Prtecting the sacred spaces in the Mediterranean’. Fllwing this initiatiewe fully supprt the ‘Declaratin n the Prtectin and Enhancement f SacredPlaces in the Mediterranean area’26 and the respnsibilities religius cmmunities

and public authrities share n this imprtant issue.

26 Annexed t this bk.



PART III

The Sacred Places of the

Mediterranean



Chapter 9

Jerusalem’s Hly Sites in Israeli Law

Marshall J. Breger

Introduction: The Boundaries of Jerusalem1

This chapter cnsiders legal issues related t the hly places in Jerusalem.Preliminary t this discussin ne must cnsider the bundaries f Israel r Eretz

Yisrael (biblical Israel). As ne cmmentatr has pinted ut:

Where is Eretz Israel? The answer t this questin is different fr the religiusand natinal camps since they draw n different surces t supprt theirdenitins. The frmer draws slely n Biblical surces while the natinalists’apprach stems primarily frm the brders f the British Mandate, brderswhich were frmulated in the aftermath f the versailles Cnference in 1919.one was dened in Genesis and in ther places in traditinal religius texts, the

ther was essentially the utcme f plitical negtiatins between the imperial pwers f Britain and France after the raages f Wrld War I.2

one must als cnsider the bundaries f secular Jerusalem. These bundarieshae shifted er time. The ‘cre’ is similar fr all the Abrahamic religins – the old City – which is the area within the histric city walls. But the citygrew utside f the walls in the 1840s with Arab areas like Sheikh Jarrah andJewish areas like Meah Shearim and later Rechaia. After the 1967 War, theIsraeli military sent an fcer with a jeep t circle Jerusalem with instructins f

1 This chapter draws cnsiderably frm a paper written by Marshall J. Breger andLenard Hammer, ‘Legal Issues f the Hly Places’, in Marshall J. Breger, Yitzhak Reiterand Lenard Hammer (eds), Holy Places in the Israel-Palestine Conict: Confrontationand Coexistence (Rutledge Kegan Paul, 2009) and frm Marshall J. Breger and ThmasA. Idinpuls, Jerusalem’s Holy Places and the Peace Process (Washingtn Institute

fr Near East Plicy 1998). Much f my thinking in this area has been infrmed by mynging transatlantic dialgue with Lenard Hammer. I thank bth Prf. Hammer and Prf.Indinpulus fr their instructie insights. My wrk in this area has fr sme years beensupprted by the Ryal Nrwegian Ministry f Freign Affairs whm I thank fr theirwillingness t supprt theretical wrk with practical cnsequences.

2 Clin Shindler, ‘Likud and the Search fr Eretz Israel: Frm the Bible t theTwenty-First Century’ (2001) Israeli Affairs 92.

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-




‘maximum land, minimum Arabs’. It is hard t iew the results f that histricalaccident as sacred.3

The ‘metes and bunds’ f sacred Jerusalem is als a cncept ‘in play’. Frsme, it is particular churches, synaggues r msques that are makam, sacred

space. Fr thers, it is the entire city that is hly. And fr yet thers, it is theentire land f Israel (r Palestine). These latter maximalist iews suggest thedifculty f managing Jerusalem in an inclusie manner. Indeed, ne needs treect n what gegraphical bundaries specically encmpass the hliness — inHebrew, the Kedusha — f Jerusalem fr Muslims, Christians, and Jews, as wellas n what gegraphical bundaries symblize these grups’ respectie natinalistaspiratins.

Further, the urban reality is that after 1967, the city grew ut int its hinterlandt functinally encmpass areas that were frmally part f the West Bank. This

prusness between Israel and Palestine makes discussins f Jerusalem eenmre difcult.

This chapter des nt pretend t discuss eery site in Jerusalem hly t ne fthe Abrahamic religins. Rather, it tries t bring ut general principles and fcusn sme f the mre imprtant sites. It will end with sme prpsals abut issuest be cnsidered when dealing with hly places.

What is the Denition of Holy Places in Israel and Palestine?

The Encyclpedia f Public Internatinal Law denes hly places as

… gegraphically determined lcalities t which ne r mre religiuscmmunities attribute extrardinary religius signicance r cnsider a subject fdiine cnsecratin. Hly Places may cnsist f man-made structures (churches,temples, graes, etc.) r natural bjects (trees, gres, hills, riers, etc.).4

Traditinally, the hly places in Israel and Palestine were understd as thse siteslisted in the s-called ottman Status Quo, whse gal was t ensure prtectin fra ariety f key Christian sites and lessen tensin amng the religius ppulace.

We shuld nte that there is n denitin f a hly place in Israeli law. Theterm is referred t in the 1967 Law fr the Prtectin f Hly Places5 without

explanatin.

3 Fr the religius basis see, Genesis 15:18–21; Numbers, 14:1–4; Numbers 12:1–4;I Samuel, 24:2; I Kings, 5:5. This is nt an exhaustie list f surces.4 Christian Rumpf, ‘Hly Places’, in Rudlf Bernhardt (ed.), Encyclopedia of Public

International Law (l. 2, Max-Plank-Institut für Ausländisches Öffentliches Recht undvölkerrecht 1995) 863–6.

5 Prtectin f Hly Places Law 1967, trans. in Ruth Lapidth and Mshe Hirsch,The Jerusalem Question and Its Resolution: Selected Documents (Kluwer 1994) 169.



Jerusalem’s Holy Sites in Israeli Law 121

What are the Number of Holy Sites in the Greater Jerusalem Area?

The number f hly sites in Jerusalem depends, f curse, n ne’s denitin fJerusalem. Mst hly sites are fund in the old City f Jerusalem which describesthe area within the walls built in 1453 by Sultan Suleiman the Magnicent. otherhly sites can be fund in an area called the ‘histric basin’ (smetimes calledthe Hly Basin) which encmpasses an area ranging frm the Munt f oliesto the City of David.6 other denitins f Jerusalem’s hly sites hae extendedt areas presently within the area ‘cntrlled’ by the Palestinian Authrity (PA)including Rachel’s Tmb, The Church f the Natiity and ther Christian sites inBethlehem.

The Ottoman Status Quo listed e Christian hly places.7 In this denitie,if nt exhaustie, study f hly places fr the Mandate authrities, Linel Cust,

hweer, added tw Jewish sites t the Status Quo, namely the Western Wall andRachel’s Tmb, but did nt address Islamic sites gien the Mandate’s plicy f nn-interference with Muslim institutions.8 A 1949 United Natins map enumerated30 Hly Places in the Jerusalem area.9

A 1950 Israeli inter-ministerial cmmittee, established t study the manner by which the new State f Israel might prtect the hly places, listed at least300 hly sites fr the Christian, Muslim and Jewish religins, althugh this wasan expansie list including all places f wrship and cemeteries.10 The ensuing

regulatins that were issued fllwing the 1967 Hly Places Law included 15Jewish hly sites.11 on an infrmal leel, hweer, the Department fr Hly

6 The s-called Histric Basin, which has been dened as including nt nly the oldCity, but als its enirns like Munt Zin, City f Daid, Kidrn Stream and Munt folies. See Wendy Pullen and Maxmilian Steinberg, ‘The Making f Jerusalem’s HlyBasin’, (2012) 23 Planning Perspectives, 225–48. See als Ruth Lapidth and AmnnRamon, The Historic Basin of Jerusalem, Problems and Possible Solutions (Jerusalem:

The Institute fr Israel Studies, 2006).7 Linel G.A. Cust, The Status Quo in the Holy Places (Gernment f Palestine1930).

8 Ibid.9 ‘Central Prtin f the Jerusalem Area: Principle f Hly Places’, United Natins

Map, n. 229 (N. 1949); see als Elihu Lauterpacht, Jerusalem and the Holy Places

(n. 1, The Angl-Israel Assciatin 1968) 5.10 Israeli Archies 2397/3 – Hly Places, 25/5/50. The list was cmpiled t determine

the iability f certain structures that had been abandned and the nancial pssibilities fr

prtecting the sites. The authrities clsed many churches and msques due t prblemsf decay r abandnment, with the remainder receiing sme frm f prtectin r haing psted guards.

11 The rst regulatins drafted in 1968 related t the manner f decrum t beimpsed at the graesite f Rabbi Shimn bar Ychai in Mern, Ketz Takant 2182,frm 9/2/68, at 828, fllwed in 1969 by additinal sites where the rules f decrum weret apply – Cae f Simn the Just and the Small Sanhedrin in Jerusalem, Graes f Rabbi




Places deems itself respnsible fr clse t 160 Jewish sites thrughut thecuntry. Accrding t a list prepared in 2000 by three authrs, an Israeli Jew, anAmerican Christian and a Palestinian Muslim, there were 326 nted hly placesin Jerusalem.12 The Islamic rganizatin Al-Aqsa Assciatin fr Prtectin andMaintenance of Islamic Waqf Prperties has catalgued hundreds f abandnedand disused Muslim sites thrughut the cuntry.13 There is n ‘fcial’ list fChristian sites as the Custs f the Hly Land (the Franciscan rder charged withcustdy f hly sites fr Cathlics) cnsiders a frmal list t be inapprpriate as itmay ‘clse ff’ additins in the future.

We shuld nte that in 2003 the Fundatin fr the Culture f Peace als prpseda similar pen-ended list fr hly places in all f Israel, pursuant t the nrms f thecmmn heritage f mankind.14 There are specic lists f hly places in the PeaceTreaty with Jrdan,15 the various Oslo Accords16 and the vatican-Israel Fundamental

Agreement.17 But these lists are certainly nt exclusie and d nt exhaust the pssiblehly places in Israel and the Palestinian Authrity cntrlled areas. Fr example, theIsraeli Hly Places Authrity lists er 140 sacred places,18 yet does not include the

site hly t Jews and Muslims knwn as Har ha-Bayit (the Temple Munt) t Jews rAl-Haram al-Qudsi al-Sharif (the Nble Sanctuary) t Muslims.19

oadiah f Bartenura, Zechariah the Prphet and Absalm in Jerusalem, the Cae f Elijah

in Haifa and the Grae f Maimnides, Cae f Rabbi Akia, Cae f Rabbi Chiya andSns all in Tiberias, Ketz Takant 2387, frm 8/5/69 (in Hebrew), at 1438.12 See Y. Reiter, M. Erdegian and M. Abu Khalaf, ‘Between Diine and Human:

The Cmplexity f Hly Places in Jerusalem’ in Mshe Ma’z and Sari Nusseibeh (eds), Jerusalem: Points of Friction – and Beyond (Kluwer Law Internatinal) 95–7, 109–10.They use tw criteria t deelp a denitin f hly places: rst, ‘the relatinship betweenthe public and the place’, and secnd, ‘the functin f the place itself’. With these criteriathey hae prepared an exhaustie list. The authrs distinguished between different leels fsites and cncluded that hly places shuld be split int e grups: sanctuaries, hly sites,

places f wrship, religius buildings and religius sites.13 See discussin infra. See als Nga Cllins-Kreiner, ‘Pilgrimage Hly Sites: AClassicatin f Jewish Hly Sites in Israel’, (2000) Journal of Cultural Geography 57.

14 Hly Places – Cmmn Heritage f Mankind, 27 September, 2003, Fundatin frthe Culture f Peace Madrid, Spain, at Annex III, paras 1–3 (n le with authr).

15 Treaty f Peace between Israel and the Hashemite Kingdm f Jrdan, 26 octber1994 <www.mfa.g.il/mfa> accessed 30 April 2013.

16 Israeli-Palestinian Interim Agreement n the West Bank and Gaza Strip, AnnexIII, Schedule 4.

17 Fundamental Agreement between the Hly See and the State f Israel, 30 December,1993, vatican-Israel, ILM, 1994, l. 33, 153 (hereinafter Fundamental Agreement).18 ofcial list cmpiled by the Hly Sites Authrity as f 12 April 2003 (n le with

authr).19 But see 3338/99 Pakovich v. State of Israel 54 (3) Piskei Din 667 (2000)

(in Hebrew) where the Israeli High Curt fund that it was bius that the Temple Muntwas a hly place, een if nt listed as such.

http://www.mfa.gov.il/mfa

http://www.mfa.gov.il/mfa




What Domestic Laws Govern Holy Sites?

The Six-Day War in 1967 resulted in Israeli cnquest f ‘Jrdanian’ Jerusalem. Itimmediately dubled the area f Jerusalem t an area including the old City and beynd. Shrtly thereafter, Israel passed the Prtectin f Hly Places Law, 1967.That law states:

1. The Hly Places shall be prtected frm desecratin and any ther ilatinand frm anything likely t ilate the freedm f access f the membersf the different religins t the places sacred t them r their feelings withregard t thse places.

2. a) Whseer desecrates r therwise ilates a Hly Place shall be liablet imprisnment fr a term f seen years.

b) Whseer des anything likely t ilate the freedm f access f themembers f the different religins t the places sacred t them r theirfeelings with regard t thse places shall be liable t imprisnment fr aterm f e years.

3. This law shall add t and dergate frm any ther law.20

other Israeli statutes include prisins that impact n hly sites law and siteswhich are used fr prayers and ther religius purpses.21 As an example, Sectin

146 f the Criminal Cde ordinance 1936, makes it an ffence t cause damage tany place f wrship r t any bject sacred t any religin, with the intentin faffrnting the religin f any class f persns. Sectin 148 impses penal sanctinsfr trespassing n places f wrship and burial, fr indignity t crpses and frdisturbances at funeral ceremnies. In Wagner v Attorney General 22 it was held

that this sectin applies nt t pinin but t actin (the difference in American 1stAmendment nmenclature between “speech” and “acts”).

20 Prtectin f Hly Places Law 1967, supra nte 73. The rst paragraph f thislaw was adpted in the Basic Law: Jerusalem, Capital f Israel, 1980. See generally, RuthLapidth and Mshe Hirsch (eds), The Basic Law: Jerusalem, Capital of Israel (repr. in The Arab-Israel Conict and its Resolution, Martinus Nijhff Publishing 1999) 255.

21 See, as an example, Sectin 22 f the Drainage and Fld Cntrl Law, 1957;Sectin 70 f the Water Law, 1959; Sectin 8(1)(a) f the Mines ordinance. Sectin 3 f

the Lcal Authrities (vesting f Public Prperty) Law, 1958, excludes prperty used frreligius purpses and serices frm that which a lcal authrity is empwered t acquirecmpulsrily fr public purpses.

22 H.C. 4/64 18 (1) Piskei Din 29. See Sectin 2 f the Prtectin f Hly PlacesLaw 1967, which makes it an ffence t ilate a Hly Place. Under Sectin 37(2) f thePlice ordinance, it is ne f the duties f a plice fcer t maintain public rder ‘in theneighbrhd f places … f public wrship’.




What Archeological Statutes Govern Holy Places?

The British Mandate made a distinctin between histrical sites that hae sacredaspects and sacred sites that are still in use (r ‘liing’ sites).23 The 1929 Antiquitiesordinance distinguished between histrical mnuments ‘whether meable rimmable r part f the sil’ and ‘antiquities f religius use r deted t areligius purpse which are the prperty f a religius r ecclesiastical bdy’.24

The effrt was t distinguish, in the wrds f a British gernment memrandum, between mnuments ‘that are nt f a merely archelgical character, but are als …“liing” mnuments, that is t say mnuments still in use fr religius purpses’.25

Israel passed its wn Antiquities Act in 1978.26 The legislatin denes anantiquity in Article 1 as an bject, either detached r attached, which was made by a persn prir t 1700 CE, including anything added t it that cnstitutes an

integral part f it. In the spirit f the times, a change was made in this denitinin Article 2, accrding t which an bject made in 1700 CE r thereafter culd be an antiquity if it pssessed histrical alue and the Minister f Educatin haddeclared it t be an antiquity. There is n written denitin f what cnstitutes ‘anbject f histrical alue’, and thus its denitin is left exclusiely in the hands fthe Minister f Educatin, wh is respnsible fr the implementatin f the law.27

The Minister acts thrugh the Directr f the Department f Antiquities wh hasauthrity t declare a particular place an antiquity site.28

What Regulations Govern Holy Sites?

The regulatin f hly sites in Israel has been a irtual kaleidscpe. The Ministryf Religius Affairs was riginally charged with the implementatin f the 1967law. After cnsultatin with representaties f the religins cncerned, the Ministryf Religius Affairs was t draft regulatins fr arius sites that the Ministry fJustice must then appre. on the demand f the secular Shinui Party, the Ministry fReligius Affairs was dissled in early 2004 and its functins distributed amng thether ministries and the Natinal Authrity fr Religius Serices was lcated in the

23 Antiquities ordinance 1929, 1 Laws f Palestine 28.24 Ibid.25 See Naidha Abu El-Haj, ‘Prducing (Arti) Facts: Archelgy and Pwer During

the British Mandate f Palestine’ (2002) Israel Studies 41.

26 Article 29 (iii), 885 Sefer Chukim 76, 1978 (in Hebrew).27 See fr example Mern Benenisti, Sacred Landscape: The Buried History ofthe Holy Land Since 1948 (Uniersity f Califrnia Press 2000) 305. See als ShshanaBerman, ‘Antiquities in Israel in a Maze f Cntrersy’ (1987) Case Western Reserve Journal of International Law 346–47.

28 1978 Antiquity Law at § 49(b). See als Mern Benenisti, Sacred Landscape,

p. cit., 346.




prime minister’s fce.29 But by early January 2008, the plitical map had changednce again, and in what many iewed as a nd t the religius plitical party, Shas,the cabinet appred the resurrectin f the Ministry f Religius Affairs.30

Further, while the 1967 statute declared that hly places were prtected, it didnt pride a list f the prtected sites. The Ministry f Religius Affairs wascharged with deelping such a list. In 1968 the Ministry began the prcess fdrafting regulatins regarding hly sites, starting in Mern with the grae f RabbiShimn Bar Ychai, ne f the mst eminent disciples f Rabbi Akia, attributed by many with the authrship f the Zhar (‘The Brightness’), the chief wrk fJewish mysticism, wh lied in the era f the Tannaim (schlars f the Mishnah)during the Rman perid after the destructin f the Secnd Temple in 70 CE.In 1981, the Religius Affairs Ministry prmulgated regulatins designating theWestern Wall and surrunding sites as hly places.31 Additinally, after 1967, the

organizatin fr Hly Places32 was created and funded by the Minister f Religius

29 See Zi Zrahiya, ‘It’s ofcial – Religius Affairs Ministry t be Dissled Sunday’, Haaretz (Tel Ai, 3 March 2004) A1 cl 2 (in Hebrew) which states: ‘Respnsibility frnn-Jewish grups will be transferred t the Interir Ministry, while the department thatdeals with religius cuncils will be med t the Prime Minister’s ofce. The Centerfr the Deelpment f Hly Sites will be the respnsibility f the Turism Ministry, therabbinic curts will be under the cntrl f the Justice Ministry, and the Rabbi f the Hly

Sites and the Western Wall will be under the superisin f the Chief Rabbinate. CiilSerice Cmmissiner Shmuel Hllander called the me histric, saying it was crrectfrm an administratie pint f iew’. See als, Aryeh Dayan, ‘Caring Up the ReligiusAffairs Ministry’, Haaretz (Tel Ai, 23 December 2003); Giden Aln, ‘Knesset vtes tDismantle Religius Affairs Ministry’, Haaretz (Tel Ai 25 December 2003) (in Hebrew).

30 Rni Sfer, ‘Ministry f Religius Affairs Reestablished’ (2008) <www.

YnetNews.cm> accessed 6 January 2008.31 Including, fr example, the Cae f Simn the Just, the small Sanhedrin Cae (near

the frmer), the Tmb f Rabbi oadiah f Bartenura (at the Munt f olies cemetery)

and Zechariah’s Tmb and Absalm’s Mnument in the Kidrn valley. See Ketz Takant4252 frm 16/7/81 (in Hebrew), at 1212 fr a list f the ‘fcially declared’ sites in theregulatins. See als Appendix 1 t Regulatins fr Prtectin f Jewish Hly Places 1981,where sites are listed fr Jerusalem, Haifa, Tiberias, Mern and Peki’in. These designatedsites are a far cry frm the 160+ sites that the Hly Places Authrity ersees n an unfcial basis, as discussed infra. See als Ruth Lapidth, The Basic Law: Jerusalem, Capital of Israel (The Harry and Michael Sacher Center fr Legislatie Research and Cmparatie Law, theHebrew Uniersity f Jerusalem 1999) 56 (in Hebrew). In 1995, the Ministry f ReligiusAffairs prpsed t add t the list the fllwing: Daid’s Tmb n Munt Zin, the Cae f

the Prphets Haggai and Malachi (n the western slpes f the Munt f olies), the Tmb fthe Prphetess Hulda (at the tp f the Munt f olies), Jehshaphat’s Cae and the Graef the Sns f Hezir in the Kidrn alley, the Silam Tunnel and Spring, the large SanhedrinCae (nw situated in the Sanhedria Park), Jeremiah’s Cae (Hatzar Hamatarah) (near thecentral bus statin f East Jerusalem), Zedekiah’s Cae (near the Nablus Gate), the Kings’Tmbs in Saladin Street and the synaggues in the old City. This prpsal was nt appred.

32 Smetimes this is translated as ‘the obserer f Hly Places’.

http://www.ynetnews.com/







Affairs t care fr and tend t Jewish hly sites. In 1988, the Ministry rerganizedthis bdy int the ofce f Religius Affairs, which in 1989 went n t create a public rganizatin, the organizatin fr the Deelpment f the Hly Places. Thelist prepared by the organizatin in 1989 is infrmal and includes any site with alink t a Jewish persnality, synaggue r places f histrical signicance t theJewish peple. It nw lists 162 sites and, where necessary, tends t their upkeep.

Based n this criterin, it wuld be difcult t ‘create’ a new hly site if the place has nt been in cntinuus use r was nt recgnized as such.33 In 2000,the Ministerf Religius Affairs attempted t delineate the criteria fr designatinghly sites, recgnizing the ptential fr abuse by plitical and natinalist-religiusfrces. Althugh the regulatins were neer prmulgated, the draft ntes that ntall synaggues r graes are autmatically deemed hly;34 there must be specicreference t the site in the rabbinic literature. Furthermre, een with such a

reference, the site must be subject t sme frm f cntinuus ‘use’, such as fr prayer and pilgrimage.

Inexplicably the Ministry has neer issued – in draft r therwise – a list fMuslim hly sites. The reasn fr the failure f the Ministry t deelp a list isclearly plitical. Many Muslim hly sites were treated by the Israeli gernmentas abandned prperty after 1948 and were ften (legally r therwise) cnertedfr ther purpses. Israeli fcials fear that listing Muslim hly sites will pena Pandra’s Bx f claims related t decisins under the Abandned Prperty

Law.35

As an example, legal (and plitical) cntrersy fllwed the effrts fMuslim grups t reclaim the ‘Large’ msque in Beershea. When the msquewas abandned in 1948, the municipality used it as a curt and then a prisn.Recently the city prpsed t turn the ‘Large’ Msque int a museum againstthe bjectins f lcal Muslims wh sught t reclaim it fr use as a msque.The Israeli Supreme Curt rejected that request but determined that the museumshuld be dedicated t Islamic culture rather than a general museum.36 At the time

f writing this the city des nt appear t hae bwed t the Curt’s ruling.37

33 ofcial list cmpiled by the Hly Sites Authrity as f 12 April 2003 (n le withauthr). The rganizatin actiely tends t arund 140 sites.

34 The draft, prepared n 23 July 2000 (hereinafter Draft Reprt), was submitted byRabbi Shmuel Rabinwitz, then the Rabbi f the Hly Places in Israel and nw the Rabbif the Western Wall (n le with authr).

35 Abandned Prperty Law, 1950, Sefer Ha-Chukim, 14/3/50, p. 86 (in Hebrew).36 Jack Khury, ‘High Curt Rules Be’er Shea Msque t Be Used as Islamic

Museum’, Haaretz (Tel Ai, 23 June 2011) Ilana Curiel, ‘Beershea Msque t BecmeIslam Museum’ (2011) <www.ynetnews.cm/articles/0,7340, L-4086545,00.html>accessed 30 April 2013.

37 In fact, in September, 2012 the city planned a wine festial in the msque’scurtyard. After President Shimn Peres called the Mayr the city agreed t me the eentutside the msque’s perimeter. Yanir Yagna, ‘Israeli Mayr Mes Be’er Sheea WineFestial ff Grunds f Muslim Msque’, Haaretz (Tel Ai, 5 September 2012).

http://www.ynetnews.com/articles/0,7340,%20L-4086545,00.html

http://www.ynetnews.com/articles/0,7340,%20L-4086545,00.html




In Nember 2004, Adalah, an NGo perating n behalf f the Arab minrity inIsrael, led a petitin befre the Israel Supreme Curt, requesting that the Ministryf Interir (the replacement fr the disbanded Ministry f Religin) draft regulatinscncerning Muslim hly places.38 The petitin cntended that the absence f suchregulatins is discriminatry t the minrity Arab ppulatin and a ilatin f theBasic Law: Human Dignity, f freedm f religin and the cncept f equality.39

What International Instruments Govern Holy Places?

General Observations

There is a difference f pinin regarding the status f internatinal instruments

releant t Jerusalem. It is generally agreed that the fllwing internatinalinstruments gern hly places in Jerusalem: the Hague Cnentin fr thePrtectin f Cultural Prperty in the Eent f Armed Cnict40 f 1954;41 the

UNESCo Wrld Heritage Cnentin;42 and the International Covenant on Civil

38 See ‘Press Release: Adalah Petitins Supreme Curt in Name f Muslim ReligiusLeaders Demanding Legal Recgnitin fr Muslim Hly Sites in Israel’ <www.adalah.

rg/eng/pressreleases/pr.php?le=04_11_23 > accessed 23 Nember 2004) (hereinafter:Adalah Press Release). The petitin was fcially led n 21 Nember 2004. Fr a cpyf the petitin (in Hebrew) see Adalah Newsletter, l. 39 <www.adalah.rg/newsletter/eng/aug07/6.php> accessed 21 Nember 2004 (hereinafter: Adalah Newsletter).

39 See Adalah Press Release. Ibid. The mst recent deelpment ccurred in August2007 when the Israel Supreme Curt rdered the State t explain why there was n prtectin fr Muslim hly sites and t pride apprpriate funding fr prtectin. Fr acpy f the order, see Adalah Newsletter.

40 24/5/54, 249 UNTS 215. The Hague Cnentin was reafrmed in the 1977

Additinal Prtcls t the Genea Cnentins f 12/8/49 Relating t the Prtectin fvictims f Internatinal Armed Cnicts, 8/6/77, 1125 UNTS 3, at Article 53, priding that,as regards the: ‘prtectin f cultural bjects and f places f wrship ‘Withut prejudicet the prisins f the Hague Cnentin fr the Prtectin f Cultural Prperty in theEent f Armed Cnict f 14 May 1954, and f ther releant internatinal instruments,it is prhibited: (a) t cmmit any acts f hstility directed against the histric mnuments,wrks f art r places f wrship which cnstitute the cultural r spiritual heritage f peples;(b) t use such bjects in supprt f the military effrt; (c) t make such bjects the bject freprisals’. Israel has nt ratied the Additinal Prtcls. Nte as well that military necessity

can mandate the use f cultural bjects fr military purpses, if n ther alternatie exists. SeeGeffrey Crn, ‘Snipers in the Minaret-What is the Rule? The Law f War and the Prtectinf Cultural Prperty: A cmplex Equatin’ (2005) Army Lawyer, 28–40.

41 See 1954 Hague Cnentin fr the Prtectin f Cultural Prperty in the Eentf Armed Cnict, 249 UNTS 215 (24 May 1954).

42 UNESCo Wrld Heritage Cnentin <http://whc.unesc.rg/en/cnentintext>accessed 21 August 2008.

http://www.adalah.org/eng/pressreleases/pr.php?file=04_11_23


http://www.adalah.org/newsletter/eng/aug07/6.php









and Plitical Rights (ICCPR).43 Israel als has bilateral agreements with bth thePA and Jrdan.

Hweer, we shuld nte that while Israel iews Jerusalem as effectiely‘annexed’ t Israel,44 Palestinians iew Jerusalem as ‘ccupied territry’ andtherefre that the Genea Cnentin rules regarding ‘belligerent ccupatin’wuld apply.45 In respnse t wrld criticism regarding its actiity in Jerusalem,46

Israel, in 1980, passed the Basic Law: Jerusalem as the Capital of Israel .47 While

43 See Article 18, 999 UNTS 171 (16 December 1966). The Human Rights Cmmittee,the bdy charged with erseeing the treaty, applies the cnentin t areas under cntrl by Israel, including the West Bank. See Human Rights Cmmittee, General Cmment31, Nature f the General Legal obligatin n States Parties t the Cenant, UN Dc.

CCPR/C/21/Re.1/Add.13 (2004) <www1.umn.edu/humanrts/gencmm/hrcm31.html>accessed August 4 2008. See als, Uniersal Declaratin f Human Rights, Article 18,UNGA Res. 217 (III 1948) <www.un.rg/oeriew/rights.html> accessed 29 May 2008.

44 Fr discussin f the precise legal status see, Ian S. Lustick, ‘Has Israel AnnexedJerusalem?’ (1997) Middle East Policy 34; Terry Rempel, ‘The Signicance f Israel’sPartial Annexatin f East Jerusalem’ (1997) Middle East Journal 520; and MichaelDumper, ‘Jerusalem’s Infrastructure: Is Annexatin Irreersible?’ (1993) Journal of Palestine Studies 78. See nte 51 infra.

45 Fr ‘belligerent ccupatin’ see generally, Yram Dinstein, The International Law

of Belligerent Occupation (Cambridge Uniersity Press 2009).46 Criticism frm the UN has been nging and cntinuus since 1967. In particular,nte United Natins Security Cuncil Reslutins regarding the city f Jerusalem, 252(1968), 267 (1969) and 298 (1971), reslutin 476 (1980), in which the Security Cuncilexpressed its regret er Israel’s persistence in changing the urban nature, the demgraphiccmpsitin, the institutins and the psitin f Jerusalem, and reslutin 478 (1980),in which it called upn United Natins Member States that hae diplmatic missins inJerusalem t withdraw thse missins frm the Hly City. GA Reslutins cncerningJerusalem include reslutins 2253 and 2264 (1967) (and subsequently 36/120, 35/207, and

36/226) deplring Israel’s failure t implement General Assembly reslutins n Jerusalem.47 Basic Law: Jerusalem, Capital f Israel, 30/7/1980, Hatzat Chk 1464, 5740,reprinted in Ruth Lapidth, The Basic Law, p. cit., 139. The Jerusalem Basic Law and theinternatinal reactin is discussed in Nte, ‘Middle East: Status f Jerusalem’ (1980) Harv. Int. L. J. 784. See als, Shlm Slnim, ‘The United States and the Status f Jerusalem,1947–1984’ (1984) Isr. L. Rev. 179, 243–44 (nting that Israel adpted the Basic Law inrespnse t Security Cuncil Reslutin 465 f 1 March 1980, which called fr the dismantlingf settlements ‘in the Arab territries ccupied since 1967, including Jerusalem’); BernardWasserstein, Divided Jerusalem (Yale Uniersity Press, 2001) 241–3 (indicating that the Basic

Law was enacted in respnse t diplmatic pressure and Arab prpaganda abut Jerusalem). Note that while the Basic Laws are meant to serve as the framework for an eventual written

cnstitutin, they are essentially equialent t any ther law; nly entrenched prisinswithin the Basic Laws that require a special majrity te by the Knesset (Parliament) prirt any change are accrded a frm f eleated status abe ther laws. Stephen Gldstein,‘Prtectin f Human Rights By Judges: the Israeli Experience’ (1994) S T . L. L. R. 605–6.The Basic Law: Jerusalem, discussed infra, des nt cntain such an entrenchment clause.




mstly a symblic step,48 the law dened Jerusalem as the ‘cmplete … united …capital f Israel’.49 The text f the Basic Law des nt state that eastern Jerusalemis annexed t Israel. The questin whether these steps are legally tantamunt tannexatin has been ne f cnsiderable debate.50

What is the So-called ‘Status Quo’?

In the 18th and 19th centuries, the ottman Empire issued rmans, pridingChristian denminatins with rights er selected hly places. Mst imprtantof these were the rmans f 1757 and 1852. These rmans cllectiely becameknown as the Status Quo. They were enshrined in internatinal law thrugh the1878 Treaty f Berlin51 and arius ther legal instruments and afrmed by theBritish in 1923 after they tk er the Mandate.52

48 GA Res. 35/169 (1980) strngly deplred Israel’s passing the Basic Law nJerusalem.

49 In 2000, in an effrt t make changes in the legal status f Jerusalem mre difcult,amendments were made t the Basic Law that prided that Jerusalem may nt be transferredt a freign entity and that any subsequent changes t the Jerusalem Basic Law must deriefrm anther Basic Law passed by a majrity f the Knesset, fr example 61 in faur, ntmerely a majrity f thse ting. The Laws f the State f Israel n. 1760 (5761/2000) at 28.

In Nember 2007 there was a te n a prpsal t amend this Basic Law, requiringa majrity f 80 Knesset members (instead f 61) t make any changes t the status fJerusalem. While the calitin was split n this matter, it is nt clear hw far the prpsalwill actually g in becming a law, gien the serius implicatins it can hae n a future peace agreements. See Shaha Ilan and Zi Zrahia, ‘Amendment t Basic Law n Jerusalemshakes up calitin’, Haaretz-online (15 Nember 2007) <www.haaretz.cm/hasen/spages/924441.html> accessed 4 August 2008.

50 In particular, see Ruth Lapidth, The Basic Law, p. cit., 64–71, 110 (the BasicLaw understands the city t be ‘ne unit’ as it has been since 1967). Lapidth cncludes that

the Basic Law: Jerusalem des nt amunt t a frmal frm f annexatin. See als, Ian S.Lustick, ‘Has Israel Annexed Jerusalem?’ p. cit., and Asher Maz, ‘Applicatin f IsraeliLaw t the Glan Heights is Annexatin’ (1994) Brook. J. Int’l L. 355, 359–66 (nding thatIsrael had, in fact, annexed East Jerusalem prir t the creatin f the Basic Law). In 283/69 Ravidi v. Military Court, Hebron Zone, 24(ii) P.D. 419 (1969), the Israel Supreme Curtheld that a lcal antique merchant frm the Silwan valley culd be deemed t hae remedantiquities frm Hebrn t East Jerusalem cntrary t a Jrdanian law that prhibited remalf antiquities utside the brders f Jrdan. The Curt reached this cnclusin based n thereality f the facts (that is, that Jrdanian law did nt apply t East Jerusalem) and did nt

decide, per se, that East Jerusalem was ‘frmally’ annexed t Israel, een thugh Israeli lawdid apply t the area and it was treated as a different (Israeli) legal zne than Hebrn (whichwas under frmal military cmmand and subject t Jrdanian law frm 1967).

51 1878 Treaty f Berlin, repr. in Fred L. Israel (ed.), Major Peace Treaties of Modern History 1648–1967 (Chelsea Huse Publishers 1976) 975.

52 Mandate fr Palestine, tgether with a nte by the Secretary-General t itsApplicatin t the Territry f Trans-Jrdan, League f Natins, Cmd. 1785, December

http://www.haaretz.com/hasen/spages/924441.html







In an effrt t better understand the Status Quo, the British Military

Administration tasked L.G.A. Cust, a British soldier with a classical education,

t cmpile and classify the elusie Status Quo arrangements as they had eleder the centuries. Cust perated withut the aid f the ottman Archies, whichhad been remed frm Jerusalem when the ottmans retreated in 1918, and,thus, he at times cntradicted himself. Nnetheless, his is still the best (if nt thenly) cdicatin f States Qu principles. The different religius cmmunitieshae, f curse, supplemented (r substituted fr) Cust’s text frm their wnarchies where useful t them. Cust’s study The Status Quo in the Holy Places

was published in 1929.53 Nnetheless, this ‘Shulhan Arukh’, s t speak, f theStatus Quo became the tuchstne f Britain’s hly places plicy.

It is imprtant t nte that the Mandate interpreted hly places in a bradersense than did the 1757 and 1852 ottman rmans. While the British adhered to

the Status Quo, they extended the Status Quo principles t the Western Wall andRachel’s Tmb.54 Cust himself nted the applicatin f regulatins tracking theStatus Quo beynd the e Christian Status Quo sites to include the Milk Grotto,

Shepherds’ Field, the Western Wall and Rachel’s Tmb.55 The Status Quo was also

afrmed in the 1993 vatican-Israel Fundamental Agreement which nted:

§ 1. The State f Israel afrms its cntinuing cmmitment t maintain and respectthe ‘Status quo’ [sic] in the Christian Hly Places t which it applies and the

respectie rights f the Christian cmmunities there under. The Hly See afrmsthe Cathlic Church’s cntinuing cmmitment t respect the afrementined‘Status quo’ [sic] and the said rights.56

As Raymnd Chen shws, hweer, the ‘exact’ legal authrity f the ottmanStatus Quo is unclear. The Ottomans viewed the rmans as an extensin f priileges granted by the Sultans. In cntrast, the Christian cmmunities iewedthem as haing the quality f rights. Chen makes clear, hweer, that theessence of the Status Quo is the authrity f traditin. once a particular religiuscmmunity places a ladder in a church crridr, absent f any bjectin, it hasthe right t d s again in the future. Als releant are ottman laws stating

1922, in Ruth Lapidth and Mshe Hirsch (eds), The Arab-Israel Conict and its Resolution,

p. cit., 25–32. Fr the intricacies f the Status Quo, see fr example Marlen Erdegian,‘British and Israeli Maintenance f the Status Qu in the Hly Places f Christendm’ (2003) International Journal of Middle East Studies 307; Peter Berger, ‘The Internatinalizatin f

Jerusalem’ (1950) Jurist 362–8.53 See generally, Linel G.A. Cust, The Status Quo in the Holy Places, p. cit.54 Marlen Erdegian, ‘British and Israeli Maintenance f the Status Qu in the Hly

Places f Christendm’, p. cit., 311.55 Linel G.A. Cust, The Status Quo in the Holy Places, p. cit.56 Fundamental Agreement at Article 1. It was als reafrmed in the Basic Agreement

between the Hly See and the Palestine Liberatin organizatin n 15 February 2000, Article 4.




that wheer wned a rf, wned the building belw, and a suggestin inMuslim shari’a law that ‘payment fr repairs indicated pssessin’. This ledt numerus situatins where the Jrdanians wuld prpse repairs and ffer t pay, but the religius cmmunities wuld refuse unless they paid all f the cststhemselves.57

These three principles make repairs r renatin extremely difcult as eeryactin tk n precedential alue. If ne side did nt challenge anther church’s‘ilatin’, it wuld lse the ‘right’ t cnsent such infringements in the future.

Bi-lateral Treaty Obligations

a) JordanAs regards Israel and Jrdan, the Jrdan-Israel Peace Treaty f 26 octber 1994

requires that ‘Each party will pride freedm f access t places f religius andhistrical signicance’. The Treaty further ntes that:

In this regard, in accrdance with the Washingtn Declaratin, Israel respectsthe present special rle f the Hashemite Kingdm f Jrdan in Muslim hlyshrines in Jerusalem.

When negtiatins n permanent status will take place, Israel will gie high

pririty t the Jrdanian histric rle in these shrines.58

The 1994 Treaty f Peace between the State f Israel and the Hashemite Kingdmf Jrdan raises tw key issues releant t the old City and its hly places. Theycncern access t hly places and the recgnitin f Jrdan as an imprtant actrin administering the waqf n the Temple Munt.

Specically, Article 9 f the Israel-Jrdan Peace Treaty prided that:

1. Each party will pride freedm f access t places f religius andhistrical signicance.

2. In this regard, in accrdance with the Washingtn Declaratin, Israelrespects the present special rle f the Hashemite Kingdm f Jrdanin Muslim hly shrines in Jerusalem. When negtiatins n permanent

57 Raymnd Chen, Saving the Holy Sepulchre: How Rival Christians CameTogether To Rescue Their Holiest Shrine (oxfrd Uniersity Press 2008).58 Israel-Jrdan Treaty f Peace (26 octber 1994), Article 9, 34 ILM 43–66 (1995).

one shuld nte that in the Jrdan-Israel Armistice Agreement f 1949, Jrdan agreed tallw Israel ‘free access fr the Hly Places and cultural institutins and use f the cemeteryn the Munt f olies’. Hashemite Jrdan Kingdm-Israel General Armistice Agreement,3 March 1949, 42 UNTS 304 (1949). That agreement was neer adhered t.




status will take place, Israel will gie high pririty t the Jrdanianhistoric role in these shrines.59

The general language f Article 9(1) relating t bth religius and histrical sitesappears t accrd access fr mre than religiusly mandated purpses (fr example prayer r perfrmance f religius rituals), but als includes access rights frhistrical inestigatin r research as well as turism.60 This aspect f the Treatyhas neer been explred.

Additinally, sectin B(3) f the Washingtn Declaratin signed by Israel andJrdan n 25 July 1994 requires that:

Israel respects the present special rle f the Hashemite Kingdm f Jrdan inMuslim hly shrines in Jerusalem. When negtiatins n the permanent status

will take place, Israel will gie high pririty t the Jrdanian histric rle inthese shrines. In additin, the tw sides hae agreed t act tgether t prmteinterfaith relatins amng the three mntheistic religins.61

While general in its terms, the prisin shuld be understd as a eiled reference tthe Temple Munt, where Jrdan maintains cntinuing administratie duties thrughnancial (and ther) supprt fr the waqf authrities in the area. It is an imprtantacknwledgment by Israel is-à-is Jrdan’s psitin in the old City, and the rle that

Jrdan plays (and cntinues t play) in supprting the wrkers f the waqf .

59 Israel-Jrdan Treaty f Peace (26 octber 1994) (1995) 34 Int’l Legal Materials

43–66 (hereinafter Peace Treaty). Backgrund and cmmentary n the Treaty can be

fund in Reuan Mercha and Rtem M. Giladi, ‘The Rle f the Hashemite Kingdm fJrdan in a Future Permanent – State Settlement in Jerusalem’, in Marshall J. Breger andora Ahimeir (eds), Jerusalem: A City and its Future (Syracuse Uniersity Press, 2001)175–222. See als, Daniel Reisner, ‘Peace n the Jrdan’ (1995) Justice 3. Article 9 fthe Peace Treaty further states that: ‘The Parties will act tgether t prmte interfaithrelatins amng the three mntheistic religins, with the aim f wrking twards religiusunderstanding, mral cmmitment, freedm f religius wrship, and tlerance and peace’.

60 This is an imprtant distinctin in the cntext f the freedm f religin. Incustomary international law, access to holy sitesis essentially limited solely to manifestations

f a religius belief, such as a mandated pilgrimage r t perfrm a particular requiredreligius ritual. This is arguably a mre narrw understanding f access as such whencmpared t the brad language f Article 9 f the Peace Treaty.

61 Sectin B(3) f the 29 July 2007 Washingtn Declaratin <www.mfa.g.il/MFA/Peace%20Prcess/Guide%20t%20the%20Peace%20Prcess/The%20Washingtn%20Declaration> accessed 30 April 2013. This sectin was nted in Article 9 f the PeaceTreaty, supra nte 204, where the parties expanded upn the language f the Declaratin.

http://www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/The%20Washington%20Declaration









b) VaticanAfter the signing f the osl Accrds,62 between Israel and the PalestinianAuthrity, the Cathlic Church med rapidly t cnclude an ‘“agreement’” frmutual recgnitin with Israel. on 30 December 1993, Israel and the Hly See 63

signed the Fundamental Agreement Between the Hly See and the State f Israel.64

The Fundamental Agreement states in Article 4 that:

1. The State f Israel afrms its cntinuing cmmitment t maintain andrespect the Status Quo in the Christian Hly Places t which it applies andthe respectie rights f the Christian cmmunities thereunder. The HlySee afrms the Cathlic Church’s cntinuing cmmitment t respect theaforementioned Status Quo and the said rights.

2. The abe shall apply ntwithstanding an interpretatin t the cntrary f

any Aarticle in this Fundamental Agreement.3. The State f Israel agrees with the Hly See n the bligatin f cntinuing

respect fr and prtectin f the character prper t Cathlic sacred places,such as churches, monasteries, convents, cemeteries and their like.

4. The State f Israel agrees with the Hly See n the cntinuing guarantee fthe freedm f Cathlic wrship.

The implicatin f this language, at s least as understd by Israel, is t the Status

Quo as it applies in the present, thereby incrprating the changes that hae ccurredunder Israeli rule, such as prayer at the Western Wall.65 Nnetheless, the ‘“respectie’”rights are meant as a limiting factr t be cnstrued as slely applying t the partiest the Fundamental Agreement. The Israeli gernment made it clear t the therreligius cmmunities in Israel that the Fundamental Agreement wuld nt sere asa basis fr changing the legal status f the ther Christian denminatins in Israel.

Nnetheless we shuld nte that the language ‘respectie rights f the Christiancmmunities’ in Article 4(1) applies t all the Christian cmmunities and ntmerely the Cathlic Church. Thus, in the Fundamental Agreement, the Hly Seeis nt nly sering in its capacity as a sereign entity, but als as a representatieof the various Christian communities.

62 Frmally referred t as: Declaratin f Principles n Interim Self-GernmentArrangements 13 September 1993, <www.mfa.g.il/MFA/Peace+Prcess/Guide+t+the+Peace+Prcess/Declaratin+f+Principles.htm> accessed 30 April 2013.

63 The vatican and the Hly See hae unique psitins in internatinal law. The Hly

See seres as the gernment f the vatican; entering int treaties n its behalf, and engagingin ther acts f diplmacy. Stephen E. Yung and Alisn Shea, ‘Separating State frmChurch: A Research Guide t the Law f the vatican City State’ (2007) Law Libr. J. 589.

64 (1994) 33 Int’l Legal Materials 153 (1994).65 See Lenard Hammer, ‘Israel’s Understanding f the Fundamental Agreement

with the Hly See’, in Marshall J. Breger (ed.), The Vatican Israel Accords: Political, Legaland Theological Contexts (Uniersity f Ntre Dame Press 2004) 67–79.

http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declaration+of+Principles.htm







Further, we shuld nte that the vatican signed a Basic Agreement with thePLo in February 2000 which states the fllwing as regards Jerusalem:

Calling therefre, fr a special status fr Jerusalem, internatinally guaranteed,which shuld safeguard the fllwing: a. Freedm f religin and cnscience frall; b. The equality befre the law f the three mntheistic religins and theirinstitutins and fllwers in the City; c. The prper identity and sacred characterf the City and its uniersally signicance, religius and cultural heritage; d.The Hly Places, the freedm f access t them and f wrship in them; e. TheRegime f the ‘Status quo’ in thse Hly Places where it applies.66

What Customary International Law Principles Might Apply?

a) Freedom of Religion and the Right of Accessone central aspect f custmary internatinal law regarding the hly sites in theold City is that f freedm f access t the sites. The principle basis fr that right faccess is Article 18 f the 1966 Internatinal Cenant n Ciil and Plitical Rights(ICCPR).67 Article 18 prides fr the right f access nly when exercised in thecntext f an actual manifestatin f a religius belief.68 The capacity t exercisethe right is the manifestatin f a religin r belief thrugh wrship, bserance, practice and teaching. Manifestatin implies an external actin cnducted pursuant

t the edicts f a religin r belief that mandates a particular frm f bserancer practice. Article 18 can als include prtectin fr places f wrship r practicewhen an indiidual r grup lays claim t a specic place f wrship as essential.69

otherwise, the right wuld be hllw. Thus, if the religin r belief mandates a

66 Lenard Hammer, ‘The Basic Agreement Between the Hly See and the PalestineLiberatin organizatin’, in Marshall J. Breger, The Vatican Israel Accords, p. cit., 195.

67 The 1981 Declaratin n the Eliminatin f All Frms f Intlerance and f

Discriminatin Based n Religius Belief des delineate the right smewhat, but it is at best a frm f sft law, being a General Assembly Reslutin. GA Res. 36/55, 25/11/81.68 Article 18(1) prides: eeryne shall hae the right t freedm f thught,

cnscience and religin. This right shall include freedm t hae r t adpt a religin r belief f his/her chice, and freedm, either indiidually r in cmmunity with thers andin public r priate, t manifest his/her religin r belief in wrship, bserance, practiceand teaching. Thus, a request by West Bank Christians t isit the Church f the HlySepulcher wuld t under this ‘right’, but the request f a Palestinian Muslim t isit friendsr relaties n the ther side f the ‘green line’ wuld nt, albeit such hliday isits may

well be part f lcal custm. Interiew with Bishp Munib Yunan, Eangelical LutheranChurch in Jrdan and the Hly Land, Jerusalem, 18 December 2007.69 Nte as well the nn-binding United Natins Declaratin n the Eliminatin f all

Frms f Intlerance and f Discriminatin Based n Religin r Belief, GA Res. 55, U.N.GAoR, 36th Sess., Supp. N. 51, at 171, UN Dc. A/36/51 (1981), at Article 6(a), whichincludes a right t wrship and assemble, as well as ‘t establish and maintain places frthese purpses’.




particular frm f practice at a gien hly site, access t the site shuld be upheld asa means f allwing fr the manifestatin f the right. The trigger, hweer, is theclaim t exercise the right, and nt the fact that the site itself deseres prtectin.

The Human Rights Cmmittee blstered this interpretatin f Article 18, byspecically including the prtectin f places f wrship within the mandate f theArticle. General Cmment number 22 at paragraph 4 states that places f wrshipfall within the rubric f Article 18, such that the right t manifest a religin r belief encmpasses the prtectin f places f wrship (gien their imprtancet the exercise f the right).70 It fllws that such prtectin wuld incrpratereligius places, sites and shrines.

The scpe f article 18’s prtectin, hweer, is limited t religius actiity thatis required by religius dctrine.71 Thus, the need t prtect religius bserancer wrship may require prtectin fr places f wrship. But it des nt prtect

the site fr the benet f the cmmn cultural heritage (althugh that culd bea secndary benet), but rather t ensure the right t wrship r t engage in aspecic religius ritual. By way f example, the Eurpean Curt f Human Rightswas cnfrnted with the matter f Greek Cyprits wh sught t isit hly sites in Nrth Cyprus.72 While the parties did nt make reference t freedm f religin(Article 9 f the treaty), the Curt held that denying access t religius sitesilated the human right t freedm f religin (althugh there was insufcient prf f such t make that nding in the case befre the Curt.).73

Nte that in the Internatinal Curt f Justice (ICJ) Adisry opinin f2004, The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,74 the ICJ understd Article vIII f the Jrdan-Israel

70 General Cmment N. 22: The right t freedm f thught, cnscience andreligin (Article 18), CCPR/C/21/Re.1/Add.4, 30 July 1993.

71 See fr example General Cmment Number 22, at paragraph 4, nting that wrshipfr example extends t ‘giing direct expressin t belief’.

72 25781/94 Cyprus v. Turkey (2001). Nte that a ariety f rights had been ilatedsuch as priacy, prperty and security.73 one shuld als cnsider the freedm f access and wrship prided by the 1994

Agreement n the Gaza Strip and the Jerich Area; see Agreement on the Gaza Strip and the Jericho Area between Israel and the Palestine Liberation Organization (Cairo Agreement),4 May 1994, UN Dc. A/49/180-S/1994/727 (Annex) f 20 June 1994, reprinted in 33I.L.M. 622 (1994), and the 1995 Israeli-Palestinian Interim Agreement n the West Bankand the Gaza Strip. Israeli-Palestinian Interim Agreement on the West Bank and the GazaStrip (Interim Agreement), K.A. 33, 1, reprinted in 36 I.L.M. 551 (1997) (excerpts). In

the 1995 Interim Agreement, mentin is made f the status f graes sacred t Jews in theterritries that were t be handed er t the Palestinian Authrity (that is, thse in AreaA). Accrding t the agreement, ‘The present situatin and the existing practices shall be presered’ (Article v, b). Similar cncerns are addressed in the 1997 Prtcl Cncerningthe Redeplyment in Hebrn. See Protocol Concerning the Redeployment in Hebron and Note for the Record , 17 January 1997, 36 I.L.M. 650 (1997).

74 Aailable at <www.icj-cij.rg/dcket/les/131/1671.pdf > accessed 30 April 2013.

http://www.icj-cij.org/docket/files/131/1671.pdf





Armistice Agreement as creating an nging bligatin n bth Israel andJrdan t guarantee freedm f access t the hly places.75 While the ngingreleance f the Armistice Agreement after the 1994 Jrdan-Israel Peace Treaty isunclear,76 ne can understand the Agreement as entrenching the right t access andacceptance by the parties inled f, at the ery least, a general right f accesst hly places in the old City.77 Mshe Hirsch ntes that the ICJ understd thebligatins cncerning access that deried frm the 1994 Peace Treaty as applyingt citizens frm third party states as well.78

b) Pilgrimageone frm f access at time mandated by a religin is pilgrimage. Pilgrimage culd beupheld as a manifestatin f belief when carried ut pursuant t a specic religiusdirectie. The Islamic Hajj fr example is an bligatry actin required by all Muslims

t cnduct at least nce in their lifetime. When cnsidered within the cntext ffreedm f religin, sme schlars hae cncluded that because the right f accessfr pilgrims is nt explicitly stated, a right as such des nt exist.79 Nevertheless,

75 Hirsch, supra nte 23, at 312.76 See fr example Shabtai Rsenne, Israel’s Armistice Agreements with the Arab

States: A Juridicial Interpretation (Blumstein Bkstres, Tel Ai, 1951) 24–6, nting thatarmistice agreements are temprary agreements t cease hstilities sering as a psitie

dcument that was meant t lead twards a mre frmalized agreement. Rsenne alsntes that such agreements usually g beynd cessatin f hstilities t include ecnmicand plitical cncerns. In the case f Israel, the Agreements were enisined as sering adenitie step twards a mre permanent peace. Id. at 41. See als H. Leie, ‘The Natureand Scpe f the Armistice Agreement’ 50 (1956) AJIL 880 (armistice agreements can be declared null by the parties t the agreement, and if there is a ilatin, ne side mayunilaterally nullify the agreement. The authr ntes that a peace treaty will als reme anarmistice agreement, referring specically, at 892, t the Israeli-Lebanese agreement as anexample). See generally Q Wright, ‘The Armistices’ 13 (1919) Am. Pol. Sc. Rev. 128.

77 Israel declared the Armistice Agreement as terminated fllwing the 1967 war,alledging that Jrdan had cmmitted acts f aggressin against Israel. See Y. Blum, ZinHas Been Redeemed in Accordance with International Law, 27 (1971) Hapraklit 315,320. Hweer, Article XII(2) f the Armistice Agreement deemed it t be in frce until a peaceful settlement between the parties is achieed, an eent that ccurred in 1994.

78 Mshe Hirsch, ‘The Impact f the Adisry opinin n Israel’s Future Plicy:Internatinal Relatins Perspectie’ (2005) Hebrew University International Law Research Paper 319, nting that the ICJ implied such an understanding cncerning third parties gienthe seemingly brad intentins f Jrdan and Israel, and the fact that the hly places play a

signicant rle fr a ariety f third parties external t the immediate states. Hirsch refers aswell t Article 36(1) f the vienna Cnentin n the Law f Treaties relating t bligatinst third parties that supprts the ICJ’s apprach. Custmary internatinal law will als playa factr regarding the right f access, as discussed infra.

79 See fr example Geffrey Watsn, ‘Prgress fr Pilgrims? An Analysis f the HlySee-Israel Fundamental Agreement’ in Marshall J. Breger, The Vatican-Israel Accords, p.cit., 203.




where the pilgrimage stems frm a specic religius requirement, there are strnggrunds t assert the custmary right f accesst isit specic hly sites.80

c) Destruction of Cultural HeritageThe prhibitin f destrying cultural heritage deries principally frm prhibitinsdeelped during times f cnict. Aside frm the 1954 Hague Cnentinfr the Prtectin f Cultural Prperty in the Eent f Armed Cnict,81 there

exist a number f prisins cncerning the destructin f cultural prpertyduring cnict. The 1874 Brussels Cnentin prhibits military actin against‘institutins dedicated t religin …’, hlding the parties respnsible fr markingtheir prtected landmarks and implying that there is n immunity if use f the areais fr military purpses.82 The 1880 Institute f Internatinal Law’s Laws f War nLand (referred t as the oxfrd Manual), which was meant t sere as a guidebk

that cdied the (then) custmary law, required that warring parties spare buildingsdedicated t religin, art r science. Bth the 1899 Cnentin with Respect t theLaws of Custom of War on Land83 and the 1907 Hague Cnentin with Respectto the Laws and Customs of War on Land84 impse a similar requirement.85 The

1923 Hague Cnentin n the Rules f Air Warfare, althugh neer ratied, prides prtectin znes arund buildings dedicated t public wrship at Articles25 and 26, prided they are nt used fr military purpses.

Attentin shuld be paid t the effrts f UNESCo t impact n cultural

prperty and (by deriatin) hly places issues in Jerusalem. Deplying the ‘sft

80 Mshe Hirsch, ‘Freedm f Pilgrimage t Christian Hly Places in Jerusalem underInternatinal Law’ in Ruth Lapidth and ora Ahimeir (eds), Freedom of Religion in Jerusalem

(Jerusalem Institute fr Israel Studies, 1999); Arct Krishnaswami, ‘Study f Discriminatinin the Matter f Religius Rights and Practices’ (1978) N.Y.U.J. Int’l L. & Pol. 227; but see Peter W. Masn, ‘Pilgrimage t Religius Shrines: An Essential Element in the Human Rightt Freedm f Thught, Cnscience, and Religin’ (1993) Case W. Res. J. Int’l L. 619.

While nt establishing a legal right, Article 5 f the Fundamental Agreement requiresthat ‘(t)he Hly See and the State f Israel recgnize that bth hae an interest in faringChristian pilgrimages t the Hly Land’. Fundamental Agreement between the Hly Seeand the State of Israel, Acta Apostolicae Sedis 86 (1994).

81 1954 Hague Cnentin, op. cit.82 See <www.culturalplicycuncil.rg/Laws%20and%20Cnentins/1874%20

Brussels%20Delaratin.htm> accessed 30 April 2013. See als United States Lieber Cdef 1863 that referred t a prhibitin f harming cultural prperty, US War Department,General order Number 100, Instructins fr the Gernment f the Armies f the United

States in the Field, reprinted in The Laws of Armed Conict, 4th editin, eds D. Schindlerand J. Tman (Brill 2004).83 T.S. N. 403 (32 Stat. 1803).84 T.S. N. 539 (36 Stat. 2227).85 Nte that Israel cnsiders the 1907 Cnentin t reect custmary internatinal

law. The Cnentin nly applies t instances f internatinal armed cnict, unlike the1954 Hague Cnentin, discussed supra, t which Israel als is a party.

http://www.culturalpolicycouncil.org/Laws%20and%20Conventions/1874%20Brussels%20Delaration.htm







law’ f the Hague Cnentins as well as the Wrld Heritage Centre, UNESCohas sught t prtect cultural prperty in Jerusalem that it cnsiders ‘the cmmnheritage f mankind’.86

While the Palestinians ften pint t the cultural prtectin jurisprudence as asurce f legal prtectin, ne shuld nt put t much weight n these effrts asIsrael has shwn a clear ‘reluctance t cnsider a rle t UNESCo in the ld city’.Indeed, Israel has generally ‘refused t allw inspectin teams t isit the city r tmeet with respnsible fcials’.87 In any event, the UNESCO treaties have little,

if any, enfrcement pwer.88

How are Holy Sites Disputes Adjudicated?

on 25 July 1924 the British prmulgated an order in Cuncil stating that ncause r matter in cnnectin with hly places r religius buildings r sites, pursuant t a site’s histrical releance and the degree f eneratin accrdedt it by humankind in general,89 shall be heard r determined by any curt inPalestine.90 The order in Cuncil referred all matters regarding the hly placest the High Cmmissiner, ‘pending the cnstitutin f a Cmmissin charged

86 The term is drawn frm the preamble t the 1954 Hague Cnentin: Cnentin

fr the Prtectin f Cultural Prperty in the Eent f Armed Cnict, The Hague, 24 May1954 op.cit. The term is pen-textured and has been said t refer t the shared heritage aswell as t heritage imprtant t cultural heritage.

87 Michael Dumper and Craig Lerkin, ‘The Plitics f Heritage and the Limitatin fInternatinal Agency in Cntested Cities: A Study f the Rle f UNESCo in Jerusalem’sold City’ (2012) Review of International Studies 32.

88 While nt in Jerusalem, we shuld at least nte the 2011 dispute er PrimeMinister Netanyahu’s designatin f Rachel’s Tmb in Bethlehem and Jseph’s Tmb in Nablus as Israeli Natinal Heritage sites. B. Netanyahu, Prime Minister, State f Israel,

Address by PM at Herzliya Cnference: ‘The only Way t Achiee Peace is t BeginCnducting Negtiatins Twards a Peace Settlement’, 3 February 2010. Transcript nlineaailable at <http://mfa.g.il/MFA/Gernment/Speeches+by+Israeli+leaders/2010/PM_Netanyahu_Herzliya_Cnference_3-Feb-2010.htm> accessed 30 April 2013; Chaim

Leinsn, ‘Netanyahu: West Bank Sites Added t Natinal Heritage List’ (2010) Haaretz.com <www.haaretz.cm/news/netanyahu-west-bank0sites-added-t-natinal-heritage-list-1.266037> accessed 30 April 2013. UNESCo ppsed this designatin in reslutinsthat underscred that they were/are Islamic heritage sites and ignred their Jewish past.vérnique Chemla, ‘Israel and UNESCo’ (2010) American <www.americanthinker.

cm/2010/11/israel_and_unesc.html> accessed 30 April 2013. The Netanyahu designatinis analysed (frm a Palestinian perspectie) in Kimberly L. Alderman, ‘The Designatin fWest Bank Msques as Israeli Natinal Heritage Sites: Using the 1954 Hague Cnentint Prtect Against In Situ Apprpriatin f Cultural Sites’ (2011) Creighton L. Rev 799.

89 See fr example Marlen Erdegian, ‘British and Israeli Maintenance f the StatusQu in the Hly Places f Christendm’, p. cit., 310.

90 Article 2 f Palestine (Hly Places) order in Cuncil, 1924.

http://mfa.gov.il/MFA/Government/Speeches+by+Israeli+leaders/2010/PM_Netanyahu_Herzliya_Conference_3-Feb-2010.htm


http://www.haaretz.com/news/netanyahu-west-bank0sites-added-to-national-heritage-list-1.266037


http://www.americanthinker.com/2010/11/israel_and_unesco.html











with jurisdictin er the matters set ut in the said Article’.91 While the British

adhered to the Status Quo fr the e key Christian sites, it is imprtant t ntethat the Mandatry pwer understd hly places in a brader sense than the 1757and 1852 ottman rmans and that they extended similar frms f prtectin andeneratin fr arrangements made at the Wailing Wall and Rachel’s Tmb.92

The practical meaning f the 1924 order tday is that decisins abut hly places issues nt directly addressed in Israeli law are made by the ExecutieBranch.93 As Prf. Ruth Lapidth has written:

… the 1924 Palestine (Hly Places) order in Cuncil is still in frce exceptwhere it has been superseded by later Israeli legislatin, like the 1967Protection of the Holy Places Law. Therefore, the courts will not rule on

questins f substantie rights r claims t ‘Hly Places, religius buildings,

r sites’. Similarly, in principle, curts d nt cnsider themseles authrizedt adjudicate n matters related t the right t wrship at Hly Places. It isthe gernment that is authrized t deal bth with disputes abut rights tHly Places and with the mdalities f wrship … on the ther hand, thecurts cnsider themseles authrized t deal with all matters mentined inthe Prtectin f the Hly Places Law, 5727–1967, namely, prtectin againstdesecratin, against ilatin f freedm f access, and against the ffendingf the feelings f the members f a cmmunity with regard t the place that is

sacred fr them. The curts are als authrized t deal with criminal ffenses inrder t presere public rder at the Hly Places. Een where a dispute actuallyrelates t claims r rights t a Hly Place, the curts may interene in rder trestre pssessin t a cmmunity if it had been depried f this pssessin by a recent act. The reasn fr this rule is that the curts hae an bligatin t presere law and rder.94

Examples f recent use f the order in Cuncil can be seen in the dispute betweenCpts and Amharics er a prtin f the church f the Hly Sepulchre wherethe gernment tk the dispute ut f the Curt and cnsigned it t a cmmitteewhich has met twice in the last 40 years.95 Anther example is the dispute er

91 The Palestine (Holy Places) Order in Council , 25 July 1924, reprinted in Enrico

Molinaro, Negotiating Jerusalem (annex 2, PASSIA Publicatin 2002).92 Marlen Erdegian, ‘British and Israeli Maintenance f the Status Qu in the Hly

Places f Christendm’, p. cit., 311.

93 The 1967 Prtectin f the Hly Places Law states at sectin 3 that the law is t‘add t, and nt dergate frm, any ther law’, implying as well the nging applicatin fthe Order in Council.

94 Ruth Lapidth, ‘Freedm f Religin and Cnscience in Israel’, in Marshall J.Breger (ed.), The Vatican-Israel Accords, p. cit., 249.

95 The tale is tld in W. Zander, Jurisdictin and Hliness: Reectins n the Cptic-Ethipian Case, Israel L. re. vl. 17, n. 3, pp. 245-73 (1982).




Nachmanides’ Cae in East Jerusalem where the gernment created a cmmitteef experts wh prepared a reprt denminating the Cae a hly place.96

The Question of Freedom of Access to Holy Sites

As nted earlier, the 1967 Prtectin f Hly Places Act prtects access t hlysites fr religius purpses. The difculty cmes when there are cmpeting claimst a hly site and cmpeting (as ppsed t supplemental) rites used by a specicreligin at that hly place. At that pint there are cmpeting claims f access thatmust be negtiated.

There are many examples f this in Jerusalem. Muslims claim that Jews cannt pray n the Haram withut desecrating its hliness fr Muslims. orthdx Jews

claim that Jewish wmen wh wish t pray with a public qurum at the Walldesecrate that hly place. Christian sects battle er which rite t use at what timein the Church f the Hly Sepulchre.

The legal prblem is that the Prtectin f Hly Places Law bth prtectsaccess and prhibits desecratin. In the Haram example the prtectin f its sacredcharacter fr Muslims may require excluding Jews frm prayer (if nt mre).

The prblem has been naigated by administratie judgments as t whcntrls the sacred character. Thus as the rabbi f the Western Wall is orthdx, it

is the orthdx Jewish rite that cntrls there.A secnd issue is: what is desecratin? The Supreme Curt has interpreteddesecratin as turning smething hly int secular, such that, fr example, buildinganther msque n the Temple Munt was nt cnsidered a desecratin t Judaismsince Muslims hae always prayed there.97 It is, further, nt clear legally hw weaddress desecratin. Is it nt physical damage r sme ther criteria that can be‘bjectiely’ determined? or at what pint d yu lk t subjectie sensibilitiesin determining desecratin?

Israeli dmestic law cncerning the right t prayer is particularly releant whendiscussing access t the Temple Munt. Frm a dctrinal perspectie the SupremeCurt has expanded its jurisdictin t include the right t prayer as part f the rightof access.98 As Justice Izhak Englard suggested, curts hae shifted idelgicallyfrm rejecting utright an enfrceable right t pray n the Temple Munt, t therecgnitin f an abstract right subject t the needs f public rder. Thus, in nerecent case, Gershon Solomon v Yair Yitzchaki, the Supreme Curt wrte, ‘The petitiner, like any ther persn in Israel, enjys the freedm f cnscience, belief,religius bserance and practice. This framewrk prides him with the priilege

96 See text at ntes 133-188 infra.97 7128/96 Temple Mount Faithful v. State of Israel 51(ii) PD 509 (1997).98 See fr example 292/83 Temple Mount Faithful v. Commander of Police 38(ii) PD

449 (1984) where the curt ntes that the right t wrship is a basic human right, subject tcertain limitatins based n public rder and security.




f gaining access t the Temple Munt fr purpses f wrship’.99 In principle,then, Jews hae the right t pray n the Temple Munt but it is understd as alimited frm f this right,100 especially when weighed against the danger t publicsecurity.101

Accrding t this iew, the law wuld ensure access cntingent upn anexecutie (that is, plice) decisin that permitting access wuld nt cause a breakdwn in public rder. The questin is, f curse, what cnstitutes publicrder. The curts hae generally taken a ery deferential iew f leaing it tthe judgment f the plice. Thus, public rder cnsideratins hae included ntnly exigencies f the mment (fr example, the inability t prtect wrshippersat the time f the request), but als deference t plice pririties regarding thedeplyment f plicefrces thrughut the city.102

99 3374/97 Gershon Solomon v. Yair Yitzchaki, Ofcer in Charge of East Jerusalemand the Israeli Police(decided 10 June 1997) (in Hebrew) online <http://elyn1.curt.g.il/les/97/740/033/E03/97033740.e03.pdf > accessed 30 April 2013.

100 See fr example 2697/04 Solomon v. Commander of East Jerusalem 58(4) PD572 (2004), 67/93 Kach Movement v. Minister of Religion 47(2) PD 1 (1993).

101 4776/06 Solomon v. Commander for East Jerusalem (unpublished, decided28/12/06) (must balance right f prayer against a justied limitatin fr public securitycncerns). Nte as well The Prtectin f Hly Places Law f 1967 that prides fr free

access in Article 1: the Hly Places shall be prtected frm desecratin and any therilatin and frm anything likely t ilate the freedm f access f the members fthe different religins t the places sacred t them r their feelings with regard t thse places. (<www.mfa.g.il/mfa/peace%20prcess/reference%20dcuments > accessed 30April 2013). Additinally, there are jurisdictinal limitatins impsed n the Curt as aresult f the Mandate Law. See fr example 10450/07 Temple Mt. Faithful v. Police andothers (unpublished, decided 12 Nember 2007) (Curt refrained frm deciding whethermement can light Hanukah candles n the Temple Munt due t lack f jurisdictin),8666/99 Temple Mt. Faithful v. Attorney General 54(1) PD 199 (2000), 7128/96 Temple Mt.

Faithful v. Government 51(2) PD 509 (1997).102 Similar cnsideratins are made when addressing the issue f digging n theTemple Munt by the waqf authrities. Cupled with the issue f jurisdictinal limitatinsimpsed n the Curt as a result f Mandate law and gernmental plicy cncerningthe waqf ’s cntrl f the area, the Curt als defers t the releant authrities includingthe plice and the Antiquities Authrity. 8666/99 Temple Mount Faithful v. A. Rubisnteinand Others (decided 11/1/2000) (Justice Cheshin nting as well the need fr deferencet the gernment as the Curt is an inapprpriate place fr these decisins), 1868/07Temple Mount Faithful v. Government and Others, unpublished decisin, decided 4/6/07)

(curt recgnized presence f archelgists wrking with waqf t superise digs). In 2007,when Israeli Prime Minister Ehud olmert granted waqf fcials permissin t cnductexcaatins under the Al Aqsa Msque t install new electrical and telephne cables in themsque, Israeli archelgists expressed utrage. See Aarn Klein, ‘olmert allws Muslimst dig n Temple Munt’ (2007) WrldNetDaily <www.wrldnetdaily.cm/news/article.asp?ARTICLE_ID=56626> accessed 30 April 2013. They claimed that digging the trenchilates prfessinal standards fr such a sensitie histric site. The Cmmittee Against

http://elyon1.court.gov.il/files/97/740/033/E03/97033740.e03.pdf


http://www.mfa.gov.il/mfa/peace%20process/reference%20documents

http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=56626




http://www.mfa.gov.il/mfa/peace%20process/reference%20documents






The Western Wall

The Western Wall is cnsidered ne f the hliest places in Judaism as it was fryears the clsest space t the Temple accessible t Jews. Archelgists beliee itt be a retaining wall f the Temple.

Jews were allwed t pray (albeit with restrictins) at the Wall under theottmans and under the British Mandate. While Jerusalem was under Jrdaniancntrl (1948–67) they were frbidden access. In 1967 after Israel’s cnquest fJrdan, 135 buildings acrss frm the Wall in the Mugrabi Quarter were razed anda plaza built t accmmdate wrshipers.

During the Mandate, the Waqf initially kept the keys t all f the gates faccess, including the Mugrabi Gate (and charged nn-Muslims entrance fees, animprtant cmpnent in Waqf incme), and maintained autnmus cntrl er

mst f the Haram. This situatin changed abruptly in August 1967, when thesldiers f the IDF rabbinate tried t enter the Munt ia the Mugrabi Gate inrder t access a small fce they had established n the edge f the Munt, nlyt nd the gate lcked. In reactin t this incident, Mshe Dayan rdered the keyst the Mugrabi Gate cnscated, and turned them er t the Israeli plice. Accessthrugh the Mugrabi Gate has remained in Israeli hands eer since.

Regulatins were prmulgated in 1981 designating the Western Wall plaza(the Kotel ) as a hly place under the 1967 Prtectin f Hly Places Law and

detailing the rules f behaiur there. The regulatins appinted a rabbi t be incharge f the Wall.103

Hweer in 1989 after a wmen’s grup, Wmen f the Wall (WoW), begant pray in a public qurum at the Western Wall, the Ministry f Religius Affairsamended thse regulatins t expressly ‘prhibit the cnduct f a religiusceremny which is nt accrding t the custm f the place and which injuresthe sensitiities f the wrshiping public twards the place’.104 The Women of the

Wall were cnsigned t a far crner f the Wall (Rbinsn’s Arch) as the Wall andattendant plaza are run n orthdx religius lines.

It shuld be nted that in ne sense the legal status f the Western Wall isunclear. While it is clearly a hly place, it has custmarily been cnsidered a

the Destructin f Antiquities n the Temple Munt petitined the High Curt f Justice tinterene, claiming the dig was being carried ut at night t cclude prper archaelgicalinspectin. Id. See als Nada Shragai, ‘The Latest Damage t Antiquities n the TempleMunt’ (2008) Jerusalem Center fr Public Affairs <www.jpca.rg/JCPA/Templates/

Shwpage> (accessed 30 April 2013) nting the dismissal f the petitin.103 Ketz Takant 4252 frm 16/7/81, at 1212 (in Hebrew).104 The Regulatin n the Prtectin f Sacred Spaces fr the Jewish Peple

(Amendment), Ketz Takant 5237 frm 1989 (in Hebrew), at 190, which added in thewrding ‘which is nt accrding t the custm f the place’. See als, Ruth Halperin-Kaddari, ‘Wmen, Religin and Multiculturalism in Israel’, (2000) UCLA Journal of International Law and Foreign Affairs 358.

http://www.jpca.org/JCPA/Templates/Showpage







natinal shrine. Thus, IDF fcers, as example, are swrn in in frnt f theWall. This issue has becme releant in tensins between the sanctity andcustm releant t an orthdx hly place and the mre inclusie requirementsf a public r natinal scheme. one recent example can be seen in the recentdemand by the Rabbi f the Western Wall that the citizenship ceremny fr newimmigrants traditinally held at the site be gender segregated in accrdance withJewish law.105

Furthermre, its wnership status is shruded. The Wall itself is wned bya waqf . Hweer, in 1931 the British determined that there was an easement,allwing Jews t pray under specied cnditins.106 After the 1967 War, Israelexprpriated the area adjacent t the Wall (Mughrabi Gate) t build the WesternWall Plaza.107 And after 1967 Israel created a Western Wall Heritage Fundatint manage the Wall and the plaza next t it.

Adjacent t the Wall is the Western Wall Tunnel built by the Western WallHeritage Fundatin. The waqf sees the tunnel as anther step f changingthe Status Qu, anther frm f cntrl. Mst imprtantly, they als see it asendangering the different Islamic buildings abe and a frm f cnqueringthe undergrund f the Haram al-Sharf. Cnersely, Israel sees this as a way texplre the histry f undergrund Jerusalem and t assert Jewish identicatinwith the Temple Munt.

It shuld be nted that the Western Wall is als a hly site fr Muslims as by

traditin it is the place where the Prphet’s hrse Baraq was tethered during hisnight jurney. While in principle Muslims are nt frbidden frm access t theWall, in practice they are likely t be frbidden by security persnnel.

105 Chaan Liphsiz, ‘Immigrant grups decry sex segregatin at Western WallCitizenship Ceremnies’, Haaretz (Tel Ai, 25 September 2009). The Jewish Agencymed the ceremny t the curtyard f the Jewish Agency, Press Release, The Jewish

Agency fr Israel, 2000 New Immigrants n 7 ights arrie frm arund the wrld n neday, 13 octber 2009. The ceremny was resumed at the kotel some months later, The

Jewish Agency fr Israel, Press Release, 10,000 New Immigrants Arriing in Israel thisweek frm all er the Wrld organized by the Jewish Agency fr Israel, 27 July 2010. Theissue was bth whether the Western Wall was a religius r natinal site and whether thecitizenship ceremny was a religius r natinal eent.

106 Reprt f the Cmmissin appinted by His Majesty’s gernment in the UnitedKingdm f Great Britain and Nrthern Ireland, with the appral f the Cuncil f theLeague f Natins, t determine the rights and claims f Muslims and Jews in cnnectin

with the Western r Wailing Wall f Jerusalem (Lndn HMSo 1931).107 Shlm Berkitz ntes that: ‘In the map f the exprpriatin rder, and I’m ntsure hw this happened, the bttm meter f the Wall, that is, its base, is included fr thelength f 140 meters, which includes all the prayer space at the ft f the Wall and thearchaelgical excaatins there. Hweer, legally and frmally, the remaining prtinf the Wall still belngs t the Waqf’, quted in Aryeh Dean Chen, ‘Whse Wall Is ItAnyway?’ Jerusalem Post (Jerusalem, 21 Nember 1997) 3.




The Temple Mount/Haram al Sharif

Fr Palestinians the Al-Haram al-Sharif has been an Islamic hly site since the7th century AD, and een the Israelis d nt questin its hliness t Muslims. Inadditin t its distinct religius status t Muslims, it includes unique and histricalexamples f Islamic architecture. Since 1967, al-Haram al-Sharif was nt nly thehliest place fr the Palestinians in Palestine, but als an imprtant symbl frtheir cntinued presence in the city in particular, and n the land f Palestine ingeneral. Al-Haram was als a symbl f the spiritual and natinal relatin, whichlinked the Diaspra Palestinians t their hmeland.

Fr Jews, the same site is where the Slmn and Herdian Temples (the Firstand the Secnd Temple) were lcated. The Secnd Temple was destryed in 70 AD by the Rman Titus, and remained in ruins until Umar Bin al-Khattab (the secnd

Caliph f Islam) built the al-Aqsa Msque. orthdx Jews beliee that it wasdestryed as a punishment fr the Jewish peple disbeying Gd. Cnsequently,the site is s sacred that the erwhelming majrity f rabbinic pinin has ruledthat the site may nt een be isited.108 Hweer, a grwing minrity f bthreligius and secular aspire t nt nly isit the Munt, but t cnduct prayers andeen t establish a synaggue n its periphery. Thse indiiduals see isits t theTemple Munt as an expressin f Jewish natinalism, fr example sereignty ntnly er the Temple Munt. but er the entire land f Israel.109 others see Jewish

actiity at the Munt as a cnditin precedent fr the cming f the Messiah.As early as 1968, the Israeli Supreme Curt has recgnized the Jewish rightf access t the Temple Munt, but has cnsistently placed the authrity t allwsuch isits (particularly fr the purpses f prayer) in the hands f the pliceThe plice hae cnsistently denied access altgether in times f tensin, andcmpletely denied access fr purpses f prayer. This has becme the subject f perennial lawsuits.

While Israel claims sereignty er the Temple Munt, this sereignty is ntrecgnized by the Muslim waqf authorities. Security issues aside, the waqf manages

108 Yair Ettinger, ‘Prminent Rabbi t Peres: Jews Frbidden n Temple Munt’, Jerusalem Post (Jerusalem, 8 octber 2009).

109 See fr example the recent (25 octber 2009) religius Zinists meeting inJerusalem calling fr Jews t ascend the Temple Munt: participants urged Jews t ascendthe Temple Munt and disregard the prhibitins f the ‘fcial’ religius establishment.They were urged t prtest at ‘the injury caused t the rabbis’ dignity by the inspectinsat the entrance t the site’. The gathering was hsted by the organizatin fr Human

Rights in the Temple Munt, directed by Yehuda Glick, wh has been encuraging Jewishascent t the Temple Munt fr years and endeauring t prepare the ritual templeutensils. Yair Ettinger, ‘Religius Zinist Rabbis: Ascend the Temple Munt’, Haaretz (Tel Ai, 26 octber 2009); Kbi Nahshni, ‘Jews Urged t visit Temple Munt DespitePrhibitins’ (2009) Ynet <http://www.ynetnews.cm/articles/0,7340,L-3795054,00.html>accessed 30 April 2013; Ri Sharn and Rni Malul, ‘Tnight: Rabbinical Gathering tPrmte Ascent t the Temple Munt’, Ma’ariv (Tel Ai, 25 octber 2009) (Hebrew).




the prperty accrding t its wn regulatins within the framewrk f Israeli law. Thusthere is n Israeli presence n the Munt itself except fr a small inbtrusieIsraeli plice pst. Israel des, hweer, cntrl access t the Munt itself. And Israelisecurity ften seerely limits Palestinian access t married men er 40 (r 45)fr security reasns. In perids f high tensin, Jewish isitrs are barred as well.And Israeli law prhibits the waqf frm preenting Jews access althugh it defersto the waqf’s restrictin f Jewish prayer n the Munt (fllwing deference t thereligius custm f the place as interpreted by the religius authrities in charge).Thus, Jews can enter but any indicatin f prayer (use f prayer shawls, phylacteries,r physical indicatins such a bwing and s n) will result in ejectin r een arrest.

The waqf which manages the haram is itself controversial as control was

disputed by bth the PLo and Jrdan. As it presently stands the waqf is controlled

by Jrdan which pays the salaries f waqf emplyees.

one area f signicant cntrersy is the questin f archaelgical excaatins by the Waqf : in recent years they hae refused t liaise with Israeli archaelgyfcials. one such cntrersial excaatin was the excaatin f Slmn’sStable, an undergrund area used by the Crusaders as a stable fr hrses whichwas turned int a Muslim prayer hall. Jewish grups cmplained that the Waqf was

ilating Israeli archaelgy law. The Israeli Supreme Curt fund the issue t bedelegated t the Executie Branch under the 1924 order in Cuncil and refusedto intervene.110 Cntrersy amng the Israeli public cntinues because f claims

that Jewish archaelgical cnnectins t the site hae been destryed.At the same time, Muslims are cncerned with Israeli archaelgical ‘digs’adjacent t the Temple Munt. In 2006 the Israeli Antiquities Authrity, in partnership with the Western Wall Heritage Fundatin, began excaatinapprximately 100 metres west f the Temple Munt.111 Archelgists unceredremains frm the First Temple perid, including presered walls f buildings,an rnate persnal seal and pttery decrated with ancient Hebrew script.112 The

‘salage expeditin’ was carried ut ahead f the planned cnstructin f theWestern Wall Heritage Generatins Center.113 The state-f-the-art turist centreat the Western Wall tunnels incrprates ancient and mdern Jewish histry andincludes a light shw highlighting disceries f Jewish ruins.114

110 See Temple Munt Faithful – Amust al et al. v. Attorney-General, Inspector-General of the Police, Mayor of Jerusalem, Minister of Education and Culture, Directorof the Antiquities Division Muslim Waqf (23 September 1993) translated at 45 CatholicUniversity Law Review 861 (1996).

111 News Press, ‘Building remains frm First Temple perid expsed west f TempleMunt’ (2008) WL 5407118.112 Id.113 Etgar Lefkits, ‘First Temple remains uncered in dig near Temple Munt’,

Jerusalem Post (Jerusalem, 17 March 2008).114 Etgar Lefkits, ‘Israel denies Temple Munt excaatin’, Jerusalem Post

(Jerusalem, 3 January 2006).




Anther area f cntrersy cncerns prpsals t rebuild a ramp at theMughrabi Gate leading up t the Temple Munt. It is alleged that prpsals trebuild the ramp (which has partially cllapsed) threatens arius Muslim prayerspaces and has ccasined prtests by UNESCo as well as ther Arab states, particularly Jrdan.

Church of the Holy Sepulchre

The Church f the Hly Sepulchre, cnsidered by Cathlics as the site f thecrucixin, has lng been a place f legal (as well as actual) cntrersy. Itis ‘wned’ by a Christian waqf but is effectiely ‘shared’ by arius Christiandenminatins under the s-called Status Quo. The keys t the church are kept by

ne Muslim family and the daily pening f the church was entrusted t antherfamily.115

Cntrl f the Hly Sepulchre, is shared between three Christian denminatinsr ‘cmmunities’, the Greek orthdx, the Rman Cathlics and the Armenians,all f whm hae rights f bth pssessin and usage. Three additinal sects, theCpts, the Ethipians and the Syrian orthdx, are called ‘the minr cmmunities’and hae rights f usage but nt pssessin. The Prtestants came t late t the party and, in any eent, beliee that mst f the eents cmmemrated at the Hly

Sepulchre really tk place at the Garden Tmb, utside the old City walls.The Christian sects dispute er eery aspect f their rights under theStatus Quo. one such dispute is currently being fught ut befre the SupremeCurt, cncerning cntrl er the Hly Fire Ceremny in the Church f the HlySepulchre. The parties in dispute are the Greek orthdx Patriarchate and theArmenian Patriarchate.116

Fr years the Christian cmmunities were unable t cme tgether n repairs fthe Church f the Hly Sepulchre.117 It tk mre than twele 12 years t agree t paint the dme f the rtunda. only when Gerge Dty, a Cathlic philanthrpistfrm New Yrk ffered t frnt the bill and ther denminatins accepted was thematter resolved.118 Fr years Israeli authrities had sught t secure permissin

115 Simn Gldhill, Jerusalem: City of Longing (Harard Uniersity Press 2008)12–13.

116 See The Armenian-Patriarchy of Jerusalem v. the Government of Israel, HCJ633/05.

117 See Lisa Petzw, ‘Hly Squabbles’, Jerusalem Post Magazine (Jerusalem,

1 April 1994) 6, describing the territrial battles amng the six religius denminatinshoused in the church.

118 See, Mary Curtius, ‘Hly Sepulcher Church Paint Jb an Act f Faiths’, Los Angeles Times (Ls Angeles, 15 April 1995) A1; see als Michael Krikrian, ‘A SimpleCrss Ends Decades f Diisin’, Los Angeles Times (Ls Angeles, 30 December 1995) B4.Haim Shapir, ‘Hly Sepulchre Cupla Uneiled After 68 Years Under Wraps’, Jerusalem Post (Jerusalem, 3 January 1997) 15, 20. only after seeking the assistance f the Pntical




t build a re exit fr safety purpses. While they almst succeeded t frge anagreement fr such an exit, but as f tday there is still n agreement. 119

There is pen and unfettered access t the Church fr residents f Israel andfr turists. Access fr Palestinian Christians liing beynd the Green Line islimited t persns hlding Israeli entry permits, which in practice seerely limitsPalestinian Christian access.

Other Holy Sites in Jerusalem

Muslim Sites

Muslim hly places are in general wned by religius waqfs.120 On occasion they

are wned by priate r family waqfs.121 Specied Muslim msques in Jerusalemare likely t be prtected in part because there were few msques in Jewish WestJerusalem befre 1948 and largely thse in Arab East Jerusalem were mst likelyneer abandned. There are tw signicant exceptins. The rst is msques andMuslim hly sites in the Jewish Quarter as the land there, after 1967, was handeder t the Cmpany fr the Redeelpment and Rerganizatin f the JewishQuarter for reconstruction.

The secnd is the Mamilla Cemetery, a large cemetery in West Jerusalem, the

bulk f which is nw a public park. Befre building the park, the city f Jerusalemin the 1960s arranged fr the cemetery t be declared abandned by a ‘friendly’Qadi in Haifa. The matter was rekindled when the Simon Wisenthal Center of Los

Angeles receied permissin t build a Museum f Tlerance n prperty whichit turned ut had been part f the cemetery (the cnstructin dug up numerus bnes). While the Israeli Supreme Curt has appred the prject, it remainshighly cntrersial, nt the least because f the museum’s purpse.122

Missin fr Palestine, a scial serices rganizatin, was Dty able t secure the agreementf all the religius ‘stakehlders’ t begin the restratin. See Grazian Mtta, ‘JerusalemBasilica’s Dme Is Restred’, L’Osservatore Romano (weekly, vatican City, 8–19 February1997) 8.

119 See, Debrah Sntag, ‘At Rien Hly Sepulchre, Anxiety as Crwds Lm’, New York Times (New Yrk, 1 December 1999); Mtti Friedman, ‘Religius Plitics FilFire Exit at Hly Sepulchre’, USA Today (Tysns Crner, 20 April 2011).

120 Islamic Endwment (Waqf ): the Islamic Endwment hlds 717 real prpertyunits in the old City; 19.2 per cent f the real prperty in the ld city including 98 units

inside al-Haram Al-Sharif.121 Family Endwments/Waqf Thuri (Islamic): they number 1,212 in the old Citywhich cnstituted apprximately 32.6 per cent f endwments. Sme f these familyendwments are administered by the Islamic Endwment Department either frm thefamily itself, or the actual revenues from these endowments.

122 The Muslim perspectie n this cntrersy is well laid ut in Sheik Ahmed Nafour, Battle Over Muslim Cemeteries in Israel and in Marshall J. Breger, Yitzhak Reiter,




Christian Sites

a) The CenacleThe Cenacle situated n Munt Zin is cnsidered t be the site f the Last Supper.In 1552, the prperty was taken frm the Franciscans and handed er t a Muslimfamily waqf . After 1907 the prperty came under Israeli cntrl as the Muslimwaqf was cnsidered abandned prperty under the Abandned Prperty Laws.The Church maintained an easement er the s-called Upper Chamber n certainChristian hldings. The vatican is negtiating fr the return f, r at least use f,the Cenacle. The matter is cntrersial as the Cenacle is part f Munt Zin, asite sacred t Jews where traditin claims King Daid is buried. Munt Zin isals site t the Diaspra Yeshia which seeks use f all f the land fr its wn purpses.

The Tmb f Daid has been held fr generatins befre the 1948 war by theDajani family and recgnized as a Muslim religius waqf . The Israeli ictry in 1948created a new reality with cmplex legal and practical prblems. During the 1948War and fr sme mnths thereafter, the Munt Zin area, including King Daid’sTmb, was a clsed military zne t which free access was nt permitted. Actiity inthe area was administered by the military rabbinate in increasing cperatin withthe Ministry f Religius Affairs which tk er the site at the end f 1949.

b) German Church of St Mary’sThe German Church f St Mary’s, lcated in the old City Jewish Quarter, wasleased in perpetuity t the Aish Hatorah Yeshia in 1999 thrugh the Jewish QuarterDeelpment Agency (hereinafter: Agency) withut any frm f ersight.123 The

lease was successfully challenged and reked befre the Israel Supreme Curt,124

n the grunds that the Agency was established as a gernmental crpratin tsere a public purpse.125 As such, the lng-term lease is cntrary t public plicyand was declared id. The central grund fr the Curt’s decisin was that the sitewas a particularly imprtant and unique histrical site that shuld nt be altered.126

Fr the Agency t allw a priate Jewish bdy like Aish Hatorah t build a Jewish building n a nted archelgical site was cntrary t its underlying purpse.127

& Lenard Hammer, eds., Sacred Space in Israel and Palestine: Religion and Politics

(2012) 168–192.123 See Hot Property, Jerusalem Post , 21 July 2006 at p. 27, cl. 1 The Attrney

General ehemently ppsed the lease, supprting a challenge raised by the Jerusalem

Fundatin, n the grunds that the lease had inherent administratie deciencies as theAgency acted ultra vires and in an unreasnable manner.124 4290/00 Jerusalem Foundation v. Prime Minister and Others, decision of

26/6/06, unpublished decisin.125 Id. at para. 13.126 Id. at para. 16.127 Id. at para. 17–18.




Jewish Sites

a) Old City SynagoguesA 1967 Israeli gernment reprt listed 70 destryed synaggues in the old City,mst f them in the Jewish Quarter. The Quarter is cntrlled by the Sciety frthe Deelpment and Rerganizatin f the Jewish Quarter 128 which has made

effrts t rebuild as many synaggues as pssible thrughut the entire area f theJewish Quarter.

b) Nachmanides’ Cave Nachmanides’ Cae (the Cae f the Ramban), is the site where the ntedmedieal schlar allegedly wrshiped when he came t Jerusalem in 1267 andwas pssibly buried there as well. Apparently the cae initially was used as a

cattle shed and then by agrants and drug users. It came t public attentin whena grup f Jewish settlers in Wadi Jz, led by MK Benny Eln, a leader in theMledet Party (a radical right-wing party), sught t pray there. The Arab wnersthereupn fenced ff the area t preent access. At that pint, the Jewish settlers petitined the Supreme Curt t grant them access.

In accrdance with the 1924 order in Cuncil, then Minister f Religin,Yssi Beilin, appinted a cmmittee t determine whether in fact the cae wast be cnsidered a hly site.129 The cmmittee reiewed rabbinical surces that

mentined the cae, as well as testimny that Jews had frequented the cae fr prayer and study as eidence f cntinuity.130 Despite the fact that the cae wasnt listed as a hly site in the Ministry f Religin’s regulatin r icritical religiussources,131 such as the writings f Rabbi Isaac Luria (the ARI),132 the committee

decided that there were enugh histrical reference t justify deeming the cae ahly site, albeit at a ‘lw’ leel. In ding s, it gae ‘“pints’ t the imprtance f

128 See Simna Ricca, Reinventing Jerusalem: Israel’s Reconstruction of the Jewish

Quarter After 1967 (I.B. Tauris 2007). The Sciety was created in 1970. It reprts directlyt the prime minister and Inter-Ministerial Cmmittee fr Jerusalem Affairs. See MichaelDumper, ‘Israeli Settlement in the old City f Jerusalem’ (1992) J. Pal. Studies 38. TheCmpany is treated as a frmalized gernmental entity under the Law f GernmentalCmpanies 29/5/73 Hatzat Chk 1067 at 317 and 4/7/75 Seifer Hachukim 770 at 132.

129 The cmmittee was cmpsed f indiiduals experienced in these issues includingrabbinic fcials, the Rabbi f the Hly Places and the Legal Adiser t the Ministry fReligin. The entire affaire is discussed in Michael Wygda “The Third Kind f HlyPlaces: The Case f Nachmanides’ Cae in Jerusalem” in Marshall Breger, Yitzhak Reiter,

and Lenard Hammer eds.) Cnfederatin and Cexistence” in Hly Places; Religius,Plitical, and Legal Aspects (Rutledge, 2009), 93–104.130 They did nt make use f traditinal r mdern Muslim schlarship.131 An example f an imprtant surce wuld be the respnsa, knwn as She’elt

u-Teshut ‘questins and answers’ that cmprise the bdy f written decisins and rulingsgien by pskim (‘decisrs f Jewish law’).

132 See ‘Luria, Isaac Ben Slmn’, Encyclopædia Judaica (1972) l. 11, 572–8.




the persnality inled and accepted the assertin that there had been extendeduse f the cae thrugh cntinuus and nging isits and prayer.

The cmmittee’s decisin highlights the prblems assciated with certifyinghhly places. There was ample testimny cntradicting the assertins f the Jewishgrups regarding the cae. Indeed, the ery lcatin f the cae was cntrersial,a hst f surces (Jewish and therwise) referring t different lcatins fr thecae. Besides that, the cae had nt really been subject t ‘cntinuus’ use butnly spradic isits (the Arab wners had held the prperty in their family frer 100 years and had nly witnessed recent interest in the cae). The cmmittee began by treating the cae as equialent in status t a synaggue, but then eleatedits status t that f a hly place n a par with unique areas prtected by the HlyPlaces Law and its attendant regulatins.

Nonetheless, the waqf cntinued t litigate n the questin whether the Cae

was a hly site and in 2008 after a curt determined it was nt, the waqf retainedwnership and pssessin133

c) The Cave of Shimon Hatzaddik (Simon the Just)The Cae f Shimn Hatzaddik is lcated next t the Cae f the Ramban nearSheikh Jarah in East Jerusalem. Tday it seres as a synaggue. Tensins haearisen nt at the cae itself, but in the residential area surrunding the caewhere Jewish settlers claim t hae purchased prperty and are ejecting Muslim

residents in rder t build a Jewish enclae in the area. While these cnicts arent directly cnnected t hly sites, they may well ril er int cnicts at hlysites themselves.

d) Mount of OlivesThe Munt f olies cntains the mst ancient Jewish ceremny in the wrld.By traditin the Jewish Messiah will rst appear at the Munt f olies. Duringthe perid f Jrdanian cntrl sme 38,000 Jewish graestnes were largelydestryed by Jrdanians and many f them used t pae the rad t the tp.

The land f the cemetery is wned by arius Jewish burial scieties suchas the Sephardic Cmmunity Cmmittee and the Jerusalem Cmmunity Cuncil.The area around the Mount is under the administrative control of Elad, a settler

rganizatin. Access is pen t all.We shuld nte that the churches f Dminus Fleit, Mary Magdalene and the

Church of All Nations are on the Mount of Olives and at the foot of the Mount

133 Arutz Shea, Jews Barred frm Nachamanides Cae, Dec. 21, 2008 accessedat http://www.israelnatinalnews.cm/News/Flash.aspx/157819; Yeshia Wrld, Ramban’sCae Belngs t Muslim Waqk, Dec. 21, 2008 accessed at http://www.theyeshiawrld.cm/news/israel-news/27465/curt-rambans-cae-belngs-t-the-muslim-waqf.html. Frlegal citatins see Yitzhak Reiter & Lir Lehrs, The Sheik Jarah Affair: The StrategicImplicatins f Jewish Settlement in An Arab Neighbrhd in the old City, JerusalemInstitute f Israel Studies, (2010) n. 33 at p. 21.

http://www.israelnationalnews.com/News/Flash.aspx/157819

http://www.theyeshivaworld.com/news/israel-news/27465/court-rambans-cave-belongs-to-the-muslim-waqf.html




http://www.israelnationalnews.com/News/Flash.aspx/157819




are the Tmbs f the Prphet Zachariah, the sns f Hezir (Secnd Temple HighPriests) and Absalm (the sn f King Daid).

e) The City of David The City f Daid, just utside the old City, was the rst capital f King Daid.134

It has als been the site f an Arab illage – Silwan. In recent years, Elad hasperated the City f Daid Archelgical Park t prmte the heritage f KingDaid and, by inference, the Jewish presence in Jerusalem.135 It further sught t purchase Arab hmes and me Jews int the area. This has created signicanttensin between settlers and the Arab ppulatin with weekly demnstratins byJewish supprters f ‘Arab’ rights.136 f) The Natinal Park System

one deelpment that impacts n the gegraphy and demgraphy f Jerusalemgenerally and nly indirectly n sacred space is the burgening natinal parks

system in Jerusalem. While trumpeted as a way t presere pen space and prmtecultural heritage, many beliee the nascent natinal park system is designed them in Palestinian deelpment and highlight the Jewish relatinship t the city.Certainly the park system t date has dne little, if anything, t underscre theChristian r Muslim relatinship t Jerusalem althugh the prpsed area includessites f religius signicance t bth.137

The natinal park des nt take title t Christian r Muslim religius prperty.Hweer, the park designatin creates an easement which burdens such religius

prperty utside their walls. The administratin f sme f the Natinal Parks has been turned er t settler grups, such as ELAD, with little interest in prtectingthe character f Christian r Muslim ppulatins r institutins. Tw natinal parks, the old City Walls and the Tzurim valley Park hae been declared. other prpsed parks include Mt. Scpus and the Kings valley with parks als beingcnsidered fr the Mt. f olies, Sheik Jarrah and Bab al-Sahrah.138

The municipality f Jerusalem has been afrmatiely prmting this planas hae the Israel gernment planning authriti. In 2009 the municipality’snance cmmittee appred a budget f NIS 600,000 fr the plan, but 88 illegal buildings built by East Jerusalem Arabs gt in the way f making prgress with park planning. The plan is fr the land designatin t be changed and part f it be

134 See, 1 Kings 11:27; 1 Chrnicles 11:8; 11 Samuel 5:8.135 Fr Elad see Mern Rapaprt, ‘The Republic f Elad’, Haaretz (Tel Ai,

23 April 2001). Fr the archaelgical park see Melanie Lidman, ‘Elad Can Cntinue toperate City f Daid, Curt Finds’, Jerusalem Post (Jerusalem, 28 octber 2011).

136 Wendy Pullen and Maximilian Gwiazda, ‘Designing the Biblical Present:

Jerusalem’s “City f Daid”’, in Andrew Webber, Uta Staiger and Henriette Steiner, Memory Culture and the Contemporary City: Building Sites (Palgrae Macmillan 2009)106–25.

137 This is true in particular fr the park surrunding the old City walls, the City fDaid Park, and the prpsed Mt. f olies Park.

138 An exhaustie critique can be fund in BIMKoM, Frm Public t Natinal: Natinal Parks in East Jerusalem (New Israel Fund,__ 2012).




the West Bank prper (i.e. nt in Jerusalem), Israeli law des nt apply. Pre-1967Jrdanian law applies t these areas as amended by Israeli military regulatinsand, where applicable, Palestinian legislatin and regulatins. Fr their part, thePalestinians argue that internatinal law wuld apply.

A third issue is the pssibility f sharing hly sites. The experience f theTemple Munt/Haram-al-Sharif can nly make ne pessimistic in this regard.As Ron Hassner has underscored,143 gien the extent t which cntrl f a hlysite is intertwined with idelgical and natinalist claims, it is ery difcult tenisin a sharing modus vivendi. T emphasize this pint, cnsider the statementf the Rabbi f the Western Wall wh, n religius reasns, himself ppses Jewsascending the Temple Munt, yet wh recently asserted, ‘The Arabs wn’t dictatet us when t g up t the Temple Munt’.144

We must recgnize that the prblem f access is a central issue fr Palestinians.

Because f security issues they are nt allwed free access t their hly places.And, equally imprtant, there is little effrt t deelp ways t meet religiusneeds cnsnant with security. During the Christmas seasn special passes are prided fr Arab Christians resident in Jerusalem t g t Bethlehem and frArab Christian residents in the West Bank t attend the serices at the Church fthe Hly Sepulchre. But there is n recgnitin f the need t deelp ways t dthis during the year. Creatie effrts can be made t ‘square this circle’.145

143 Rn Hassner, ‘The Pessimists’ Guide t Religius Cexistence’, in Marshall J.Breger, Yitzhak Reiter and Lenard Hammer (eds), Holy Places in the Israel-PalestineConict , p. cit. 145.

144 Matthew Wagner, ‘Rabinitz: Arabs Will Nt Dictate t Us When t G Up Tthe Temple Munt’, Jerusalem Post (Jerusalem, 16 octber 2009).

145 one creatie example was the decisin in December 2007 t establish ‘a special passage t Bethlehem fr Christian pilgrims befre and after Christmas’. Yual Azulayand Irit Rsenbaum, ‘Pilgrims t Get Quick Entry int Bethlehem’, Haaretz (Tel Ai,21 December 2007) A3 (in Hebrew). Frmer British Prime Minister Tny Blair made a

special request t ease the passage f the thusands f Christians planning t attendChristmas mass in Bethlehem. Due t the numerus security checks at the checkpintleading t Bethlehem, isitrs typically braed lng lines when entering the West Bank.Unfrtunately, the ‘fast-track’ checkpint was pen nly t Christian pilgrims frm abrad.Ibid. Similarly, between 1947–67, Israeli Christians enjyed passage t Bethlehem duringthe Christmas and New Year seasn. See Raphael Israeli, Jerusalem Divided: The Armistice Regime 1947–1967 (Frank Cass 2002) 101–3. Because Jrdanian fcials wuld nt acceptIsraeli passprts, Israeli citizens receied acceptable dcuments frm the gernment –called laissez passer – in adance f the hliday. Ibid. By allwing Israeli Christians t

participate in Christmas celebratins in Bethlehem, Jrdanian fcials cmplied, at leastin part, with Article vIII f the Armistice Agreement priding free access t religiussites. Ibid. The Christmas crssings als eased tensins n bth sides: ‘If n nrmal daysan abnrmal igilance preailed n bth sides, lest smene trespassed int n man’s land,n the abnrmal day f the Christmas crssing, the place suddenly became nrmal: peplewandered abut the square in large numbers, cmpletely unmindful f their prximity tthe armistice lines’. Id. 101.




Frm a scilgical perspectie, the dispute er Jerusalem is exacerbated by the abundance f erlapping and cmpeting hly sites between differentreligins. Sme frm f ‘separate administratin’ may be desirable t ensure lng-term stability in the plitics f Jerusalem as well as the stability that cmes frmfairness in site management.

Fr similar reasns, in rder t prtect the ‘cultural heritage’ f all parties,effrts must be made t depliticize archaelgical actiity and delegatearchaelgical decisins t technical experts. Cnsideratin shuld be gien t theimplementatin f the Israeli-Palestinian Cultural Heritage Agreement by Israelalne r jintly by Israel and the Palestinian Authrity. That agreement signed byleading Palestinian and Israeli archaelgists requires that each party be bligedt treat equally all archelgical sites in its territry, ‘regardless f their ethnic,natinal r cultural afliatin’.146 It further requires the creatin f a ‘Heritage

Zne’ t include the old City and additinal sites, and species that ‘archelgicalsites in the zne wuld be accessible t anyne, and any research wuld haet be dne with full transparency’.147 Hpefully, acceptance f this apprach bythe gerning authrities wuld reduce the belief (and perhaps reality) that hly places are being used t shre up natinalist narraties and deny the cnnectin fther religins t a hly site.

Many f the cnicts regarding the hly places are made wrse by the ignrance(r willful rejectin) f the narraties f ther religins.148 One of the most useful

effrts by the Knights f Malta r ther internatinal rganizatins wuld be tdisseminate infrmatin regarding arius religius narraties. Such a task shuld be gien t any ‘separate administratin’ r gernment cmmissin charged withmanaging the hly sites in Jerusalem.

146 Mern Rapprt, ‘A Separate Peace’, Haaretz (Tel Ai, 14 April 2006); seealso Israeli-Palestinian Archaeology Working Group Agreement <www.usc.edu/dept/LAS/

religin/arc/sh/agreement.pdf> accessed 10 octber 2008, 2.147 Jhn Bhannn, ‘Team Uneils Mideast Archaelgy Peace Plan’ (2008) Science

302; see als Israeli-Palestinian Archaeology Working Group Agreement , p. cit., 5.148 Fr ne example, see Bari Weiss, ‘Palestinian Leaders Denies Jewish Tie t

Temple’, Wall St Journal (New Yrk, 25 September 2009). There are numerus equialentexamples f Jewish rejectin f Muslim claims, in particular the ‘custm’ f orthdx Jewst ‘white ut’ the Dme f the Rck in pictures f Jerusalem.



Chapter 10

Jerusalem as a Hly Place:

Christian Sacred Sites in the Holy CityRafael Palomino

Context: Human Rights Framework

our apprach t the intricate Jerusalem questin may begin by remembering theuniqueness f the City if cmpared with ther hly cities in the wrld. In Jerusalem,different identities and different cntested plitical aspiratins cnerge:

Certainly are ther cities f Gd in the wrld, such as Rme and Mecca, butnne pssess the distinctie characteristics f Jerusalem – the histrical meeting pint f arius religins, the place that marks the crss-rads where their pathsmeet (…) it must be stressed that Jerusalem is different frm all ther hly citieswhich attest t the strng links between a place and a religin. Specically, the

histrical catin f Jerusalem is t be the meeting place f three religins, andcntinually t relaunch the challenge f their peaceful cexistence within the same physical space.1

We nd in Jerusalem different identities which crrespnd t differentinterests. On one hand, the national identities – Palestinian and Israeli – cntendand afrm the centrality f Jerusalem as the capital city.2 In this sense, Jerusalem plays a majr rle in the narratie, histry and explanatin f tw peples. onthe ther hand, Jerusalem stands fr three religious identities – the Jewish, theMuslim and the Christian.3 Fr these religins Jerusalem is the evidence, the

1 Sili Ferrari, ‘The Religius Signicance f Jerusalem in the Middle East PeacePrcess: Sme Legal Implicatins’ [1996] Catholic University of America 734.

2 ‘Jerusalem, cmplete and united, is the capital f Israel’. Basic Law: Jerusalem,Capital of Israel , passed by the Knesset n the 17th A, 5740 (30 July, 1980) and publishedin Sefer Ha-Chukkim N. 980 f the 23rd A, 5740 (5 August, 1980), p. 186. ‘Jerusalemis the capital f Palestine’ Article 3, 2003 Amended Basic Law, Ramallah: 2003. ThePalestinian Basic Law: ‘The Palestine Natinal Cuncil, in the name f Gd, and in the

name f the Palestinian Arab peple, hereby prclaims the establishment f the State fPalestine n ur Palestinian territry with its capital Jerusalem (Al-Quds Ash-Sharif)’.Palestinian Declaratin f Independence, Algiers, 15 Nember 1988. <www.al-bab.cm/arab/dcs/pal/pal3.htm> accessed 24 September 2012.

3 Cncerning the different and cnergent meaning f Jerusalem fr the threereligins, Ebraismo, Cristianesimo, Islam – Dizionario Comparato delle Religioni Monoteistiche (Piemme 1991) 232–5.

http://www.al-bab.com/arab/docs/pal/pal3.htm







symbol and the memorial expression f faith realities. Yet we might identify a thirdsurce f identity, a special feature, since the meaning f Jerusalem bursts ut itsgegraphical and plitical bundaries, tuching the hearts f millins f peplearound the world.4 In this sense Jerusalem purprts t hae an international identity

which in the legal sense means that the basic plitical decisins affecting the Cityhae internatinal impact and dimensin,5 and cannt be adpted unilaterally.

The apprach t these identities shifts between tw basic perspecties f thesame phenmenn.6 one f these perspecties is state/territorial . It gies anaccunt f the Jerusalem issue in terms f natinal belnging and in terms fstatehd tls, like sereignty, citizenship r frntiers. This rst perspectiecrrespnds t the national identity claims. The ther perspectie is the global/ trans-territorial ne and, cmpared with the frmer, it gies an accunt f theJerusalem questin in terms f glbal interests and internatinal instruments

t bring abut a satisfactry slutin. Nt necessarily, but in part, the religiousidentity may me in these terms, as at the same time it is true that the cmbinatinf religin and natinal identity (much strnger amng Muslims and Jews) stutlypts fr a state/territrial perspectie.

When speaking abut Jerusalem we me in tw different stages.The rst stage explains the City essentially as a physical space cntaining a

grup f sites related t the three mntheistic religins which cneys a specialsignicance fr belieers r fllwers f thse religins. This signicance ges

far beynd the sacredness f religius spaces in general (churches, msques,synaggues) fr histrical reasns. Being sacred, each f thse places requiresspecial legal prtectin and attentin. Hweer, nce legal prtectin is affrded by whateer State r natinal authrity, special needs frm the religius and human

4 ‘The General Assembly (…) Reafrming that the internatinal cmmunity, thrughthe United Natins, has a legitimate interest in the questin f the City f Jerusalem and the prtectin f the unique spiritual, religius and cultural dimensins f the city, as freseen

in releant United Natins reslutins n this matter (…) 2. Stresses that a cmprehensie, just and lasting slutin t the questin f the City f Jerusalem shuld take int accuntthe legitimate cncerns f bth the Palestinian and Israeli sides and shuld includeinternatinally guaranteed prisins t ensure the freedm f religin and f cnsciencef its inhabitants, as well as permanent, free and unhindered access t the hly places bythe peple f all religins and natinalities’. Reslutin adpted by the General Assembly63/30. Jerusalem, A/RES/63/30, 23 January 2009.

5 ‘one f the principal reasns underlying the dispute er Jerusalem is that thecntrersy exceeds the city’s bundaries. In cntrast t almst all ther cities in the wrld, the

future f Jerusalem is imprtant nt nly t thse wh inhabit the city. During the last decadesJerusalem has becme a majr natinal and religius symbl fr Jews, Muslims, and Christiansall er the wrld. Thus, the main struggle is nt fr territrial, strategical, r ecnmic gains, but rather fr symbls’. Mshe Hirsch, ‘The Future Negtiatins er Jerusalem, StrategicalFactrs and Game Thery’ [1996] Catholic University of America Law Review 705.

6 Enric Mlinar, The Holy Places of Jerusalem in Middle East Agreements – TheConict between Global and State Identities (Sussex Academic Press 2009).



Jerusalem as a Holy Place 157

rights perspecties wuld be met and then Jerusalem wuld be basically a physical place withut a signicant r special legal alue. once the legal interests f eachf thse single sites are secured and guaranteed, the Jerusalem questin itselfwuld hae n special meaning frm the international and religious perspectie,and it wuld be a pending issue slely fr the national identity dimension. In

my pinin, this is the perspectie adpted by the State f Israel in regulatingseparately, in tw laws, the legal prtectin which Hly Places desere n the nehand, and the legal meaning f Jerusalem n the ther.7

Hweer, if we lk carefully at a further stage, related t the City as a whle,Jerusalem is mre than a physical space which cntains religius Hly Places withspecial legal requirements n the grunds f freedm f religin. Jerusalem as aunit is a alue in itself. Like ther Hly Cities, Jerusalem gathers tgether furmain elements:

First, they supprt an institutinal religius hierarchy ften graced by the presence f leading clerics wh hae cnsiderable plitical inuence, lcally,natinally, and reginally. Secnd, hly cities hae an administratie apparatuscntrlling large swathes f prperty as well as religius, welfare, and educatinalserices that pride the clerics and senir functinaries with an imprtant lcalcnstituency and undergird a cmmunal identity. Third, they hae an independentnancial basis in the frm f endwments and dnatins. This allws hly citiesabsrbing external funds regardless f the strength r weakness f the lcal

ecnmy, which, in turn, allws them t fund religius persnnel and relatielystate interentin-free prjects. Finally, they can pint t an imprtant netwrkf internatinal and diaspra related cntacts built up thrugh pilgrimage andeducatinal actiities. Such cntacts and interactins ffer a degree f prtectint the clergy and their administratrs and can strengthen their immunity frm stateinterentin. Taking all these aspects tgether, ne can see hw the sereignty fa state is t a cnsiderable extent circumscribed in a hly city’.8

Besides, the maintenance and vitality of those Holy Places inside the City need

the presence f ppulatin, traditins, hinterlands … which cnstitute an essentialsubstrate t presere the peculiar character f a place which is holy but at the sametime is a living place. In sum:

Jerusalem cntains cmmunities f belieers full f life, whse presence the peples f the whle wrld regards as a sign and surce f hpe, specially thsewh cnsider the Hly City t be in a certain way their spiritual heritage anda symbl f peace and harmny. Indeed, in s far as the City is the homeland

7 Basic Law: Jerusalem, Capital of Israel , passed by the Knesset n the 17th A, 5740(30 July 1980) and published in Sefer Ha-Chukkim N. 980 f the 23rd A, 5740 (5 August1980), p. 186; the Bill and an Explanatry Nte were published in Hatza’t Chk N. 1464f 5740, p. 287. Protection of Holy Places Law, 5727–1967.

8 Michael Dumper, The Old City of Jerusalem in the Middle East Conict (LynneRienner Publishers 2003) 9.




f the hearts f all the spiritual descendants f Abraham wh hld it ery dear,and the place where, accrding t faith, the created things f earth encunterthe innite transcendence f Gd, Jerusalem stands ut as a symbl f cmingtgether t unin, and uniersal peace fr the human family. The Hly City,therefre, strngly urges peace fr the whle human race, specially fr thsewh wrship the ne, great Gd, the merciful Father f the peples.9

Jerusalem is nt nly the essel r receptacle f religius spaces but a religiusspace itself.10 As a cnsequence, it is hard – if nt impssible – t islate the religiusdimensin f the City frm certain purely secular aspects. In ther wrds, many plitical and legal actins f a secular character n the City necessarily hae seriuscnsequences n the essential religius dimensin f Jerusalem. Therefre, any legalr plitical actin cncerning Jerusalem must take int accunt its religius meaning.

Any reectin n Jerusalem as a Hly City inles basically tw differentsets f rights and freedms.

First, there are the freedms and rights related t the religin f peplewh belng t thse cmmunities wrshipping in Jerusalem, namely membersf cmmunities f the three mntheistic religins. Accrding t the UniersalDeclaratin f Human Rights, Article 18, ‘[e]eryne has the right t freedm fthught, cnscience and religin; this right includes freedm t change his religinr belief, and freedm, either alne r in cmmunity with thers and in public

r priate, t manifest his religin r belief in teaching, practice, wrship andbserance’. Article 18 f the Internatinal Cenant n Ciil and Plitical Rightsf 1966 adds that ‘[n] ne shall be subject t cercin which wuld impair hisfreedm t hae r t adpt a religin r belief f his chice. Freedm t manifestne’s religin r beliefs may be subject nly t such limitatins as are prescribed by law and are necessary t prtect public safety, rder, health, r mrals rthe fundamental rights and freedms f thers’. Finally, the Declaratin n theEliminatin f All Frms f Intlerance and f Discriminatin Based n Religinr Belief f 1981, Article 6, establishes that the right t freedm f thught,cnscience, religin r belief shall include, inter alia, freedm ‘t wrship r

9 Jhn Paul II, Apstlic Letter Redemptionis Anno (20 April 1984), Acta ApostolicaeSedis 1984) 626.

10 ‘Fr Jews, then, Jerusalem is nt a city that encmpasses hly places. Rather it isthe earthly city itself that is hly, bth the land and, as the frmer Chief Rabbi Kk tellsus, een the air. Jerusalem, then, is synnymus with Judaism’s entrenchment in the land fIsrael. It is the ery center f that entrenchment (…) At the same time (…) “[t]he sanctity

f Jerusalem in Islam is a fact”. It is the riginal directin fr Mslem prayer, ‘ula al-qublatheyn, and the al-mi’radj haqq, the place frm which the Prphet ascended (sme sayin a winged munt) t heaenly spheres. It is, mreer, the place that in Mslem traditinthse eschatlgical eents harkening the end f the wrld will cmmence. Thse wh tryt suggest that al-Quds is less hly t Islam than t Judaism simply are incrrect’. MarshallJ. Breger, ‘The future f Jerusalem: A Sympsium. An Intrductin’ [1996] CatholicUniversity of America Law Review 654.




assemble in cnnectin with a religin r belief, and t establish and maintain places fr these purpses’. Cnsequently, and gien the special signicancef Hly Places in Jerusalem, they – like Hly Places in general – cnstitute anintegral part f religius freedm.

The secnd set f rights and freedms are thse related t culture: as isenshrined in Article 27 f the Internatinal Declaratin f Human Rights f 1948:‘[e]eryne has the right freely t participate in the cultural life f the cmmunity,t enjy the arts and t share in scientic adancement and its benets’. Article15 f the Internatinal Cenant n Ecnmic, Scial and Cultural Rights f1976 establishes that, ‘[t]he States Parties t the present Cenant recgnize theright f eeryne t take part in cultural life’. The cultural and histrical alue fJerusalem might inle the categry f cultural rights as well.

It is nt impssible t enisage a clash between these tw sets f rights –

namely the right t religius freedm and the right t cultural heritage – relatedt Jerusalem as a Hly City in general and t the Hly Places in particular. Whichf them takes precedence? Des the right t cultural heritage f humankind hae pririty er the right t religius freedm f seeral indiiduals r cmmunities?Certainly all the alue f Jerusalem and its Hly Places deries primarily frm theirreligius signicance. If that peculiar religius signicance is absent r blurred,the substantial and prfund fundatin f the alue f Jerusalem wuld disappearr wuld be diminished. In cnsequence, full and cmplete enjyment f freedm

f religin and related rights must be bsered as a guarantee fr the enjymentf the right t cultural heritage which all humankind deseres. Therefre, anylegal actin cncerning the cultural r histrical alue must yield t the intrinsicreligius alue and t the religius dimensin inherent t Hly Places in general.

Terminology Concerning Holy Places in Jerusalem

Fr claricatin purpses it wuld be imprtant t address the meaning f termsusually applied t Jerusalem’s Hly Places, places f wrship and s n since inthis particular case:

• nt all the Hly Places inside Jerusalem can be identied strictlyas ‘buildings’ (that is, places f wrship like churches, msques rsynaggues);

• nt all the Hly Places necessarily hae the same histrical and legal alue;and

• nt all the Hly Places f the three mntheistic religins are withinJerusalem.

The same claricatin purpse may lead t a general histrical diisin f peridsf time when dealing with the plitical and legal framewrk cncerning HlyPlaces in Jerusalem:




• ottman Rule perid (1517–1917);• League f Natins perid (British rule, 1917–48);• United Natins perid (which erlapped with the League f Natins

Perid and extended in time frm the lgical iewpint since it stands frthe internatinalizatin f the City);

• The prclamatin f the mdern State f Israel (1948–67): Jerusalemdivided de facto int West and East, Israeli and Jrdanian rule er parts fthe City. Mst f the Hly Places were n the Jrdanian side;

• The Six-Day War f 1967 t the present. Israeli rule er all Jerusalem.

Hly Places, in general and nt specically fr Jerusalem, are ‘gegraphicallydetermined lcalities t which ne r mre religius cmmunities attributeextrardinary religius signicance r cnsider as subjects f diine cnsecratin

(…) Hly Places may be f juridical imprtance within the prtecting State as wellas between States’.11 Hly Places require as a precnditin sme srt f ‘religiusqualicatin’ which bestws n a place r lcality a peculiar alue.

Hweer, ‘Hly place’ might nt be a religius categry itself. Take fr instance

the case f Christianity and specically the Cathlic Church. Accrding t the law fthe Cathlic Church, ‘Hly Places’ is nt a legal categry stemming frm religiuslaw. Rather, it is a cnentinal term which appears in Article 4 f the FundamentalAgreement between the Hly See and the State f Israel t pint ut specic places

in a histrical cntext12

(see belw Christian Holy Places) and in Article 4 f theBasic Agreement between the Hly See and the Palestinian Liberatin organizatin.The prper term fr Cann law t designate a categry f special religius places is‘Sacred Places’ r Loca Sacra, which cmprises thse places designated fr wrshipr fr burial f the faithful (churches, chapels, shrines, altars and cemeteries). Thatis why the same Article 4 f the Agreement between the Hly See and the Statef Israel deals specically and indiidually with this ther categry,13 cnferringn them the expected legal treatment due t places f wrship (as a legal secularcategry). In this sense, it culd be imprtant t stress that religius cmmunitieshae places f wrship which are nt Hly Places themseles, but places lcated ina Land which is Hly. And fr these places the rights deried frm priate prpertyare the basic legal guarantee, accrding t mdern cnstitutinal standards, as wellas the prergaties cnferred n places f wrship in general.

11 Christian Rumpf, ‘Hly Places’ in Encyclopedia of Public International Law

(l. II, Elseier, 1995) 863.

12 ‘The State f Israel afrms its cntinuing cmmitment t maintain and respect the“Status qu” in the Christian Hly Places t which it applies and the respectie rights f theChristian cmmunities thereunder. The Hly See afrms the Cathlic Church’s cntinuingcmmitment t respect the afrementined ‘Status qu’ and the said rights’.

13 ‘The State f Israel agrees with the Hly See n the bligatin f cntinuingrespect fr and prtectin f the character prper t Cathlic sacred places, such aschurches, mnasteries, cnents, cemeteries and their like’.




Christian Holy Places is a specic categry linked t Jerusalem and t thergegraphical sites clse by. It designates the legal status cnferred n preciseChristian places. ‘The technical and legal use f the term Christian Holy Places

restricts the meaning t specic sites and refers t the practice f certain rites and prprietrship within them’.14 This categry was generated during the ottmanEmpire which issued a number f legal nrms t assign r t transfer rights f useand pssessin between Christian denminatins cncerning specic Christian places. It is usual t make reference t the hatty-sharif ( rmans r imperialdecrees) f 1757 and f 1852.

Thugh the ottman list f Hly Places was restricted t Christian HlyPlaces, the British Mandate (1922–48) extended the term t include therChristian, Muslim and Jewish Hly Places and sites.15 The United Natins SpecialCmmittee n Palestine (UNSCoP, 1947) and the Cnciliatin Cmmissin n

Palestine (1948) fllwed that trend and included under the cncept f HlyPlaces, ‘a list f recgnized hly sites f interest and imprtance rather than sitesto which the Status Quo arrangements were applied’.16

Accrding t that extensie cncept, Hly Places in Jerusalem (and itssurrundings) are:17

• Christian Hly Places gerned by the legal regime f Status Quo: theChurch f the Hly Sepulchre and its dependencies, such as the Cnent

f Dayr al-Sultan; the Basilica f the Natiity in Bethlehem, the Tmb fthe virgin Mary.• Christian Hly Places generally ccupied by thers but with sme rights

resered t the Cathlic Church, ntably the Cenacle (certain rightsresered t the Franciscan Custdy f the Hly Land),18 the Church of

14 Michael Dumper, p. cit., 108.15 ‘A special cmmissin shall be appinted by the Mandatry t study, dene and

determine the rights and claims in cnnectin with the Hly Places and the rights and claimsrelating t the different religius cmmunities in Palestine. The methd f nminatin, thecmpsitin and the functins f this Cmmissin shall be submitted t the Cuncil f theLeague fr its appral, and the Cmmissin shall nt be appinted r enter upn its functinswithut the appral f the Cuncil’. Terms f the British Mandate fr Palestine, cnrmed by the Cuncil f the League f Natins n 24 July 1922, League f Natins ofcial Jurnal,August 1922, pp. 1007–12, at 1009. See Ruth Lapidth and Mshe Hirsch (eds), The JerusalemQuestion and Its resolution: Selected Documents (Martinus Nijhff Publishers 1994) 1.

16 Michael Dumper, p. cit., 110. ‘The Wailing Wall and Rachel’s Tmb, f which

the wnership is in dispute between the Mslems and the Jews, are similarly subject tthe Status Qu’. Linel G.A. Cust, The Status Quo in the Holy Places (Gernment fPalestine 1930) 12.

17 See H. Eugene Bis, The Jerusalem Question, 1917–1968 (Her Press 1971) 142.18 The Shrine f the Cenacle is nt included in Cust’s accunt, because the site

was acquired by the Franciscan order in 1342. It was neer ccupied by ther Christiancmmunities. The Franciscans were expelled frm the Cenacle in 1552. ‘The Cenacle is nt




the Ascensin n the Munt f olies (generally ccupied by Muslimswith sme rights resered t the Franciscans), Tmb f Lazarus (generallyccupied by Muslims with sme rights resered t the Franciscans).

• Christian Hly Places in the pssessin f Christian Churches: the Churchf St Anne, the Church f St James, the Church f St Mark, the Husef Caiaphas and the Hly Prisn, the Garden f Gethsemane, the Pl fBethesda, the Milk Grtt, Shrines in the Shepherds’ Fields.

• Muslim Hly Places: ntably the Dme f the Rck, the Al-Aqsa Msque(bth in the al-Haram al-Sharif cmpund), El Burak Esh-Sharif.

• Jewish Hly Places, abe all the Western [Wailing] Wall cmplex (Ktel),19

but als ther places including, fr example, the Tmb f Absalm, Bathf Rabbi Ishmael, Pl f Silam, Cementery f Mt f olies, Tmb fZachariah, Tmb f Simn The Just and s n.20

Smehw the law leaes the denitin f Hly Places t regulatins. But as amatter f fact there is neither a Christian Hly Places denitin nr a ‘State legal’catalgue f thse Hly Places, since that culd be a ‘natinalizatin’ f the HlyPlaces.21 In fact Cathlics hae preferred ther surces fr regulatin: the right

a subject f cncern t this study, being abslutely under the authrity f the Mslem Waqf

f Nebi Daud, wh hweer arranges t pen it t the many that are anxius t isit a sitef such sacred traditins’. Linel G.A. Cust, p. cit., 7. Yet the Church f the Cenacle is acntested issue, since it passed t the hands f a Jewish entity. After the st Israeli-Arabwar, the State f Israel tk pssessin f the Cenacle and later assigned t itself the titlet the prperty. Hweer, the Custdy f the Hly Land has cnsistently claimed its wn prperty rights in the whle cmplex f the Cenacle (the Franciscan mnastery and theshrine). It is knwn that this matter is nw n the agenda f the negtiatins between theHoly See and the State of Israel.

19 It wuld be preferable t designate it as cmplex, since the Ktel includes

nwadays the cluster f ld buildings knwn as the Abu Midyan al-Ghawth Waqf in theMagharib Quarter which was demlished by the Israeli army in 1967 t build a large square befre the Western Wall.

20 Sme writers include the s-called Tmb f Daid.21 Prtectin f Hly Places Law, 1967. ‘The Hly Places shall be prtected frm

desecratin and any ther ilatin and frm anything likely t ilate the freedm faccess f the members f the different religins t the places sacred t them r their feelingswith regard t thse places.

‘Whseer desecrates r therwise ilates a Hly Place shall be liable t imprisnment

for a term of seven years.‘Whseer des anything likely t ilate the freedm f access f the members f thedifferent religins t the places sacred t them r their feelings with regard t thse placesshall be liable t imprisnment fr a term f e years.

‘This Law shall add t, and nt dergate frm, any ther law.‘The Minister f Religius Affairs is charged with the implementatin f this Law, and

he may, after cnsultatin with, r upn the prpsal f, representaties f the religins




t priate prperty, bilateral treaties between the Hly See and the State f Israel(Article 4), general and specic internatinal laws.

In any case, an Israeli gernment adiser has pined that: ‘[t]here are 30imprtant Hly Places in Jerusalem (in additin t 1072 synaggues, 52 msques,65 churches and 72 mnasteries)’.22

As has been said, amng the Christian Hly Places stricto sensu, three of them

(the Hly Sepulchre and the Tmb f the virgin Mary in Jerusalem, the NatiityChurch in Bethlehem) are regulated by the s-called Status Qu.23

The Status Qu designates the cmplex and detailed rights and traditins,n places, times and actins impsed and sanctined riginally by the ottmanEmpire, mainly deried frm the rmans f 175724 and 1852,25 cmprising

cncerned and with the cnsent f the Minister f Justice make regulatins as t any matterrelating t such implementatin.

‘This Law shall cme int frce n the date f its adptin by the Knesset’.22 Shmuel Berkwitz, ‘The Hly Places in Jerusalem: Legal Aspects’ [1996] Justice

6. The gures n the number f places f wrship may change frm ne authr t ther. Frinstance: ‘In additin t the mre well-knwn sites n the Haram mentined abe, thereare many places f wrship, amng them 65 functinal msques, seeral su ldges, saints’tmbs and cemeteries. Furthermre, many sites that sered as places f wrship r burialgrunds that hae nt perated fr many years accrding t their riginal purpse hae

becme “cultural prperties”’. Yizhak Reiter, Islamic Institutions in Jerusalem. Palestinian Muslim Organization under Jordanian and Israeli Rule (Kluwer Law Internatinal,Jerusalem Institute fr Israel Studies 1997) 87.

23 Als the Ascensin shrine, which is a msque, but this shrine is under the StatusQuo as far as the Christians are cncerned and mentined in the decree f 1852, with thether three shrines abe.

24 ‘The Capitulatins f 1604, 1673, and 1740, cnrmed the Latins in the pssessinf the Hly Sepulchre and Calary, the Church f the Natiity, and the Church f the virgin.on the ther hand, in 1637 the Patriarch f Jerusalem, Thephanes III, btained a rman

in faur f the orthdx and nally in 1757, while the Eurpean Pwers were engaged incntinual strife amng themseles, this element denitely regained the supremacy’. LinelG.A. Cust, p. cit., 8.

25 ‘In 1850 the French representatie at Cnstantinple, General Aupick, n behalff his Gernment and the Cathlic Kingdms f Sardinia, Belgium, Spain, and Austria,submitted t the Sublime Prte a demand fr the restratin t the Franciscans f the HlyPlaces they pssessed prir t 1757, that is t say, the Rtunda and the Edicule, the Stnef Unctin, the Seen Arches f the virgin and the Prisn f Christ, the Curtyard f theHly Sepulchre, the Church f the virgin, and the Church f the Natiity. These claims

were receied with n less pwerful ppsitin n the part f Russia, the Czar threateningt withdraw his representatie at the Prte if they were entertained, and the dispute was nef the causes that led t the Crimean War. An imprtant rman issued in 1852 by SultanAbdul Mejid, after making reference t a careful examinatin that had been cnducted bya Cmmittee appinted by the Prte, rejected the claim put frward by the Latins t theabslute pssessin f the majr shrines, as detailed by General Aupick, and directed that theStatus Quo be maintained in all these places. This rman cnstitutes the fcial Declaratin




Christian Cmmunities (Greek orthdx, Latin, Armenian orthdx, Cptic,Syrian, Abyssinian) in the Hly Land, mainly in Jerusalem.26 The 1757 rman

gae the Greeks majrity (nt exclusie) pssessin f the Basilica f Bethlehemand the Tmb f the virgin, and jint pssessin, actin and use with the Latins f parts f the Basilica f the Hly Sepulchre. After arius cnicts, lcal affairs andinternatinal plitical pressures, in 1852 anther rman established that the StatusQuo (that is, that f 1757) had t be maintained.27 These rmans cmprise rulescncerning actins (like access, maintenance f building, restratin, cleaningwrks, cnduct and timing f serices and festials) and places.28

In practice:

… [t]he main thrust f the rman was t cnrm the ‘status qu’ withut priding details f it. The absence f a detailed inentry f practices meant

that the pssibility fr minr encrachments and misunderstandings was endlesscausing much tensin between the established churches. At the same time awritten inentry was nt welcme because it wuld hae enshrined practicesthat, althugh they may hae been the preailing nes, were nt cnsensual andmay hae been set thrugh force majeur . It als meant that the succeeding secularauthrity did nt hae a reference dcument and was ften wrking in the dark.29

A signicant part f the cntent f the Status Quo was described by L.G.A. Cust

in 1930.30

The relatinship between places and actins was synthesized by Custwh explained that:

Fr the purpse f dening the Status Qu, the Hly Places and their cmpnent parts may be diided int certain categries:

(1) The parts that are accepted t be the cmmn prperty f the three rites inequal shares;

(2) The parts claimed by ne rite as under its exclusie jurisdictin, but in whichthe ther rites claim jint prprietrship;

of the Status Quo in the Hly Places. Shrtly afterwards the Crimean War brke ut. TheTreaty f Paris at its clse in 1855 left the psitin as it was, the Signatry Pwers, includingRussia, undertaking t uphld the Status Qu ante bellum’. Linel G.A. Cust, p. cit., 9.

26 Fr a juridical and histrical assessment f the Status Quo, see Bernardin Collin, Le problème juridique des Lieux-Saints (Centre d’Etudes orientales 1956) 179–86.27 The 1852 rman freezed the situatin after seeral acts f ilence.28 Bernardin Cllin, Le problème juridique des Lieux-Saints, p. cit., 107.29 Michael Dumper, p. cit., 108.30 The Cust reprt des nt hae bjectie legal frce: it is a reprt, an accunt,

which helps t knw the legal situatin at the mment in which he made his reprt.




(3) The parts f which the wnership is disputed between tw rites;

(4) The parts f which ne rite has the exclusie use, but qualied by the right fthe thers t cense and isit it during their fces;

(5) The parts which are in the exclusie jurisdictin f ne rite, but are cmprisedwithin the ensemble f the Hly Place.31

The Status Quo was recgnized in internatinal treaties such as the ParisCnentin f 1856 (after the Crimean War), the Cngress f Berlin (1878) andthe versailles Treaty (1919).

As pinted ut abe, the main prblem f the Status Quo is its practicalfrailty, which calls fr cnstant igilance. It is nthing mre and nthing less than

a secular settlement f cntested rights, caused by external internatinal pressures.However, the Status Quo has been frmally accepted n arius ccasins in

recent times by the parties cncerned.Frm the religius iewpint, it has been frmally accepted in the Memrandum

n the Signicance f Jerusalem fr Christians’ ‘Legitimate Demands f Christiansfr Jerusalem’ f 14 Nember 1994 signed in Jerusalem by the Patriarchs andthe Heads f Christian Cmmunities – the Greek orthdx Patriarch, the Custos

f the Hly Land and the Armenian Patriarch – wh are the heads f the three

cmmunities principally and directly cncerned. But it was als signed by theCptic orthdx, Syrian orthdx and Ethipian orthdx Archbishps, whsecmmunities als hae cncerns, albeit small nes; and by the Latin Patriarch, theGreek Catholic Maronite and the Syrian Catholic Patriarchs or Vicars, as well as

the Anglican and Lutheran Bishps wh as such hae n rle with regards t theStatus Quo in the Holy Places.32

Een mre signicantly, frm the internatinal legal iewpint, the Status Quo

regime is endrsed in article 4§1 f the Fundamental Agreement between Israeland the Hly See, signed n 30 December 1993 and in Article 4 f the BasicAgreement between the Hly See and the PLo f 15 February 2000.

In sum, ‘[w]hile this system is far frm perfect’,33 as bsered by prfessrFerrari, it is nw agreed by all that it represents achieement f the best system pssible in an imperfect wrld.

31 Linel G.A. Cust, p.cit., 13.32 The acceptance f the Status Quo was reafrmed in the Statement ‘City f Tw

Peples and Three Religins’ f 29 September 2006 by the same religius authrities, plusthe Armenian Cathlic Patriarchal Exarchate.

33 Sili Ferrari, ‘The Religius Signicance f Jerusalem in the Middle East PeacePrcess: Sme Legal Implicatins’, p. cit., 738.




What Should be Guaranteed?

In light f the afrementined cnsideratins and descriptins, we may cnsidernw what requirements shuld be guaranteed in the case f the Hly City fJerusalem accrding bth t the histric standards and t the human rightsframework.

The Human Rights Perspective

In this case, religius freedm cers a cluster f rights which culd be enumeratedas fllws:

• The right t pilgrimage, as part f freedm f wrship.34 The special character

f the Hly City f Jerusalem attracts the attentin f belieers as a liingtestimony of their faith. It is true that it is not mandatory for Muslims or

Christians t trael regularly (r een nce in their lifetime) t Jerusalem, andafter the destructin f the Temple (AD 70) it is nt een mandatry fr Jewst d s. Hweer, it is part f the religius identity f belieers t wrshipand exercise their religin wheneer and whereer, especially in the case f places which hld a deep signicance, bth histrically and spiritually, frthse belieers, f curse always respecting the limits f rights.

• The right t religius autnmy. This right basically implies the freedmf religius bdies (cmmunities, churches, denminatins and s n)t cnduct their internal affairs and cncmitant issues withut externalinterference r undue inuence cming frm the plitical pwers and frmsecular r ther grups.35 In the case f Jerusalem the right t religiusautnmy has deep rts in histrical rules, custms and usages, respected by successie States er ery lng perids f time, een centuries. The rightt religius autnmy requires als respecting the ‘enirnmental’ cnditinswhich make bth the exercise f religin and its autnmy pssible.36

34 It is clearly expressed in Article 6 f the Declaratin n the Eliminatin f AllFrms f Intlerance and f Discriminatin Based n Religin r Belief, Prclaimed byGeneral Assembly Reslutin 36/55 f 25 Nember 1981: ‘In accrdance with article 1 fthe present Declaratin, and subject t the prisins f article 1 § 3, the right t freedmf thught, cnscience, religin r belief shall include, inter alia, the fllwing freedms:(a) T wrship r assemble in cnnectin with a religin r belief, and t establish andmaintain places fr these purpses’.

35 Again it is enshrined in Article 6 f the Declaratin n the Eliminatin f All Frmsf Intlerance and f Discriminatin Based n Religin r Belief: ‘(g) T train, appint, electr designate by successin apprpriate leaders called fr by the requirements and standards fany religin r belief (…) (i) T establish and maintain cmmunicatins with indiiduals andcmmunities in matters f religin and belief at the natinal and internatinal leels’.

36 That is why Article 6 f the same Declaratin cnsecrates the right ‘(b) T establishand maintain apprpriate charitable r humanitarian institutins’.




The right t culture embraces the preseratin, safeguarding and prtectin fthse places with a special meaning fr humankind, making it pssible fr presentand future generatins t enjy and hae access t thse places in cnditinswhich, in the specic case f Jerusalem, cmbine the testimny f the histry fhumankind and at the same time are the liing prf f the gegraphical meeting pint f different peples, languages, eths, beliefs and s n. In this case, theright t culture pints basically t the balance between the preseratin f thecnditins under which the histrical and cultural experience f the Hly Citymay be safeguarded, while respecting the needs f the rdinary deelpment fthe peples and cmmunities liing in the City.

Matters to be Covered

The different matters which hae emerged in ancient and recent times t identifyspecic requirements cncerning the status f Jerusalem culd be synthesized inthe fllwing way.37

a. Frm the substantial iewpint:

• Presering the Hly City identity, regarded as equally sacred by thethree mntheistic religins. The identity f the City cmprises a seriesf characteristics: histrical, material, religius and cultural. Identity

als cmprehends integrity (f places and f cmmunities). As is wellknwn, this issue is clsely cnnected with the plitical situatin fJerusalem and with the slutin f the ‘Jerusalem plitical questin’.38

The debate has nt been sled yet and it seems that claricatin is ntat hand. What has been clear up t nw is that there is a gap between thede iure situatin (still gerned by internatinal instruments which reect

37 Different surces establish a series f requirements. Take fr instance the‘Principles gerning the cultural and religius status qu in Jerusalem’, in Enric Mlinar,The Holy Places of Jerusalem in the Middle East Peace Agreements, p. cit., 135; AngelMacchi and Gianni Rulli, ‘Il Futur di Gierusalemme’ [1996] La Civiltà Cattolica 555;Daid Maria A. Jaeger, ‘The Multilateral Treaty n the City f Jerusalem and its Enirns’,ENEC (Eurpe-Near East Center, Assciazine Internazinale per le relazini cl vicinoriente) <http://www.enec.it/Multilateral.htm> accessed 27 June 2009; Francisc Utray,‘El prblema de ls Sants Lugares’ [1962] Revista de Política Internacional 296.

38 ‘As fr the Jerusalem prblem, mst f the literature suggesting pssible ways

t resle it falls int ne f three categries. The rst categry is administratie, r whatsme call the municipal slutin; the secnd categry is religius; and the third categry is plitical, r what sme call the territrial slutin. S we hae three categries f slutins — three different attempts at a slutin — and if ne examines each apprach, it becmesclear that n single apprach will effect a balanced settlement t this explsie issue’.Adnan Abu odeh, ‘Religius Inclusin, Plitical Inclusin: Jerusalem as an UndiidedCapital’ [1996] Catholic University of America Law Review 690.




the internatinal catin f the City)39 and the de facto40 arrangements.Manifld hypthetical slutins hae been adanced er time fr slingthe dispute in its different dimensins.41 A careful examinatin f these prpsals42 is beynd the limited scpe and purpse f this cntributin.Hweer, it seems t be manifest that the slutin (that is, a permanentstatus respecting the singularity f the City) requires a negtiated slutinbsering internatinal requirements.

• Securing religius freedm in all its aspects, fr indiiduals andcmmunities, accrding t internatinal standards. The respect fr thishuman right must encmpass the cmbinatin f equality f all institutinsand persns befre the law. obiusly, freedm f religin includesfreedm t access and isit the respectie religius sacred places as partf the right t pilgrimage. Freedm f access must be understd here as

a ‘ciil’ right (access and exit) befre State authrities,43 not as a carteblanche fr access t specic places f wrship whereer and wheneer,which culd be incnsistent with freedm f wrship r with specic rulesderied frm the right t prperty, wnership r tenure.

• Respect fr the Hly Places and prtectin f them (including prtectin

39 Thse dcuments are well knwn. Amng thers, GA Res. 181 (II), UN GAoR,UN Dc. A/64 (1947), GA Res. 194 (III), UN GAoR (1948), GA Res. 303, UN GAoR

(1949); SC Res. 478, UN SCoR, 35th Sess., 2245th mtg at 14, UN Dc. S/INF/36 (1980);GA Res. 35/169E, UN GAoR, 35th Sess., Supp. N. 48, at 208 – 09, UN Dc. A/35/48(1981).

40 Charalambs Papastathis, ‘A New Status fr Jerusalem? An Eastern orthdxviewpint’, in Marshall G. Breger and ora Ahimeir, Jerusalem: A City and Its Future(Paperback 2002) 723–4.

41 Mshe Hirsch, Debrah Husen-Curiel and Ruth Lapidth, Whither Jerusalem? Proposals and Positions Concerning the Future of Jerusalem (Jerusalem Institute fr IsraelStudies, Mekhn Yerushalayim le-heker Yiśra’el, Martinus Nihff Publishers 1985).

42 Spanish Ambassadr López de Aguirrebenga has listed up t 11 mdels fr theslutin: 1) Internatinalizatin f all the City, 2) Internatinalizatin f the old City, 3)Internatinalizatin f the histric part f the City with a special, internatinally guaranteedstatute, 4) Partitin f the City between Israelis and Palestinians, taking as pattern frdiisin the situatin befre 1967, 5) The ‘Cndminium’ slutin, 6) Autnmusmunicipal administratin f the old City under Israeli sereignty, 7) Israeli sereigntyand internatinal municipal regime, 8) Segregatin f a sectr inside the present municipal bundaries t establish the Capital f Palestine, 9) Jerusalem as a capital f tw Statesfllwing the Lateran Treaty f the 1929 vatican mdel, 10) Municipal autnmy with

a mixed Israeli-Palestinian municipal authrity, Israeli sereignty and extraterritriality psitin fr Hly Places (lato sensu?), 11) special, internatinally guaranteed statutewith religius cmmunities’ administratin under Israeli r mixed Palestinian-Israelisereignty. See Ramón Armengd, ‘Jerusalén y el prces de paz de oriente Próxim’[1996] Política Exterior 27.

43 United Natins Declaratin f Human Rights f 1948, Article 13. ‘(1) Eerynehas the right t freedm f mement and residence within the brders f each state’.




frm desecratin, exprpriatin, alteratin, exemptin frm taxatin).Mreer, it wuld be necessary t put n a nrmal fting the treatmentf Hly Places and ther places f wrship as mainly the priate prpertyf the religius cmmunities that wn them whereer they in fact d wnthem. In this sense, nowadays the continuation in different forms of the

surial t whateer extent f the ‘reseratin f jurisdictin t executie pwer’ principle f the 1924 Palestine Hly Places order in Cuncil44

is nt acceptable, since it depries the religius bdies cncerned f thedue prcess f law. The current legislatie situatin is nt satisfactryeither, as, fr many issues (if nt all) cncerning Hly Places, the cnsentand guidelines f the Minister f Religius Affairs (nt the mandatrycnsultatin r cnsent f the religius cmmunities) are required as a precnditin fr carrying ut certain actins.45

• Respect fr spiritual, research and welfare actiities carried ut by religiuscommunities.

• Equality fr all persns (bth natural and legal), f whateer religinr nne, befre the law in all respects (indiiduals, cmmunities, theirinstitutins, actiities and places).

b. Frm the prcedural iewpint:

• Setting up a legal instrument under which all the substantial rights andfreedms are safeguarded.

How Should it be Guaranteed?

It has been prpsed that the prtectin f hly spaces inside Jerusalem beaffrded by granting extraterritrial status (limited exercise f sereignty by the

44 ‘(…) 2. Ntwithstanding anything t the cntrary in the Palestine order-in-Cuncil1922, r in any ordinance r Law in Palestine, n cause r matter in cnnectin with theHly Places r religius buildings r sites r the Rights r claims relating t the differentreligius cmmunities in Palestine shall be heard r determined by any Curt in Palestine.

‘Prided that nthing herein cntained shall affect r limit the exercise by the ReligiusCurts f the jurisdictin cnferred upn them by, r pursuant t, the said Palestine orderin Council.

‘3. If any questin arises whether any cause r matter cmes within the terms f the preceding Article heref, such questin shall, pending the cnstitutin f a Cmmissin

[neer cnstituted] charged with jurisdictin er the matters set ut in the said Article, be referred t the High Cmmissiner, wh shall decide the questin after making dueinquiry int the matter in accrdance with such instructins as he may receie frm nef His Majesty’s Principal Secretaries f State (…)’ The Palestine (Hly Places) order inCuncil, 1924, in Enric Mlinar, The Holy Places of Jerusalem in the Middle East Peace Agreements, p. cit., 133–4.

45 Cf. Shmuel Berkwitz, ‘The Hly Places in Jerusalem: Legal Aspects’, p. cit., 6.




State).46 Hweer, that slutin des nt respnd t the needs either thereticallyr practically. As may be suppsed frm the preius cnsideratins, the full andsatisfactry prtectin f the sacred spaces inside Jerusalem cannt be islatedfrom the Holy City as a whole.

Manifld prblems then appear n the scene. It is cmmn t refer t at leasttw f them: the bundaries f the City and sereignty.

Cncerning the bundaries, at rst glance it wuld be really easy t establishthe bundaries f prtected places accrding t the old City limits47 or to the

General Assembly f the United Natins Reslutin 181 (II) (including, amngther places, Abu Dis, t the East; Bethlehem, Suth; Ain Karen, West; Shufat, Nrth). This apprach establishes material bundaries. Hweer, it is imprtant tunderline that the hinterlands arund these physical limits (ppulatin, culture ands n) must be taken int accunt as well. Enirns must play a rle f sme srt

f ‘easement’ related t special rules n zning law, ppulatin stability and s n.Cncerning sereignty, it is well knwn that the questin still remains

pen. The discussin started with the idea f a pending internatinal slutin fsereignty, which has nt been sled as yet,48 and has deelped int the ideaf a ‘acuum’ f sereignty which was lled by Israel in 1948 and 1967 (in anact f self-defence),49 r een a pending right f the Palestinian peple t land andJerusalem as a Capital. The UN Reslutin 181 aspiratins and gals hae nt been carried ut due t the subsequent hstilities. The internatinal cmmunity

has nt recgnized the successie annexatins made by Jrdan and Israel. Whileit is true that the main actrs fr reaching a permanent slutin fr the Jerusalemquestin are the Israelis and the Palestinians, it is als true that Israel and Palestinecannt decide Jerusalem by themseles withut taking int accunt the spirit and purpse f the existing internatinal legal instruments in frce.50

46 Sili Ferrari, ‘The Religius Signicance f Jerusalem in the Middle East Peace

Prcess: Sme Legal Implicatins’, p. cit., 737–8.47 Michael Dumper, p. cit., 7; Adnan Abu odeh, ‘Religius Inclusin, PliticalInclusin: Jerusalem as an Undiided Capital’ [1996] Catholic University of America Law Review 693.

48 Jhn Quigley, ‘Sereignty in Jerusalem’ [1996] Catholic University Law Review

767–8.49 Hweer, ‘[a] state that ccupies territry while acting in its defense des nt

thereby gain sereignty’. Jhn Quigley, ‘Sereignty in Jerusalem’, p. cit., 780.50 This is the spirit recgnized in the Preamble f the Basic Agreement between the

Hly See and the Palestine Liberatin organizatin, AAS (2000) 853–61: ‘The Hly See,the Sereign Authrity f the Cathlic Church, and the Palestine Liberatin organizatin(hereinafter: PLo), the Representatie f the Palestinian Peple wrking fr the benet andn behalf f the Palestinian Authrity (…) Declaring that an equitable slutin fr the issuef Jerusalem, based n internatinal reslutins, is fundamental fr a just and lasting peacein the Middle East, and that unilateral decisins and actins altering the specic characterand status f Jerusalem are mrally and legally unacceptable’.




International Instruments

The peculiar nature f the City f Jerusalem might suggest that it wuld benecessary to include the Holy City in the international multilateral instruments for

the prtectin f the uniersal cultural heritage. Indeed in 1981 the old City andWalls51 were included in the Wrld Heritage List under Article 11 f the CnentinCncerning the Prtectin f the Wrld Cultural and Natural Heritage, adpted by the UNESCo General Cnference at its 17th sessin (Paris, 16 Nember1972) t which Jrdan was a State Party. Applied t this issue, the Cnentinmay seem interesting in abstract, since it affrds internatinal prtectin fr theidenticatin, prtectin, cnseratin, presentatin and transmissin fr the futuregeneratins f the cultural and natural heritage (Article 4), establishing a system finternatinal c-peratin and assistance designed t supprt States Parties t the

Cnentin in their effrts t cnsere and identify that heritage (Article 7) anda surce f funding fr preseratin f imprtant histrical and cultural sites andalues (Article 15). Hweer, the inclusin f Jerusalem in the Wrld Cultural and Natural Heritage scheme des nt cnstitute any satisfactry slutin t the mainissues related t the Jerusalem questin fr the fllwing reasns.

• The Cnentin des nt cntain any prisin cncerning the respect fthe human rights cncerned, especially freedm f religin; in the case f

Jerusalem – as prbably in the case f ther Hly Cities – the religiusfreedm issue is crucial. It is necessary t prtect hlistically the material‘physical cultural heritage’ addressed in Article 1 (mnuments, grups f buildings, sites) and als the ‘human msaic’ f peples, religins and liingcultures. Furthermre, with the Cnentin we run the risk f reducing themulti-faceted reality f religin t the cultural factr reected in stnes.

51 Jerusalem UNESCo Wrld Heritage List, <http://whc.unesc.rg/en/

tentatielists/1483/> accessed 29 June 2009. Article 11 § 3 pints ut that: ‘3. The inclusinf a prperty in the Wrld Heritage List requires the cnsent f the State cncerned. Theinclusin f a prperty situated in a territry, sereignty r jurisdictin er which isclaimed by mre than ne State shall in n way prejudice the rights f the parties t thedispute’. In fact the registry f Jerusalem cntains this caeat: ‘This cncerns the prpertyentitled “Jerusalem – the old City and Ramparts t include Munt Zin” prpsed by Israelas an extensin t the “old City f Jerusalem and its Walls” inscribed n the Wrld HeritageList in 1981, upn prpsal by Jrdan. The Cmmittee at its 25th Sessin (Helsinki,2001) endrsed the recmmendatin f the 25th sessin f its Bureau (Paris, June 2001)

“t pstpne further cnsideratin f this nminatin prpsal until an agreement n thestatus f the City f Jerusalem in cnfrmity with Internatinal Law is reached, r until the parties cncerned submit a jint nminatin”. It shuld be nted that the UNESCo GeneralCnference in its Reslutins 32C/39 and 33C/50 afrmed that: “(…) nthing in the presentdecisin, which is aimed at the safeguarding f the cultural heritage f the old City fJerusalem, shall in any way affect the releant United Natins reslutins and decisins,in particular the releant Security Cuncil reslutins n the legal status f Jerusalem”’.

http://whc.unesco.org/en/tentativelists/1483/







• Indirectly, prmting the Cnentin as a surce fr regulating r partly priding a legal slutin t Jerusalem means t take a stand n thedispute n Jerusalem while aiding any negtiated slutin. only afterachieing a stable and internatinally recgnized slutin between Israeland Palestine wuld it be acceptable t include Jerusalem in the framewrkof the Convention.52

• The Cnentin des nt fully safeguard the rights f priate prperty thatreligius bdies hae in many (if nt all) Hly Places, and it des nt t intthe cmplex issue f the religius priate prperty f Christian Hly Placesin particular and Hly Places in general. Article 6 § 1 seems t be deisedfr abstract situatins in which prperty rights are held by indiiduals rgrups under the generic law and rules f a gien State.53 However, in the

particular situatin f Jerusalem it must be taken int accunt that een the

rule f sling disputes and making arrangements cncerning the prpertyf Hly Places is under dispute, since it leaes all the pwer in the hands fthe Israeli executie (mainly the Ministry f Religius Affairs, fllwingthe British Mandate system, as explained preiusly), withut the clear-cut cmmn guarantees affrded by the judiciary. Besides, the guaranteesaffrded by the Status Quo imply sme srt f autnmy specic t and/rdifferent frm the cmmn rules f priate prperty in the State.

• And nally the Cnentin nly gies ice and actin t tw types f

actrs: States and the Wrld Heritage Cmmittee. It des nt take intaccunt the rle f religius cmmunities. It wuld gie a blank checkt unilateral actins taken by the State r indeed by the Wrld HeritageCmmittee whilst ignring the legitimate interest f religius cmmunities,een where they are the wners f the places and mnuments cncerned.

It is therefre necessary t lk fr ther ways and legal internatinal instrumentst pride a prper umbrella fr the slutin f the issue f Hly Places inJerusalem. In any case, that slutin must be negtiated and agreed if it is t

52 In this sense it is clear t me that the recent inscriptin f the Birthplace of Jesus:Church of the Nativity and the pilgrimage route, Bethlehem, Palestine, on the List of

Wrld Heritage in Danger, despite apparent gd intentins and needs, might becme the perfect instrumentatin f sacred places fr plitical purpses. Unites Nations Educational,Scientic And Cultural Organization, Convention Concerning The Protection Of The WorldCultural And Natural Heritage, World Heritage Committee, Thirty-sixth session: Saint Petersburg, Russian Federation, 24 June–6 July 2012, WHC-12/36.CoM/19, Decisin:

36 CoM 8B.5 <http://whc.unesc.rg/archie/2012/whc12-36cm-19e.pdf > accessed 25September 2012.53 ‘Whilst fully respecting the sereignty f the States n whse territry the

cultural and natural heritage mentined in Articles 1 and 2 is situated, and withut prejudicet prperty rights prided by natinal legislatin, the States Parties t this Cnentinrecgnize that such heritage cnstitutes a wrld heritage fr whse prtectin it is the dutyf the internatinal cmmunity as a whle t c-perate’.

http://whc.unesco.org/archive/2012/whc12-36com-19e.pdf

http://whc.unesco.org/archive/2012/whc12-36com-19e.pdf



Chapter 11

The Haram Al-Sharif in Jerusalem:

An Israeli Law PerspectieMussa Abu Ramadan

Introduction

The idea f the existence f Islamic hly places in Jerusalem is cnnected t theapprach f Islam t the heaenly mntheistic religins: Judaism and Christianity.Mst Islamic schlars cnsider that the prphets f the heaenly religins wereMuslims, and in this way they see them as part f the Islamic faith.1 Because of

this iew, places that are hly fr Jews and Christians are deemed as such als frIslam. The Kran cnsiders the Bilad al-Sham (Syria and Palestine) as hly land.This is clearly shwn by the way the Kran deals with the religius narratie fthe ther religins. Cncerning the entering f Bani Israel (Peple f Israel) int

the Land f Canaan, it says: ‘o my peple! Enter the hly land (Palestine) whichAllah has assigned t yu, and turn nt back (in ight) fr then yu will be returnedas lsers’.2 These cncepts are als applied t the hly places in Jerusalem asmst f the hly places fr Muslims in Jerusalem are cnnected with the religiusnarraties f the ther religins accrding t the Islamic narratie. These placesare gien new Islamic features that distinguish them frm thse gien t them byther religins.

1 This belief riginated frm the Kran itself, where we nd seeral erses that implythat Mslems hae existed since the time f Abraham. verse N. 78 f al-Hajj (Pilgrimage),says: ‘He has chsen yu (t cney His Message f Islamic Mntheism t mankind byiniting them t His religin, Islam), and has nt laid upn yu in religin any hardship,it is the religin f yur father Ibrahim (Abraham) (Islamic Mntheism). It is He (Allah)Wh has named yu Muslims bth befre and in this (the Kran), that the Messenger(Muhammad) may be a witness er yu and yu be witnesses er mankind!’. verse 3.67f Surat Al Imran emphasizes that Abraham was a Mslem. Abraham was nt a Jew nr yet

a Christian; but he was true in Faith, and bwed his will t Allah (Wh is Islam). Similarly,the peple f Jesus and the Hawareen wh fllwed are als cnsidered Mslems. ‘Andwhen I (Allah) put in the hearts f Al-Hawarieen (the disciples) [f ‘Iesa (Jesus)] t belieein Me and My Messenger, they said: “We beliee. And bear witness that we are Muslims”’(Table Spread with Food , 111).

2 Koran, Table Spread with Food , erse 21. Fr English translatin f the Kran see<www.dar-us-salam.cm/TheNbleQuran > accessed 30 April 2013.

http://www.dar-us-salam.com/TheNobleQuran

http://www.dar-us-salam.com/TheNobleQuran




It is pssible t diide hly places fr Muslims in Jerusalem int tw categries.The rst cnsists f the places lcated in the square that has cme t be knwnas al-Haram al-Qudsi al-Sharif (the Nble Sanctuary). The secnd cnsists fthe hly places lcated in ther areas in Jerusalem, and which are cnnected t prphets r prminent persns frm the early perid f Islamic histry, r t siteslinked t eents t take place in the afterlife. In this chapter we will cncentrate nthe legal status f the Haram al-Sharif in Israeli law, but befre that I will pridesme ery brief elements n the signicance f Haram al-Sharif frm an Islamic perspectie.

The Establishment of the al-Aqsa Mosque

Althugh al-Aqsa was built during the perid f the Umayyad Caliph al-Walid

bin Abdul-Malik bin Marwan,3 we nd sme interpreters and jurists wh lied inthe Umayyad perid wh think that the msque was built during the era f BaniIsrael in rder t lend legitimacy t it in light f the Kran erses that talk abutBani Israel. This is afrmed by the interpreters wh lied in the Umayyad peridn the assumptin that the al-Aqsa Msque is a hly place because it was built bythe prphets. Fr example, the interpreter and jurist Mujahid bin Jaber (d. 720)4

argued that the al-Aqsa Msque was built by the Prphet Slmn as a maincentre fr the wrship and puricatin f peple frm sins.5 It shuld be nted that

in later perids sme Muslim histrians raised dubts regarding these ersins thatmaintain that King Slmn is the ne wh built the al-Aqsa Msque. Al-MalikiJurist Ibn Khaldun maintained that the ‘al-Aqsa Msque was built in the days fSabians as a site fr the Temple f the al-Zahra, and they were ffering il t it,and pur il n the rck there’.6

The Story of Isra’ and Mi’raj (Night Journey/Ascension and Diversion) and itsConnection to the al-Aqsa Mosque in Bayt al-Maqdis

We nd als that sme jurists in the Umayyad perid linked many f the Kranerses with the al-Aqsa Msque in al-Quds. The Umayyad jurist and interpreterQatada bin Da’ama al-Sadusi (680–735)7 translated the Kran erse whichsays ‘Exalted is He wh tk His Serant by night frm al-Masjid al-Haram t

3 Ibn Khalun, Muqadduma (Dar a-Fajr 2004) 432.4 He was a mawla f Abdulla bin al-Saeb, wh was cnsidered ne f the dignitaries

f Mecca. He is cnsidered as ne f the jurists f asceticism wh lied in Mecca. He waswell knwn fr his jurisprudence in spite f his asceticism and piety.5 Mhammad bin Ahmad al-Qurtubi, al-Jami’ Li Ahkam al-Koran (l 4, Dar al-Sha’ab

1961) 138–9.6 Ibn Khaldun, Muqaddima, p. cit., 430.7 An Umayyad jurist and interpreter wh lied in al-Basra. See omar Kahhalah,

Mujam al-Mu’allifn (l. 8) 127.



The Haram Al-Sharif in Jerusalem 177

al-Masjid al-Aqsa, whse surrundings We hae blessed, t shw him f oursigns. Indeed, He is the Hearing, the Seeing’,8 saying that Allah tk the PrphetMhammad frm the site f al-Ka’ba t the site f the al-Aqsa Msque in al-Quds,where the Prphet Mhammad prayed as the imam f the prphets.9

Hweer, this great status that was gien t the al-Aqsa Msque during theUmayyad perid began t decline smewhat after the Umayyad rule ended and thecentre f Islamic authrity med t ther places. With the cming f the Abbasiddynasty t authrity and the shift f the centres f gernment frm al-Sham tIraq, we nd that there was an attempt by sme jurists t decrease the degreef hliness f al-Aqsa. Fr example, the Iraqi jurist Suan al-Thawri (716–78)10

argued that the Prphet Mhammad did nt reach the al-Aqsa Msque becauseif the Prphet had prayed at al-Aqsa, he wuld hae rdered Muslims t prayin it.11 Hweer, the jurist and muhaddith Abu Bakr bin Ayyash (d. 809), wh

lied during the days f Harn al-Rashid, and is cnsidered ne f his faurites,12 stresses that the prphet did nt een dismunt al-Buraq and his feet did nt treadal-Aqsa Msque, and he cites certain traditins (hadiths) that are ascribed t thePrphet’s cmpanin, (Sahabi) Hudhaifa bin al-Yaman, wh mcks the ersinsthat say that the Prphet prayed at the al-Aqsa Msque.13

The Dome of the Rock

The Dme is cnsidered ne f the buildings that Abdul-Malik ibn Marwan builtin al-Quds, and which became ne f the hly places fr Muslims in al-Sham.Sme histrians agree that it was built fr purely plitical reasns, as the Sha’iDamascene histrian Ibn Kathir states:

The reasn fr it was that Abdullah Ibn al-Zubayr had taken er Mecca, and wasgiing his speeches during the days f Mina and Arafa and during the peple’sstay in Mecca. He was attacking Abdul-Malik Ibn Marwan, recalling the ices fBani Marwan and saying that the Prphet, Gd’s peace be upn him, cursed the

8 verse n. 1 f Surat al-Israa.

9 Mhammad bin Jarir al-Tabari Jami’ al-Bayan Ta’wil al-Quran (l. 17,Mu’assasat al-Risalah 2000) 331–2.

10 An Iraqi jurist and a Muhaddith, wh lied in al-Kufa and died in al-Basra. Hewrte seeral bks n jurisprudence and Hadith. Sme f these wrks reached us thrughther jurisprudence bks (Kahhalah, Mu’jam al-Mu’allin, l. 4, 234).

11 Mhammad bin Jarir al-Tabari, Jami’ al-Bayan, p. cit.

12 He lied in al-Kufa and was a mawla f Bani Asad. Al-Dhahabi, Siyar A’laam al- Nubala, l. 8, p. 495. He had sme cntacts with Harun al-Rashid. Ibn Ya’ish describedthe Abbsid rule as a religius ne, unlike the Umayyad rule. Fr this saying, al-Rashid gaehim a large prize f mney. Al-Dhahabi, Siyar A’laam al-Nubala, l. 8, p. 498. Yet, seeralIslamic ersins describe him as a pius and ascetic persn wh prefers afterlife t thisearthly life. Al-Dhahabi, Siyar A’laam al-Nubala (l. 8) 499.

13 Mhammad bin Jarir al-Tabari, Jami’ al-Bayan, p.cit. (l. 17) 349.




regime and what it brught, and that he was chased by the Messenger f Gd andhis damned ne, as he used t call himself, and was s elquent that the majrityf the peple f al-Sham were inclined t fllw him. This became knwn tAbdul-Malik and he preented peple frm making pilgrimage t Mecca, andthey prtested strngly. S he built them the Dme er the Rck and the al-Aqsa Msque t diert their thinking and feeling frm making a pilgrimage tMecca, and t win their hearts. Peple used t stp by the Rck and me arundit, as they d arund the Ka’ba and they make sacrices n the Sacricing Dayand shae their heads. This gae the pprtunity t Ibn al-Zubayr t defame himas he started t slander him in Mecca by cmparing this enterprise t what aPersian King did, by building a palace and ming the circling (Tawaf) frm theHuse f Gd (i.e. Mecca) t the qibla of Bani Israel, and so on.14

It is wrth nting that in that histrical perid nn-Muslims, like Christians andJews, were als allwed t isit the Dme f the Rck and pray in it. There is atraditin that says, ‘and ther peple like the sering Jews, wh made glass lightsand cups and bazaqat and ther things, were exempted frm paying tribute’.15

The Legal Status of Haram al-Sharif in Israeli Law

Thugh Muslims grant Jerusalem special reerence and hliness, it is incrrect

and impssible t analyse its status withut taking int accunt that f the therhly places fr Muslims under Israeli law. Therefre, I will rstly describe thelegal status f Islamic hly places in general. This analysis is als releant t the Nble Sanctuary/al-Haram al-Sharif. In the secnd part, I will try t pint ut theunique status f Jerusalem fr bth the legal status and the special sensitiity fthis holy site.

Each f the mntheistic religins in Israel has a different legal status. 16 The

explanatin fr this can be fund in the histrical deelpment f each religin andin the character of the State of Israel. Beyond that, each Christian community has

a different legal status. Hweer, the Jewish religin has a special status in Israel,which is legally dened as a ‘Jewish State’. In this cntext, it shuld be nted thatin Israel there is n separatin between State and religin. Cnsequently, and inmany aspects, Judaism is cnsidered t be the ‘Religin f the State’. Practically,the signicance f this cnclusin is that State authrities are cmmitted nt nlyt preenting any harm t the Jewish religin, but t being actie in arius areas

14 Ismael Ibn Kathir al-Dimashqi, al-Bidaya wa al-Nihaya (l. 12, Dar Hajar 1998)41. The Muslims wh d the pilgrimage t Mecca hae t g arund the Ka’aba (a Hlystne in Mecca). Instead f ging arund the Ka’aba in Mecca, Marwan wanted Muslimst g arund the al-Aqsa.

15 Al-Musharraf Ibn al-Murajjaal-Maqdisi, Fada’il Bayt al Maqdis (Dar al-Kutub al-’Ilmiyah 2002) 62.

16 This applies als t relatiely small cmmunities such as the Druze cmmunity.

http://www.arabicbookshop.net/main/cataloguefilter.asp?type=BOOKS&publisher=1&bk_code=121-349







t deelp, enhance and cnslidate it by giing it pririty and preference erther religins.

The ther tw religins, Christianity and Islam, d nt get similar treatment.Fr example, Christianity has a special status due t the fact that it is prtectedthrugh the special status that Israel gae t the different churches. This statusgies the different Christian cmmunities special prtectin that is presered inthe different agreements between Israel and these churches. Eidence f that isthe cmmitment f the State f Israel t presere the status qu that has existedsince the ottman era. Israel crrbrated this recgnitin in the internatinalagreement that it signed with the Hly See in 1993.

Hweer, Islamic hly places hae been granted lesser prtectin incmparisn with ther religins and they hae been treated with suspicin by theIsraeli authrities. Therefre they were smetimes subjected t hstile treatment

by the Israeli authrities fr arius reasns. First, Islam is the religin f themajrity f the Palestinians wh lied in this area befre the establishment f theState f Israel. This fact put Islam at the centre f the Israeli-Palestinian cnict.Secnd, the State f Israel saw Islam as a cmpeting cmpnent with Judaism,and much more dominant in Palestine than Christianity. Third, and as a result of

these two reasons, the State of Israel saw Islam and Muslims as a direct threat to

the idea f the hmgeneity f the Jewish religin and peple in the State f Israel.Yet, and because f the special imprtance f this area frm a religius pint f

iew, Israel chse t grant freedm f wrship t the different religins and gie prtectin t their hly places. Hweer, as will be explained, this prtectin ismdular and aries frm ne religin t the ther. As I will shw, this treatmentdes nt nly ary frm ne religin t the ther, but als frm ne place t thether, een when the hly places belng t the same religin. Fr example, thestatus f Islamic hly places in Israel is different frm the status f al-Haram al-Sharif in al-Quds.

This intrductry expsitin aims t shed light n the legal status f al-Haram al-Sharif as a hly place accrding t Israeli law. Hweer, this analysisrequires a preliminary explanatin f the cmplexity f the denitin f ‘hly place’ accrding t the Israeli legal system. on the assumptin that al-Haram al-Sharif can be dened as a hly place, it is apprpriate t present the status f al-Haram al-Sharif within the general cntext f the status f the Islamic hly placesunder Israeli law. Presenting al-Haram al-Sharif in this way is essential t theunderstanding f the uniqueness f al-Haram al-Sharif, n the ne hand, and thecmplicatins in the cnduct f the authrities f the State f Israel in general andthe curts in particular regarding al-Haram al-Sharif, n the ther.

Denition of ‘Holy Place’

Classicatin f a certain place as ‘hly’ is pertinent t granting it the psitin f‘special status’, which implies a series f rules and frms f prtectin that are




prided in arius laws related t ‘hly places’. Despite the imprtance f such adenitin, surprisingly Israeli law des nt hae a denitin f ‘hly place’.

A partial explanatin f this aspect lies in the fact that the cncept f ‘a hly place’ is basically a religius ne. Being s, such a denitin is a cmplicated issuethat includes prfund religius, histrical and scial cmpnents. Therefre, the jb f the law that aspires t gie clear denitins turns ut t be nt easy atall. This cmplexity appears in the erdict f the Israeli Supreme Curt n therestrictin impsed n Israeli curts n disputes related t hly places.

The Supreme Curt f Justice dened a ‘hly place’ as ‘a place that the peple cnsidered fr a specic perid f time as a hly place, r alternatiely,as afrementined, because the place is s isible and seen that the curt hasfrmulated a legal idea regarding the character f the place as a hly place’. 17

This denitin makes curts dependent upn religius surces in rder t

cnduct a scilgical-factual analysis, and erify hw a certain place is cnceied by the releant cmmunity.

Dependence n religius and scial surces is freseen als in the law n the prtectin f hly places f 1967. Accrding t this law, which we will deal withlater in detail, the Minister f Religius Affairs, wh is in charge f enfrcingthe law, is allwed t draw up regulatins that guarantee its enfrcement, ‘aftercnsultatin with representaties f the releant religins, r accrding t their prpsal, and the agreement f the Ministry f Justice’.18

The way in which the authrity f the minister is exercised is ery usefult ur study. The Minister f Justice has actually used his authrity, and issuedregulatins with a detailed list f hly places, but the hly places he listed arerelated r are suppsed t be related t Jews nly.19

This abslute disregard fr ther religins in regulatins is nt accidental; itis related t bth the denitin f the State f Israel as a Jewish State and tthe Israeli-Palestinian cnict, which is knwn t hae a strng religius sidet. As is knwn, and as a result f the 1948 War, mst Palestinians, wh weremainly Muslims, were eacuated frm their hmeland. The cities and illageswere destryed and, cnsequently, Islamic hly places were abandned. Withinthis cntext, a number f Israeli researchers suggest the remal f the aspect f‘hliness’ frm these places, and prpse t cnsider any place as ‘hly’ nly ifit is ‘alie’ and ‘actie’, which means that religius rituals are being held there at present.20

This prpsal is intended in a clear way t prefer Jewish hly places t the hly places f ther religins, especially Islam.21

17 I.E 492/79 PD 45, pp. 157, 161.18 Article 4, The Protection of Holy Places Law, 1967.19 Regulations for the Protection of Holy Places to the Jews, 1981.20 Shmuel Berkitz, The Legal Status of the Holy Places in Jerusalem (Jerusalem

Center fr Israeli Studies 1997) 18.21 Ibid., p. 41.




As mentined preiusly, the attempts t decrease the degree f hliness fhly places d nt apply t al-Haram al-Sharif, as the hliness f the place is anagreed fact, een by Israeli law, as will be explained in detail later.

Hweer, at the same time, there are many places in Israel, including al-Haramal-Sharif, that raise an ppsite prblem related t places that are cnsideredhly by ther religins simultaneusly. Such a situatin cnstitutes an additinalsurce f tensin and disputes. A strng example t this is the Western Wall, whichcnstitutes a surce f cnsiderable cnict between Muslims and Jews.

Gien the natinal cnict between Jews and Arabs, a heated dispute brkeut regarding the status f the Western Wall, which the Muslims call ‘The Wallf Tears’. This cnict started during the British Mandate n Palestine, and wasdiscussed and claried by the Internatinal Inestigatin Cmmittee that theBritish appinted22 (hencefrth, Reprt f the Western Wall). After thrugh

inestigatin, the Cmmittee decided the fllwing:

• the Western Wall is hly fr the Muslims because accrding t the Islamic belief, Prphet Mhammad tied his hrse t the Western Wall;23

• the Western Wall is hly fr the Jews als because it is the last remnant ftheir Temple,24 accrding t their belief;

• Muslims are the exclusie wners f the Western Wall and the adjacentyard that is connected to it;25

• the Jews hae the right t pray at the Western Wall.

The cnclusins f the Western Wall Cmmittee are enshrined in the law (TheKing’s order in the Cuncil f Palestine [Land f Israel] [Western Wall], 1931).This law als prtected the exclusie right f Jews t pray at this place as partf the status qu. After the establishment f the State f Israel this law lst itseffectieness, and after the 1967 War and the ccupatin f East Jerusalem, theWestern Wall turned int a hly place fr the Jews nly, bth practically andlegally.26 It is wrth mentining that in rder t legitimize the Western Wall as a praying place fr Jews, the State f Israel cnscated the Mghrabi Quarter anddestroyed all the houses where Palestinians lived.

Frm the abe infrmatin, we can say that Israeli law, the State ministriesand authorities deny de facto (practically), and de jure (theretically) any hliness

22 Report of the Commission appinted by His Majesty’s Gernment in the UnitedKingdm f Great Britain and Nrthern Ireland, with the appral f the Cuncil f the

League f Natins, t determine the rights and claims f Mslems and Jews in cnnectinwith the Western r Wailing Wall at Jerusalem, 1930 (printed and published by his Majesty’sStatinery ofce 1931) 18.

23 Ibid., 41.24 Ibid., 42–3.25 Ibid., 38–41.26 Regulations for the Protection of Holy Places to the Jews, 1981.




f the Wall fr Muslims. on the ther hand, ther parts f al-Haram al-Sharifacquired the recgnitin f the authrities f the State as ‘hly’ fr Muslims. Thisrecgnitin is ery imprtant and releant in rder t apply t al-Haram al-Sharifthe rules and prtectin that are granted by Israeli law t hly places in general.

Protection of Holy Places of all Religions Under Israeli Law

Befre we present Israeli law n the prtectin f rights cnnected t hly places,it is imprtant t mentin that this analysis is related nly t the actual cnditinf things as they are reected in Israeli law and in the erdicts f Israeli curts.This remark is needed gien the fact that there is a wide gap between the legalcnditin and the real cnditin in this matter. It is als true that we can argue that

such a gap can be fund n eery issue. Hweer, in this specic issue, the gap isnt nly quite wide, and mre signicant than in ther cases, but it is inherent tthe plitical and legal system f the State f Israel, which is related t its denitinas a Jewish State and t the Israeli-Palestinian cnict that has been ging nfr many decades. Therefre, and in rder t gie a cmplete picture, the actualsituatin in the eld is briey described after this chapter.

The Regulations on the Protection of Holy Places, 1967

This is the central law that deals with the general prtectin f hly placesaccrding t Israeli law.

Article (1) f the law states: ‘the religius places will be prtected againstdesecratin and any ther ffense and against anything that is likely t frm anbstacle t the access f the belieers f the ther religin t their hly places, rtheir feelings twards the same places’. The article adds that any ilatr f these prhibitins can be sentenced t heay punishment r imprisnment.27

It shuld be nted that the abe prtectin is quite brad and is nt limited tthe prtectin against desecratin f a hly place as it includes prtectin againstother offences.

Despite the brad prtectin it grants, this law raises a number f prblemseen frm a lgical pint f iew. First, as was pinted ut befre, there is n clearlegal denitin f ‘hly place’. The absence f a clear denitin is een mreserius as we are dealing with a law that entails criminal sanctins. Secnd, thughthe law gies the Minister f Religius Affairs authrity t pass regulatins andrules, the nly regulatins that the Minister issued t apply this law are related t

the Jewish hly places alne, with clear and abslute disregard fr ther religins.In additin, there are difculties in applying the law in a cntext where thereare tensins between cmpetitie rights between different religins r different

27 Seen years fr anyne wh desecrates a hly place r 5 years fr anyne whharms freedm f access t hly places – Article 2 f the law.




sects f the same religin. The issue is s cmplicated, especially with regard tthe sensitie cnditins at a number f hly places. Fr example, al-Haram al-Sharif and the Macphela Cae in Hebrn/al-Khalil are hly fr bth Muslims andJews. Since the custms f each religin are different frm the thers, this mightcreate tensin and cnict between identical rights. Thus, fr example, Jews werefrbidden t drink wine inside the Macphela Cae as the place als seres as amsque. Similarly, Muslims are frbidden t hld funerals as the place seres alsas a synaggue.28

A further tensin that emerged as a result f the interpretatin f this law isreected in the issue f Jewish ladies wh asked t pray at the Western Wall.Such a request is likely t harm the religius feelings f the orthdx current inJudaism. The petitins f these wmen were rejected but the decisin f the curt,despite its different iews, expresses the difculty inled in recnciling these

ppsite rights.29

Penal Law

Israeli penal law establishes a number f ffences whse purpse is t guaranteethe prtectin f hly places, as part f the prtectin f freedm f wrship.Article 170 f the penal law prides fr a punishment f three years fr anynewh ‘destrys, damages, r desecrates a place f wrship … that is held hly fr

a crwd f peple, with the purpse t desecrate their religin, r if he knwsthat they are likely t cnsider his actin as humiliatin t their religin’. Article171 f this law inicts a punishment f three years imprisnment n anyne wh‘deliberately bthers a cngregatin f peple wh gathered legally t perfrm areligius wrship …’ Article 172 inicts punishment f three years imprisnmentn anyne wh enters a place f wrship withut permissin r a burial placeand behaes in a way that shws ‘a purpse t injure the feelings f a persn rdesecrate his religin’.

Law of Antiquities

Since a large number f hly places hae als a histrical and archelgicalalue, they mstly enjy the prtectin that is gien t antiquities in the Law fAntiquities (1978). Article 29(a) f this law prhibits building, paing, quarrying, burying r perfrming ther actiities withut written permissin by the Directrf the Antiquities Serice. Beynd that, accrding t Article 29(c), the law says:‘When an antiquity site is used fr religius requirements r deted t a religius

purpse, the Directr shall nt appre digging r any f the peratins enumeratedin subsectin (a) sae with the appral f a Cmmittee f Ministers cnsisting

28 High Curt f Justice Decisin 223/67 Israeli court rulings Kf Bet (1) 440, 448.29 High Curt f Justice Decisin 257/89, 2410/90 Israeli court rulings Mem Het

(2) 256, 354.




f the Minister as chairman, the Minister f Religius Affairs and the Minister fJustice’. In additin, the Law decides penal sanctins in Article 37 against anynewh breaks the prisins f Article 29.

As detailed belw, this law cnstituted a legal basis fr the numerus litigatinsthat are related t wrks that the waqf (Islamic religius endwment trust) made inthe halls belw al-Haram al-Sharif.

General Protection of Freedom of Worship in Israeli Law

Freedm f wrship was recgnized in the Israel Declaratin f Independence,where the State f Israel tk the cmmitment t guarantee ‘freedm f religin’.It was decided that ‘freedm f wrship is ne f the basic liberties that arerecgnized accrding t ur legal system and they cnstitute part f it. Ways f

expressin f the mentined liberty are f curse, in their essence, in the freedmf religius expressin and practicing’.30

In spite f the fact that there is n written cnstitutin in Israel, freedm fwrship was recgnized as a right that has a legal alue. Besides, and differentlyfrm ther basic rights, it was decided that prtectin f freedm f wrship,except fr criminal prisners, will be in the hands f the executie authrity, andwill be taken ut f the realms f pssible interference by curts. This exceptinis based n Prisin 2 f the King’s order regarding hly places in 1924, which

excludes frm the scpe f curts, ‘eery issue r legal case that are cnnectedt the hly places r buildings r religius sites in Palestine (Land f Israel) …’The Supreme Curt interpreted this rder as excluding the prtectin f freedmf wrship frm the authrity f curts, except fr enfrcement f the law inguarding the hly places. This iew was supprted already in 1968 in the rstcurt erdict that dealt with fulllment f the rights f Jews t pray at the TempleMount.31 It was decided that the right t pray is different frm free access t hly places, since the right t pray is nt freseen in the law n hly places. In iew fthis, curts hae n authrity t deal with this issue; nly the executie authrityhas the jurisdictin t d s. Curts cnrmed this psitin in a lng series ferdicts, in which many petitins submitted by Jews t pray n the Temple Muntwere rejected.

In anther erdict that was gien in the early 1990s, we see hw the SupremeCurt restricted this sweeping iewpint by determining that anther interpretatinis pssible when it is related t an indiidual persn wh is requesting t pray atal-Haram al-Sharif. In this case, it seems that the curt thinks that it is pssible trecgnize the right f the indiidual as part f his/her right f free access.32

30 High Curt f Justice Decisin 650/88. Israeli court rulings, Mem Bet (3) 377,381.

31 Israeli court rulings, Kf Dalet (2) 141.32 High Curt f Justice Decisin 67/93. Kakh Mement, and the League fr Jewish

Defense, The Minister f Religin and one, Israeli court rulings, Mem Zayen (2), 1.




Legal Status and Actual Condition of Islamic Holy Places

In light f the general prtectin f hly places as mentined abe, it is apprpriatet ealuate the status f the hly places fr Muslims in a mre specic way. Thisassessment shuld address tw aspects: the legal aspect and reality.

Frm the legal pint f iew, the releant law is the Absentee Prperty Lawf 1950, which is ne f the mst signicant and cntrersial laws regardingthe relatinship between the State f Israel and the Palestinian minrity liing init, especially regarding Palestinian prperties in Israel. It shuld be pinted utthat this law is nt applicable t al-Haram al-Sharif. Hweer, pinin is diidedamng the authrities in Israel whether t apply this law in East Jerusalem t rnot.

The Absentee Prperty Law basically deals with the prperty f Palestinians

wh left the area as a result f the 1948 Palestine War and turned int refugees.Besides, the law applies t a quarter f the Palestinians wh became citizens fIsrael after the war. T their misfrtune these peple were present at the timef war in areas where, accrding t Israeli claims, there were frces that fughtagainst the Israeli frces. Accrding t this law, their prperties were ‘absentee prperty’, and therefre they were cnscated by the State f Israel and medt the administratin f a gernmental bdy that was established accrdingly,called the Custdian f Absentee Prperty. This is a huge amunt f prperty,

which is basically indiidual prperty that includes lands and huses. Part f this prperty is made up f public institutes, including religius hly places that belngt Muslims. Regarding religius places, the law prided a special arrangement.It was decided that religius prperty shuld be run either by the Custdian fAbsentee Prperty r a Cmmittee f Trustees that was set up accrding t thelaw. In additin, special rules prided that this prperty must be run t the benetf the Muslim ppulatin. It shuld be pinted ut that in the case f religius prperty the law des nt decide that special prtectin shuld be gien t it.Hweer, the law establishes the prhibitin f selling msques.33

Actually, the management f the prperty is characterized by neglect, andthe selling f this prperty34 is a cmmn phenmenn. Lands that sered asMuslim cemeteries were sld as pieces f real estate.35 Thus, fr example, theMuslim cemetery f al-Jamusin was sld. The cemetery was lcated nrth f the prmenade in Tel Ai. Een cemeteries in use were sld withut any interference by the Israeli authrities and their selling was appred by the Supreme Curt inIsrael.

33 Article 29(c) (Gemel) f the Law f Absentee’s Assets.34 Reports of the State Controller: Annual Report , N. 24 (1974), P. 1980\-190,

Annual Report , N. 34 (1984), 73–80, Annual Report , N. 38 (1988), 83–90, Annual Report , N. 45 (1994).

35 Ayen Alefע

3997/91, The Committee of the Islamic Waqf , N Yosi An Investment

Cmpany Ltd. PD 49, 788 (5).




Msques, thugh there is a legal prhibitin t their selling, were expsed tsimilar bleak cnditins. Many msques were s neglected that they had t bedemlished. Sme msques were turned int places fr purpses that hae nthingt d with religius rites r serices. An illustratie example is the stry f the big msque in Ber Shea. The msque sered as a museum fr the histry f the Nege fr years. When the museum was clsed and the building was abandned,Muslim peple in the Nege asked t reuse the building as an actie msque. Theirapplicatin was refused and they had t appeal t the Supreme Curt which ruledthat the building culd be turned int a Muslim museum.

Beynd legal actiity, the actual situatin indicates cnstant attempts t harmthe hly places f the Palestinian residents in Israel in general and the Muslimsin particular. A reprt that was written by the Arab Assciatin fr Human Rightsshws a wrrying practice f desecratin f Islamic and Christian hly places

in Israel: the reprt details many incidents in which Israeli Arab citizens werefrbidden t enter their neglected hly places, thus undermining the attempts f theArabs t restre sites f wrship alngside a systematic desecratin f cemeteries,especially thse f Muslims.36

The Legal Status of al-Haram al-Sharif

The Occupation and Annexation of Jerusalem and the Application of the Israeli Law on East Jerusalem

Immediately after the Six Day War in 1967, Israel made legal changes that wereintended t apply Israeli law t East Jerusalem, including al-Haram al-Sharif.The rder f the arrangements f gernment and law f 1967, and the decree farrangements f gernment and law (N. 1) were amended in a way that culdallw the applicatin f Israeli law t East Jerusalem. The rder f the municipality(amendment N. 6, 1967) was als amended in a way that allwed the annexatinf large areas. The area f Jerusalem increased frm 38,100 dunams t 108,500dunams. Regarding al-Haram al-Sharif, n 11 June 1967 the Military Gernmenttransferred respnsibility fr the Muslim cmmunity t the hands f the Ministryf Religius Affairs. The Ministry tk immediate measures that were intendedt cncretize the annexatin f East Jerusalem t Israel. Thus, fr example, therepresentaties f the Ministry f Religius Affairs requested t take cntrl erthe prperty f the Islamic waqf and started practicing direct inspectin, cntrland censrship n the Friday sermn at the al-Aqsa Msque.37 After severe

prtests by Muslim religius leaders, a cmprmise was nally reached, which

36 www.arabhra.rg/Hra/Pages/PpupTemplatePage.aspx?PpupTemplate=142 >accessed 30 April 2013.

37 Shmuel Berkitz, The Wars of the Holy Places (Jerusalem Institute fr IsraeliStudies 2000) 261.

http://www.arabhra.org/Hra/Pages/PopupTemplatePage.aspx?PopupTemplate=142

http://www.arabhra.org/Hra/Pages/PopupTemplatePage.aspx?PopupTemplate=142




has cnstituted a kind f delicate status qu. As a result, respnsibility fr keepingorder and security is in the hands of the Israeli security forces, mainly the Israeli

plice, while respnsibility fr internal and religius arrangement remains in thehands f the waqf peple, wh had been in charge f al-Haram al-Sharif befre theIsraeli ccupatin f Jerusalem.38

The ccupatin f Jerusalem has nt been recgnized by the internatinalcmmunity, and the United Natins cnsidered the unilateral steps taken by Israelas illegal, id and inalid.39

In spite f that, in 1980 the State f Israel passed a basic law which declaresthat united Jerusalem is the capital f Israel. This law, t, receied seerecriticism frm the internatinal cmmunity, and it was decided that it is againstinternatinal law and cnstitutes an bstacle in the attempts t achiee peace inthe Middle East.40

Thus, East Jerusalem, including al-Haram al-Sharif, is an ccupied area frmthe pint f iew f internatinal law with all its implicatins, and accrding tthe Genea Cnentin, the laws f an ccupied area apply t Jerusalem and al-Haram al-Sharif.

This internatinal cnditin implies that it is nt easy t deal with the legalstatus f al-Haram al-Sharif accrding t Israeli law. Here are sme examples thatillustrate the cmplicatins f this issue.

First, the Palestinians hae neer recgnized r accepted the ccupatin f

East Jerusalem and the cntrl by the Israeli authrities f al-Haram al-Sharif.This strng resistance explains the fact why Palestinians in general and the waqf peple wh are running al-Haram al-Sharif, in particular, traditinally refuse tapprach the Israeli curts in rder t realize and implement their religius andnatinal rights. It is understd that this aidance and abstentin stems frm theabsence f basic trust f Palestinians in the Israeli legal system.

In additin t this, and althugh this is ut f cntext, it shuld be nted thatthe Israeli cntrl f al-Haram al-Sharif limits t a large extent the rights f theMuslims t pray at the place. Fr example, fr years Israel has limited the rights fthe Palestinians wh are nt citizens f Jerusalem (r Israeli citizens) t pray at the place. This is a seere limitatin that impacts and ffends millins f Palestinianswh lie in the West Bank and Gaza Strip.

Secnd, een Israel des nt deal with East Jerusalem and al-Haram al-Sharifas an Israeli area. Israel’s attitude t this place is ambialent. on the ne hand,Israel has taken unilateral legal and aggressie measures in rder t assert andcncretize its military cntrl and dminatin n the area. Fr example, Israel tker the Western Wall by destrying an entire quarter near the Wall. on the ther

hand, Israel tries t be ery careful and aids abslute cntrl er the msque

38 Yitzhac Reiter, The Waqf in Jerusalem (Jerusalem Institute fr Israeli Studies1992).

39 A/Res/2254 (14.7.67); A/Res/2253(4/7/67), S/Res/298; S/Res/271; S/Res/252.40 A/S/Res/478.




site and the Dme f the Rck, but allws a certain autnmus administratin bythe Islamic waqf peple, wh practically run the site f al-Haram al-Sharif.

As Israeli authrities are in charge f security in the whle area, and becausetheir desire is t keep this respnsibility, they preent actiities by different Jewishcircles wh ask t pray in the site f al-Haram al-Sharif, and, by ding s, threatent spark ff a religius war in the regin.

All this abe indicates that a cnsiderable part f the legal issues that ariseregarding al-Haram al-Sharif rele arund this cmplexity.

Tw basic majr issues hae reached the curts in recent years, and they reectthe cmplexity f the situatin that is described abe. The rst is the issue fJews wh want t pray at al-Haram al-Sharif. The secnd is related t the ariusattempts t limit the autnmy f the authrities f the waqf at al-Haram al-Sharif.Hweer, befre I deal with these tw issues, it is apprpriate t shed light n the

status qu at al-Haram al-Sharif, after the ccupatin f East Jerusalem.

The Status Quo in the Area of al-Haram al-Sharif After 1967

Until the 19th century, an ottman status qu had been established and xed inJerusalem regarding hly places, mainly the Christian nes. This arrangementreceied internatinal recgnitin in a number f agreements, and was recgnized by the different pwers that cntrlled the regin like Britain and Jrdan. Befre

that arrangement, the authrities used t settle the cnicts between the differentChristian cmmunities. After the ccupatin f East Jerusalem, Israel cmmitteditself, alng with the Christian cmmunities, t an agreement that the preiusarrangement wuld cntinue under Israeli law. Thus, and since then, Israeliauthrities hae dealt with the disputes between the Christian cmmunitiesregarding hly places. Israel recgnized the status qu again in an agreement thatwas signed with the vatican in 1993.

Hweer, regarding Muslims, Israel has nt recgnized the arrangementf the status qu f the British Mandate (as it was decided by the InternatinalInestigatin Cmmittee that was appinted by the British gernment t decidethe rights f the Jews and the Muslims at the Western Wall). In additin, Israelactually cancelled the arrangement n the Western Wall, which is part f al-Haramal-Sharif. Furthermre, Israeli authrities cancelled prhibiting the entry f Jews tal-Haram al-Sharif and the Macphela Cae and als cancelled the restrictins nthe rights f Jews t pray at the Western Wall. Israel als cnscated the area fthe Mghrabi Quarter frm the Muslim waqf and eacuated the inhabitants frm it.

Except fr what has been said abe, the administratin f the internal and

religius affairs at al-Haram al-Sharif remained basically in the hands f the waqf.

The Praying of Jews at al-Haram al-Sharif

Since 1967, the State f Israel has frbidden Jews t pray at the Temple Munt frfear f increasing tensins at this sensitie place. Actually, n 20 August 1967 the




Israeli gernment decided that when Jewish prayers reach the entrance f the TempleMunt, they wuld be turned t the Western Wall. Bth the frm f their decisin andthe discussins that were made befre it indicate that it was a temprary decisin thatwas intended t preent a are-up which is quite different t an attitude f principle.

This plicy was discussed at the Supreme Curt after 1967, and since then it has been discussed ccasinally at the curt. The rst appeal abut this issue was submittedin 1968 by a grup f Jews wh asked t pray at al-Haram al-Sharif.41 The legalquestin that was raised in this and ther petitins was: des the curt hae authrityt discuss such a case in iew f Article 2 f the 1924 King’s orders regarding hly places? That article states that ‘eery issue f trial that are related t the hly placesr the building r religius sites in Palestine (Land f Israel)’ will be taken ut f theauthrity f the curt. In rder t be able t discuss this issue, the curt shuld haediscussed the status f Prisin 2 f the King’s order with regard t the Israeli law.

After disagreement and diisin f pinins n this questin, the curtdecided that the mandatry law wuld apply as lng as it did nt interfere with the prisins f the Israeli law cncerning the guarding f hly places. Regardingthe right t pray, it was decided that this right is different frm the right f accesst hly places, which is freseen in the law n hly places, and therefre thislaw des nt apply t it. Thus, there is n authrity fr the curt t deal with thefreedm f Jews t pray at al-Haram al-Sharif.

The curt cnrmed this iew in many subsequent decisins. It shuld be

nted that in all these decisins, the curt pinted ut the fundamental right f theJews n al-Haram al-Sharif, and als their right t pray at the place, prided that public rder is ensured.

In all these decisins, we nd a similar legal argument. Here is a characteristicqutatin frm ne f the erdicts that dealt with this issue:

The high imprtance and status f the basic-rights in whse name the appellantasks t g up t the Temple Munt – freedm f expressin and wrshipping,and als freedm f mement and access t hly places are knwn and accepted by eeryne. The centrality f these rights in ur legal system is knwn t haemuch imprtance in frmulating the character f ur demcratic regime. Inaccrdance with this, the main stepping pint f the curt has been that the rightt implement religius rites and een t g up t the Temple Munt is kept freery Jew. Tgether with that, this right, like ther basic rights, is nt abslute,and it shuld retreat in far f ther interests, including the maintenance f public rder and the safety f the public and its security. Accrding t the erdictf the curt, the right f freedm f expressin and wrshipping, and right f

haing access t hly places will retreat if danger is ery likely t harm the public rder.42

41 See als: High Curt f Justice 267/9

P.D 43, P.728, P.737 (3) 728, 737.42 verdict f the judge (as his title was then) Barak at the Supreme Curt 83/292:

Trustees f Temple Munt N. Cmmander f the Plice – Jerusalem Regin, 449, High




Frm time t time, Jewish assciatins submit appeals t the curt in which theyask the curt t rder the waqf t stp wrks at the Temple Munt site. An examplef such petitins is the ne called the Case f ort Shlm, which refers t theundergrund halls that exist under al-Haram al-Sharif and that were restred asa msque. In 1996 a Jewish rightist assciatin called the Assciatin f TempleMunt Trustees appealed t the High Curt f Justice asking it t stp the wrksthat the Islamic waqf was carrying ut there t preent them frm turning the place int a msque.43 The claim f the assciatin is interesting. Thugh theassciatin was a rightist ne, it did nt try t gie natinal arguments. Theappellants argued that the site is an archelgical site f antiquities, and therefrethe law f antiquities applies t it. This law frbids carrying ut building wrkwithut the permissin r license f the Directr f the Authrity f Antiquities,and since the place is a religius ne, it requires certicatin frm the Cmmittee

f Ministers. The High Curt rejected the appeal and decided that the wrks thathae been dne d nt cause any damage t the antiquities, and the wrks d ntneed any license as they are internal changes. In additin, the decisin f the HighCurt emphasized the need fr strict enfrcement f the law due t the imprtanceand sensitiity f the place.

Curt f Justice 4776/06, Gershn Slmn, N. Cmmander f Jerusalem District.Limitatin f the Waqf Authrities in al-Haram al-Sharif.

43 High Curt f Justice, Temple Mount and Eretz Yisrael Faithful Movement , N.

Mayr f Jerusalem, N. (4) 241.




FR f Yugslaia as ‘aggressin’. It resulted, amng ther cnsequences, in thedestructin f a number f medieal sacred structures – hly places. The war ledt the establishment f a temprary UN administratin fr the prince and incmmencement f the prcess aimed at determining the status, and fullment, fcertain standards in this territry (UNSC Reslutin 1244/99). Since in 1999 theterritry frmed part f Serbia as ne f the tw cnstituents f the FR f Yugslaia,upn disslutin f the federal state in 2003, independent and internatinallyrecgnized Serbia cntinued t claim the territry. Bth n the grunds f theUNSC Reslutin 1244 (1999) and in accrdance with its Cnstitutin, Serbiacnsiders Ks and Methia part f its sereign territry, enjying the statusf an autnmus prince.

Serbia has nt agreed with the unilateral declaratin f independence fKs, prclaimed in 2008, and this self-prclaimed independence is therefre

nt recgnised by Serbia r by apprximately half f the Member States f theUnited Natins, as well as e Member States f the Eurpean Unin. on mstf the territry f Ks and Methia, Serbia de facto has nt been able t exertgernmental pwers since the end f the hstilities in 1999, including prtectinand efcient cnseratin f sacred/hly places.

Mst histrians are unanimus in designating the area f Ks and Methiaas ‘the cradle’ f Serbian medieal statehd and spirituality. This is where theSerbian medieal state grew t its greatest strength, the seat f the rst Serbian

Patriarchate was lcated and numerus Serbian rulers and church leaders liedand were buried.one f the richest and mst cncentrated grups f sacred architecture and

hly places inherited by the Eurpean, cntemprary Christian and glbal culturesfrm the Christian East is situated n the territry f Ks and Methia.Accrding t the registers f prtected cultural assets f 1986 and 1994, therewere er 400 prtected cultural prperties in Ks and Methia, wherebya signicant number had been designated as prtected prir t 1986. The nlymnuments in Ks and Methia recgnized by UNESCo as part f the wrldcultural heritage are the Serbian orthdx sacred/hly places. The viski DečaniMnastery was included in the Wrld Cultural Heritage List by UNESCo in 2004,while three ther prminent sacred mnuments were added in 2006: the PećkaPatrijaršija Mnastery (Patriarchate f Peć), Gračanica Mnastery and the Churchf the Mther f Gd Ljeiška in Prizren. Their inclusin in the List has cnrmedthe uniersal ciilizatinal alue f these sacred/hly places. Sadly, they wereals included in the List f Wrld Heritage in Danger, a fact clearly shwing their precarius status (UNESCo 2006) This heritage belngs t humanity as a whle

and needs t be prtected and saed regardless f the culture and cnfessin it belngs t, accrding t the principle f Eurpean ‘cmmn heritage’.

Ks represents the Hly Land t Serbs as well as t neighburing Christiannatins. The Serbian orthdx Church regards Ks and Methia as crucial frthe natinal, spiritual, cultural and Christian identity f the Serbs (Hly Assemblyf Bishps f the Serbian orthdx Church – SoC, 2003). The map published by



Envisaging a Legal Framework 193

the Serbian orthdx Dicese f Raška and Prizren (Figure 12.1) shws nly a fewhundred f the mst imprtant mnasteries and churches built bth befre and after thefall f Serbian state under the ottman rule in the 15th century (Dicese f Raška andPrizren). The Hly Assembly f Bishps f the Serbian orthdx Church claims 1,300Serbian orthdx churches and mnasteries in Ks and Methia, dating frm theMiddle Ages t the present day (Hly Assembly f Bishps f the SoC 2003).

Numerus threats and ilent actins against Serbian orthdx Christian placesin Ks hae persisted since 1999.3 Frm 15 June 1999 t 10 May 2003, at least40 Serbian orthdx churches and mnasteries were cmpletely destryed, whilemre than 70 were demlished, plundered and burned (Hly Assembly f Bishpsf the SoC 2003). Then, in the March 2004 Pgrm f Serbs, internatinal frces,althugh armed t the teeth, turned ut t be pwerless against the well-rchestratedtide f natinalist rage against Serbs. In just tw days seeral dzen mnasteries,

churches and ther orthdx sacred/hly places were destryed and deastated.4 During the March 2004 Pgrm, apart frm human casualties, seen Serbianillages were destryed r deppulated. Thirty-e Serbian orthdx churchesand mnasteries, sme dating back t the 13th century, were razed t the grundr damaged beynd repair. The (UNMIK) admitted the March Pgrm shckedthe missin ‘t its fundatins’. The rapid spread f the ilence ‘erwhelmed’UNMIK. It was s widespread and s clearly targeted against Serbian churchesand illages that it had t hae been crdinated, UNMIK cncluded.

The effects f the March Pgrm will thus hae a prlnged impact, whichhad been its ery gal: after the unilateral declaratin f independence f Ksin 2008, Serbian sacred/hly places were suddenly put in a new administratiecntext that, after the experience f 2004, is iewed by belieers and by theSerbian orthdx Church as hstile and insecure. occasinal attacks n religiusbjects and pilgrims hae cntinued t take place since.

one f the distinctie characteristics f orthdx Christian hly places in Ksand Methia is the fact that many peple feel a strng cnnectin t them andunderstand them as their wn liing histry. The Christian orthdx hly places fKs and Methia are dmestic hly places, watched frm the drsteps f familyhmes, isited regularly, at hlidays and fr liturgies, by orthdx Christians frm

3 Jhn A. Bld, Study on the state of the cultural heritage in Kosovo (Cuncil fEurpe/Eurpean Cmmissin Prject Reprt 2001); Cuncil f Eurpe, Protection ofthe cultural heritage in Kosovo, Report of a study visit on 9–10 October 2003, by Eddieo’Hara, General Rapprteur fr the Cultural Heritage, Cuncil f Eurpe ParliamentaryAssembly, Cmmittee n Culture, Science and Educatin, Sub-Cmmittee n the Cultural

Heritage (AS/Cult/AA 2003) 14.4 Technical C-peratin and Cnsultancy Prgramme, Preliminary Technical Assessment Report on the Religious Buildings/Ensembles and Cultural Sites damaged in March 2004 in Kosovo (AT04 111 re, 30 April 2004); Id., Technical Assessment Report on the Religious Buildings/Ensembles and Cultural Sites damaged in March 2004 in Kosovo (AT04171 re, 24 May 2004); Id., Technical Assessment Report on the Religious Buildings/Ensemblesand Cultural Sites damaged in March 2004 in Kosovo (bis) (AT04 245, 9 July 2004).




arius cuntries, with members f ther cnfessins jining the ranks f Ksand Methia mnks. At the same time these are the places f material and spiritualexperience f the natinal histry f Serbs and liing histry since the Middle Ages.

Figure 12.1 The most important monasteries and churches of the Serbian

Orthodox Church in Kosovo and Metohia

Source: Serbian orthdx Dicese f Raska and Prizren, KIM Inf Serice.




Approach

Fr the purpse f analysing the status f hly places in Ks and Methia, wehae cmpletely abided by this prisinal denitin:

A hly place is a public area r an bject traditinally and regularly isited by at least seeral generatins f detees due t its undisputed symblical,religius, memrial r ther spiritual signicance, enabling multiple, direct rcmmunicated experience f wrship, religius identity, ethnical rigin, natinalhistry and/r hpe fr salatin.

Hly (sacred) places hae an imprtant rle in the histry f a religin as its permanent landmarks, cntributing t its unique identity by their spiritual, symblic

and scial signicance. It sunds plausible that the cncept f hly r sacred placesshuld als allw fr the pssibility f bradening its territrial scpe within‘sacred znes’ r ‘sacred areas’. The case f Munt Aths is an example f sucha situatin, as the whle area f the peninsula is cnsidered t be sacred, nt nly particular mnasteries and ther sanctuaries. A similar situatin seems t affect thecase f Jerusalem, which is als due t the high cncentratin f sacred sites. A hly place shuld therefre be iewed, perceied and dened in such a cntext.

In certain cases, hly places may als include ther categries f places f

wrship, such as cemeteries and shrines. The sacred character f such sites may begrunded in ral traditin, teaching, histry, myth, flklre r legend, ften beingassciated with magic and miracles.

Cnceptualizatin f specic prblems f cnseratin f Serbian orthdxhly places in Ks and Methia has been undertaken in line with the wrdingand the spirit f applicable internatinal dcuments, especially the Declaratin nCultural Diversity, the Eurpean Cnentin n Human Rights and the Ministers

Cmmittee Declaratin n Human Rights, the Eurpean Cultural Cnentin, theWrld Heritage Cnentin and the Guidelines fr its implementatin and als partially the standards f IUCN fr Sacred Natural Sites.5

Historical Context

Serbs, as ne f the Sla tribes, inhabited central parts f the Balkan Peninsula,including the territry f Ks and Methia, apprximately starting frm the endf the 6th and beginning f the 7th centuries AD, and underwent Christianizatin

in the secnd half f the 9th century, rst due t the inuence frm the twns

5 Rb Wild and Christpher McLed (eds), Sacred Natural Sites: Guidelines for Protected Area Managers (IUCN 2008).




n the Adriatic cast and then thrugh the wrk f the Byzantine missinaries6

Cyril and Methodius.7 The settlement f Serbs did nt entail cnicts withthe Indigenus ppulatin f nmad shepherds, but instead with the Rmanic ppulatin f twns and with Byzantium. Haing spent seeral centuries betweenintermittent lyalty t the Byzantine Empire and then cnicts with it, the Serbianstate began taking er Ks and Methia frm the Byzantine Empire – led byPrince Časla in the 10th century AD and under Megajupanus vukan at the endf the 11th century AD, appraching it frm the nrth-west.8 At the end of the

12th century, after the death f Byzantine Emperr Manuel I Kmnens, Serbianleader Megajupanus Stefan Nemanja, the funder f the Nemanjic dynasty thatruled Serbia in the tw centuries that fllwed, succeeded in establishing hisrule in Ks and Methia.9 Since then the territry frmed part f the Serbianmedieal state until its fall mre than tw and half centuries later, in the mid-

15th century.10 Hweer, the state enjyed greatest igur and prgress underthe Nemanjic dynasty, which ruled it until the secnd half f the 14th century.It was during that time that Ks and Methia were central t the cuntry’s plitics, cmmerce and spirituality, which was due t fertile land, great density f ppulatin and gd cmmunicatins.11

The Ks and Methia twns f Prizren and Priština bth sered as statecapitals during the Nemanjić perid and numerus palaces f Serbian kingsand emperrs were lcated in the territry. Althugh the rst seat f the Serbian

autcephalus archdicese was in the Žiča Mnastery, utside the prince, thesecnd archbishp, Arsenius, initiated cnstructin f the secnd seat, near Pećin Metohia.12 Peć became the seat f the Serbian Church upn its prmtin tthe dignity f Patriarchate in 1346. Numerus charters, dating frm the 12thcentury n, shw a wide presence f Serbs, mstly as land farmers, thrughutthe prince, as well as a much smaller presence f vlachs and Albanians in

6 Dimitrije Bgdanić, Knjiga o Kosovu [The Bk n Ks] (Srpska knjiženazadruga 2006) 24–61, 337–52.7 D Srejić, M Mirkić, J Kačeić, et al., Istorija srpskog naroda, prva knjiga,

Od najstarijih vremena do Maričke bitke (1371) [Histry f the Serbian Natin, l. 1,Frm Earliest Times until the Battle f Marica (1371)] (Srpska knjižena zadruga 2000)144–47, 197–99, 212–3, 257–9.

8 Dimitrije Bgdanić, Knjiga o Kosovu, p. cit.9 Ibid.10 D Bgdanić, M Mihaljčić, M Ćirkić, et al., Istorija srpskog naroda, druga

knjiga, Doba borbi za očuvanje i obnovu države (1371–1537) [History of the Serbian Nation, Vol. 2, Period of struggle for preservation and renewal of the state (1371–1537)]

(Srpska knjižena zadruga 2000) 278–312.11 Sima Ćirkić, ‘Srednjekna pršlst današnjeg Ksa’ [‘Medieal past f

present-day Ks’], in Ian Jetić (ed.), Zadužbine Kosova [Endowments of Kosovo]

(Eparhija Rašk-Prizrenska, Bgslski fakultet u Begradu 1987) 553–7.12 Sima Ćirkić, ‘Srednjekna pršlst današnjeg Ksa’, p. cit.




brdering muntains, as shepherds.13 The Charter granted in 1330 t the DečaniMnastery, which pertained t the largest Church estate in medieal Serbia afterthat f the Hilandar Mnastery, encmpassing signicant areas f Methia and present-day nrthern Albania, shws nly 1.8 per cent Albanian-wned prpertiesin its catalgue f assets and subjects f the mnastery.14 Mining had deelpedsince the 12th century in Ks and Methia twns, supplementing the alreadyrich commercial activity that was in the hands of merchants from towns on the

Adriatic cast. The mst prminent mining twn and ne f the strngest frtressesthrughut the duratin f the Serbian medieal state was N Brd.15 Priština,Prizren, Peć and N Brd remained the largest Serbian twns during mst f thetime the Serbian medieal state existed.16

In 1389 Ks was the scene f the secnd majr battle between mediealSerbia and the ottman Turks, after the rulers f the Serbian suthern princes

were defeated in 1371 in the battle n the rier Marica. Althugh bth rulers,Prince Lazar and Sultan Murad I, died in the battle, and bth sides incurredsubstantial lsses, the inability t recuperate n the part f Serbia amunted t adefeat. Hweer, in the centuries that fllwed, in which Serbs were scattered ervast territories of the Balkan Peninsula, from Trieste to Timisoara and from Buda

t the vardar Rier, liing withut a natin-state, within the Austrian and ottmanEmpires, the memry f the Battle f Ks eled int a primary designatinf the natinal identity and eths. The traditinal ethnic myth assigned the defeat

t Prince Lazar’s preference fr the Kingdm in Heaen er the Kindgm nEarth, thus inextricably jining this instance f plitical histry with religius andethical identity.

The Patriarchate f the Serbian orthdx Church was restred by way ffcial recgnitin frm the ottman sultan in 1557, and its seat was restred tPeć in Methia. The Patriarchate kept its seat in Peć fr mst f the ottman rule,until 1766 when it was ablished pursuant t a sultan’s decree, which als granted jurisdictin er the Serbian orthdx ppulatin t the Ecumenical Patriarchate.

Since the nal fall f the remnants f the Serbian medieal state under theottman rule in the mid-15th century, until apprximately the end f the 16th and beginning f the 17th centuries, the nn-Serbian ppulatin remained present inthe territry f Ks and Methia in ery lw numbers, and it was mstly madeup f ottman Turks in twns.17 The regin was regularly referred t as ‘Serbia’

13 Milisa Lutac, ‘Gegrafski i plitičk-gegrafski značaj pkrajine Ksau Srbiji’ [‘Gegraphical and plitical-gegraphical imprtance f prince Ks fr

Serbia’] in Ian Jetić (ed.), Zadužbine Kosova, p. cit. 582–7.14 Dusan Batakić, The Kosovo Chronicles (Plat 1992); Dimitrije Bgdanić, Knjiga o Kosovu, p. cit.

15 Sima Ćirkić ‘Srednjekna pršlst današnjeg Ksa’, p. cit. 16 Milisa Lutac, ‘Gegrafski i plitičk-gegrafski značaj pkrajine Ksa u

Srbiji’, p. cit.17 Dusan Batakić, The Kosovo Chronicles, p. cit.




by freign trael writers thrughut the 16th and 17th centuries, while the riersBeli Drim and Crni Drim were cnsidered t mark the brder between Serbia andAlbania. Frm the end f the 16th century, hweer, the ethnical structure in thewestern part, Methia, began t change due t the gradual arrial f Albaniansettlers. Albanian settling tk place amid cnstant incursins f Albanian banditgrups frm nrthern Albania.18

The end f the 16th century als marks the beginning f a widespread struggleand cnstant uprisings f the Serbian ppulatin against ottman rule.19 The Serbian ppulatin rebelled in crdinatin with Austrian military peratins, whichresulted in migratins t Austria, the tw mst ntable examples f which werethe tw Great Migratins – in 1690 and 1738 – in which they ed tgether with theretreating Austrian armies, fearing retaliatin frm the ottmans. The migratinsresulted in the weakening f hmgeneus Serbian settlements in Ks and

Methia, and thus in their lss f capacity t withstand pressure frm lters andnew settlers. The ottman administratin, by the same tken, had becme crruptand thus unable t maintain law and rder, and further deelped mistrust in theSerbs’ lyalty.20 At the end f the 17th and beginning f the 18th centuries, Albaniantribes clnized Ks and Methia in mre signicant numbers, which cincidedwith the emergence f Islamizatin pressures n the Serbian ppulatin.21

The Serbian uprising in 1804 and its successful deelpment int theautnmus Principality f Serbia further incited ethnic Albanian pashas

in Ks and Methia, the regin’s hereditary rulers, twards large-scaleppressin aimed at the Serbs liing in the regin. Ntwithstanding all the adersecircumstances, Serbs frmed the largest ethnic grup in Ks and Methia untilthe Eastern Crisis (1875–78), when the terrr against the Serbian ppulatin inthe regin escalated. The territry f Ks and Methia had been cntinuuslyreferred t simply as ‘Serbia’ frm the Middle Ages until the furth decade f the19th century, when the term ‘old Serbia’ was intrduced within the Principality fSerbia itself, fr the purpse f differentiating the Principality frm this histricSerbian regin.22 Apprximately 150,000 Serbs ed Ks and Methia betweenthe mid-18th century and 1912, lwering still further the percentage f the Serbian ppulatin t arund ne half f the riginal lume.23

18 Milisa Lutac, ‘Gegrafski i plitičk-gegrafski značaj pkrajine Ksa uSrbiji’, p. cit.

19 R Samardžić, P Iić, D Bgdanić et al., Istorija srpskog naroda, treća knjiga,drugi tom, Srbi pod tuđinskom vlašću 1537–1699 [History of the Serbian Nation, Vol. 3, Part 2, Serbs under Alien Rule 1537–1699] (Srpska knjižena zadruga 2000) 67–73.

20 Milisa Lutac, ‘Gegrafski i plitičk-gegrafski značaj pkrajine Ksa uSrbiji’, p. cit. 21 Dusan Batakić, The Kosovo Chronicles, p. cit.; Milisa Lutac, ‘Gegrafski i

plitičk-gegrafski značaj pkrajine Ksa u Srbiji’, p. cit. 22 Dusan Batakić, Kosovo i Metohija – Istorija i ideologija [Kosovo and Metohia

– History and Ideology] (Hrišćanska misa 1998) 7–22, 147–9.23 Dusan Batakić, The Kosovo Chronicles, p. cit.




Ks and Methia became parts f Serbia and Mntenegr, respectiely, in1912, as a result f the First Balkan War, and thus became part f the Kingdmf Serbs, Crats and Slenes, frmed in 1918. The new state ablished feudalestates n its territry, which pertained t Ks and Methia as well. Betweenthe tw Wrld Wars apprximately 10,000 Serbian families, that is, apprximately60,000 peple – Serbs frm the Kingdm’s nn-deelped and muntainusregins – settled n land prperties in Ks and Methia that became aailable by irtue f agrarian refrm.24

In Wrld War II ethnic Albanians fught under the ags f Germany and Italy.They used the pprtunity created by the ccupatin f the Kingdm t launcha campaign f terrr against the Serbs in Ks and Methia: apprximately10,000 were killed, while mre than 100,000 were expelled.25 The plicy f theCmmunist Party f Yugslaia twards Ks and Methia had been set at

least since the 1920s, when in its fcial dcuments the regin was identiedas Albanian, annexed t the Kingdm f Serbs, Crats and Slenes by the‘ictrius imperialists f the Entente’.26 Thus when the cmmunists gained pwerin Yugslaia at the end f Wrld War II n the heels f the Red Army adance,the new authrities immediately frbade the return f the expelled Serbs t the prince and at the same time enacted statutes n the ‘reisin f assignments fland in Macednia and Ks and Methia prince t clnists’, effectielydepriing f their land rights thse Serbs wh had settled in the prince after

World War I.27

At the same time, Albanians wh had settled in the prince duringWrld War II were allwed t remain there, and an pen brder with Albania waskept until 1948, which encuraged new Albanian settlers t arrie.

In pst-Wrld War II cmmunist Yuglaia, Ks and Methia becamean autnmus prince within Serbia. In accrdance with the CmmunistParty f Yugslaia’s fcial agenda fr quelling ‘Serbian hegemnism’, Serbiawas the nly Yugsla republic whse territry was segmented in this manner.Cnstitutinal changes f 1974 strengthened the autnmy f the prince eenfurther, s that its effectie pwers amunted t thse f a federal unit. Until thefall f the Berlin wall and the disintegratin f cmmunist Yugslaia, the princewas cntrlled by the Albanian-dminated Cmmunist Party f Ks, whichhad been priding the aegis fr the cntinued terrr against, and persecutin f,the nn-Albanian ppulatin, aimed at its expulsin.28

24 Ksta Čaški, Na rubovima Srpstva [On the Outskirts of Serbdom] (Tersit 1995)44–54; Dusan Batakić, The Kosovo Chronicles, p. cit. 25 Dusan Batakić, The Kosovo Chronicles, p. cit.26 Ksta Čaški, Na rubovima Srpstva, p. cit.; Dusan Batakić, Kosovo i

Metohija – Istorija i ideologija, p. cit.27 Ksta Čaški, Na rubovima Srpstva, p. cit.28 Dusan Batakić, The Kosovo Chronicles, p. cit.




The Meaning of Toponyms Kosovo and Metohia

In mst cases reference t the regin f ‘Ks’ includes the entire territryf the Autnmus Prince f Ks and Methia, as this area is dened bythe present Cnstitutin f Serbia, and it had been designated by the preiuscnstitutins f scialist Yugslaia (1963, 1974). Serbs usually insist n thetw-part name ‘Ks and Methia’ due t gegraphic and cultural-histricalreasns. These are tw cmpletely different regins frm the climate-landscapeand hydrgraphic perspecties. Methia (the smaller, suth-western/western partf the prince) belngs t the diide f the Adriatic Sea and is inuenced by theMediterranean climate. on the ther side, Ks (the larger, eastern/nrth-eastern part) belngs t the diide f the Black Sea and is inuenced by the cntinentalclimate. In an een narrwer sense, Serbs use the term ‘Ks’ fr the spacius,

semi-steppe grassland (withut frests) in the lwland plains (‘plje’ meaningeld) in the catchment f the riers Sitnica and Lab. This includes the immediateand brader icinity f Priština.

The name ‘Methia’ deries frm the Greek wrd metohion (pl. metohia)denting mnastery estates. In the Middle Ages all the mst imprtant Serbianorthdx mnasteries in the regin had their estates in Methia, which is thearea with the mst fertile land and the mildest (sub-Mediterranean) climate. Thewrd ‘Methia’ is particularly imprtant fr Serbs as the greatest number f the

mst imprtant and the ldest hly places are gruped there. Therefre they are particularly sensitie in the case f missin f this part f the name. on the therhand, mitting this part f the regin’s name cannt be defended frm the suspicinthat it is aimed at hiding the lng-standing histrical presence and prperty rightsf the Serbian orthdx Church.

The cmmunist regime eliminated the traditinal name Methia frm the fullname f the regin due t its plicy f suppressing the Serbian presence in Ksand Methia, and due t its general anti-religius attitude. Nw the missincntinues t be made by prisinal authrities frmed by Ksar Albanians,representing ne f the frms f negatin f the religius imprtance f the reginas a whle. The Albanians and, regretfully, mst f the internatinal public, use theshrter term ‘Ks’ (withut ‘and Methia’): the frmer fr natinal prpagandareasns, the latter in mst cases due t practical reasns.

The shrtening f tw-part names is nt rare in ther areas as well. There isa similar example with the tw-part name f Bsnia and Herzegina, which iswidely called just ‘Bsnia’, and its inhabitants are called ‘Bsniaks’ (instead f‘Bsniak-Herceginiaks’ r sme ther prper term). In the same way, althugh

we usually say just the United Kingdm, the UK, r Britain, instead f the UnitedKingdm f Great Britain and Nrthern Ireland, we always keep in mind thespecial alue f the nal part ‘and Nrthern Ireland’.

In a rmantic fashin the wrd Ks is assumed t derie frm the Serbword kos (kos-ovo – belnging t kos) which means a blackbird. The famus battle between the Serbs and the Turks in the 14th century tk place at the Field f




Blackbirds (Ks Plje). Hweer, it is difcult t imagine that the pen eldwuld hae gt its name frm a frest bird that likes shady and mist habitats.There is a tpnym, Ksi Lug (Blackbird’s Gre) in Mntenegr, but thatis nt a eld. It is much mre plausible that the wrd rt kos- in Kosovo poljestems frm the rt f the Serbian (Slaic) wrd kos-iti (English to scythe, tomow, Russian kosit’ , косить, Polish kosić, češ. kosit , Slovakian kositi, Romanian cosi), s that the tpnym wuld mean a place fr mwing, a place with gdgrass, yielding gd hay. There are ther Serbian tpnyms elsewhere (Ksin Dalmatia, Kše in Saraje). In the Albanian language the wrd kosovo,

kosova has n riginal meaning, apart frm the prper name f the area. It isinteresting that the Albanians, after they came t Ks, learned the mwing prcess and manner f use f the requisite tls frm Serbs, adpting the Serbianwrd bth fr the tl (English scythe, Serbian and Russian kosa) and fr the

erb ‘t mw’, althugh these tw languages are nt related. In general, er90 per cent f terms used in agriculture, names f settlements and gegraphicalnames in tday’s Ks are f Serb rigin. The names f cities and illages haenly their Albanian equialent f Serb tpnyms (Mališe/Malishea, Pec/Peja,Prizren/Prizreni, Priština/Prishtine and s n).

Present Legal Status of Kosovo and Metohia

Unilateral Declaration of Independence, its Origins and Consequences

Immediately fllwing the cessatin f hstilities that resulted frm the NATomilitary interentin against the FR f Yugslaia, the UN Security Cuncilenacted Reslutin 1244, in which principles f a ‘plitical slutin t theKs crisis’ were laid ut. In additin, the dcument demanded, inter alia,

establishment f an internatinal security presence as a transitry step twardsestablishment f an internatinal ciil missin. The principal gals f the latterwuld include ‘prmting the establishment, pending a nal settlement, fsubstantial autnmy and self-gernment in Ks … facilitating a plitical prcess designed t determine Ks’s future status’ (Article 11(a), UN S/RES/1244).

Annex I t the Reslutin further elabrated certain general principles f theerall plitical slutin t the ‘Ks crisis’, including ‘establishment f aninterim administratin fr Ks t be decided by the Security Cuncil… tensure cnditins fr a peaceful and nrmal life fr all inhabitants in Ks;

the safe and free return f all refugees and displaced persns … a plitical prcess twards the establishment f an interim plitical framewrk agreement priding fr a substantial self-gernment fr Ks, taking full accunt fthe Rambuillet accrds and the principles f sereignty and territrial integrityf the Federal Republic f Yugslaia and ther cuntries f the regin, and thedemilitarizatin f the KLA’ (UN S/RES/1244, Annex I).




Annex II t the same Reslutin cntained ‘principles t me twards a plitical reslutin f the Ks crisis’. These included the return f ‘an agreednumber f Yugsla and Serbian persnnel’, which wuld be, inter alia, in chargef ‘maintaining a presence at Serb patrimnial sites; maintaining a presence at key brder crssings’, ‘limited t a small agreed number (hundreds, nt thusands)’.Anther principle set frth in Annex II was ‘safe and free return f all refugees anddisplaced persns …’ (UN S/RES/1244, Annex I).

The Secretary-General f the UN designed UNMIK. The rst SpecialRepresentatie f the UN Secretary-General prmulgated UNMIK Regulatin1999/1, whereby all legislatie and executie authrity, including administratin f justice, is ested in UNMIK and exercised by the Special Representatie. By irtue fUNMIK Regulatin 1999/24, law applicable in Ks and Methia was dened as‘the regulatins prmulgated by the Special Representatie … and the law in frce in

Ks n 22 March 1989’ (ICJ Adisry opinin 2010, paras 60, 61). Paradxically,an internatinal missin predminantly inuenced by Western demcracies thusexpressly reinigrated a legal system that had been in frce befre the fall f theIrn Curtain in a cuntry then ruled by an authritarian cmmunist regime.

Diisin f respnsibilities in respect f gernance f Ks and Methia between the Special Representatie f the UN Secretary-General and the s-calledPrisinal Institutins f Self-Gernment f Ks (which encmpassed theAssembly, President, Gernment, curts and s n) was set frth in UNMIK

Regulatin 2001/9 n a Cnstitutinal Framewrk fr Prisinal Self-Gernment (UNMIK 2001).A series f eents f majr imprtance fr understanding the nature f the

plitical and scial circumstances in Ks and Methia pst-1999 tk placen 17 and 18 March 2004, when apprximately 51,000 ethnic Albanians ilentlyrited thrughut Ks and Methia against Serbs. The rits were prked by untrue reprts that Serbs had been respnsible fr drwning three Albanianchildren. There were 33 separate rits in ttal. Accrding t Human Rights Watch:

… security structures in Ks … cmpletely lst cntrl; the March ilencefrced ut the entire Serb ppulatin frm dzens f lcatins-includingthe capital Pristina – and equally affected Rma and Ashkali cmmunities.Accrding t Human Rights Watch, in a shrt span f nly tw days f riting,at least 550 hmes and 27 orthdx churches and mnasteries were burned,leaing apprximately 4,100 Serbs, Rma, Ashkali, and ther nn-Albanianminrities displaced. Sme 2,000 persns still remain displaced mnthslater, liing in crwded and unsanitary cnditins-including in unheated and

unnished apartments, crwded schls, tent camps n KFoR military bases,and een metal trucking cntainers.29

29 Human Rights Watch, Failure to Protect: Anti-Minority Violence in Kosovo, March 2004 (Human Rights Watch, 26 July 2004) <www.hrw.rg/nde/11989/sectin/2>accessed 15 March 2013.

http://www.hrw.org/node/11989/section/2

http://www.hrw.org/node/11989/section/2




In his address t the UN Security Cuncil in February 2008, the President fSerbia Mr Bris Tadic asserted that 35 churches and mnasteries and 800 huseswere burned in the March 2004 rits, and that mre than 5,000 Serbs and thernn-Albanians had ed their hmes as result (UNSC S/2008/211).

Human Rights Watch nted numerus instances in which internatinal frcesfailed t prtect the Serbian ppulatin, its hmes and sacred places frm ilentattacks:

In numerus cases, minrities under attack were left entirely unprtected andat the mercy f the riters. In Sinjare, French KFoR trps failed t cme tthe assistance f the besieged Serbs, een thugh their main base was just a fewhundred meters away – in fact, the ethnic Albanian crwd had walked right pastthe base n its way t burning dwn the illage. French KFoR trps similarly

failed t respnd t the riting in vucitrn, which is lcated in between tw majrFrench bases. In Prizren, German KFoR trps failed t deply t prtect theSerb ppulatin and the many histric Serbian orthdx churches, despite callsfr assistance frm their UNMIK internatinal plice cunterparts, wh lateraccused German KFoR cmmanders f cwardice. In Ks Plje, UNMIK

Figure 12.2 Prizren – Monastery of Holy Archangels near Prizren (14th century).

The monastery was looted and torched in March 2004

Source: Тhe Infrmatin Serice f the Serbian orthdx Church.




and KFoR were nwhere t be seen as Albanian crwds methdically burnedSerb hmes and sanctuaries. The illage f Bel Plje, rebuilt n the utskirtsf Pec t huse returning Serbs, was burned t the grund een thugh it wasalmst adjacent t the main Italian KFoR base. Italian KFoR sldiers refused tapprach the besieged Serbs, frcing the Serbs t run fr seeral hundred metersthrugh a hstile Albanian crwd, befre KFoR eacuated them.30

The Parliamentary Assembly f the Cuncil f Eurpe asserted that 4,100 Serbs,Rma and ther nn-Albanians left Ks after the eents, nting that the return prcess f displaced persns was thereby reersed.31

In 2005, the UN Security Cuncil supprted the UN Secretary-General inhis intentin t cmmence the plitical prcess t determine the future status fKs.32 The Secretary-General appinted Mr Martti Ahtisaari as his Special

Eny fr the status prcess f Ks and Methia in Nember 2005. Seeralrunds f negtiatins between the Serbian gernment and the Albanian-cntrlled prisinal authrities in Ks and Methia tk place in thecurse f 2006. Accrding t the reprts f the UN Secretary-General, the partiesremained distant n mst issues. In February 2007, Mr Ahtisaari addressed themwith a cmprehensie draft prpsal fr the Ks status settlement. The nalrund f negtiatins tk place and ended unsuccessfully the fllwing mnth. Inhis reprt, Mr Ahtisaari expressed his ‘rm iew that the negtiatins’ ptential t

prduce any mutually agreeable utcme n Ks’s status is exhausted’. Haingstressed the urgent need fr sling the status f Ks, Mr Ahtisaari cncludedthat ‘the nly iable ptin fr Ks is independence, t be superised fran initial perid by the internatinal cmmunity’.33 Tgether with the reprt,Mr Ahtisaari submitted ‘the Cmprehensie Prpsal fr the Ks StatusSettlement’ – a detailed prpsal f key cnstitutinal principles and prisinsfr the intended independent Ks, as well as f the mechanism fr the transferf pwers frm the internatinal administratie missin t the Ks authrities.The plan prided, inter alia, fr the establishment f prtectie znes arundmre than 40 key religius and cultural sites, as well as granting t the Serbianorthdx Church prperty rights, exemptin frm taxes and custms duties and the

30 See supra nte 29.31 Reslutin 1375 (2004) Situatin in Ks. Cuncil f Eurpe Parliamentary

Assembly, 29 April 2004. <http://assembly.ce.int/Main.asp?link=/Dcuments/AdptedText/ta04/ERES1375.htm> accessed 15 March 2013.

32 Security Cuncil Presidential Statement offers Full Supprt fr Start f PliticalPrcess t Determine Ks’s Future Status. Security Cuncil SC/8533 <www.un.rg/ News/Press/dcs/2005/sc8533.dc.htm> accessed 15 March 2013.

33 Letter dated 26 March 2007 frm the Secretary-General addressed t the Presidentf the Security Cuncil – Reprt f the Special Eny f the Secretary-General n Ks’sfuture status. United Natins Security Cuncil. S/2007/168, 26 March 2007 <www.un.rg/ga/search/iew_dc.asp?symbl=S/2007/168> accessed 15 March 2013.

http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta04/ERES1375.htm


http://www.un.org/News/Press/docs/2005/sc8533.doc.htm


http://www.un.org/ga/search/view_doc.asp?symbol=S/2007/168











freedm t maintain links with the Serbian orthdx Church in Belgrade.34 In the

discussins that fllwed the submissin f the reprt and prpsal f Mr Ahtisaarithe Security Cuncil remained unable t reach a decisin regarding the future statusf Ks and Methia and did nt endrse the s-called Ahtisaari Plan.

The s-called Assembly f Ks declared the independence f Ks n17 February 2008, wing full adherence t the Ahtisaari Plan. The President fSerbia, Mr Tadic, infrmed the UN Secretary-General that ‘Serbia had adpteda decisin stating that the declaratin f independence by Ks represents afrceful and unilateral secessin f a part f the territry f Serbia, and des nt prduce any legal effect either in Serbia r in the internatinal legal rder’.35 Serbiademanded and was granted an emergency public meeting f the UN SecurityCuncil, at which Mr Tadic denunced the declaratin f independence as illegal,as well as a ilatin f the sereignty and territrial integrity f Serbia, which

had been guaranteed by Security Cuncil Reslutin 1244 (1999). President Tadicwarned that 250,000 Serbs remained expelled frm Ks since 1999, and statedthat recgnitin f Ks wuld set a dangerus precedent. Finally, the Presidentf Serbia wed that Serbia wuld neer recgnize Ks.36

In octber 2008 the UN General Assembly backed the request by Serbiathat an adisry pinin n the legality f Ks’s declaratin be sught.37 The

questin addressed t the ICJ was the fllwing: ‘Is the unilateral declaratin findependence by the Prisinal Institutins f Self-Gernment f Ks in

accrdance with internatinal law?’38

In its pinin, deliered in July 2010, the ICJ based its reasning n a tw-prngedanalysis – rst, whether the declaratin f independence f Ks ilated generalinternational law, and, second, whether it violated UN Security Council Resolution

34 Letter dated 26 March 2007 frm the Secretary-General addressed t the Presidentf the Security Cuncil – Addendum – Cmprehensie Prpsal fr the Ks StatusSettlement. United Natins Security Cuncil. S/2007/168/Add.1, 26 March 2007 <www.

unsek.rg/dcref/Cmprehensie_prpsal-english.pdf > accessed 15 March 2013. 35 Reprt f the Secretary-General n the United Natins Interim AdministratinMissin in Ks. UN Security Cuncil. S/2008/211, 28 March 2008 <www.un.rg/ga/search/iew_dc.asp?symbl=S/2008/211> accessed 15 March 2013.

36 Recrd f the 5839th meeting f the UN Security Cuncil. S/Pv.5839, 18February 2008 <www.securitycuncilreprt.rg/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Ks%20S%20Pv%205839.pdf> accessed 15 March 2013.

37 Backing request by Serbia, General Assembly decides t seek Internatinal Curtf Justice ruling n legality f Ks’s independence. UN General Assembly GA/10764,

8 octber 2008 <http://www.un.rg/News/Press/dcs/2008/ga10764.dc.htm> accessed15 March 2013. 38 UN A/RES/63/3 2008: request fr an adisry pinin f the Internatinal Curt

f Justice n whether the unilateral declaratin f independence f Ks is in accrdancewith internatinal law, reslutin adpted by the General Assembly 63/3 <http://daccess-dds-ny.un.rg/dc/UNDoC/GEN/N08/470/97/PDF/N0847097.pdf?openElement >accessed 15 March 2013.

http://www.unosek.org/docref/Comprehensive_proposal-english.pdf




http://www.un.org/News/Press/docs/2008/ga10764.doc.htm

http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/470/97/PDF/N0847097.pdf?OpenElement




http://www.un.org/News/Press/docs/2008/ga10764.doc.htm








1244. In its negatie nding in respect f the frmer, the ICJ encmpassed the assertinthat the principle f prtectin f territrial integrity was nt ilated by the disputeddeclaratin because the principle mattered nly in relatins between states. The ICJfurthermore claimed that earlier condemnations of certain unilateral declarations of

independence (Suthern Rhdesia, Nrthern Cyprus, Republika Srpska) were nt based n the unilaterality f the cndemned acts, but ‘n the fact that they were,r wuld hae been, cnnected with the unlawful use f frce r ther egregiusilatins f nrms f general internatinal law’39 (paras 80–81). The Curt aided prnuncing n whether Albanians in Ks had a right t self-determinatin inrespect f their independence frm Serbia, r a right t ‘remedial secessin’, by simplyclaiming that these questins fell utside f the scpe f the questin psed by the UNGeneral Assembly (paras 82–3). The Curt similarly decided nt t prnunce itselfn whether Ks in fact reached statehd (paras 80–81).

In respect f UN Security Cuncil Reslutin 1244, the Curt identied as its‘bject and purpse … t establish a temprary, exceptinal legal regime which,sae t the extent that it expressly presered it, superseded the Serbian legal rderand which aimed at the stabilizatin f Ks, and that it was designed t d sn an interim basis’ (para. 100). The Curt mdied the ery questin it had beenrequested t answer by nting that ‘the authrs f the declaratin f independence… did nt act as ne f the Prisinal Institutins f Self-Gernment withinthe Cnstitutinal Framewrk, but rather as persns wh acted tgether in their

capacity as representaties f the peple f Ks utside the framewrkf the interim administratin’ (para. 109). The Curt based this cnclusin nthe language f the subject declaratin, as well as n the silence f the SpecialRepresentatie f the UN Secretary-General. Althugh haing admitted at ne pint that the language f Reslutin 1244 is ambiguus in this regard, the Curtwent n t assert that Reslutin 1244 did nt cntain a ‘prhibitin, binding nthe authrs f the declaratin f independence, against declaring independence’.The Curt nted particularly that the cllcatin ‘plitical settlement’, used inReslutin 1244 t express the cnditin subsequent f the interim status, didnt encmpass prhibitin f a unilateral declaratin f independence. The Curtfailed t pride an explanatin fr such a tenuus interpretatin, in spite fthe fact that the interpretatin it relied upn cntraened the plain and rdinarymeaning f the subject cllcatin (para. 118).

Amng academics, the pinin has been criticized mstly fr taking an excessielynarrw apprach and the cnsequent failure t clarify bundaries between the rightt self-determinatin and the principle f territrial integrity f states.40 Janić

39 Internatinal Curt f Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Adisry opinin. I.C.J. Reprts 2010.<www.icj-cij.rg/dcket/les/141/15987.pdf > accessed 15 March 2013.

40 Harard Law Reiew, ‘Recent Internatinal Adisry opinin’ [2011] Harv. L. Rev.

<www.harardlawreiew.rg/media/pdf/l124_ks_declaratin_f_independence. pdf > accessed 15 March 2013.


http://www.harvardlawreview.org/media/pdf/vol124_kosovo_declaration_of_independence.pdf








has identied a cmmn denminatr amng bth academic and freign affairs perspecties that argued in faur f Ks’s independence: the claim was thatthe case f Ks was unique and incapable f setting a precedent fr ther similarcases arund the wrld. Janić systematized a ttal f fur arguments in faurf the uniqueness f the Ks case, befre rebutting each ne.41 In the aftermath

f the unilateral declaratin f independence and the Adisry opinin f the ICJ,the case f Ks has retained the ptential t seriusly transfrm legal thery pertaining t the dilemma between the declaratry and cnstitutie effect f staterecgnitins, criteria f statehd and right t self-determinatin.42

It seems that the reasning f the Curt encmpassed tw majr aws. Firstly,the Curt wuld nt be able t claim accrdance f the declaratin f independencewith the Reslutin 1244 had it nt rst mdied the questin it was suppsed tanswer by claiming that it was nt Prisinal Institutins f Ks that enacted

the subject declaratin, but plitical representaties f the peple f Ks instead.Such an assertin seems untenable in the light f the fact that the plitical structurethat prclaimed independence directly riginated frm the Prisinal Institutins.Secndly, the Curt’s abstentin frm tackling the perspectie f the right t self-determinatin depried the Curt’s cnclusin f any substantial grunds, fr ifthe assumptin that the bdy that had enacted the declaratin f independence wasnt in fact identical t ne f the Prisinal Institutins were true, nly a psitiending f the right t self-determinatin n the part f Ks Albanians culd

sere as alid grund fr such a declaratin. Such an assessment may rely n thecntentin f Raič, wh claimed that ‘Under cntemprary internatinal law, theright f self-determinatin is nt nly the principal legitimatin f statehd, it hasals becme a crucial factr in the prcess f frmatin f States’.43

A ciil and plice missin f the EU, EULEX, assumed respnsibility in thearea f rule f law in December 2008, taking er frm UNMIK, s that UNMIK plice cmpleted almst 10 years f actie peratin in the regin.

All references t the Ahtisaari Plan were remed frm the s-calledCnstitutin f Ks by irtue f amendments theref in September 2012.The Internatinal Steering Grup (ISG), which accrding t the Ahtisaari Plancmprised key internatinal stakehlders and was tasked with appinting the

41 Midrag Janić, ‘Is Ks and Methija Indeed a “Unique Case”?’ in JamesSummers (ed.), Kosovo: A Precedent? The Declaration of Independence, the AdvisoryOpinion and Implications for Statehood, Self-Determination and Minority Rights (Leiden2011) 345–75.

42 Milš Janić, ‘Recgnitin f Ks Independence As A vilatin f

Internatinal Law’ [2008] Annals – Belgrade Law Review, 108–40 <www.ius.bg.ac.rs/Anali/Annals%202008/Annals%202008%20p%20108-140.pdf > accessed 15 March 2013;Jure vidmar, ‘Internatinal Legal Respnses t Ks’s Declaratin f Independence’[2009] Vanderbilt Journal of International Law 779–851 <www.anderbilt.edu/jtl/manage/wp-cntent/uplads/vidmar-cr_nal_nal1.pdf > accessed 15 March 2013.

43 Daid Raič, Statehd and the Law f Self-Determinatin (Martinus NijhffPublishers 2002) 68.

http://www.ius.bg.ac.rs/Anali/Annals%202008/Annals%202008%20p%20108-140.pdf


http://www.vanderbilt.edu/jotl/manage/wp-content/uploads/Vidmar-cr_final_final1.pdf









Internatinal Ciilian Representatie (ICR), held its nal meeting n 10 September2012, at which it declared the end f the superised independence f Ks.44

Key Factors of the Dynamics of the Present Situation

The Cnstitutin f Serbia f 2006 expressly states that the Autnmus Princef Ks and Methia frms part f the territry f Serbia, enjying an ‘essential’autnmy that shall be stipulated in greater detail by irtue f a separate law. Sucha law has neither been enacted nr drafted as f February 2013 (Usta RepublikeSrbije [Cnstitutin f the Republic f Serbia]).

Accessin t the EU has remained a key gal f almst all gernmentsf Serbia fllwing the demcratic changes f 2000. Hweer, Serbia is faced

with the EU demands t ‘impre relatins with Ks’, which shuld lead t‘full nrmalizatin f relatins between Serbia and Ks’. The demand thatSerbia ‘respects territrial integrity f Ks’ has been particularly cntentius(Enlargement Strategy 2012, 26). The EU itself remains diided er recgnitinf Ks. Fie f its Member States hae nt recgnized it.

The EU has been mediating a dialgue between the gernment f Serbiaand the secessinist authrities f Ks since March 2011. S far, thenegtiatins hae resulted in a number f s-called technical agreements: n

brder management, with the integrated management cmpnent in NrthernKs and exchange f liaisn fcers agreed upn in December 2012, as wellas n the free w f peple and gds, bks and cadastre, custms stamps,the acknwledgment f diplmas and the representatin f Ks at reginalconferences.45 Just befre the 5th rund f talks, the presidents f the EurpeanCuncil and f the Eurpean Cmmissin, Messrs van Rmpuy and Barrs,stressed that ‘the dialgue and the upcming rund in particular were immenselyimprtant fr Ks and Serbia’s relatins with the EU’.46 Serbian fcials hae been maintaining that the EU-mediated dialgue between the Serbian gernmentand the secessinist authrities f Ks shuld be status neutral.47 The most

cntentius tpics n the dialgue agenda – the supprt that the gernment f

44 Internatinal Ciilian ofce Ks, The Comprehensive Status Proposal <www.

ic-ks.rg/?id=38> accessed 15 March 2013.45 Reprt f the Secretary-General n the United Natins Interim Administratin

Missin in Ks. UN Security Cuncil. S/2012/818, 8 Nember 2012. http://www.

un.rg/ga/search/iew_dc.asp?symbl=S/2012/818> accessed 15 March 2013.46 ‘Belgrade and Pristina pen mst delicate issue in dialg’ ( EurActiv.rs, 22February 2013). <www.euracti.rs/esti/5469-belgrade-and-pristina-pen-mst-delicate-issue-in-dialg> accessed 15 March 2013.

47 ‘Fuele reassures Serbia n Ks “territrial integrity”’ ( EurActiv.rs, 11 octber2012). <www.euracti.cm/enlargement/fuele-reassures-serbia-ks-te-news-515346>accessed 15 March 2013.

http://www.ico-kos.org/?id=38




http://www.euractiv.rs/vesti/5469-belgrade-and-pristina-open-most-delicate-issue-in-dialog


http://www.euractiv.com/enlargement/fuele-reassures-serbia-kosovo-te-news-515346

http://www.euractiv.com/enlargement/fuele-reassures-serbia-kosovo-te-news-515346










Serbia has been priding t Serb-cntrlled instututins in Nrthern Ks, aswell the status f Serb orthdx hly places in Ks and Methia – hae nt been pened as f February 2013.48

A slutin fr the apparently imminent deadlck in the relatins between EUand Serbia er recgnitin f Ks is being prpsed in the frm f a partitinf Ks and Methia, which wuld entail that Nrthern Ks, hmgenuslyinhabited by Serbs, be excluded frm the rest f the prince. Janić defendssuch a slutin n the grunds that it simply represents a cnsequence f strictapplicatin f the principle f right t self-determinatin.49

Internally Displaced Persons

In March 2000, the Serbian Cmmissariat fr Refugees, in cperatin with

UNHCR, cnducted fr the rst time registratin f internally displaced persns(IDPs) frm Ks and Methia, when 187,129 such persns were registered inSerbia. The number f these refugees is nt decreasing at all (althugh the reprtsf the Temprary Gernment f Ks regularly mentin returnees) but, n thecntrary, is n the rise. During the perid 2000–05, an additinal 20,000 persns edKs and Methia. In March 2008, the number f IDPs in Serbia was 209,700.50

This number des nt include nly Serbs, but als ther ‘nn-Albanians’ wh lkedfr safety and help in Serbia and elsewhere. on the ther hand, Albanian surces deny

such gures and cite a signicantly fewer number f refugees and IDPs. The UNSecretary-General admitted that ‘return statistics fr 2008 shw a dramatic declinein the number f luntary minrity returns t Ks cmpared t earlier years …nly 582 minrity cmmunity members returned t Ks in 2008, as cmpared t1,816 in 2007 and 1,669 in 2006’.51 In 2011 and 2012 the erall number f minrityreturnees slightly increased in cmparisn with 2008, but did nt reach the leelsf 2007 and 2006: in 2012 a ttal f 970 returned, while fr 2011 the number stdat 1,143.52 The reprt f the Secretary-General n the actiities f UNMIK betweenJuly and octber 2012 mentined ‘renewed debates n sustainability f returns tKs’, prmpted by ‘sales f Ks Serbs f their prperties and their relcatint Serbia’. The Secretary-General referred bth t sci-ecnmic reasns, as well

48 See supra nte 46.49 Midrag Janić, ‘Final Status fr Ks – Shuld We Really be Petried

With the “Partitin optin”?’ in Midrag Janić and Kristin Henrard (eds), Sovereignyand Diversity (Eleen Internatinal Publishing 2008) 171.

50 The Cmmissariat fr Refugees, About us. <www.kirs.sr.g.yu/articles/nama.

php?lang=ENG> accessed 15 March 2013.51 Reprt f the Secretary-General n the United Natins: Interim AdministratinMissin in Ks (United Natins Security Cuncil S/2009/149, 17 March 2009) <www.

unmiknline.rg/SGReprts/S-2009-149.pdf > accessed 15 March 2013.52 Reprt f the Secretary-General n the United Natins Interim Administratin

Missin in Ks (UN Security Cuncil. S/2013/72, 4 February 2013) <www.un.rg/ga/search/iew_dc.asp?symbl=S/2013/72> accessed 15 March 2013.

http://www.kirs.sr.gov.yu/articles/onama.php?lang=ENG


http://www.unmikonline.org/SGReports/S-2009-149.pdf













as t perceptin f insecurity amng returnees, caused by seeral security incidentsin returnee areas, as pssible causes f the mentined relcatin prcess. Cited datasuggest that the prcess f return f displaced persns is irtually nn-existent, sincean annual rate f return f between 0.1 per cent and 0.5 per cent f the ttal numberf refugees is cupled with new departures.

Prole of Serbian Orthodox Holy Places in Kosovo and Metohia

Places of Gathering and Destinations of Pilgrimage

Mst f the sacred/hly places in Ks and Methia are als traditinal places fgathering f lcal, reginal r een natinal signicance, in which Serbian orthdx

Christians experience ‘sabrnst’, an imprtant dimensin f scial, plitical andreligius signicance fr them [Russian sobornost , conciliarism, catholicity, a

unity f persns in a ling fellwship in which each member retains freedm andintegrity withut excessie indiidualism]. Each f the ld and well-knwn churchesrepresents such a hly gathering place, s that it is irreplaceable fr Serbian orthdx belieers wh reside bth in neighburing areas as well as further away. Such hly places are called svetinje (sanctities). If ne f the svetinje is destryed, there are greatchances that the lcal cmmunity wuld depart the regin. Fr that reasn such hly

places are particularly attractie targets fr inicting damage and destructin.one f the best examples is Gračanica Mnastery (Figure 12.3), where eeryyear n June 28 (accrding t the Gregrian calendar) seeral thusands (preiuslyseeral tens f thusands) f Serbs gather t attend the viddan [St vitus’ day]Diine Serice. viddan is ne f mst imprtant Serbian feasts. Its imprtancestems primarily frm the Battle f Ks f 1389, when, accrding t traditin,Prince Lazarus died n the battleeld and thus faured the Kingdm in Heaener the Kingdm n Earth. Since the beginning f the 20th century, St vitus’ Dayals became a Church feast in hnur f the Hly Martyr Prince Lazarus.

In additin t places f gathering, there is an almst equal number f hly placesthat represent destinatins f pilgrimage fr all orthdx belieers in Ks andMethia and ther areas, particularly fr thse wh were frced t temprarilyleae Ks as refugees and displaced persns. It is remarkable that the strngimpulse fr pilgrimage is felt een by persns wh d nt cnsider themselesdeeply religius, and een by thse wh are nt orthdx r Christians at all, mstften in assciatin with a hpe f being cured frm an illness.

one f the best knwn hly places f pilgrimage is viski Dečani. Fr Serbs,

the Dečani Mnastery is the third mst imprtant destinatin f pilgrimage, just after Jerusalem and the Hilandar Mnastery at Munt Aths. Mass isits began after the cannizatin f Hly King Stefan Dečanski, just befre the mid-14th century, and hae nt decreased during the last six centuries. Pilgrimage tthe Dečani Mnastery is mst ften made in spring and in late summer thrugh tearly autumn. Pilgrims usually remain at the mnastery fr 5 t15 days.




Centres of Saints’ Cults

Physical remains f the rst martyrs fr the Christian faith hae been respected assacred since the earliest days f Christianity. The cult f relics had a prnuncedgrwth in the 6th century, when bdies f many hly persns were lcated andmed arund. The thelgical fundatin f respecting the relics was laid by themst prminent fathers f the Church (Ephrem the Syrian, Gregry f Nazianzus,Cyril f Jerusalem), and the dgmatic rules were agreed n during the SeenthEcumenical Council.

The cult f relics deelped amng Serbs as an integral part f the hly persns’ cults, s the announced bdies culd belng nly t state rulers and headsf the Church. There was an exceptin with the relics f St Petar Kriški, the nlySerbian hermit frm the Middle Ages that has been prclaimed a saint. The relicsf Serbian hly persns culd be in frm f bnes r entire bdies. Examples fsuch embalmed bdies were thse f King Stefan Prenčani, Archbishp Saa Nemanjić, Queen Jelena, King Milutin, King Stefan Urš III Dečanski, Prince

Lazar, archbishps Arsenije and Jestatiej I. After the annuncements, bdiesf Serbian hly persns were placed in a shrine called kivot (casket-like bjectwith the specic purpse f string a hly persn’s relics; the nly Middle Agesspecimen presered t this day is the kit f King Stefan Urš III Dečanski,which is a representatie specimen f artistic wdwrk frm the 14th century),which was placed in frnt f the altar in the church f the viski Dečani Mnastery.

Figure 12.3 Gračanica Monastery (14th century)




The relics were annunced by miracles, and their particularly imprtant featurewas their healing pwer. Exuding f myrrh was nly assciated with the relics f St Simen Nemanja, the funder f the Nemanjić dynasty.

The imprtance f the relics f Serbian hly persns exceeds bundaries freligius practice. In the Middle Ages they were an imprtant element f dynasticidelgy, while in the perid f ottman rule they were a key factr f the preseratin f natinal identity.53

The Deič Mnastery is the centre f the cult f St Jannicius f Deič.54 Saint

Jannicius was a Serb frm Zeta (suth-western part f the Serbian medieal state,tday mstly cnfrming t the territry f the Republic f Mntenegr). The hlyand wnder-wrking relics f St Jannicius are kept in this mnastery. Accrdingt traditin, Serbian Prince Gerge Brankić brught his mentally ill daughtert the Saint, wh then healed her. out f gratitude, Gerge built a mnastery n

this spt, knwn tday by the name f Deič. obiusly due t its imprtance,this hly place is a ery cmmn target f attacks and hate-mtiated crimes. Themnastery was lted in 1999, and set n re and demlished in 2004 (Figures12.4 and 12.8).

The viski Dečani Mnastery55 is the centre f the cult f Serbian hly manand king Stefan Urš III Dečanski (c.1285–11 Nember 1331) wh reigned frm1321 t 8 September 1331, the sn f King Stefan Urš II and Anna f Bulgaria.The mst signicant eent f Stefan Urš III’s reign was the Battle f velbuzhd,

in which he defeated the Bulgarian army and killed Emperr Michael Asen III.Dečanski’s cnquests allwed him t push the brders f Serbia further t thesuth int Byzantine Macednia. The Serbian orthdx Church cannized StefanUrš III as a saint-martyr. His remains are kept in the church f the viski DečaniMnastery, which was endwed by him.

The church f the viski Dečani Mnastery hsts als the relics f St Helen,the sister f Stefan Dečanski, wh died in the mid-14th century. She ‘presentedherself’ in 1692 thrugh a miracle which preented the Turks frm turning theDečani church int a msque.56

53 SM Ćirkić, R Mihaljčić and M Bajalić-Hadži-Pešić (eds), Leksikon srpskog srednjeg veka [Lexicon of the Serbian Middle Ages] (Knwledge 1999) 420.

54 Đrde Radjičić, Janićije Devički (Glasnik Etngrafskg instituta 1952) 173–8.55 Smilja Marjanić-Dušanić, Sveti kralj: kult Stefana Dečanskog [Holy King: the

cult of Stefan Dečanski] (Balkanlški institut SANU: Psebna izdanja 2007) 97; DanicaPpić, Pod okriljem svetosti: kult svetih vladara i relikvija u srednjovekovnoj Srbiji [Under the wing of holiness: cult of holy rulers and relics in Medieval Serbia] (Balkanlški

institut SANU: Psebna izdanja 2006) 92; Dragan vjdić, Prilog poznavanju ikonograjei kulta sv. Stefana u Vizantiji i Srbiji [Contribution to knowledge of iconography and cult ofSt. Stefan in Byzantine and Serbia] (U: Zidn slikarst manastira Dečani: građa i studije,SANU: odeljenje istrijskih nauka: Psebna izdanja 1995) 537–65.

56 Lentije Palić, Kultovi lica kod Srba i Makedonaca, Istorijsko-etnografskarasprava [Face cults in Serbs and Macedonians, historical-ethnographic debate] (Nardnimuzej, Psebn izdanje 1965) 1.




Places of Miracles and of Healing

The places f miracles and healing are the sacred/hly places in which relics belieed t cause unnatural eents and phenmena are kept. This grup alsincludes the Mnastery f Saint Jannicius at Deič because f the miraculusshrine f its church, as well as the viski Dečani Mnastery.

The Mnastery f Saint Healers Csmas and Damian at Zčište pssessed bthhealing bdy relics f the Saint Healers and a spring f water in the mnasteryyard which had been belieed by bth Serbs and Albanians t heal eye ailments.Hweer, this was nt an bstacle fr the ilent destructin f the mnasteryin 1999. The mnastery church was rebuilt, and part f the Saints’ bdy relicsreturned t the mnastery in 2004. Tday Serbs apprach the site mstly escrted

by KFoR r Ks plice, fearing attacks by the lcal ppulatin, while theAlbanians are free t isit it at will. Hweer, althugh the site belngs t theSerbian orthdx Church, it is nw isited by Rman Cathlic Albanians.57

57 ‘Prebačene mšti Setih rača Kzme i Damjana’ [’Bdy relics f Saint HealersCsmas and Damian Relcated’] (Večernje Novosti, 17 May 2012) <www.nsti.rs/esti/

Figure 12.4 Two Serbian Orthodox Church nuns in front of Devič Monastery afterit was burned and torn down in March 2004

Source: Тhe Infrmatin Serice f the Serbian orthdx Church.

http://www.novosti.rs/vesti/srbija.73.html:380097-Prebacene-mosti-Svetih-vraca-Kozme-i-Damjana





Miraculus healings were als recrded at the Deič Mnastery and attributedt the relics f St Jannicius. Amng the numerus ailments, these relics werereprted t be particularly successful with mental illnesses.58 Pilgrims with mentalillnesses, belnging t arius ethnicities and religins, isit Deič lking fr acure thrugh the miraculus phenmena f the St Jannicius’ relics.

An imprtant dimensin f the Deič Mnastery is its signicance fr ending bldy feuds between families in the past. Tgether with the lay curt, a ‘missin’f Deič mnks isited illages and made peace between the estranged families.They carried ‘Deič hly relics’ with them in their missins, which seem t haealways been successful.59 There are indicatins that peace was mediated betweenestranged Albanian tribes and families as well.

Bth Serbs and Albanians belieethat crawling under the shrine f the

Hly King Stefan Urš III (as it is raisedabe grund) at the viski DečaniMnastery cures many illnesses, keepsgd health and particularly securesan easy deliery f newbrns.60 With

the hpe f miraculus healing, thismnastery is isited by the deaf andmute, blind, mentally ill and patients

with ear ailments, as well as by nursingmthers with breast illnesses andmthers bringing ill children.61

Muslims, whse religin frbidsdepictin f human gures, seemedt beliee that fresces in Serbianmnasteries, depicting saints andrulers, had miraculus pwers, andseemed t think that mrtar and paintdug ut f the eyes f the pictured persns wuld cure pr eyesight reye ailments. This may be the reasnwhy many f the mst beautifulfresces (Figure 12.5) were stainedduring the ottman ccupatin. Sme

srbija.73.html:380097-Prebacene-msti-Setih-raca-Kzme-i-Damjana> accessed 15March 2013. 58 Tatmir vukanić, Srbi na Kosovu [Serbs in Kosovo] (Na Jugslaija 1986).59 Tatmir vukanić, Srbi na Kosovu, p. cit.60 Ibid.61 Lentije Ninkić, Čudesa sv. Stefana, kralja Dečanskog [Miracles of St. Stefan,

King og Dečani] (Duhna straža 1929) 1.

Figure 12.5 Frescoes of the Gračanica

Monastery: the depiction of Queen

Simonida with intentionally made

scratches on her eyes






peple beliee that the Turks dug ut the eyes frm the fresces as they culd ntwithstand the looks from the holy faces on the church walls.

Patriarchate of Peć

The Mnastery f Peć – knwn as the Patriarchate f Peć due t its status f thehistrical seat f the Patriarchate f the Serbian orthdx Church – includesall the traits f a hly place: it is a centre f a Saint’s cult, as well as a placef gathering and pilgrimage, and is belieed t pssess miraculus healing pwers.62

one f the cults assciated with the Patriarchate f Peć belngs t St ArsenijeI, wh was Serbian archbishp frm 1233 t 1263 and wh funded the Mnasteryf Peć. His birthplace was in Srem (nrth-western Serbia). Seeral years after

his death, miraculus phenmena started happening n his grae. Arsenije I‘appeared’ at the Patriarchate f Peć in the frm f a strng earthquake that washeard and felt in the church ne night. When the mnks entered the church, theysaw Arsenije’s tmb brken apart. Tgether with Archbishp Saa II, the mnkspened the tmb, remed the relics and placed them in a casket in the Church fSt Peter and Paul within the monastery.63

The rst legendary miracle in cnnectin with the relics f St Arsenije Ihappened when a mnk with a thrat ailment isited his grae and was cured after

tuching the relics. Since then, many stries and legends n miraculus healingsf ill persns wh hae tuched the relics f this hly persn hae appeared. Halfa century after the death f Arsenije I, a flk cult deelped n tp f the cultrecgnized by the Church. Ill and frail peple wuld lie near the shrine fr seeralhurs, r wuld leae parts f their clthing n r arund the shrine, smetimesernight, hping fr cure when they put the clthing n. The mnks read prayersin supprt f the healing.

Extra-Territorial Status and Scope of Self-government

Nne f the Serbian orthdx hly places has any kind f extraterritrial status.As fr the Special Prtectie Znes established arund the hly places f majrimprtance, it shuld be understd that secessinist Ks institutins areentitled t exercise their pwers within these znes. Indeed municipal authritiesare respnsible fr implementing the prisins f the legal regulatin f theSpecial Prtectie Znes, and the Serbian orthdx Church is expected tcperate with the municipalities.64

62 Sreten Petkić, Manastir Pećka patrijaršija i njegove spahije [Monastery Patriarchy of Peć and its landowners] (Balcanica 1982–83)13–14, 353–9.

63 Tatmir vukanić, Srbi na Kosovu, p. cit.64 Internatinal Ciilan ofce (ICo), Implementation of Special Protective Zones for

Religious and Cultural Heritage in Kosovo – Progress Report (September 2011) <www.

http://www.ico-kos.org/data/Image/SPZ_Progress_Report_Final_EV.pdf





Hweer, while mst hly places are surrunded by an Albanian majrity,sme f them are situated within enclaes f Serbian ppulatin. These enclaesare characterized by limited jurisdictin and pwers f the Ks secessinistauthrities, fr example Sredačka župa, velika Hča near orahac65 and the

Gračanica Mnastery. The case f Gračanica is paradigmatic – as this hly place is surrunded by the greatest agglmeratin f hmgeneus Serbiancmmunities. Althugh encircled by a hstile majrity, the Serbs feel safenear the reered mnastery. vice ersa, the existence f this cmmunity frmany centuries has amunted t a guarantee f the safety and surial f themnastery, as well as fr its cntinuus use as a liing hly place and nt just asa mere tourist attraction.

The Serbian orthdx religius cmmunity dispses f ery limited religiusfreedm within the hly places that are nt destryed and deserted. In the ‘liing’

churches the priests and mnks are regularly perfrming religius serices inaccrdance with the Cnstitutin f the Serbian orthdx Church and applicablecanns. Hweer, detees hae difculties in reaching mst f the hly places.The degree and frm f internal autnmy f the actie mnasteries is dened by the Cnstitutin and ther applicable rules f the Serbian orthdx Church.Rights f self-gernance are ften reduced t within the mnastery walls, asassets utside are ften illegally usurped.

References t certain frms f extraterritriality, as a mechanism fr

establishing internatinal respnsibility fr the prtectin f cultural and religiusheritage, appear in sme dcuments. Particularly imprtant is recmmendatin n.56 by the UN Special Eny Kai Eide.66 The idea f a special status fr Serbianorthdx hly places is als mentined in Principle n. 5 f the Guiding Principlesf the Cntact Grup fr Settlement f the Status f Ks.67

In accrdance with the s-called Ahtisaari Plan, a law was passed in February2008 whereby special prtectie znes arund 45 religius and cultural sites were

ic-ks.rg/data/Image/SPZ_Prgress_Reprt_Final_Ev.pdf > accessed 15 March 2013.65 Krsta vitšeić, Velika Hoča (Bibliteka Starsrpska sela 1995); MirjanaMenkić (ed.), Velika Hoča: The Pearl of Metohia (Mnemsyne Center 2003).

66 ‘There is a need t create a “prtectie space” arund these sites in rder t makethem less ulnerable t plitical manipulatin. Arrangements shuld be designed fr puttingSerbian orthdx sites in Ks and Methia under a frm f internatinal prtectin. Thiswuld need t include guarantees f access, prperty rights, and cmmunity sustainability.It is imprtant nt nly t prtect indiidual sites as cultural and religius mnuments, butals as liing cmmunities. The Cuncil f Eurpe and the United Natins Educatinal,

Scientic and Cultural organizatin (UNESCo) hae particular expertise in this area andshuld be inited t play a rle in such arrangements’. United Natins Security Cuncil, Acmprehensie reiew f the situatin in Ks (S/2005/635) <www.unsek.rg/dcref/KaiEidereprt.pdf > accessed 15 March 2013.

67 Cntact Grup, Guiding principles f the Cntact Grup fr a settlement f thestatus f Ks (2005) <www.unsek.rg/dcref/Cntact%20Grup%20-%20Ten%20Guiding%20principles%20fr%20Ahtisaari.pdf > accessed 15 March 2013.


http://www.unosek.org/docref/KaiEidereport.pdf


http://www.unosek.org/docref/Contact%20Group%20-%20Ten%20Guiding%20principles%20for%20Ahtisaari.pdf










frmed. Hweer, the results f its implementatin are pr and its ilatins hae been frequent, while endangerment f sanctuaries persists, bth in the frm factual physical attacks and in the frm f arius harms t prperty and identity.The recent attempt by seeral thusands f Albanians t frcefully enter the viskiDečani Mnastery, f February 2013,68 is a typical example f the ineffectienessf the special prtectie znes. It is due t their ineffectieness that the special prtectie znes hae remained irtual and unsuitable fr the purpse they had been established fr.

An imprtant questin that arises is whether religius rganizatins r stateauthrities shuld be allwed undiided sereignty er the hly places, r amechanism fr sharing sereignty, similarly t the Munt Aths example, shuld be mre apprpriate.

Interaction with the Albanian Community and the Provisional Authorities

Bth the Ahtisaari Plan and the Law n Special Prtectie Znes prided frthe frmatin f Implementatin and Mnitring Cuncils bth at the leel fthe whle f Ks and Methia and fr each particular prtectie zne, withthe aim that cperatin between Serbian orthdx Church and lcal authrities be institutinalized. Hweer, nly cperatin by way f exchange f lettersseems t hae been realized by September 2011. It als seems, accrding t

the Internatinal Ciilian ofce fr Ks, that the ‘nly mechanisms wherethe SoC and Ks authrities frmally discuss RCH (religius and culturalheritage) matters directly is in the CE (Cuncil f Eurpe) – led Recnstructinand Implementatin Cmmissin’ (ICo Prgress Reprt 2011, 13). Thisaccunt shws an extremely limited quality and scpe f interactin with lcalauthorities.

Principal Dangers for the Sustainability of Holy Places in Kosovo and Metohia

Violations and Limitations of Ownership, Duty of Maintenance

Prperty f the Serbian orthdx Church was apprpriated n a large scale duringthe cmmunist rule, which cnsequently jepardized in the medium and lngrun the sustainability f the ery sacred/hly places. Apprpriatin transpired inthe frm f natinalizatin, land refrm and ther types f frced depriatin fassets, as well as thrugh infringements f religius rights, including attacks and

pressures n clergy. Bth the internatinal missins t Ks and the secessinist

68 ‘viski Dečani: Mnašt strahuje d nih napada’ [‘viski Dečani: MnksFear New Attacks’] (Večernje Novosti, 9 February 2013) <www.nsti.rs/esti/naslna/aktueln.290.html:419014-viski-Decani-Mnast-strahuje-d-nih-napada> accessed15 March 2013.

http://www.novosti.rs/vesti/naslovna/aktuelno.290.html:419014-Visoki-Decani-Monastvo-strahuje-od-novih-napada







Ks authrities made themseles accmplices in the crimes f the cmmunistregime by failing t undertake systemic restitutin f religius prperty.

Supprt t the Serbian orthdx Church in restratin and cnseratin fdamaged and destryed edices in hly places has been prided s far mstly by theEU and the Cuncil f Eurpe, as well as by indiidual cuntries. Ntable is the s-called RIC mechanism, under which the EU prided funds fr the recnstructin f34 Serbian orthdx religius sites in Ks and Methia that had been damaged inthe 2004 Pgrm. The restratin f fresces in the Bgrdica Ljeiška Church inPrizren is funded by dnatins frm Bulgaria, the Czech Republic, Greece, Italy andthe Russian Federatin. The Russian Federatin has als funded restratin wrksat the three ther UNESCo cultural heritage sites: the viski Dečani Mnastery, theGračanica Mnastery and the Bgrdica Ljeiška Mnastery. The recnstructinwas planned and mnitred by the Cuncil f Eurpe (RIC).69

Nationalization During the Communist Regime

on the grunds f the Law on agrarian reform and colonization No. 64 f 27 August1945, the state tk away land and frests frm the Serbian orthdx Church andreligius endwments (Clause 3, line 1, under ‘’ and Clause 26). ‘The surplusabe 10 ha f the ttal area f elds, gardens, ineyards, rchards, cmmnsand frests’ was taken away frm the churches, religius legacies, mnasteries

and religius institutins (Clause 8, line 1), with an exceptin that thse f greaterimprtance r histrical alue were left with up t 30 ha. Accrding t Clause7, line 1 f the General law on managing expropriated and conscated forest properties, the wners were nt gien any cmpensatin. Een in legal frmsf apprpriatin in which cmpensatin was prided fr it amunted, withutexceptin, t a symblic sum.

Assets f endwments, bth religius and secular, were als apprpriated pursuant t the Law on nationalization of leased buildings and building land . All

buildings passed t state wnership tgether with the land they had been builtupn. Agrarian refrm als cnsisted f large-scale cnscatins, withut anycmpensatin fr the wners.

Analysis f the aailable dcumentatin has shwn that the land f an areaf at least 5,600 ha was cnscated in Ks and Methia frm the Serbianorthdx Church, Dicese f Raška and Prizren.

The Republic f Serbia enacted the Law on Restitution of Religious Property

in 2006 [Zakn raćanju imine crkama i erskim zajednicama],70 but

69 Recnstructin Implementatin Cmmissin fr Serbian orthdx ReligiusSites in Ks <www.ce.int/t/DG4/CULTUREHERITAGE/CooPERATIoN/RIC/inc/eng/mechanism.html> accessed 15 March 2013.

70 Zakon o vraćanju (restituciji) imovine crkvama i verskim zajednicama [The Lawon Restitution of Property to Churches and Religious Communities], Službeni glasnik R.Srbije [ofcial Gazette f the Republic f Serbia] 46/2006.

http://www.coe.int/t/DG4/CULTUREHERITAGE/COOPERATION/RIC/inc/eng/mechanism.html







the applicatin f this statute n the territry f Ks and Methia remainssubject t the slutin f the status f the territry, as well as t crdinatinwith the representaties f the internatinal cmmunity. The nature f the matter,hweer, requires the urgent implementatin f a prisinal ban n the dispsalf natinalized religius prperty in Ks and Methia.

In cntrast t the restitutins all er Eastern and Central Eurpe that ensuedafter the fall f the Berlin Wall, in Ks and Methia restitutin n a systemicleel has nt taken place t the present day, which represents the mst signicantlimitatin f wnership f religius institutins and the greatest impediment fr thesustainability f their surial and cntinuatin f serice. Paradxically, Westerndemcracies, the United States in particular, wh had the greatest inuence n theinternatinal administratin f Ks and Methia frm 1999 until 2008, haent enabled restitutin f prperty apprpriated during cmmunism, althugh they

had fully supprted the same prcess after the fall f the Berlin Wall thrughutCentral and Eastern Eurpe.

Property Rights Violations Related to the Absence of Public Records and Planning/Zoning Misuses

A particular difculty in prtecting Serbian orthdx religius and histricalmnuments, as well as prperty rights, arises frm the fact that many municipalities

in Ks and Methia pssess neither detailed zning/regulatin plans nr publicreal prperty recrds. Therefre indiiduals use the existing legal acuum t ccupyas much land as pssible, mst cmmnly with the full knwledge and supprt fmunicipal cuncils. Quite ften third persns build facilities fr arius functinsin the immediate icinity f the hly places, endangering prperty rights and usefr religius purpses. Reprtedly, mnks and nuns at sme mnasteries frmtime t time are nt able t access parts f their institutin’s estate – particularlyland utside mnastery walls – due t safety cncerns.71

Accrding t the Internatinal Ciilian Missin fr Ks, during the perid between 2007 and 2011, ‘the threat (in respect f the special prtectie znes) isgradually shifting frm the mnument t the site and landscape surrunding themnuments, largely due t uncntrlled and illegal deelpment, een within the perimeters f the prtected CSP mnuments’ (ICo Prgress Reprt 2011, 4).

71 US Department f State: Under Secretary fr Demcracy and Glbal Affairs:Bureau f Demcracy, Human Rights, and Labr, Report on International Religious Freedom 2009: Kosovo, <www.state.g/dcuments/rganizatin/134432.pdf > accessed15 March 2013.

http://www.state.gov/documents/organization/134432.pdf

http://www.state.gov/documents/organization/134432.pdf



Figure 12.6 Church of Mother of God Hodegetria at Mušutište (14th century)

before it was demolished in 1999

Source: Serbian orthdx Dicese f Raska and Prizren.

Figure 12.7 Remains of the Church of Mother of God Hodegetria at Mušutište

(14th century), after it was set on re and destroyed by explosives in 1999

Source: Serbian orthdx Dicese f Raska and Prizren.




The Case of the Visoki Dečani Monastery

Limitatins n prperty rights pertain t prperties in the immediate icinity fsacred/hly places that are prtected as cultural assets.72 Fr example, Executiedecisin N. 2005/5 n the Special Zne Area Dečani (UNMIK/Io/2005/5)dened the fllwing limitatins:

• There shuld be n building, recnstructin, industrial r cmmercialactiity, including the explitatin f frests, water r mineral resurces,withut a prper authrizatin by UNMIK;

• The existing rad, which remains under the superisin f KFoR, may nt be widened withut a prper authrizatin by UNMIK. Heay cmmercialtransprt is nt allwed n this rad withut authrizatin by KFoR and

UNMIK;• The municipal gernment must undertake prper measures cnsidering

any structure built withut a prperly issued building permit;• The actiities in and arund the mnastery must cmpletely match the

cnentins and directies by UNESCo.

In spite f Executie decisin N. 2005/5, a restaurant that had been built withutany building permit in the immediate icinity f the mnastery in 2005 was

additinally expanded in late Nember 2006. The wner f the illegal buildingcmmenced building a new turist facility (mre than 30m lng) as well aswden cabins that spil the landscape arund the mnastery. T make the matterwrse, the Municipality f Dečani prclaimed the area arund the mnastery t bean urban deelpment zne, which amunted t an ex post facto appral f theillegal building, directly cntraening the cited UNMIK decisin.

A diplmatic and legal struggle t hae the illegally built edices in the icinityf the viski Dečani Mnastery remed was quite difcult due t the bstructin by the municipal gernment f Dečani. The slutin was nally reached understrng internatinal pressure, s that in January 2007 Ks Prtectin Crpsmembers remed the illegal structures.

The viski Dečani Mnastery has been inled in anther high-prle dispute – a lng-standing curt case against tw lcal scially wned enterprises ermre than 20 ha f land lcated in the icinity f the mnastery. The land had beenapprpriated frm the mnastery by the cmmunist regime after Wrld War II, andreturned t the mnastery in 1997. The dispute was nally decided by the KsSupreme Curt in December 2012, which ruled in faur f the mnastery. The

ruling prked a harsh respnse by the lcal (Albanian) municipal leadership,which severed relations with the monastery.

72 Branisla Tdić and Milka Čanak-Medić, Monastery of Dečani (Museum inPriština, Mnemsyne Center, Mnastery f viski Dečani 2005).




These cases highlight the imprtance f securing that bth the lcal authritiesand the internatinal cmmunity cmply with the prisins n institutinal prtectin f Serbian orthdx hly places in Ks and Methia. Infrmalcentres f inuence are wrking at a lcal leel, s that prper implementatinf laws and regulatins in this area requires cnstant pressure by internatinaldiplmatic and military circles. This need is best illustrated by the fact that the USAmbassadr t Ks, HE Ms Jacbsn, felt bliged t publicly state supprtfr the enfrcement f the Ks Supreme Curt ruling regarding the claim fDečani Mnastery t 20 ha f land.73

Other Examples of Threats to Holy Places Related to Zoning, Development and Public Records

Regarding the illegal buildings near Gazimestan, Grič and velika Hča, theSpecial Eny fr Ks Martti Ahtisaari sent a letter t the head f UNMIKJachim Rücker n 5 octber 2006, suggesting that Rücker ‘cnsider the measuresthat wuld include, if pssible, a freeze n building ther structures arund the[three above-mentioned ] bjects until the decisins n prtectie znes are ntnalized in the negtiatin prcess …’ Accrding t Ahtisaari’s pinin, ‘there arereasns t beliee that building actiities (arund these bjects) may hae a galt create facts in the area, which wuld cmplicate the negtiatins and the later

implementatin f agreements’. In the Albanian-language press the representatiesf temprary Ks institutins hae denied that they were gien any directinn this tpic, s it remains unclear if Ahtisaari’s prpsal was accepted by UNMIKand if these measures hae already, r will be implemented at all.

Simultaneusly with the cntinuatin f building near Gazimestan, terrain wascleared near the Grič Mnastery, in the area which, accrding t the prpsal bythe ‘ofce f the Special Eny f the Secretary-General f the United Natinsfr the future status prcess fr Ks’ (UNoSEK), shuld be within the prtectie zne f the mnastery. The nuns nticed a bulldzer clearing the bushesand digging a trench. There was a serius pssibility that an edice was abut t be built withut the appral f the municipality gernment, which is a tried andtrusted methd fr creating the situatin f fait accompli, as Ahtisaari wrote to

Rücker. Tw swimming pls were als recently built in the immediate icinityf the Grič Mnastery, and music was played ludly all summer, disturbing the prayer rituals at the mnastery.

73 ‘Američka ambasadrka u Prištini gđa. Trejsi Džekbsn pzala na pštanjezakna i dluke vrhng suda iminskim praima manastira Dečani’ [‘AmericanAmbassadr t Prishtina Ms Tracy Jacbsn Called fr Respect f the Law and the Decisinf the Supreme Curt n Prperty Rights f Dečani Mnastery’] ( Eparhija-prizren.com, 31January 2013) <www.eparhija-prizren.cm/sr/esti/americka-ambasadrka-u-pristini-gdja-trejsi-dzekbsn-pzala-na-pstanje-zakna-i-dluke-r > accessed 15 March 2013.

http://www.eparhija-prizren.com/sr/vesti/americka-ambasadorka-u-pristini-gdja-trejsi-dzekobson-pozvala-na-postovanje-zakona-i-odluke-vr







Tw years befre (in 2004) a restaurant had been illegally built near theviski Dečani Mnastery in a similar fashin, withut any appral but with theknwledge f the municipal gernment, and that was ne f the direct reasnswhy the prtectie zne f UNMIK was frmed arund the mnastery.

There hae been similar prblems in the settlement velika Hča, the nly nein the prince with a heritage f 13 medieal churches and mnasteries frm the12th t the 14th centuries and the nly remaining examples f traditinal seculararchitecture. Actiities n building a new factry f cardbard packages hadcntinued withut any pause. The inhabitants f Hča are particularly wrriedas the factry was clse t their centuries-ld famus ineyards. In additin, ne businessman managed t lease a small factry f plastic mass, ‘18. Nembar’,in a ery cntrersial way frm UNMIK’s Priatizatin Agency. A curt trialstarted at the municipality curt in orahac regarding the title t the factry land,

as a family frm velika Hča prduced dcumentatin shwing that the factryhad been built n their land. It seems prbable that the tw factries will clse theentrance int this nly remaining Serbian illage in the orahac municipality,with places f wrship appearing in the endwments f Serbian kings since the12th century (Church f St Jhn, Church f St Nichlas, Church f St Stefan frmthe later perid and s n).

Een thugh the Mnastery f St Healers Csmas and Damian in Zčište nearPrizren had been razed t the grund in 1999 by an explsin and rebuilt in 2004

after the Pgrm, in 2011 the orahac municipal gernment cmmenced wrksfr the cnstructin f a rad alng the ery edge f the special prtectie znef that mnastery, in ilatin f the Law n Special Prtectie Znes. The wrkresulted in damage t the mnastery’s walls.74

‘Virtual’ Special Protective Zones

on 20 February 2008, the s-called Assembly f Ks adpted the Law onSpecial Protective Zones.75 Pursuant t this law, 45 sites listed in Annex v f theCmprehensie Prpsal fr the Ks Status Settlement hae been grantedthe status f ‘special prtectie znes’. These sites encmpass Serbian orthdxchurches and mnasteries, as well as the medieal twn f N Brd, the vjnicmedieal bridge in vucitrn, the medieal frtress in Zečan and the Gazimestanmemrial. Mst f these znes are lcated in suthern and western Ks. Aspecial prtectie zne is dened in the law as fllws:

74 US Department f State: Under Secretary fr Demcracy and Glbal Affairs:Bureau f Demcracy, Human Rights, and Labr, Report on International Religious Freedom2011: Kosovo <www.state.g/j/drl/rls/irf/religiusfreedm/index.htm?dlid=192825>accessed 15 March 2013.

75 SPZ Law (Law Nr. 03/L-039 n Special Prtectie Znes) <www.assembly-ksa.rg/cmmn/dcs/ligjet/2008_03-L039_en.pdf > accessed 15 March 2013.

http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm?dlid=192825

http://www.assembly-kosova.org/common/docs/ligjet/2008_03-L039_en.pdf




http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm?dlid=192825




A ‘Special Prtectie Zne’ shall be an area dened by a map, r by a denedarea surrunding a mnument, building, grup f buildings, ensemble, illage,r histric twn center that is safeguarded frm any deelpment r actiitywhich culd damage its histrical, cultural, architectural r archelgicalcntext, natural enirnment r aesthetic isual setting. (SPZ Law, Article 2)

The Law n Special Prtectie Znes cntains references t similar mechanismsin the Law n Cultural Heritage f 2006 and in the Law n Spatial Planning f2003. A majr bjectin f the Internatinal Ciilian ofce fr Ks in a 2011reprt alleged the lack f any mechanism fr implementing and enfrcing the Lawn Cultural Heritage, that is, fr prtecting cultural heritage in a practical way(ICo Prgress Reprt 2011, 11,12).

The bjecties f the prtectie znes, accrding t the Cmprehensie

Prpsal fr the Ks Status Settlement, are: ‘t pride fr the peacefulexistence and functining f the sites t be prtected; presere their histrical,cultural and natural enirnment, including the mnastic way f life f the clergy;and preent aderse deelpment arund them, while ensuring the best pssiblecnditins fr harmnius and sustainable deelpment f the cmmunitiesinhabiting the areas surrunding such sites’ (Article 4.1, UNSC 2007b).

As f the beginning f 2013, KFoR was priding full-time prtectin n sitef nly tw hly places: the viski Dečani Mnastery and the Peć Patriarhate,

after KFoR transferred respnsibility fr the prtectin f the Deič Mnastery tthe Ks plice in 2012. Respnsibility fr the prtectin f a number f therspecial prtectin znes has been transferred t the Ks plice. Accrding tan ICo Reprt f September 2011, the Ks plice at the time prided full-time prtectin fr mnasteries Grič, Budisaci, Gračanica, Hly Archangelsand Zčište, while a greater number f sites were nly mnitred by regular patrls f Ks plice (ICo Prgress Reprt 2011, 18).

The Internatinal Ciilian ofce fr Ks stressed that tw f the UNESCoWrld Heritage sites, the Patriarchate f Peć and the viski Dečani Mnastery,‘hae been expsed t a number f cnstructin actiities which were nt prperlyregulated, while there are many mre planned actiities which are restricted reen prhibited by SPZ prisins’, as well as that ‘the Church f the Hly virginLjeiška, in the histric centre f Prizren … is expsed t rapid and uncntrlledurban deelpment all arund it … This is actually the case fr many mre CSP-listed mnuments and their respectie SPZs’ (ICo Prgress Reprt 2011, 17).

The main deciency f the institutinal set-up that the Internatinal Ciilianofce fr Ks perceied was the lack f requisite municipal spatial plans, as

well as the lack f crdinatin f these plans with the regulatin f the special prtectie znes (ICo Prgress Reprt 2011, 25). Hweer, it perceied that inthe case f the viski Dečani Mnastery a municipal spatial plan was being usedcntrary t the applicable regulatins and with a clear agenda fr grssly ilatingthe viski Dečani Special Prtectie Zne – by the cnstructin f a rad right




thrugh it, leading t a planned brder crssing with Mntenegr (ICo PrgressReprt 2011, 21).

Property Rights Violations by Way of Denial of Ethnic-cultural Identity

A peculiar methd f ilating prperty rights, as well as f the denial f theSerb ethnic-cultural identity, manifests itself in claiming the Albanian prenancef lcal Serbian orthdx religius and cultural heritage, particularly by way fchanging tpnyms. Althugh such attempts may seem naïe and ignrant wheniewed separately, they can als be perceied as frming a carefully planned prpaganda effrt, designed t gie birth t palpable results after a lnger peridf time, in synergy with the destructin f assets and bullying f the remaining ppulatin. The result f the effrt is creatin f the appearance f an academic

plemic er the identity f the lcal religius and cultural heritage between twsides pssessing rughly apprximate seriusness and argumentatin. In fact,histrical facts n the Serbian orthdx rigin f lcal religius and cultural sitesare faced with a plain plitical and natinalist prgram f instrumentalizatin fhistorical science.

The challenges f the Serbian orthdx identity f hly places in Ks andMethia are particularly clearly described by Clause 57 in the Reprt by the UNSpecial Eny Kai Eide: ‘The Serbian orthdx Church is experiencing pressure

against its identity. In additin t intimidatin and threats, there are attempts t rewritethe histry and rigin f Serbian orthdx heritage. They see uncntrersial andneutral names f streets in the icinity f their sites being changed and “Albanized”.The Ks Albanian leaders shuld react and bring a halt t these actiities’.

Hly sites reect prfund religius identities f indiiduals and religiusgrups, where religin, histry and plitics cnerge.76 In the case f Serbianorthdxy they als mark an imprtant part f natinal identity. Any frm fcntesting, changing, suppressing r ilating such identity may hae graecnsequences. At the same time, attempts at creating a new cultural identity f thehly sites ilate fundamental prperty rights.

Freedom of Access to Holy Places

As the cntinuity f purpse f a hly place is ne f its mst imprtant traits, andas the exercise f sabornost and religius serices represent principal purpsesf the hly places, freedm f access is the crucial precnditin fr maintaining

the relatinship between the hly place and the belieers. Freedm f access

76 osl Center 2008, Statement of Intention on a Code for Holy Sites. The OsloCenter for Peace and Human Rights <www.slcenter.n/index.php?ptin=cm_ cntent&task=iew&id=122⟨=en> accessed 15 March 2013.

http://www.oslocenter.no/index.php?option=com_content&task=view&id=122%3C2329%3E=en









represents the basic fundatin f free and undisrupted expressin f indiidualand cllectie religius freedm.

The Serbian orthdx Church des nt limit r cnditin access in any wayt any f the hly places. Fees fr entry are nt charged, and the nly cnditinis that bare skin n the bdy, arms and legs is cered befre entering certainchurches.

Hweer, in many cases the wner des nt hae any pwer t guaranteefree access t the Serbs. Fr example, the clerics and mnks f the Church fMther f Gd Hdegetria at Mušutište, the Church f St Gerge at Rečani andthe Monastery of the Presentation of the Mother of God at Dolac were forced

ut f their prperties and since 1999 hae remained unable t enter the hly places themseles. In mst ther cases, clerics and mnks maintain the hly places in a hstile enirnment s that, due t the high security risk, eery isit

has t be arranged in adance and an armed escrt btained frm KFoR. The erycmplexity f these prcedures amunts t restrictin f access. As a result, thedetees isit these places less ften, nly during the mst imprtant religiusholidays. Even on the Day of the Dead, when the internally displaced Serbs feelthe need t isit their ancestral graeyards, the isitrs are threatened by bullying,and by physical and death threats.77

Examples of Disruption and/or Prevention of Access to Holy Places

Hliday Zadušnice (All Suls’ Day) is the ccasin n which members f theSerbian orthdx Church pay respect t the suls f their ancestrs and deceasedfamily members. The atmsphere n that day is sad and slemn. Hweer, n4 Nember 2006, seeral dzens f Albanians used ehicles and chpped trees t blck the rad in the immediate icinity f the graeyard in the illage Lešane nearSua Reka, thus preenting refugees and internally displaced Serbs frm isitingthe graes f their relaties.78 Assaults, insults and humiliating treatment f theSerbian orthdx ppulatin intending t isit their family members’ graes nthis hliday hae becme a regular practice.

Accrding t the US Department f State Annual International Religious Freedom Report for Kosovo fr 2008,79 Serbian pilgrims traelling by bus frmSerbia t attend serices at the viski Dečani Mnastery ften had rcks thrwn at

77 US Department f State, Report on International Religious Freedom 2009: Kosovo, p. cit.

78 ‘Mitrdanske Zadušnice na Ksu i Methiji: Albanci blkadama putazaustaili autbus Srba kd Sue Reke’ [‘Mitrdan All Suls’ Day at Ks and Methia:Albanians blcked the rad in rder t stp a bus full f Serbs near Sua Reka’] ( KIM Info-bilten, 4 Nember 2006) <www.ks.net/news/archie/2006/Nember_04/1.html>accessed 15 March 2013.

79 US Department f State: Under Secretary fr Demcracy and Glbal Affairs:Bureau f Demcracy, Human Rights, and Labr, Report on International Religious

http://www.kosovo.net/news/archive/2006/November_04/1.html

http://www.kosovo.net/news/archive/2006/November_04/1.html




naties prtecting their ancestral hly places and the newcmers wh tend t clearthe space fr new deelpment.

Until 2010, KFoR was primarily entrusted with the security f key hlySerbian orthdx places in Ks and Methia, s that between 2004 and2010 a ttal f eight hly places were under full-time n-site KFoR prtectin(ICo Prgress Reprt 2011, 24). A gradual transfer f security respnsibilitiesfrm KFoR t the Ks plice began in 2010, when a ttal f six sites weretransferred fcially, while unfcially Ks plice began guarding, in thecurse f 2010 and 2011, anther 17 sites (US Reprt n Intl. Relig. Freedm2011). As f February 2013, as mentined abe, nly tw sites remain underfull-time KFoR prtectin – the Patriarchate f Peć and the viski DečaniMonastery.

The Secretary-General assessed in April 2012 that ‘crimes affecting minrity

cmmunities, including intimidatin, assault, theft, arsn, andalism and damaget Serbian orthdx churches and husehld prperty, appeared t be n theincrease frm the same perid ne year ag’.80

Fr example, at the Deič Mnastery near Srbica, the Ks plice haetaken er frm KFoR the respnsibility fr securing the mnastery cmplex.Withut the permanent superisin by internatinal military frces (KFoR) inthe rst decade after 1999, the surial f the mnastic rder wuld nt hae been pssible due t the high leel f hstility f the lcal cmmunity (Albanian

majrity). In the spring f 1999 the mnastery was lted, the plate n the shrinef St Jannicius was brken, and the icns were desecrated. In the years thatfllwed, the prblem was aggraated by the attitude f certain members f theinternatinal frces in Ks and Methia, which was mre ne f passie bystanders than f actie guarantrs f safety. The drastic prf were the eentsin March 2004, when the French frces f KFoR, after the annuncement f anew attack, evacuated the sisterhood from the monastery without the consent

f their mnastic rder, which was then fllwed by the inictin f seeredamage n the church and ther buildings. The mnastery was lted, burned anddeastated, and the graeyard was desecrated. At the Church f the Presentatinf the Mther f Gd, the grae f St Jannicius was brken and desecrated,the icnstasis and mables were burnt and the wall paintings were heailydamaged with a layer f st and cared grafti. The whle cmplex was set nre and cmpletely demlished (Figures 12.4 and 12.8). The infrastructure wasals destryed: the systems f water supply and remal f waste water, as wellas electric installations.

80 UN Security Cuncil, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo (S/2012/275, 27 April 2012) <www.un.rg/ga/search/iew_dc.asp?symbl=S/2012/275> accessed 15 March 2013.








The Case of Prizren

The lack f pwer and/r f decisie willingness n the part f the frces incharge f security is particularly isible in the case f a cnsecutie series fdestructie acts against Serbian orthdx hly places in the ld twn f Prizren.

I

The medieal Church f St Niclas, frm the 14th century, was destryed, and theChurch f Seta Tri Jerarha [St Three Wise Men] (built in the 19th century n thefundatins f a church frm the 14th century) was damaged. All this happenedafter the arrial f KFoR in June 1999.

II

During the March pgrm in 2004, the fllwing churches and buildings f theSerbian orthdx Church in r near Prizren were heaily damaged, lted rdestryed:

Figure 12.8 Remains of the Devič Monastery, after it was burned and demolishedin March 2004

Source: The Infrmatin Serice f the Serbian orthdx Church.




1. Temple f the Mther f Gd Ljeiška was burnt frm the inside, 12th– 14th century fresces were heaily damaged, the altar area was desecrated,the tp f the altar was brken (Figure 12.9), parts f the structure andexterir, especially the rnaments arund the windws and penings, wereheaily damaged;

2. The Temple f Christ the Sair (14th century) was burned and the fresceswere damaged;

3. Sabrni Hram S Đrđa [The Cathedral Temple f St Gerge] (1856) wasset n re and demlished by explsies (Figure 12.10);

4. The Church f St Niclas (Tutić, 14th century) was burned inside anddesecrated;

5. The Church f St Gerge (Runić, 16th century) was burned inside, whilefresces frm the 16th century were heaily damaged;

6. The Church f Hly Sunday at Ptkaljaja (14th century, later recnstructed)was burned;7. The Church f St Pantelejmn at Ptkaljaja (16th century, later

recnstructed) was burned;8. The Church f St Csmas and Damian at Ptkaljaja (14th century, later

recnstructed) was damaged;9. The Schl f Thelgy f St Cyril and Methdius was burnt and heaily

damaged; and10. The Bishp’s Palace was burnt.

III

Since the prcess f renewal f churches in Prizren since 2005, numerus instancesf stealing the rf tpping which is made f lead and tin hae ccurred. Frexample, 50 kg f lead rng was stlen frm the Church f the Hly virginLjeiška in octber 2007, and 30 kg were stlen frm the Church f Saint Kyriake,with a mnetary alue f €10,400 (US Reprt n Intl. Relig. Freedm 2008).

In September 2011, the Schl f Thelgy (seminary) in Prizren was repenedafter 12 years, after it had been rebuilt by the Eurpean Agency fr Recnstructin(US Reprt n Intl. Relig. Freedm 2011).

Devastated Holy Places

Destryed and deserted hly places are left withut any prtectin. one exampleis the deserted Church f the Mther f Gd Hdegetria at Mušutište near Sua

Reka, frm the early 14th century, which was set n re and demlished byexplsies in 1999 (Figures 12.6 and 12.7). Since then, there hae been n priestsat the church and religius serices hae nt been perfrmed. All the buildingsarund the church were burnt dwn, as well as the centennial pine tree frest in thechurchyard. All this happened after the deplyment f KFoR. This hly place hasremained acant. Lting and further deastatin are highly prbable.



Figure 12.10 Charred front wall of the Cathedral Temple of the Holy Great-Martyr

George after the temple was burned and mined in March 2004


Figure 12.9 The broken altar and violated altar space of the Church of the Holy

Mother of God Ljeviška in Prizren





The Church f St Gerge at Rečani near Sua Reka, frm the secnd half fthe 14th century, was mined, destryed and deserted in 1999, after the arrialf KFoR (Figure 12.11). Since then, this sacred place has remained cmpletelyvacant as well.

Exceptinally, the Mnastery f the Presentatin f the Mther f Gd atDlac near Klina was still guarded by the Ks plice in 2008, althugh it wasdeserted. The church was built in the late 14th century, and is cmmnly knwn asSeta Prečista (the Hly Mst Pure): the bell twer and the ldges were destryedwith explsies and by mechanical means after the arrial f Italian frces fKFoR in 1999. By 2011, Ks plice stpped securing the site (ICo PrgressReprt 2011, 18).

Persistent Attacks

Due t a ery high degree f intlerance shwn by the lcal majrity Albanian ppulatin, the Mnastery f Saints Healers Csmas and Damian at Zčište isguarded by Ks plice. on 17 June 1999 the church was burnt and the mnastic brtherhd was frced ut f the mnastery. In September f the same year thechurch was cmpletely destryed with explsies and the mnastery buildingswere burnt (Figure 12.12). The mnastery graeyard was als heaily damaged.The mnastery was later restred (Figure 12.13), but physical access t it remains

extremely difcult fr orthdx belieers.The Church f Presentatin f the Mther f Gd at Lipljan (with the churchf St Flra and St Lara) is guarded by Ks plice as well. There is cnstanttensin due t the pen hstility f a majrity Albanian cmmunity twardthe Serbs and Serbian orthdx priests. Althugh KFoR units preented bthchurches frm being burned during the March pgrm in 2004, prcatins bylcal peple are still cmmn.

The attitude f the majrity Albanian cmmunity tward the Serb deteesand Serbian orthdx priests f the Church f St Niclas at Gnjilane is hstile.The frnt wall and the suthern facade f the church were damaged with a handgrenade in 2000. on 19 octber 2007 a ammable deice (assumed t be a Mltccktail) was thrwn at the church, but failed t cause signicant damage.

The viski Dečani Mnastery is guarded by KFoR (mnastery cmplex)and Ks plice (mnastery land and frests in the immediate surrundings).Withut the permanent prtectin by KFoR, the surial f the mnks wuld nt be pssible. Frm 1999 until March 2007, grenades were thrwn at the mnasteryn fur ccasins, encmpassing a ttal f 23 grenades.

viski Dečani assumes the highest prle amng Serbian hly places,alng with the Patriarchate f Peć. only these tw hae remained under KFoR prtectin as f the beginning f 2013, while respnsibility fr prtecting therhly sites has been transferred t the Ks plice. In spite f this high prle,thrughut the rst tw mnths f 2013 the viski Dečani Mnastery has beenfaced with a prlnged pressure f ilent prtesters threatening t break int



Figure 12.11 UNESCO

experts observe the remnants

of the Church of St. George in

Rečani near Suva Reka, which

was completely levelled to the

ground in the summer of 1999

Source: The Infrmatin Serice

f the Serbian orthdx Church

Figure 12.12 The

Church of Saint Healers

Cosmas and Damian in

Zočište was levelled to

the ground in September

1999 with explosives

Figure 12.13 The rst service

on the day of Saint Healers

Cosmas and Damian in the

restored church devoted to these

saints in Zočište, in November

2006

Source: Serbian orthdx Dicesef Raška and Prizren, KIM InfService

http://the/

http://the/




the mnastery cmplex as a result f the lcal Albanian cmmunity’s discntentwith the decisin f the Ks Supreme Curt that sme 20 ha f land belngto monastery.81

The mst recent series f attacks n Serbian cultural and religius heritagein Ks and Methia tk place in the night between 20 and 21 January 2013,when seeral dzens f Serbian graes were desecrated thrughut Ks andMethia, including the desecratin f 27 tmbstnes in the illage f Klkt, the burning f a cemetery chapel and destructin f seeral graes in the illage fMilše, destructin with explsies f a tmbstne in Prilužje and desecratinf 50 Serbian graes in the cemetery f Prizren. A grup f Albanians in the twnf Djakica headed fr the nearby Serb orthdx mnastery, but was preentedfrm reaching it by KFoR and the Ks plice.

The cited cases were mentined nly as the mst drastic examples f security

threats and ilatins, while attacks f lesser intensity n priests, detees andhly bjects hae been much mre numerus. Adequate prtectin f hly placesand detees has thus nt been prided, and the feeling f insecurity is ery prnunced.

The dicese f the Serbian orthdx Church that encmpasses mst f Ksand Methia is the Dicese f Raška and Prizren. The Bishp f Raška and PrizrenH.G. Tedsije stated in January 2013 that ‘the security situatin in Ks wasat the lwest leel since March 2004 Pgrm’.82 Such an assessment is supprted

by the shift f the Threat Intensity Cefcient, a tl within the UNESCo WrldHeritage in Danger List. This cefcient has steadily risen frm the alue f 0in 2006 t 60 (ut f a maximum 100) in 2011 fr the ‘Medieal Mnuments inKs’, that is, a grup f fur Serbian orthdx mnasteries included in theabementined list.It is bius that the primary task in prtecting hly placesis t guarantee their basic security. varius aspects f security prisin must be adequately regulated and implemented igrusly. As presently the feeling finsecurity amng priests and mnks f the Serbian orthdx hly places, as wellas amng the belieers, is ery prnunced, the issue f security shuld inlethe serious involvement of local and international institutions.

81 ‘Situacija u manastiru Dečani mirna, ali neizesna – rganizatri demnstracijanajaljuju upad u manastirsk imanje’ [‘Situatin in Dečani Mnastery calm butunpredictable – rganizers f demnstratins annunce incursin int Mnastery cmplex’]

(Eparhija-prizren.cm, 9 February 2013) <www.eparhija-prizren.cm/sr/esti/situacija-u-manastiru-decani-mirna-ali-neizesna-rganizatri-demnstracija-najaljuju-upad-u- >accessed 15 March 2013.

82 ‘Bishp Tedsije: Security situatin in Ks at the lwest leel since March pgrm 2004’ ( Eparhija-prizren.com, 24 January 2013) <www.eparhija-prizren.cm/en/news/bishp-tedsije-security-situatin-ks-lwest-leel-march-pgrm-2004>accessed 15 March 2013.

http://www.eparhija-prizren.com/sr/vesti/situacija-u-manastiru-decani-mirna-ali-neizvesna-organizatori-demonstracija-najavljuju-upad-u-


http://www.eparhija-prizren.com/en/news/bishop-teodosije-security-situation-kosovo-lowest-level-march-pogrom-2004









Proposals for the New Legal Framework for Holy Places

Present International Legal Framework for Cultural Heritage Protection

The UNESCo Declaratin cncerning the Intentinal Destructin f CulturalHeritage listed principal internatinal law prisins sering the purpsef prtectin f cultural heritage.83 The rules applicable t armed cnictsencmpass the 1954 Hague Cnentin fr the Prtectin f Cultural Prperty inthe Eent f Armed Cnict and its tw – 1954 and 1999 – Prtcls.84 Certain

prminent members f the internatinal cmmunity, that is the USA, hae ntsigned the Cnentin and its Prtcls, but recgnize that certain prisin f theCnentin frm part f the internatinal custmary law.85 In additin, Article 53f Prtcl I, as well as Article 16 f Prtcl II t the 1949 Genea Cnentins,

frbid directing hstilities at, as well as military use f, ‘histric mnuments,wrks f art and places f wrship which cnstitute the spiritual and culturalheritage f peples’.86

Peace-time prtectin shuld be directed by the principles and bjectiesf the 1972 UNESCo Cnentin fr the Prtectin f the Wrld Cultural and Natural Heritage, as well as by the 1956 Recmmendatin n InternatinalPrinciples Applicable t Archaelgical Excaatins, the 1968 Recmmendatincncerning the Preseratin f Cultural Prperty Endangered by Public r Priate

Wrks, the 1972 Recmmendatin cncerning the Prtectin, at Natinal Leel,f the Cultural and Natural Heritage and the 1976 Recmmendatin cncerningthe Safeguarding and Cntemprary Rle f Histric Areas. The ersight f theimplementatin f the 1972 UNESCo Cnentin was cnded t the WrldHeritage Cmmittee, which in turn frm time t time issues peratinal guidelinesfr the Implementatin f the Wrld Heritage Cnentin. Besides detailed prisins n listing prperties as wrld heritage and maintaining them n the list,

83 Declaratin cncerning the Intentinal Destructin f Cultural Heritage, Adpted by the 32nd sessin f the UNESCo General Cnference, Paris, 17 octber 2003<http://prtal.unesc.rg/en/e.php-URL_ID=17718&URL_Do=Do_ToPIC&URL_ SECTIoN=201.html> accessed 15 March 2013.

84 Cnentin fr the Prtectin f Cultural Prperty in the Eent f Armed Cnictwith Regulatins fr the Executin f the Cnentin 1954, First Prtcl f 1954, SecndPrtcl, f 1999 <http://prtal.unesc.rg/en/e.php-URL_ID=13637&URL_Do=Do_ ToPIC&URL_SECTIoN=201.html> accessed 15 March 2013.

85 Patty Gerstenblith, ‘Prtecting Cultural Heritage in Armed Cnict: Lking

Back, Lking Frward’ (2009) Cardozo Public Law, Policy & Ethics Journal 677.86 Prtcl Additinal t the Genea Cnentins f 12 August 1949, and relatingt the Prtectin f victims f Internatinal Armed Cnicts (Prtcl I), 8 June 1977,and Prtcl Additinal t the Genea Cnentins f 12 August 1949, and relating tthe Prtectin f victims f Nn-Internatinal Armed Cnicts (Prtcl II), 8 June 1977<www.icrc.rg/Web/Eng/siteeng0.nsf/html/geneacnentins#a4 > accessed 15 March2013.

http://portal.unesco.org/en/ev.php-URL_ID=17718&URL_DO=DO_TOPIC&URL_SECTION=201.html




http://www.icrc.org/Web/Eng/siteeng0.nsf/html/genevaconventions#a4

http://www.icrc.org/Web/Eng/siteeng0.nsf/html/genevaconventions#a4








the guidelines in greater detail dene the criteria f authenticity and/r integritythat prperties prpsed fr listing need t full, as well as the requirements n prtectin and management f the prtected prperties.87

In additin, intentinal destructin f cultural heritage is punishable underArticles 8(2)(b)(ix) and 8(2)(e)(i) f the Rme Statute f the InternatinalCriminal Curt, as well as under Article 3(d) f the Statute f the InternatinalCriminal Tribunal fr the frmer Yugslaia, within the chrnlgical andgegraphical limitatins applicable.

An indispensable supplement t binding treaties are the principles,recmmendatins and standards prmulgated by ICoMoS – Internatinal Cunciln Mnuments and Sites – an internatinal nn-gernmental rganizatin f prfessinals dedicated t the cnseratin f the wrld’s histric mnuments andsites. The venice Charter f 1964 is imprtant, fr it clearly dened the cnceptsof a historic monument, as well as its conservation and restoration.88 The Charterfr the Prtectin and Management f the Archaelgical Heritage prided principles f recmmended prtectin fr a much wider target f ‘archaelgicalheritage’, dening it as all material heritage subject t archaelgical methds.89

Besides prtectin, all remedial measures in cnnectin with a mnumentcan fall int tw ther categries: recnstructin and restratin. A number fdeclaratins by ICoMoS r ther similar internatinal expert bdies hae beenissued, setting frth principles that shuld gern the applicatin f recnstructin

and restratin. Amng ther dcuments, f particular imprtance fr Ksand Methia issues may be Recmmendatins fr the Analysis, Cnseratin andStructural Restratin f Architectural Heritage.90

The Need for Additional Protection

Seeral reasns fr the immediate and decisie prtectin f sacred/hly placesin Ks and Methia are f equal imprtance: the hly places belng t thecmmn cultural heritage f humanity; they are indiisible frm the prtectinf bth the religius freedm and minrity rights, if applicable, f the cmmunity

87 UNESCo Wrld Heritage Centre, Operational Guidelines for the Implementationof the World Heritage Convention (January 2008 WHC 08/01) <http://whc.unesc.rg/en/guidelines> accessed 15 March 2013.

88 Internatinal Cuncil n Mnuments and Sites, The Venice Charter – InternationalCharter for the Conservation and Restoration of Monuments and Sites <http://www.icms.rg/enice_charter.html> accessed 15 March 2013.

89 Internatinal Cuncil n Mnuments and Sites, Charter for the Protection and Management of the Archaeological Heritage <www.internatinal.icms.rg/e_archae.htm> accessed 15 March 2013.

90 ICoMoS – Internatinal Scientic Cmmittee, Recmmendatins fr theAnalysis, Cnseratin and Structural Restratin f Architectural Heritage fr Analysisand Restratin f Structures f Architectural Heritage <www.ciil.uminh.pt/masnry/Publicatins/Recmmendatins_ICoMoS.pdf > accessed 15 March 2013.

http://whc.unesco.org/en/guidelines


http://www.icomos.org/venice_charter.html


http://www.international.icomos.org/e_archae.htm


http://www.civil.uminho.pt/masonry/Publications/Recommendations_ICOMOS.pdf













they belng t; the lack f regulatin f their status is cnducie t cnicts between different religius grups and s n. A balanced apprach t each fthe cited (and ther) reasns wuld lead t the deelpment and implementatinf a new legal framewrk that wuld be elastic enugh t be applicable ta great number f astly different cases. In cntrast t hly places situated insafe enirnments, such as Munt Aths, the vatican r Mecca, the hly placesin Ks and Methia shuld be put under a special regime f prtectin, asmst f them are lcated within in an insufciently tlerant religius, pliticaland scial enirnment. Their wners and belieers represent a religius minrityin the present circumstances, s that additinal mechanisms f special prtectinshuld be prided.

Protection and Politics

Sme f the risks are highly idisyncratic fr the orthdx hly places in Ksand Methia, althugh prbably in sme ther theatres f centennial histricalcnicts there are prbably analgus cases and similar circumstances under whichhly places are mre than cultural mnuments and represent the crnerstnes freligius and ethnic identity, giing them a particularly wide plitical imprtance.In an enirnment f plitical cnict, traditinal legal cncepts and existingmechanisms f prtectin turn ut t be tragically useless. This brings int fcus

prpsitins fr deelping and establishing a new, internatinally acceptable legalframewrk, which wuld presere the cmmn glbal and lcal heritage een insituatins when all ther means pre inefcient. This particularly includes hly places in freign r hstile surrundings.

Mst f the Serbian orthdx hly places had legal prtectin as culturalassets, with a substantial number belnging t the highest categry f cnseratin.However, that has not saved them from violence. As already mentioned, all four

hly places that had been included in the UNESCo List f Cultural Heritagewere als included in the List f Wrld Heritage in Danger.91 The Serbian Lawn Cultural Assets, the listing by UNESCo and the regulatins f the Kssecessinist authrities hae all pred t be insufcient fr securing prtectinf these hly places.

The existing laws and regulatins hae effectiely failed nt because f theirincmpleteness r pr wrding, r because they lacked the capacity fr theirimplementatin, but primarily because there were plitical and ther intereststhat bstructed their implementatin. Hweer, frm a legislatie perspectie,the disadantage f these laws (when applied t hly places) was the fact that

91 UNESCo Wrld Heritage Centre, Wrld Heritage Cmmittee puts MediealMnuments in Ks n Danger List and extends site in Andrra, ending this year’sinscriptins <http://whc.unesc.rg/en/news/268> accessed 15 March 2013; UNESCoWrld Heritage Centre, Medieval Monuments in Kosovo <http://whc.unesc.rg/en/list/724/indicatrs/> accessed 15 March 2013.

http://whc.unesco.org/en/news/268

http://whc.unesco.org/en/list/724/indicators/




http://whc.unesco.org/en/news/268




they dealt primarily with the prtectin f the materializatin f artistic-histricalalues included under the term ‘heritage’, while they remained inept t capturethe unique interrelatedness f religius freedm, and the natinal, cultural andspiritual identity with the physical prtectin f hly places. T this end a newapprach t the legal prtectin f hly places is needed.

Proposed Objects of the New Model of Protection

The study f the situatin in which Serbian orthdx hly places in Ksand Methia presently nd themseles has shwn that they are being subjectedt cntinuus and systematic islatin frm their religius cmmunity, mstlythrugh:

• Emigratin f the Serbian orthdx ppulatin, caused by the well-funded perceptin f insecurity;

• Changes f the ethnic structure in the area surrunding hly places;• Illegal deelpment in the immediate icinity f hly places.

By the same tken, had the hly places been prperly prtected, it wuld haein turn substantially impred the chances f surial and/r return f refugeest Serbian orthdx cmmunities in the regin. Presering hly places means

at the same time prtecting the mst basic human rights f the Serbian orthdx belieers.The fact that Serbs cnsider the mnuments f sacred heritage in Ks and

Methia t be their ethnic hly places, and the territry f Ks and Methia t be their spiritual cradle and a sacred place f suffering cannt be ignred, nr can it be ignred that hly sites in Ks and Methia hae been expsed t intentinaldestructin precisely due t their signicance t the Serbian orthdx ppulatin.This type f signicance fr natinal and ethnic identity shuld nt be regardedas an anachrnism and bsessin with the past, but shuld instead be treated inaccrdance with releant internatinal human rights treaties and standards.

Therefre the bject f prtectin shuld be the entire cmplex f rights, whichincludes prperty rights t buildings and land, preseratin f the architectural/cultural enirnment f surrunding areas, safety f the hly places, as such,and f the mnks and clerics wh maintain their religius use, as well as f the belieers whse religius freedm substantially cnsists f the right t access thehly places.

Alng the prpsed lines, the bject f prtectin culd be dened as

• the undeniable right f the (Serbian orthdx) religius cmmunity tundisrupted, limitless and safe access t orthdx hly places,

• guaranteeing prtectin f religius and cultural-histric alues f the hly places,

• as well as the safety, self-gernance and ecnmic functinality




(sustainability) f the religius entities that use and maintain the hly places,

• particularly including prtectin f pertinent prperty rights and preseratinf the architectural and cultural identity f the areas surrunding the hly places.

Such an apprach wuld shift the fcus f the prtectin f the hly places frmthe dmain f heritage int the dmain f human rights. Internatinal pressure infaur f the respect f human rights seems t be much strnger and mre efcientthan cnsequences fr breaking cnentins and laws n heritage cnseratin,and, mre imprtantly, the predicament f the Serbian orthdx hly places inKs and Methia, as has been shwn thrughut this chapter, judging by itsmties and direct cnsequences, deseres by all means t be treated within the

framewrk f human rights and minrities prtectin.

Survival and Sustainable Preservation of Holy Places – Possible Paths

Three cncepts, which can easily be referred t as the 3Rs, stand ut as beingcrucial fr enabling the surial and sustainable preseratin f the sacred placesin Ks and Methia. At the same time, these cncepts are directly related tinternatinally recgnized rights, alng with thse that directly fall within the

basic human rights framewrk, such as security, free access and s n: Restitution is indispensible if the prperty rights f the Serbian orthdxcmmunity are t be respected. As His Eminence Cardinal Cttier said at theCnference n Hly Places and Religius Institutins, n 10–11 December 2008in Rme, ‘(the subject f wnership is a fundamental issue f religius freedm)’.Respect fr priate prperty wuld be an imprtant pillar f surial f the hly/sacred places (areas, znes). The fear f sanctins fr ilatins f priate prpertyand f cmpensatin fr damages shuld jin the set f instruments fr preentingilatin against hly places. of curse, it is als imprtant t deelp, at the sametime, prper mechanisms fr preenting the misuse f prperty rights related tsacred places. Hweer, bearing in mind the immense apprpriatins cnductedunder cmmunist rule, the rst and mst imprtant step twards the afrmatinf prperty rights related t sacred places wuld be the restitutin f religius prperty.

Reconstruction (and preseratin) is cnnected t the right t prtectinf cultural heritage. This issue is particularly imprtant in cases in which theintentinal ilent destructin f sacred sites tk place. The issues that shuld

be cnsidered are: liability fr recnstructin csts (the public authrities, thewrngder, r the religius cmmunity as the wner), wh shuld decide nwh is cntracted fr the wrks and wh the cntractrs can be (what kind fqualicatins the experts shuld hae – nly technical and prfessinal, r prperinsight int the religius, cultural and artistic features f the traditin t whichthe destryed sacred bject had belnged), what kind f inuence the religius




institution as the owner should have on reconstruction and so on. Reconstruction

and preseratin shuld be perfrmed in accrdance with the religius and erallidentity f its wner and under his superisin, in rder t secure that changes arent made t the character and features f the destryed r damaged hly site.

Revitalization depends n the respect f the right f wrship and right t access. Itwuld be meaningless t recnstruct a sacred site as a turist attractin and histricalmnument, s that it cannt any mre sere the religius functin f the belieers, particularly as a place f actie pilgrimage and f liing religin and cmmunitylife. The gal shuld nt be t merely recreate the subject mnument in the physicalsense, but t presere the religius dynamics related t the hly site. Reitalizatin isa security issue t, and may cntribute t plitical stability in the sciety. In the casef Ks and Methia, the rst precnditin fr reitalizatin is the furth R – therepatriation f refugees and displaced persns wh had riginally inhabited such

sacred areas. Unfrtunately, instead f returning, the ‘internally displaced persns(IDPs)’ cntinue t ee their ‘Hly Land’ f Ks and Methia.

The idisyncratic feature f the hly places in Ks and Methia is thattheir prtectin is nt merely a matter f cultural heritage prtectin, nr it isnly a questin f religius freedm, but it has als becme a matter f minrity prtectin, fr the Serbian ppulatin has fr the mst part been expelled frmthe area by ilent means, during the perid that started with the utbreak fWrld War II, and this expulsin has still nt ended. In the curse f prmting

bth freedm f religin and minrity rights as fundamental human rights and asurce f stability in all scieties, it is particularly necessary t secure respect and prtectin fr the sacred places and areas f all religins. The hly/sacred placesshuld be prtected frm desecratin and ther frms f ilatin, as well as frmany kind f intimidatin f, and threats t, detees. The mst imprtant issue isfreedm f access f the detees t places sacred t them, s that hly sites can be presered as enues f liing religius experience by enabling indiiduals andgrups t exercise their faith at hly places.

Toward a New Legal Framework

The new mdel f prtectin f hly places needs t be implemented in phases.A multilateral treaty, preferably under the auspices f the United Natins, wuld be ideal fr securing grunds fr reginal and bilateral treaties, as well as natinalstatutes and ther legal instruments. Since the issues inled are quite cmplex,it is prbable that the statutes wuld leae excessie rm t the wrding f bylaws and technical regulatins, s great care shuld be inested in ensuring that

such acts be apprpriately drafted. Finally, the specic synthesis f human rightsand cultural heritage prtectin framewrks wuld demand that mechanismsfr ensuring the reliable, efcient and apprpriate implementatin f such legalframewrks be put in place.

In parallel, the predicament that is currently affecting the hly sites in Ksand Methia – and cnsequently the Serbian orthdx cmmunity whse identity is




intrinsically related t these hly sites – requires new tls t exert inuence er publicauthrities. The public authrities shuld be bliged t stringently abide by and applythe existing internatinal legal standards and bligatins, as well as the existing lawsand regulatins n human rights, minrity and cultural heritage prtectin in respectf hly sites and cmmunities whse identities are tied t such sites. Experience sfar in the case f Ks and Methia suggests that such implementatin cannt beexpected frm the prisinal and secessinist lcal authrities withut substantialinlement and superisin by the internatinal cmmunity.

The prtectin f hly places represents a fcal pint at which the respnsibilitiesand rights f religius rganizatins, lcal authrities, natinal gernment andthe internatinal cmmunity intersect. The suggested apprach, if applied by allstakehlders, may pride rm fr the hpe that the status f hly sites can beapprpriately regulated, s that the hly sites cease t be the subject f cnicts

and becme enues f mutual understanding and landmarks f cmmn religiusheritage.

In cases in which hly places are lcated in an extremely hstile enirnment,s that the threat f their cmplete destructin exists, terms fr establishing permanent internatinal military missins shuld be enisaged.

Elements for Applying the New Legal Framework to the Case of Kosovo and

Metohia

Furteen years after the war in which the Federal Republic f Yugslaia wasfrced t abandn mst f its prergaties f sereignty er Ks andMethia, the prcess f the return f refugees frm Serbia t Ks and Methiahas nt as yet cmmenced. The passage f time makes cmmencement f that prcess at this r at an een later pint in time highly imprbable.

Mst f the Serb orthdx hly places are lcated in the part f Ks andMethia inhabited by ethnic Albanians. These hly places are f key imprtancefr the religius, cultural and traditinal identity f the Serbian natin. In spitef such imprtance, with the gradual departure f KFoR and the decrease in thesize f the Internatinal Ciilian Missin, Serb orthdx hly places remainulnerable t a pssible new series f destructie attacks, similar t thse thattranspired in the summer f 1999, r in March 2004.

Any claim that the plice prtectin prided by the secessinist authritiesf Ks may sere as assurance against the pssibility f such widespreaddestructin f Serb orthdx hly places may be rebutted by a tw facts: the

Ks secessinist authrities hae been unable, r unwilling, t secure thesustainability f free access t Serb orthdx hly places, as well as t prtectthese hly places frm the encrachment f adjacent illegal cnstructin and theresulting gradual degradatin.

Ntwithstanding the future curse and utcme f the nging dispute erthe statehd f Ks, and haing in mind that the threat f the cmplete




destructin f Serb orthdx hly places in Ks and Methia is real, seriusand has been increasing since the unilateral declaratin f independence in 2008,as lng as Serbia is effectiely depried f sereignty er Ks, the nly pssible legal grunds that may warrant security fr the hly places is sme frmf extraterritrial status fr the hly places. Such status wuld entail partial rcmplete lss f sereignty er the hly places by the plitical cmmunityfrm which the threat f destructin riginates which, in the case at hand, are thesecessinist authrities f Ks.

Een if the threat f cmplete destructin in a massie series f attacks isset aside, trends f all aspects necessary fr sustainability f hly places in themedium term – freedm f access, zning prtectin, security f pilgrims andclerics, prperty rights – fail t shw any material imprement during the peridfrm 1999 until 2012. It is therefre eident that, rebus sic stantibus, the Serbian

orthdx hly places are faced with gradual and imminent disappearance.UNSC Reslutin 1244(1999) expressly prided fr the return f Serbian

security frces t Ks and Methia, with the limited aim f securing hly places. This prisin may nly be interpreted as allwing Serbia t preseresereignty er the hly places ntwithstanding what the ‘plitical settlement’turns ut t be.

The essential purpse f granting extraterritrial status t hly places wuld bethe prtectin f religius freedm and ther basic human rights.

The extraterritrial status, and/r security f the hly places lcated in a hstileenirnment shuld be effectiely warranted by an internatinal military missin.While the UN Security Cuncil must appre any such missin, a braderframewrk fr establishing and cnducting such missins shuld be set frth byirtue f a specic multilateral treaty executed under the auspices f the UN. Inthe case f Ks and Methia, the EU, as the glbal pwer with the greatestinterest fr peace and security in the subject regin, as well as a glbal leaderin the dmain f prtectin f human rights, wuld be the mst suitable pwerfr cnducting the missin. The participatin f Serbian security frces in such amissin wuld be in accrdance with UNSC 1244(1999).



Chapter 13

Sacred Places and

Religius Institutins in KsaCmparatie Legal and Religius Apprach

Baki Svirca

Introduction

… it can neer be said t ften that questins f chrnlgical pririty inancient histry – wh gt there rst – are simply irreleant t deciding the rightsand wrngs f any present-day plitical situatin.1

With a surface f 10,887 km² (4,203 square miles), Ksa is lcated in suth-eastern Eurpe, in the central regin f the Balkan Peninsula. It brders n

Albania t the suth-west, Mntenegr t the nrth-west, Serbia t the nrth andMacednia t the east and suth-west. Its territry lies between 41° 50’ 58’’ and43° 15’ 42’’ f lngitude and between 20° 01’ 30’’ and 21° 48’ 02’’ f latitude.

The State f Ksa is the yungest State in Eurpe, with a ppulatin f 1,739,825inhabitants (in additin t 600,000 in the Diaspra). The ethnic structure is cmpsedf 1,616,869 Albanians (92 per cent), 25,532 Serbs, 18,738 Turks, 27,533 Bsnians,8,824 Rma, 15,436 Ashkali, 11,524 Egyptians, 10,265 Grani, and 2,352 thers.2

Religius freedm is a basic human right. Therefre eery citizen f Ksahas the right t chse his/her afliatin (ne can chse whether r nt t haeany religius afliatin, t maintain r change it r t manifest it publicly r priately). This is guaranteed by State laws.

Ksa’s ppulatin is diided int three main religins:

• Muslim

• Catholic

• orthdx

The religius afliatin f the majrity f Ksa’s ppulatin is Muslim (1,663, 412),while the rest are Cathlic (38,438), orthdx (25,837) and nn-religius (1,242).3

1 Nel Malclm, Kosovo: A Short History (New Yrk Uniersity Press 2001) 22.2 <http://esk.rks-g.net/reks2011/> accessed 30 April 2013.3 <http://esk.rks-g.net/reks2011/> accessed 30 April 2013.

http://esk.rks-gov.net/rekos2011/







In Ksa there is a large number f msques, but the number f churchesis nt lw either, fr bth Cathlic and orthdx. Many f these msques andchurches in Ksa are mnuments with great histrical and cultural alue, being prtected by law. Religius cmmunities, in accrdance with the laws in frce,have their own educational institutions.4

The religius cmmunities hae the fllwing number f buildings in use:

• Islamic religius buildings – arund 750, and 600 are actie• orthdx religius buildings – arund 114, and 80 are actie• Cathlic religius buildings – arund 50, and 40 are actie.

The best denitin fr religius cexistence in Ksa has been gien by the Bishpf Prague, vacla Mali. After his isit t Ksa, in a press cnference held in

Prague, Mnsignr Mali said: ‘Ksa currently is a mdel f cexistence betweenChristians and Muslims fr ther parts f Eurpe. There is mutual understanding inthe religius scene f Ks, especially between Muslims and Cathlics, wh areunited because they are Albanian. The cexistence with the Serbian orthdx Churchwas nt easy, because unfrtunately its leaders hae tried the natinalist card’.5

With such diersity in ethnic and religius cmpsitin, it is natural frKsa t hae this reected in the richness f its cultural heritage. This diersityis a result f the creatieness f the peple f Ksa er centuries. Eents in

ur past hae nt always respected this creatie spirit. Knwing this and tryingt preent the same mistakes frm being made again, the gernment f Ksaand the internatinal cmmunity are engaged in creating a legal framewrk which prmtes the cultural and spiritual richness f all cmmunities.

The current legal framewrk f Ksa is made up f dcuments prduced asa result f internatinal cnferences n the cuntry, prpsals fr the denitin fits plitical and legal status and f lcal legislatin.

In the frame f internatinal dcuments the cultural and religius heritage isdealt with in a ariety f legal instruments:

1. Dcuments prduced thrugh discussin and negtiatins n the pliticalstatus f Ksa, knwn as the Ahtisaari package’,

– Annex v6

2. Ksa’s Declaratin f Independence7

– Pints 2, 3, 4, 5, 8 and 9 – Cnstitutin f the Republic f Ks (Articles 8; 19, §§ 1 and 2; 22;

4 <www.rks-g.net/sq-AL/Qytetaret/KulturaDheKhaLire/Pages/Religjini.aspx >accessed 30 April 2013.

5 <http://www.rtklie.cm/arhie> accessed 30 April 2013.6 Frm the name f the Frmer Finnish President Martti Ahtisaari, UN Special Eny

at the status prcess negtiatins.7 Declaratin f Independence f Ksa made n 17th February 2008.

http://www.rks-gov.net/sq-AL/Qytetaret/KulturaDheKohaLire/Pages/Religjioni.aspx

http://www.rtklive.com/arhive

http://www.rtklive.com/arhive

http://www.rks-gov.net/sq-AL/Qytetaret/KulturaDheKohaLire/Pages/Religjioni.aspx



Sacred Places and Religious Institutions in Kosova 245

38; 39) – Article 145 pint 1 and 2

3. Law n Cultural Heritage4. Law n Special Prtectie Znes5. Law n Freedm f Religin6. Anti-Discriminatin Law

– Article 2 under a, c, – Article 6 – Article 10

7. Law n ofcial Hlidays – Article 2

8. Penal Code8 (Chapters II, XIII, XIv,XvI, XXIII, XXIv)

History of Religion and Religious Heritage in Kosova

In Ksa religin has been an integral part f the histry and life f sciety thrughutthe ages. The territry f tday’s Ksa was inhabited by an Illyrian tribe called theDardanians.9 Accrding t the majrity f experts f Illyrlgy (Fanulla Papazglu,Aleksandër Stipçeiç, Neritan Ceka, Krist Frashëri, Nel Malclm and s n), thistribe was the largest Illyrian tribe liing in the central part f the Balkan Peninsula.

The regin where bth Illyrians and Dardanians lied was amng the rstterritries where Christianity spread. Diceses in this territry hae a 16-centuries-old tradition.10 Accrding t Mnsignr Dr Dn Gasper Gjini, Dardania was anecclesiastical and administratie prince with its Metrplia in Skupi (Skpje).11

In sacred literature, this regin was mentined by Saint Paul: ‘… s that frmJerusalem and rund abut, een t Illyricum, I hae fullled the Gspel f Christ…’12 St Paul said: ‘Tday yu preached the Wrd f the Lrd nt nly in Macedniaand Achaia, and yur faith in the Lrd has spread in eery place’13 The spreadingf the belief in ne Gd in Dardania als had martyrs. Let us just mentin herethe case f tw Dardanian martyrs, Flrus and Laurus, wh witnessed Christ inthe ancient Ulpiana,14 sub Licinio Praeside.15 Both were martyrs at the time of

8 <www.assembly-ksa.rg> accessed 30 April 2013.9 Malclm, p. cit.10 Gasper Gjini, Bishopric Shkup-Prizren in Centuries (Drita 2002) 5.11 Ibid., 5.12 Ibid., 23.

13 Ibid., 23.14 Archaelgical lcality in Ksa. It is lcated 11 kilmetres suth-east fPrishtina. Accrding t ancient authrs, it was established as a municipium in the year 168and the name was gien t hnur the Rman Emperr Trajan (Marcus Ulpius Trainaus)wh ruled frm 98 t 117. S far nly the Palechristian basilica, a Rman MilitaryCastrum, Necrplises and the nrthern gate f the city hae been discered.

15 Gjini, p. cit. 25.

http://www.assembly-kosova.org/

http://www.assembly-kosova.org/




the Rman Emperr Hadrian (117–38). In his writings, Farlati16 says: ‘… Thenhe addressed them t Licinius, wh gae them mney t build a temple t idls.They distributed this mney t the pr and then they built a temple. When theynished the temple they destryed idls and dedicated it t Christ. When Liciniushad heard this, he put bth f them in a deep well, where they gae their sulst Gd’.17 Knwing that – accrding t ld writings – the tw were martyrizedin Ulpiana, we think that the temple built by them is the rst Christian temple inKsa. The fundatins f this temple lie within the walls f the ancient city fUlpiana. We als hae ther writings cnrming the spreading f Christianity inKsa. In his bk Illyricum Sacrum, Farlati says that apstle Matthaeus waschsen instead f Judas t cnert the Macednians, Dardanians, Tribals andBastarns to Christianity.18 Accrding t these references and resurces n Christianmissinaries, the Christian religin in Dardania was nly established after the First

General Cuncil. As far as the ecclesiastical rganizatin is cncerned, we ndthe rst recrds in the Cuncil cnened by the Rman Emperr Cnstantine in Nicaea in AD 325 where the name f the Bishp is als mentined, that is, theMetrplitan f Dardania.19 In the dcuments drawn up during this Cuncil weals nd the signature f the bishp f Dardania Dacus Dadanieae.20 Frm theinfrmatin f the time, which pres the participatin f lcal bishps in the earlyCuncils, we knw that in Dardania there was a quite cnslidated Church, withits religius buildings where religius ceremnies were held. vestiges f these

buildings can be seen in Ksa and are knwn as Palechristian churches (that is,frm Early Christianity). These churches date back t the 4th–6th centuries and insme places t the 8th century. Schlars wh study such buildings cnsider themas examples f Palechristian art.21 Religius sites frm this perid are mainlychapels, churches and basilicas.22 Here we can mention the remains of the Church

f Saint Peter in the Krishe illage f Prizren,23 the Basilica in Ulpiana, antherBasilica in Rahec, the Ruins f the Mnastery in Banja f Mitrica and s n.24

Diisins within the Church in Dardania started ery early. They began smesix centuries befre the split knwn as the Great Schism f the year 1054. Theadministratie diisin f the Rman Empiret had a great impact n this split.This impact was reected in Illyricum itself as it was diided int tw parts.25

16 Quted in Gjini, p. cit. 5.17 Ibid., 59.18 Ibid., 25.19 Ibid., 27.20 Ibid., 30.

21 Fejaz Drançlli, Ruining the Albanian Kulla (Bibliteka Kmbëtare dheUniersitare e Ksës, 2004) 34.22 Ibid., 33.23 Ibid., 34.24 Ibid., 35.25 Illyricum was the land f Illyrians. This denminatin in ancient times referred t

the western part f the Balkan Peninsula.




The western regin was put under the administratin f the praefectus pr. Italiae, Africae et Illyrici and the eastern one under the praefectus pr. Illyrici. In eastern

Illyricum there were the tw diceses f Dacia (Dardania and Macednia) but later,in apprximately 424–7, western Illyricum was als put under the jurisdictinf the Eastern Rman Empire.26 The territrial maneures f the emperr cameas a result f disagreement between the Bishp f Rme and the Patriarch fCnstantinple. Alng this line, when this part f Illyricum was put under theeastern emperr, the patriarchs f Cnstantinple cnsidered themseles entitledt put all the churches f this area under their wn jurisdictin.27

There are numerus recrds abut the Dardanian Church. These recrdscan be fund in sme letters f the Ppe, dcuments f cuncils and thercrrespndence f the time. Here we can mentin a letter f Ppe Inncent I f 3August 494 (‘universis episcopis per Dardaniam sive per Illyricum constitutis’)entitled Audientes orthodoxam.28 Indeed this was the time when sme bishpswere abandning the rituals and the authrity f the Rman Apstlic Church.

Anther papal letter, which is imprtant t pre the directin that the Churchin Dardania took is Suscepti regiminis f the year 599 by Ppe St Gregry theGreat where he infrms the metrplitans f Illyricum abut the frictins withinthe Church f Cnstantinple because f the Synd, which was cnsidered as‘ecumenical’. This letter was sent t the metrplitan f Justiniana Prima(Dardania), Jhn.29

In additin t these papal letters, there is further eidence f crrespndence between the bishps f Dardania, pring the rganizatinal cntinuity f theDardanian Church, despite disagreement and prblems between the tw churches.

Let us just mentin the rder f the Emperr Le III wh, in the year 733,separated western Illyricum frm the Church f Rme and put it under the jurisdictin f the Patriarch f Cnstantinple.

Slas penetrated the Balkans in the 7th century. These tribes were mainly pagan but accrding t Knstantin Prrgenet,30 they subsequently began tcnert t Christianity thanks t Latin missinaries. Hweer, althugh theserecrds mentin nly missinaries, the largest wae f cnersins amng theSlas tk place at the time f the Bulgarian Empire. ‘We can realize that theSlaic ppulatin, which settled Ksa, was under the inuence f the BulgarianEmpire, which means that it was included in the diceses f the orthdx Church…’31

The territry f Ksa was under Bulgarian dminatin frm 850 until the11th century; then the Byzantine rule was re-established. The latter cntinued until

26 Gjini, p. cit. 37.27 Ibid., 37.28 Ibid., 65.29 Ibid., 66.30 Malclm, p. cit. 42.31 Ibid., 42.




Ksa was ccupied by the State f Rasi (Rashka) which was the embry f theSerbian State.32 Accrding t histrical surces, Ksa was ccupied by the Statef Rashka in 1216.33 During the reign f Samuel, mst churches in Ksa as wellas the bishps f Shkupi, Lypjan and Prizren cme under the jurisdictin f thearchbishp f ohri.

Althugh Cnstantinple enjyed jurisdictin er churches in Dardania(hereinafter we refer t it as Ksa), there is eidence f the cntinuus presencef Cathlic churches and belieers. There were many reasns fr that but we willrefer here nly t sme f them. The main ne is that the denitie split tk place nly in 1054. Anther reasn is that sme f the kings in the regin swung between the east and the west, depending n their need t keep in pwer. We referespecially t the rulers f Rashka (Serbia), wh swung between lyalty t theWestern Church and that t the Eastern Church. Ecnmic relatins als played

a central rle. In the 13th and the 14th centuries Ksa was knwn fr its richmines. Next t these mines clnies f Saxns and Ragusians – wh were Cathlic – were established. Accrding t histrical recrds, the lcal ppulatin preseredits Cathlic faith: ‘… this can be seen frm tw references made t the Bishpricf the Rman Church f Shkupi …’34 Mre prf f the existence f Cathlicchurches in Ksa can be fund in the letter sent by Ppe Benedict XI t theArchbishp f Tiar, where rectrs f the parishes f Bërska, Runiku, Rgzna,Trepça and Graçanica35 are mentioned. In the same document a reference is also

made t the Church f Saint Klla in Janjea whereas in a letter by Ppe ClementvIII f the year 1346 it is written that the Bishp f Ktrri had under his careals the Church f Saint Mary, the Church f St Peter in Prizren and ‘Prisren, Nuaberda, Trepte, Janeua …’36

It is quite bius that the fact that Ksa remained under the jurisdictin fthe Eastern Church had an inuence n the recnstructin, adaptatin as well ascnstructin f churches in the Byzantine style. This was true nt nly during thedminatin f the Bulgarian Empire but als during that f the State f Rashka(Serbia). During the rst three generatins f the rulers f Rashka (Serbia) the Seef the Church was lcated utside the current territry f Ksa. only later, afterthe fundatin f the Patriarchates f Peja and the establishment f Graçanica,Deçan and f the Mnastery f Archangels in Prizeren was the See f this Church placed in Ksa.

The rst perid (we refer t it as the rst perid because the secnd ne startedafter the withdrawal f the ottmans in 1912) f Slaic rule ended fllwing thearrial f the ottmans, wh ccupied Ksa. Accrding t the recrds f the

32 Ibid., 44.33 Ibid., 45.34 Ibid., 43.35 Gjini, p. cit. 84.36 Ibid., 85.




time, Ksa was denitiely cnquered with the ccupatin f its main cities – Nbërda, vushtrri, Lipjan, Prizren and s n – in the perid 1455–62.

As we hae already pinted ut, the ottman rule in Ksa was cnslidated

by the end f 15th century, althugh there is brad eidence f preius ottmancampaigns. We can mentin here the battle f Ksa in 1389. Nt nly did theottmans diffuse Islam amng the peple f Ksa but they als built the rstmsques in the cuntry. At the beginning, these msques were built t meet thereligius needs f the military, and then they were built systematically fr thelcal ppulatin itself. This happened because the lcals accepted Islam. There isa dcument, in the frm f an rder, dating back t 1537 and stating that ‘in eerysettlement a msque shuld be built …’37

Many religius Islamic sites, which are still ery imprtant in Ksa,were built at the end f the 15th and during the 16th centuries. obiusly, these

cnstructins cntinued until the terminatin f ottman rule. The rst sites were built in rich cities with an ecnmic ptential. These cities were generally bigecclesiastical centres.

Amng the Islamic religius buildings frm the 15th century which still existare: Gazi Beg Msque in vushtrri, Çarshi Msque, Fatih Msque and LlapiMsque in Prishtinë and Bajrakli Msque in Pejë.38 The Msques f MehmetPasha and f Sinan Pasha in Prizren, that f Kxha Sinan Pasha in Kaçanik andthe Hadum Msque in Gjakë39 were built in the 16th century.

It is knwn and dcumented that nt nly during the Byzantine, Bulgarianr Rashka perid, but als during the ottman dminatin, religius sites wererecnstructed and een cnerted, as will be explained in the fllwing paragraphs.

Althugh Islam was heaily prmted, orthdx and Cathlic churchesin Ks remained actie. The orthdx Church was allwed t lead its wn belieers.40 But als the Latin Church was still present in the cuntry with its wnreligius sites. In a vatican reprt frm the year 1584 (in this perid the ottmanregime was rmly established), amng ther things, churches are als mentined:ne in Prizren, tw in Nbërda, Trepça, Prishtina41 and s n. Anther reprtwrth cnsidering was the ne prepared by Marin Bici, Archbishp f Tiari, inthe year 1610 where he mentins lcal Cathlics and religius buildings.42

By cmparing the reprts frm the vatican, where the cities f Ksa arementined, ariatins in the number f belieers can be nticed, depending n theyear the reprt was drawn up. Year after year, the number f belieers decreased, asa result f cnersins t Islam. But it is interesting t mentin that the number fchurches remained the same. only after the rebellin f the year 1689, which was

37 Ibid., 131.38 Fejaz Drançlli, p. cit. 48.39 Ibid., 48.40 Malclm, p. cit. 97.41 Gjini, p. cit. 134.42 Ibid., 134–5.




led by the Austrian General Picclmini (the ottman Empire wn this war), didthe cnersin f churches t msques take place. The reasn lies in the fact thatthe rebellin was rganized and led by the Cathlic clergy. Amng these priests,the mst distinguished was the Albanian bishp and philspher Pjetër Bgdani.

Amng many elements that caused the decrease in the number f Cathlics, weshuld mentin here the fact that the Cathlic Church was under duble pressure.on the ne hand there were the taxes Cathlics had t pay t the emperr, while nthe ther hand there was the orthdx Church, which managed t get a ferman43

frm the Sultan, thrugh which Cathlics were bliged t pay the ecclesiasticaltax t the orthdx Church. Therefre, until the end f the ottman perid, themajrity f the ppulatin cnerted t Islam. The current percentage f belieersf all the three main religins is a result f such phenmena. S histry is reectedin Ksa’s religius backgrund.

At the cnclusin f this chapter n the histry f religin and religiusheritage, a histric detail shuld be mentined which makes the Ksar peplespecial. The reference is t the s-called ‘ piebald ’. This term designated thse belieers wh were nly ‘frmally’ cnerted t Islam as a way t escape taxes.The s-called ‘ piebald ’ prcess cntinued until the end f the ottman rule. Asa result, in sme illages in Ksa there are still families with bth Islamic andCathlic members. This can be nticed frm their Muslim names and Cathlicsurnames or vice versa.

Religious Institutions

As far as religius afliatin is cncerned, as stated abe Ksa’s ppulatin belngs t three main religins: Muslim, orthdx and Cathlic. But there arealso some Protestants, who have their own churches and other ecclesiastical

institutions.

All these denminatins hae their wn religius sites and the Cnstitutinguarantees their autnmy. Therefre Muslims are rganized in the IslamicCmmunity f Ksa, orthdx in the Serbian orthdx Church (Rashka-Prizren Dicese) and Cathlics in the Ksa Bishpric, which was preiuslyknwn as the Shkup-Prizren Bishpric. Prtestants belng t the Ksa PrtestantEangelical Church with its See in Prishtina. Thrugh the Law n Freedm fReligin in Ksa als Judaism enjys the status f recgnized religin.44

Internal management f these religius denminatins is regulated accrdingt their wn laws. Fr instance the Islamic Cmmunity f Ksa has its

43 Malclm, p. cit. 131.44 This is smehw dd since there is n Jewish cmmunity in Ksa. The Jewish

cmmunity left fr Israel after the establishment f the State. There are references that untilthe 1990s there were still sme Jewish families in Ksa but een thse few families haeleft the country.




Cnstitutin, called the Cnstitutin f the Islamic Cmmunity f the Republic fKsa, adpted in 2003. on the basis f this dcument, the Islamic Cmmunityhas its Assembly, Presidency and President. It als has 25 lcal cuncils, diidedint 8 administratie regins. This dcument regulates relatins between belieers, the administratin, rights and bligatins f members as well as themanagement f all assets wned by this cmmunity. These prperties includemsques, masjeeds (Islamic places f wrship which d nt hae t lk likea msque, being mre similar t cmmn public buildings), mektebs (religiussecndary schls), educatinal institutins, administratie and business centres,tekkes (derish shrines), turbets (mnumental derish graes), hammams (public baths frm the ottman perid),45 gasullhanets (places where Muslims’ crpsesare cleaned) and graeyards.46

As stated at the beginning f this chapter, there are 750 Islamic sites in Ksa.

Due t histric circumstances – but als plitical nes – a large number f themwere destryed r natinalized er different perids during the 20th century.

Since it is t this cmmunity that arund 90 per cent f the ttal ppulatinin Ksa belngs, it is bius that it pssesses the highest number f religius buildings. Accrding t the list prided by this cmmunity (but als t experts incultural heritage) the mst imprtant f them47 are:

• Gazi Ali Beg Msque in vushtrri;Çarshia Msque in Prishtinë; Fatih

Msque in Prishtinë; Llapi Msque in Prishtinë; Bajrakli Msque in Pejë;Lead Msque in Pejë; Mehmet Pasha Msque in Prizeren; Sinan PashaMsque in Prizeren; Kxha Sinan Pasha Msque in Kaçanik; HadumMsque in Gjakë.

The Serbian orthdx Church in Ksa is represented by the Dicese f Rashkaand Prizren. The See f this dicese is in Prizren. Accrding t orthdx cannlaw, diceses are led by a bishp appinted by the Serbian orthdx Church.This dicese has its churches and mnasteries. There are bth mnasteries inuse and thers which are disused and als nunneries. The orthdx Seminary islcated in Prizren. The orthdx cmmunity is the secnd biggest cmmunity inKsa. Since it tk part in all plitical deelpments (directly r indirectly) fthe cuntry, this cmmunity enjys the mst adanced prtectin within the legalframewrk f the State f Ksa, bth fr its clergy and its arius prperties.

45 In the early ottman perid msques were built within a grup f buildings. It

usually included a msque, as the central religius building, mektebs where the Cran wastaught, public baths (Hammam) and the place where crpses were cleaned in accrdancewith Islamic rituals (gasulname), ppular kitchens and s n.

46 Cnstitutin f the Islamic Cmmunity f Ksa.47 We tried t classify these sites accrding t their imprtance fr cultural / religius

heritage. But since the subject f this study is the legal status f Serbian orthdx sacred places, the list is nt cmplete.




The Cathlic Church in Ksa is represented by the Ksa Bishpric. Thisdicese includes 24 parishes. Twenty-tw parishes ut f the ttal are sered bydicesan priests while the tw remaining (Gjakë and Prishtinë) are sered byFranciscans and Salesians respectiely. The dicese has als its Dicesan SeminaryMnsignr Lazër Mjeda in Prizren. The mst ntable Cathlic sites are:48

• Basilica in the archaelgical area in Ulpiana; Basilica in Trepçë – ruins;Cathedral f St Klli in Nbërdë – ruins; C-cathedral f Helping Ladyin Prizeren; Church f St Ndu, Prishtinë; Church f the Lady, Letnicë;Church f St Klli, Janjeë; Church f St Andu, Binçë.

The Ksar Prtestant Eangelical Church is amng thse cmmunities whichhae nly recently started their religius actiity. This cmmunity was set up

in 1985, but it was nt recgnized by law until the creatin f the Republic fKsa. The seat f the Prtestant cmmunity is in Prishtina. Accrding t cannlaw, this Church has its institutins, that is, presbytery, synd and bishp. Itsreligius actiity takes place in 30 sites; six f them are registered as churches,tw are priate huses and the remainder are rented buildings.

As already stated, the Jewish cmmunity has als been recgnized but desnt hae any actie site r institutin in Ksa. At present the building f asynaggue is planned. Accrding t the dcuments aailable, until 1955–56 there

were e small synaggues in use in Ksa but they were ruined by the regimeof the time.

Religion in the Legislation of the Republic of Kosova

Ksa’s legal framewrk is quite cmplete as far as religin is cncerned. The plitical prcess Ksa went thrugh, until its declaratin f independence, hashad an inuence n this part f the legal framewrk. In my pinin many legaland cnstitutinal nrms n religius matters were particularly inuenced by the plitical prcess itself. This is als due t the fact that Ksa went thrugh thislng transitin that ended up with its declaratin f independence after almst 100years f Serbian rule.

Fr sme time Ksa has enjyed an autnmus status within the FrmerFederal Republic f Yugslaia. During this perid religius cmmunities wereadministered accrding t the laws in frce. Thus there was bth a Presidency f

48 We faced great difculties in determining what the mst imprtant sites are.one f the prblems was the fact that a certain number f Latin religius buildings weretransfrmed int Churches f the Eastern rite in different perids. Accrding the surces wehae at ur dispsal such cases are numerus. I tried t be as accurate as pssible in deningthe imprtance f them. Fr instance, in this study, I hae nt mentined the Church f St Flrus and Laurus in Lypjan as well as ther churches.




the Islamic Cmmunity f Yugslaia and Islamic Cmmunities in each republicr prince where Muslims lied. The Cathlics f Ksa were rganized in theBishpric f Shkupi-Prizren, while the orthdx were represented by the Rashka-Prizren Dicese. After the break-up f this State, administratie changes ccurrednly with respect t the Islamic Cmmunity, since Albanian Muslims did ntwant t remain part f the Islamic Cmmunity f Serbia. Therefre the IslamicCmmunity f Ksa was set up. other religius cmmunities maintained thesame rganizatin. During these years, the Prtestant Church was established.

Repressin under Milseic’s regime49 biusly had a strng impact ninterreligius relatins. In particular, the rle f the orthdx Church had a strngimpact n the deteriratin f relatins between religius cmmunities.50

After the war Ksa was put under UN administratin, whse missin createdthe rst legal framewrk fr war-stricken Ksa. It cnsisted f three legal sub-

frames: legal framewrk f Ksa-Yugslaia until the year 1990, legal framewrkf Serbia after 1990 (this was cnditined t make it nt discriminatry and it wast be replaced by UNMIK laws) and nally the legislatin drafted by UNMIK,which includes the Cnstitutinal Framewrk, Regulatins and AdministratieInstructions.51 The latter remained in frce until the prclamatin f Ksa as asereign and independent State n 17 February 2008 (r, mre precisely, until theappral and entry int frce f the Cnstitutin n 15 June 2008).

Due t the plitical circumstances (bth lcal and internatinal) under which

Ksa’s independence was declared, the whle legal framewrk f Ksa,starting frm the Cnstitutin, was based n the dcument prduced as a resultf the negtiatins knwn as ‘Ahtisaari package’. Actually, independence wasdeclared n the basis f it.

The Ahtisaari package is a legally binding dcument fr Ksa. Therefre,starting frm the Cnstitutin, all laws hae been drawn up in accrdance withthis package. In the fllwing paragraph I will try t describe the religin-relatedissues it deals with.

The Ahtisaari package52 has an annex where the prtectin and rights freligius cmmunities and their wn prperties are regulated. Because f thelng Albanian-Serbian frictins and the cnditins in which the independence fKsa was declared, this dcument entirely refers t the prtectin f religius

49 Slbdan Milseic had been president f what remained f Tit’s Yugslaia frsme time. He was als president f Serbia. The Internatinal Criminal Tribunal fr theFrmer Yugslaia charged him with crimes against humanity, war crimes and gencide

fr his rle during the wars in Cratia, Bsnia and Ksa. He was fund dead in his cell befre his sentence.50 See Mnsignr Mali’s statement cited in the Introduction t this chapter.51 Sme parts f the UNMIK legal framewrk are still in frce, and will remain s

until they are replaced by laws f the Republic f Ksa. Fr this, see <www.rks-g.net>accessed 30 April 2013.

52 This dcument was ted and adpted by the Parliament f Ksa.

http://www.rks-gov.net/

http://www.rks-gov.net/




rights and prperties f Serbs in Ksa. It requires the State authrities trecgnize the Serbian orthdx Church in Ksa. This is explicitly stated inChapter v f the package. Nt nly des the dcument recgnize the authrityf the Serbian orthdx Church but it als requires Ksar institutins tguarantee denminatin, bjects, prperty, mnastic life, autnmy and freedmf mement and many ther aspects f religius autnmy. The implementatinis t be accmpanied by special measures and mechanisms, that is, the creatinf special prtectie znes arund churches and mnasteries as well as theestablishment f the Implementatin and Mnitring Cmmissin – IMC. TheInternatinal Ciilian ofcer is prided fr by this dcument t guarantee theimplementatin f the plan. The adptin f additinal laws is enisaged in AnnexXII of this document.

on the basis f this dcument the Assembly f Ksa declared the cuntry’s

independence. The reasn why we mentin it at this mment is because in seeral parts een the declaratin f independence refers t the Ahtisaari package,especially when it deals with the rights and freedms f cmmunities as well asrespect f cultural, ethnic and religius diersity. This declaratin als cnrms allinternatinal bligatins binding upn the State f Ksa.

Article 8 f the Cnstitutin f the Republic f Ksa states that, ‘TheRepublic f Ksa is a secular State and is neutral in matters f religius belief’.Article 19, §§ 1 and 2 deals with bligatins arising frm internatinal law: it

denes the status f ratied internatinal agreements within Ksa’s internallegal framewrk. Article 22 refers t the direct applicability f internatinalagreements and ther instruments. Eight dcuments are mentined as directlyapplicable, that is, amng thers: the Uniersal Declaratin f Human Rights;the Eurpean Cnentin fr the Prtectin f Human Rights and FundamentalFreedms and its Prtcls; the Internatinal Cenant n Ciil and PliticalRights and its Prtcls; the Cuncil f Eurpe Framewrk Cnentin fr thePrtectin f Natinal Minrities. Articles 38 and 39 deal with freedm f religinand religius denminatins.

Article 39 states:

1. The Republic f Ks ensures and prtects religius autnmy andreligius mnuments within its territry.

2. Religius denminatins are free t independently regulate their internalrganizatin, religius actiities and religius ceremnies.

3. Religius denminatins hae the right t establish religius schls andcharity institutions in accordance with this Constitution and the law.

The Cnstitutin als deals with the aspect f the equality f minrities, r, in therwrds, it regulates their status n the basis f bligatins arising frm internatinallaw. A particular aspect wrth mentining is the fact that minrities are dened as‘Cmmunities’, and it is als enisaged t treat them in accrdance with the s-called prcess f ‘Psitie Discriminatin fr Cmmunities’.




Since the subject f this study is religius cmmunities, we will fcus n lawscering this matter.

Issues related t freedm f religin within ur legal system are cmplex andinextricably linked t sci-plitical circumstances. By taking these laws intcnsideratin we can see that religius cmmunities in Ksa and religinsin general are treated n the basis f the prcesses Ksa went thrugh in the

20th century.Frm the numerus interiews I had with leaders f different religius

cmmunities in Ksa53 I nticed that een if they are nt entirely satised withthis legislatin, they accept it as such because f the plitical circumstances, withthe exceptin f the Serbian orthdx Church which is enjying all the rightsderiing frm this legal framewrk withut recgnizing the laws f the Republicf Ksa. Religius cmmunities cmplain abut the fact that they are nt

all equally treated. As examples f this they take the Special Prtectie Znes,since they are created arund orthdx churches and mnasteries, and the lawn custms, accrding t which the Serbian orthdx Church enjys a specialmentin and is exempted frm any custms duty, while all the ther cmmunitiesare nly mentined as ‘ther religius denminatins’. This was explicitlymentined in the Ahtisaari package n the status reslutin. Article 2.2 f Annexv species scal incenties fr the Serbian orthdx Church:

Ks shall grant custms duty and tax priileges t the Serbian orthdxChurch, in additin t thse enjyed by all religins in Ks, fr ecnmicactiities f the Church specic t its nancial self-sustainability, such asthe prductin f embridery and clerical estments, candles, icn painting,wdcaring and carpentry, and traditinal agricultural prducts. These priilegesshall cer imprt and purchase f releant prducts, materials, machinery, tlsand liestck; and exprt f prducts resulting frm the said actiities.54

The special treatment fr the Serbian orthdx Church made ther religiuscommunities, that is, the Islamic Community and the Catholic Church, feel

unsatised fr the fact that nt all religius cmmunities enjy the same scalincentives.

They als recall the Cultural Heritage Law, as well as the drafts f tw speciallaws55 – ne n Prizren and the ther n Hça e Madhe – which hae been drawnup explicitly t adance the prtectin and preseratin f the orthdx culturaland religius heritage.

53 We had interiews with representaties f the Islamic Cmmunity, CathlicBishpric, Eangelist Prtestant Church and with sme senir orthdx priests.

54 Ahtisaari package n the status reslutin, Article 2.2.55 The Law n the Histrical Zne f Prizren and the Law n Hça e Madhe hae

nt been cmpleted yet and accrding t the legislatie agenda these laws shuld hae beenadpted by the end f 2009.




The basic law n religius matters is the Law n Freedm f Religin. Thislaw is quite liberal and represents the main framewrk fr religius freedmin Ksa. Freedm f rganizatin, autnmy and freedm in using religiusassets, with n interentin frm the State, are thereby regulated. Clearly, subjectsf prtectin in this law include places f wrship and access f belieers and pilgrims t them as well as ecclesiastical legal entities (religius institutins fdifferent denminatins) established by the cmpetent church authrity, accrdingt their wn rights.

Treatment f religius heritage in the frame f cultural heritage is regulatedthrugh Article 9 f the Cnstitutin (‘The Republic f Ks ensures the preseratin and prtectin f its cultural and religius heritage’) and the CulturalHeritage Law. This law presents a set f respnsibilities which are spreadthrughut all its prisins n public bdies acting in the eld f cultural heritage,

priding fr cncrete bligatins and measures aiming at:

• Scientic identicatin and adequate legal prtectin, as dened ininternational acts, that is, the Granada and Valetta Conventions;

• Deelpment f a dynamic cnseratin strategy, mbilizing ecnmic ptential fr urban regeneratin and rural deelpment;

• Cntributin t a respnsible serice, cntrlling the cnseratin andrestratin wrk n cultural heritage, in all frms f its ccurrence;

• Cntributin t the decrease in risks and threats n cultural heritage. Whenan wner is nt taking care f his prperty, which has a cultural alue,then the authrities shuld interene by taking the necessary measures fr presering it, up t exprpriatin;

• Hiring qualied staff fr registratin and preseratin;• Cperatin fr cmpiling a prtectin strategy, by implementing actiities

t prtect registratin and ther immediate measures;• Supprt thrugh assistance and educatinal-technical guidance, preparing

restratin prjects and their cntinuus applicatin.

Accrding t this Law all the cmpetent institutins, frm the Ks Cuncilfr Cultural Heritage t lcal leel institutins, are clearly instructed t bear inmind the unity f the cultural heritage f Ksa as a whle, regardless f culturaldiversity.

Alng this line, the Ks Cuncil fr Cultural Heritage as the highest bdy – which in its cmpsitin represents the ethnic cmpsitin f Ksa (antherway t shw the diersity f cultural heritage) – ‘… will identify necessary

nancial supprt measures fr the Cultural Heritage fr each year’ (Article 4.9).Ksar legislatin grants an extrardinarily high leel f legal prtectin t

sacred sites. This practice is unique in my pinin, wing t the fact that, alngwith basic laws like the Law n Spatial Planning and the Cultural Heritage Law,there are als special laws dealing with this matter, that is, the Law n SpecialPrtectie Znes (adpted and currently in frce), which als mentins the need




fr tw ther laws, the Law n the Special Prtectie Zne f Prizren and the Lawfr Hça e Madhe. We cnsider ur practice as unique as it cncerns the prcessand the criteria thrugh which these special prtectie znes were established.

Equality f rights amng citizens in Ksa is als guaranteed by the denitinf fcial hlidays and equality f languages. our Law n ofcial Hlidays includes bth traditinal prfane hlidays and religius hlidays with an equal apprach.The fllwing are recgnized fcial religius hlidays: Eid Al-Fitr (Muslim); EidAl Addha (Muslim); Christmas Day (Cathlic) – 25 December; Christmas Day(orthdx) – 7 January; Easter Mnday, (Cathlic); Easter Mnday (orthdx). The basic cncept is equal treatment fr all religins and belieers, irrespectie f theirnumber r distributin. The Law fresees the establishment f a hlidays cmmitteewhse cmpsitin reects the religius diersity f Ksar sciety.

Equality f languages is anther imprtant element in Ksar legislatin.

Accrding t the Cnstitutin, the fcial languages in Ksa are Albanian andSerbian. Their use is regulated thrugh the Law n the use f languages, whichallws ‘the use f fcial languages, as well as languages f cmmunities whsemther tngue is nt an fcial language, in Ksar institutins and therrganizatins and enterprises wh carry ut public functins and serices’ andguarantees ‘the right f all cmmunities in Ks t presere, maintain and prmte their linguistic identity’.

Denition of Sacred Places in Kosova

First f all, I will try t pride denitin, as clear as pssible, f a sacred place.I d nt want t refer t practices r denitins frm different cuntries, but Iwill try t refer nly t the case f Ksa. As a cnsequence f histric andsci-plitical deelpments, buildings and premises belnging t religiuscmmunities, recgnized by the State, dedicated t perfrmance f religiusceremnies are cnsidered as sacred bjects. The denitin includes premiseswhen these are actie. It has nt always been s and the legal status f such siteshas always depended n circumstances and n wh dened them in each particular perid during the 20th century.

After Ksa’s war, due perhaps t ur particular cntext, nt all places freligius nature were treated as such. This was maybe due t the fact that duringthe 1990s r een after 1945 the sacred places f different cmmunities werediscriminated as t legal status and denitin. As far as the treatment f religiussites is cncerned, yu will prbably ntice that Ksa’s experience is quite unique.

Althugh religin was nt a strng element amng the ppulatin, mst f thesereligius buildings are usually treated as cmmn heritage and prperty. This is duet the facts we presented abut the histrical deelpment f religin in Ksa.

Knwing that Ksa was administered by Reslutin 1244 f the UNSC,religius bjects were treated as religius and cultural sites. Als the dcuments prduced later treated these bjects in the same way. Fr instance the Ahtisaari




package treats them as religius sites, withut taking int cnsideratin whetherthey cnsist f nly ne bject r mre. Alng this line the new legislatin f theState f Ksa treats them accrding t tw categries, as bjects and as sites.

But while analysing denitins in the law, we hae t take sme ther elementsint cnsideratin, such as, architectural imprtance, landscape, cultural frms,spiritual heritage, frms f scial and religius rganizatin, histrical/culturalcntext, natural enirnment and isual aesthetical frame. one f the bjectiesmentined in the Law n Special Prtectie Znes is ‘t pride fr the peacefulexistence and functining f the sites t be prtected and t presere the mnasticway f life f the clergy’.

Accrding t the Ahtisaari package the aims f Prtectie Znes are

… t pride fr the peaceful existence and functining f the sites t be

prtected; presere their histrical, cultural and natural enirnment, includingthe mnastic way f life f the clergy; and preent aderse deelpment arundthem, while ensuring the best pssible cnditins fr harmnius and sustainabledeelpment f the cmmunities inhabiting the areas surrunding such sites.

By reading these prisins we can get a clear idea f the aspects characterizingsacred r religius alue. Therefre, bearing in mind the histrical, plitical andscial features f the peple and the State f Ksa, I will gie the fllwing

denitin f sacred place:

… buildings r sites where histrical eents, spiritual traditin, character, useand where religius and spiritual life are cmbined, making them the bjectf eneratin fr a particular religius r ethnic cmmunity (r wider) can becnsidered as sacred place in Ksa’s cntext.

• Prtectie znes fr specic categries f mnuments

The denitin f prtectie znes will depend n, amng ther issues, the categryf the prtected mnument, since the rst categry mnuments f internatinalsignicance will be prtected by larger prtectie znes than mnuments f thesecnd categry (reginal signicance) and third categry (lcal signicance).The Cuncil fr Cultural Heritage will take int accunt the categrizatin feach mnument in dening an apprpriate prtectie zne fr it. There will be a pssibility that a prtected mnument des nt need a prtectie zne, especiallyin the case f third categry mnuments.

• Site visits

The purpse f site isits shuld nt be t dene the bundaries f prtected znes but t gather infrmatin that will assist the institutins in charge f dening these bundaries subsequently.




• Management system

T prtect, integrate and present the whle f Ksa’s cultural heritage withutspecial priileges r discriminatin, exclusieness r fauritism is a ery cmplex,cstly and challengeable issue – but at the same time it is a key fr making prtectin,integratin and presentatin a lng-lasting cmmitment t prper appreciatin,understanding and safeguarding by indiiduals and cmmunities in Ks.

We will welcme any bilateral r multilateral frm f cperatin in the eldf prtectin, integratin and preseratin f heritage. The Ksar Authritiescmmit themseles and are willing t undertake strng effrts t get prper preseratin and an apprpriate use f Ksa’s cultural heritage. The KsarAuthrities are trying t pride all the legal, administratie as well as technical precnditins necessary in rder t implement a future agreement based n these

principles.

• Regulatry bdy: Cuncil fr Cultural Heritage

Cmpsitina. The Cuncil fr Cultural Heritage will be designated and authrized by

the Ksar Parliament. It will be cmpsed f seen leading experts: nehistrian, tw cnseratin architects, tw art histrians, ne archaelgist,

ne ethnlgist (r anthrplgist, r cultural heritage manager, rmusiclgist, r similar).

At least ne member f the Cuncil has t be: i) a leading expert f Byzantinearchitecture and arts; ii) a leading expert f ottman architecture and arts; iii) aKsar Serb (i) an expert representing UNESCo r the Cuncil f Eurpe.

At least three members f the Cuncil hae t be Ksar Albanians.

• Terms f References f the Cuncil fr Cultural heritage – r ToR

b. The Cuncil is Respnsible fr the (i) designatin f cultural heritage frmthe Tentatie List – Registering; (ii) denitin f the area and the scpe f prtectin; (iii) prisin f the descriptin f all measures that hae t beundertaken; (i) cnditins fr integratin and the way f presentatin fthe cultural heritage depending n each case; () denitin f respnsiblestakehlders and thse in charge f implementing decisins; (i) mnitringf the implementatin f its decisins including the appral f the

rganizatin f public hearings cncerning the prjects; (ii) establishmentf a dcumentatin centre and a database fr heritage; (iii) planning f pririties; and (ix) budget planning.

c. All decisins f the Cuncil will be based upn a detailed analysis f all thefacts releant fr cultural prperty and discussin with wners and therinterested parties. Decisins f the Cuncil are binding and denitie.




d. The Cuncil will hae its technical secretariat cmpsed f legal experts,histrians, cnseratin architects and area cnseratin experts,archaelgists, art histrians and technical staff (the technical Secretariatf the Cuncil can be an already existing institutin). At least fur membersf the Cuncil are fully emplyed by the Cuncil. The Cuncil denes itscriteria fr the designatin f heritage.

e. Autmatic prtectie znes fr the heritage n the Tentatie List. Therewill be n cnstructin, mining r ther wrks that might change the present cnditin f the city, landscape r enirnment within a 50 metre(in cities) r 100 metre prtectin zne (utside the settlements) arund thesite that is on the Tentative List.

f. The nal prtectin regime and the prtectie zne fr heritage n theTentatie List is the subject f the decisin f the Cuncil fr heritage.

The ‘autmatic tentatie prtectie zne’ and the prtectin regime frheritage n the Tentatie List can be changed nly thrugh a decisin f theCouncil. If there is an intention to start any kind of works in the vicinity of

the prtectin zne, the wner r the deelper r the lcal authrities mayrequest that Cuncil urgently puts n its agenda the designatin prceduref the mnument in questin, s that the prtectin regime is dened. Eachdecisin f the Cuncil denes precisely the area that is prtected and the prtectie zne, with the pssibility t hae seeral leels f restrictins in

the prtectie zne (that is, fr example – prhibitin f any cnstructinand agricultural actiities; prhibitin f actiities that hae strngerenirnmental impact; restrictin f cnstructin f certain buildings;restrictins cncerning the height, use f material r similar). Each case isdifferent and decisins are based upn the full knwledge f all cnditinsreleant fr a certain prperty.

g. Permits fr any wrk in the prtected r prtectie area are issued by theMinistry respnsible fr ciil wrks and spatial planning with the cnsentf the Cuncil fr Cultural Heritage. The Ministry f Culture, Yuth andSprts can transfer its respnsibility t the lcal authrities in special casesthat will be dened.

h. Mable heritage that is either an integral part f designated immableheritage r an independent cultural prperty that is designated r includedin the Tentatie List is the subject f full prtectin in accrdance with thelegal prisins f UNESCo and the Cuncil f Eurpe. The Cuncil frheritage keeps a database n this heritage. The Cuncil denes cnditins, prtectin and security measures and ther usual measures t be undertaken

if mable heritage is exhibited in Ksa r ut f Ksa. The wnershae the right t exhibit mable prperties and authrities are bligedt undertake all necessary security measures t prtect the exhibits. Ifthe exhibitin takes place ut f Ksa the wner infrms the Cuncilf Heritage abut the place and time f exhibitin as well as abut thetime f return f the exhibits. The wner may request plice escrt and




ther security measures t be undertaken by the Ksa authrities fr thetransfer f the mable gds. Ksa authrities may request the wnert use the mable prperties fr exhibitins n Ksa heritage r fr publicatins. In these cases the agreement is signed between the wner,the Ksar authrity and the Cuncil fr Heritage in which all cnditinsf the exhibitin r presentatin f the prperty as well as f its returningare dened, including the right f the wner t be present during packing,transprt and unpacking f the prperty, as well as during the exhibitin ifit is needed.

Serbian Orthodox Church in Kosova – Special Protective Zones

Dening the imprtance f religius sites is a ery difcult, if nt impssible,task. This is particularly true in the case f Ksa, if we bear in mind infrmatin presented in arius fcial websites r een by diplmatic chancelleries. In urcase, we als hae difculties in giing their exact number. This became clearduring the status negtiatins n Ksa. It shuld be stressed that the issues fthe name, wnership, riginality and ther scial elements hae always been httpics in Ksa. Fr instance, there are cases where Serbian plitical institutins,in arius public statements, allege the existence f mre than 1,000 Serbian

orthdx sites in Ksa, a gure which has neer been pren with any fciallist. The debate n the number f religius bjects/sites was ery lng and absurd,especially in iew f the fact that this issue is irreleant t the plitical and scial prcesses in Ksa. We say this because thrugh the articial and ften mythicalcensus f the number f churches, the Serbian state and pliticians are trying targue ‘the right’ t keep Ksa.

Alng this line, the institutin which administered Ksa after the war –UNMIK, in cperatin with oSCE – made an inentry f Serbian orthdxchurches in Ksa. Accrding t this list their number is 114, including chapelsand half-ruined buildings.

The denitin f the imprtance f religius sites was als the tpic fnumerus debates during Serbian rule in Ksa. In this research, I will mstlyrefer t the dcuments which were prduced as a result f tw-year negtiatinsn the status f Ksa, and which are entirely accepted by Ksar institutinsand the internatinal cmmunity – under whse auspices these negtiatins wereindeed cnducted. Furthermre, these data fr religius and cultural heritage were presented by the Serbian representaties in these negtiatins. In ther wrds,

these are bjects presented by the Serbian orthdx Church itself. on the grundf these recrds, the Ahtisaari package and the Law n Special Prtectie Zneswere drawn up. Buildings and sites listed in these dcuments are als cnsideredfr their imprtance.




Orthodox Religious Sites

In the Law n Special Prtectie Znes there is a list f sites surrunded by suchznes which is presented here. These sites are diided accrding t the size f the prtectie zne created thereby. The fllwing list cntains all these buildings andis drawn frm the map attached t this dcument:

• Mnastery f Deçani, Deçan: (this prtectie zne is identical t the preiusly established ‘Special Zning Area’); Peja Patriarchate, Pejë;Graçanica Mnastery, Prishtinë; Church f the Presentatin f the virgin,Lipjan; Deiç Mnastery, Skënderaj; Griç Mnastery, Istg; BudisaciMnastery, Klinë; Sklica Mnastery, Zeçan; Draganac Mnastery,Gjilan; Hly Archangels Mnastery, Prizren; Banjska Mnastery, Zeçan;

Zqishte Mnastery, Zqishtë, Rahec; Hqë e Madhe village, Hqë eMadhe, Rahec; Dubki Ptk Mnastery, Zubin Ptk; Church f StGerge,Grnjasellë, Prizren; Sçanica Mnastery, Lepsaiq; Hermitagewith Church, Uljaricë Klinë; and Hermitage f St Peter f Krishe, Krishë,Prizren.

Churches with a special zne within a 100-metre perimeter:

• Mnastery f St Friday, Lepsaiq; Mnastery f Hly Healers, Lepsaiq;Mnastery f the Hly virgin f Hsn, Istg; Mnastery f St Marc,Krishë, Prizren; Trinity Mnastery, Mushtisht, Suharekë; Church f theHly virgin, Sredskë, Prizren; Mnastery f St Ursh, Nerdime, Ferizaj;and Mnastery f Binaçi, Buzik, viti.

Churches with a special zne within a 50-metre perimeter:

• Mnastery f Dllc, Klinë; Church f St Nichlas, Gjurakc, Istg; Churchf Hly virgin Hdegetri, Mushtisht, Suharekë; Church f St Nichlas,Shtërpcë; Church f St Thedre, Biti e Pshtme, Shtërpcë; Church f St Nichlas, Gtushë, Shtërpcë; Church f the Hly virgin, Gtushë,Shtërpcë; Church f St Gerge, Biti e Epërme, Shtërpcë; Church f St Nichlas, Mushnikë, Prizren; Church f St Nichlas, Bgshec, Prizren;Church f St Nichlas, Drajçiq, Prizren; Church f St Nichlas, Sredskë,Prizren; Church f the Hly Apstles (r Hly Friday), Mushnikë,Prizren; Church f St Gerge Serdskë, Prizren.

The prtectin f the fllwing buildings is guaranteed thrugh tw special laws,that is, the Law n the Histrical Zne f Prizren and the Law n the SpecialPrtectie Zne f Hça e Madhe:

• Church f the Hly virgin Leishka; Church f St Sair; Cathedral f




St Gerge, with Chapel f St Gerge (Runic); Church f St Nichlas(Tutic); Church in the illage Hça e Madhe.

out f these churches, which are included in the abe-mentined law as the mstimprtant nes, fur sites are included in the list f cultural heritage at risk. Frthese sites I will gie a shrt descriptin n cnstructin and deelpment, as wellas n their imprtance fr cultural heritage f Ksa.

• Mnastery f Deçani, Deçan; Peja Patriarchy, Pejë; Mnastery fGraçanica, Prishtinë; Church f Hlly virgin, Leishka -Xhuma Msque.56

As we knw, Ksa went thrugh a prcess f negtiatins t determine its plitical status. one f the mst imprtant tpics in these negtiatins – led

by the chief negtiatr President Ahtisaari and his team – was the cultural andreligius heritage f Serbs in Ksa. Seeral dcuments were prpsed by thenegtiating parties. An agreement was subsequently reached fr the prtectinf what is called Serbian cultural and religius heritage in Ksa. It is alswrth mentining that n this issue the Ksar team was well dispsed twardsall pssible prtectin fr the cultural and religius heritage f Serbs. At the beginning the Serbian representaties had a passie attitude in presenting their prpsals. Later, when n dubts remained abut the status f Ksa, which was

denitiely ging t split frm Serbia, the rst bstacles t the prcess appeared.Initially, the Serbian orthdx Church was quite cperatie and in the rst twmeetings een supprted the Ksar team’s prpsal n the leel f prtectin fchurches and ther religius bjects.

The debate was fcused n criteria fr determining special prtectie znes(whether t use criteria mentined in internatinal dcuments r sme practicaland mre easily applicable examples). Many internatinal criteria were cnsidered, but in the end the internatinal negtiatrs dictated their status prpsal. Thiswas widely accepted in Ksa and was reected in the legislatin, directlystemming frm the Ahtisaari package. The Serbian representaties hae neeraccepted this dcument and, in the meantime, they started t put pressure n theSerbian orthdx Church in Ksa t refuse its cperatin in implementing thisdcument, een unfcially. Currently, the cnsequences f such an attitude arestill perceiable when the need ccurs fr cperatin frm the Serbian Church inthe implementatin f these legal acts.

Hw did we cme t the denitin f special prtectie znes arundSerbian churches? In my pinin, the prcess started when the internatinal

cmmunity realized that the cuntry was ming twards its plitical and legalindependence. of curse, the damages f the war in 1998–99 in Ksa and theeents that ccurred in March 2004 had their impact. Alng this line, the UNMIKadministratin adpted Executie Decisin N 205/5 denitin f the special zne

56 <http://whc.unesc.rg/en/list/724> accessed 30 April 2013.

http://whc.unesco.org/en/list/724

http://whc.unesco.org/en/list/724




fr the Mnastery f Deçan. This decisin aimed t declare a space arund theMnastery f Deçan as a special zne, in rder t aert, r at least t put undercntrl, spatial and urban deelpment therein, fr the sle purpse f prtectingthe Mnastery. This decisin, which enjyed a legislatie status, stated that:

1. There shuld be established a special zne, which includes the Deçancanyn, including the orthdx cemetery near the Mnastery, the bridgeer the Bistrica rier and the crest arund the canyn, as described n themap.

2. Inside the special zne: – no construction, industrial or commercial activity, or natural resource

explitatin will be allwed in the canyn withut a duly issuedauthrizatin appred by UNMIK.

– the existing rad, which will be cntrlled by KFoR, cannt be widenedwithut prir appral frm UNMIK. Heay cmmercial trafc shuldnt be allwed withut prir appral by UNMIK and KFoR.

– municipal authrities shuld undertake all necessary measures t respectthe existing bjects, and thse cncerning structures built withut anycnstructin permit.

– actiities in and arund the Mnastery must be cnducted strictly inaccrdance with UNESCo cnentins and guidelines.

3. The creatin f the special zne shuld nt hae any impact either n thecommercial and construction activities of the Monastery carried out for its

wn benet, r n the appred actiities f the hydr-central f Kzhner,which is utside the special zne.

4. Releant actiities shuld take int cnsideratin a better system fmunicipal and reginal rads, t meet the requirements f the special statusf this regin.

5. A lcal cuncil led by the municipal representatie f UNMIK and by representaties nminated by UNMIK, the Municipality f Deçan,the Mnastery, KFoR and the UNMIK Plice Cmmissiner has t beestablished in rder t make recmmendatins t SRSG fr any issuerelated t implementatin f this decisin.

6. The creatin f this special zne, accrding t the decisin, shuld nt haean impact f any kind n the underlying titles f the prperties in this regin.57

7. This decisin enters int frce n 25 April 2005 with a six-mnth alidityand pssibility f renewal.

As a result f the status negtiatins prcess the dcument n status was appred.This dcument has an annex (Annex v) which regulates the rights and priileges fthe Serbian orthdx Church. Accrding t this annex, Ksa is bliged t recgnize

57 This means that the zning des nt hae any impact n the wnership f the landwithin special prtectie znes.




the Church and its priileges and t respect its autnmy in religius matters but, nthe ther hand, the Church is bliged t recgnize the new reality in Ksa, that is,its independence. Althugh the Church has nt recgnized this fact yet, Ksa’slegal framewrk has been further deelped, alng with the adptin f the Law nSpecial Prtectie Znes. Accrding t this, a ‘Special Prtectie Zne’ is an area – identied thrugh a map r therwise – which surrunds a mnument, building,grup f buildings, ensemble, illage r histric twn centre that is safeguarded frmany deelpment r actiity which might damage its histrical, cultural, architecturalr archelgical cntext, natural enirnment r aesthetic isual setting.

The bjecties f the Special Prtectie Znes are:

a. t pride fr the peaceful existence and functining f the sites t be prtected, and t presere the mnastic way f life f the clergy;

b. t presere the character and appearance f the sites t be prtected, in particular the histrical, cultural, architectural r archelgical cntext,natural enirnment r aesthetic isual setting; and

c. t aert aderse deelpment arund the sites t be prtected, whileensuring the best pssible cnditins fr harmnius and sustainabledeelpment f the cmmunities inhabiting the areas surrunding suchsites by regulating deelpment and ther actiities.

Thrugh this law, thse actiities which are cnsidered t ilate the mnastic lifef clergy, alues f sites and in general their riginality are limited r prhibited.

Activities Prohibited within Special Protective Zones

Any new actiity in the fllwing areas shall be prhibited:

a. Industrial cnstructin r deelpment, such as the explratin andexplitatin f mineral resurces and the building f dams, pwer plants r pwer lines, kilns and factries, and transit rads in rural areas; and

b. Cnstructin r deelpment leading t defrestatin r pllutin f theenvironment.

Activities Restricted within Special Protective Zones

Any new actiity frm the fllwing list f actiities may be restricted ascircumstances warrant. Prir t any such actiities being cnducted in the

fllwing areas, the municipality cncerned shall seek the agreement f theSerbian orthdx Church. If n agreement is reached, the parties shall refer thematter t the IMC fr reiew, in accrdance with pint c f Article 4 f this Law:

a. Cmmercial cnstructins r deelpment such as structures r edicestaller than the mnastery/church/cultural mnument t be prtected;




rad/street cnstructin; cnstructin f warehuses, wrkshps, shps,restaurants, bars, cafes, htels/mtels, fd stalls and kisks, petrl andautmbile repair statins, supermarkets, night clubs, any ther large scaleconstruction in rural areas;

b. Public gatherings, recreatin and entertainment; andc. Urbanizatin f agricultural land.

With regard t these denitins, public debates hae deelped and are still gingn. There are peple wh cnsider that these denitins fr such znes ilate prperty rights, since there are sme priate prperties within these znes. otherscnsider these prpsals as made fr the preseratin and prmtin f the culturaland religius alue f these sites, as a heritage f all Ksars.

International Legal Approach

Terminology

Perimeter of a Monument ‘Perimeter f a mnument’ means an area f land directly assciated with a prtected mnument.

Protected Zone‘Prtected zne’ means an area f land surrunding the perimeter f a prtectedmnument. This area shuld be safeguarded frm any deelpment r actiitywhich culd damage the isual setting r therwise damage the cultural heritage.The denitin f the special prtected zne shuld be determined by the Cuncilfr Cultural Heritage (Ks Cultural Heritage Law).

Protected Area‘Prtected area’ means an area f land which may include prtected culturalheritage, prtected natural and enirnmental resurces, r bth f the abe(Ks Cultural Heritage Law).

Special Protective Zone‘Special prtectie zne’ means a prtectie area arund a declared Wrld HeritageSite. The denitin f the special prtectie zne shuld be determined by theCuncil fr Cultural Heritage.

Setting ‘Setting’ means the natural and built enirnment that mdulates the aesthetic perceptin f the heritage r that is linked t the heritage in an immediate spatialmanner r thrugh scial, ecnmic r cultural ties (ICoMoS Recmmendatinf Nairbi).




Conventions and Recommendations

Enfrcement f internatinal legal dcuments is an issue which remains a tpic frdiscussin and debate in Ksa. Ksa is still a State withut the pssibility fratifying these dcuments; therefre until its nal recgnitin by the internatinalcmmunity, as an interim slutin, dcuments signed by the Frmer ScialistFederal Republic f Yugslaia and by the internatinal bdies which administeredKsa after the war apply. This matter was regulated in tw dcuments; in theDeclaratin f Independence, pint 9, and in the Cnstitutin f the Republic fKsa, Article 145, pints 1 and 2. Based n these dcuments written treaties arelegally binding in Ksa:

9. We hereby undertake the internatinal bligatins f Ks, including thse

cncluded n ur behalf by the United Natins Interim Administratin Missinin Ks (UNMIK) and treaty and ther bligatins f the frmer ScialistFederal Republic f Yugslaia t which we are bund as a frmer cnstituent part, including the vienna Cnentins n diplmatic and cnsular relatins.We shall cperate fully with the Internatinal Criminal Tribunal fr the FrmerYugslaia. We intend t seek membership in internatinal rganizatins, in whichKs shall seek t cntribute t the pursuit f internatinal peace and stability.

Article 145 [Cntinuity f Internatinal Agreements and Applicable Legislatin]:

1. Internatinal agreements and ther acts relating t internatinal cperatinthat are in effect on the day this Constitution enters into force will continue

t be respected until such agreements r acts are renegtiated r withdrawnfrm in accrdance with their terms r until they are superseded by newinternatinal agreements r acts cering the same subject areas andadpted pursuant t this Cnstitutin.

2. Legislatin applicable n the date f the entry int frce f this Cnstitutinshall cntinue t apply t the extent it is in cnfrmity with this Cnstitutinuntil repealed, superseded r amended in accrdance with this Cnstitutin.

Amng internatinal legal texts we can mentin the fllwing:

Cuncil f Eurpe’s Amsterdam Declaratin (1975):An inentry f buildings,architectural cmplexes and sites demarcating protected zones around them is

required.

Cuncil f Eurpe’s Reslutin cncerning the Adaptatin f Laws and

Regulatins t the Requirements f Integrated Cnseratin f the Architectural Heritage (1976) Article 3, Sectin B3:Arund prtected mnuments, thereshuld be a prtectin zne in rder t ensure the harmnius elutin f theman-made enirnment.




International Charter for the Conservation and Restoration of Monuments and

Sites (Charter f venice, 1964):Article 6

The cnseratin f a mnument implies presering a setting which is not out of scale. Whereer the traditinal setting exists, it must be kept. N new cnstructin,demlitin r mdicatin which wuld alter the relatin f mass and clr (….)

Cnentin fr the Prtectin f the Architectural Heritage f Eurpe (GranadaCnentin, 1985):Article 7

In the surrundings f mnuments, within grups f buildings, and within sites,

each Party undertakes t prmte measures fr the general enhancement f theenvironment.

Cuncil f Eurpe’s Recmmendatin 1484 n the Management f Cathedralsand other Majr Religius Buildings in Use (2000):Article 10

Gernments f Member States shuld draw up cnseratin plans fr each

majr religius mnument r site in cnsultatin with the religius authritiesinvolved.

UNESCo Cnentin Cncerning the Prtectin f Wrld Cultural and NaturalHeritage (1972):Article 4

Each State Party t this Cnentin recgnizes that the duty f ensuring theidenticatin, prtectin, cnseratin, presentatin and transmissin t futuregeneratins f the cultural and natural heritage referred t in Articles 1 and

2 and situated n its territry, belngs primarily t that State. It will d all itcan t this end, t the utmst f its wn resurces and, where apprpriate, withany internatinal assistance and c-peratin, in particular, nancial, artistic,scientic and technical, which it may be able t btain.

UNESCo operatinal Guidelines fr the Implementatin f the Wrld HeritageCnentin (2005):

Paragraph 104

Fr the purpses f effectie prtectin f the nminated prperty, a buffer zneis an area surrunding the nminated prperty which has cmplementary legaland/r custmary restrictins placed n its use and deelpment t gie an addedlayer f prtectin f the prperty. This shuld include the immediate setting f

http://whc.unesco.org/world_he.htm#Article2%23Article2

http://whc.unesco.org/world_he.htm#Article2%23Article2




the prperty, imprtant iews, and ther areas that are functinally imprtant tthe prperty and its prtectin. The area cnstituting the buffer zne shuld bedetermined in each case thrugh apprpriate mechanisms.

Recmmendatins f Nairbi Cncerning the Safeguard f Histric Ensemblesand Their Functin in Cntemprary Life (1976):The setting f immablecultural heritage is the natural and built enirnment that mdulates the aesthetic perceptin f the heritage r that is linked t the heritage in an immediate spatialmanner r thrugh scial, ecnmic r cultural ties.

Criteria for Protection Zones

Accrding t releant Eurpean and internatinal heritage cnentins andrecmmendatins, three criteria shuld determine the denitin f prtectin znes:immediate spatial setting; isual cntext; functinal cntext and traditinal setting:

1. Immediate spatial setting is the area f land immediately arund the prtected mnument;

2. visual cntext is the area f land that is aesthetically tied t the prtectedmnument, fr example by sharing particular architectural features r by

an assciated landscape;3. Functinal cntext is the area f land that is scially, ecnmically rculturally tied t the prtected mnument; and

4. ‘Traditinal setting’: accrding t releant Eurpean and internatinalheritage cnentins, the size f the prtectin zne shuld be prprtinalt the prtected mnument (see Charter f venice, Article 6).

Miscellaneous Points about Sovereignty

Sarah Eagen cntends that ‘Perhaps the largest weakness in the Wrld HeritageCnentin is the pwer it gies surce natins t determine the fate f culturalbjects within their natinal territries. Under the Cnentin, nn-surce natinshae n authrity t ensure that cultural bjects are being prtected … Althughthe cncept f territrial sereignty is rmly established thrughut the wrldas a methd f establishing pwer, plitical independence and maintaining rder,its use des nt make sense in the cntext f cultural prperty preseratin. Mrs Catherine vernn states that “current natinal bundaries ften hae n

cnnectin r alignment with the peples that inhabited the land in past centuriesand left cultural clutter as eidence f their existence. Culture is dened bylinguistic, religius, r ther criteria, nt by an articially placed bundary line”’.Sarah Eagen, ‘Presering Cultural Prperty: our Public Duty: A Lk at Hw andWhy We Must Create Internatinal Laws that Supprt Internatinal Actin’ (2001)13 Pace Int’l L Rev 407, 430–43.




Accrding t the UNESCo Cnentin Cncerning the Prtectin f WrldCultural and Natural Heritage:

Whilst fully recgnizing the sereignty f the states n whse territry thecultural and natural heritage … is situated, and withut prejudice t prpertyrights prided by natinal legislatin, the States Parties t this Cnentinrecgnise that such heritage cnstitutes a wrld heritage fr whse prtectin itis the duty f the internatinal cmmunity as a whle t c-perate.

The nature f the bligatins that the Cnentin places n indiidual StatesParties is established by Article 4, which states ‘each State Party t this Cnentinrecgnises that the duty … belngs primarily t that State’. When a State becmes party t the Cnentin, it acknwledges its duty t ensure ‘the identicatin

(etc) … f … heritage … situated n its Territry’. The Cnentin respects thesereignty f a Member State upn whse territry prperties f utstandinguniversal cultural and natural value are located.

Conclusion

As a cnclusin fr this chapter I will present just ne part f Ksa’s psitin paper

which was prpsed during the negtiatin prcess. All the prpsals were refused by the Serbians.

The abe-mentined instruments are t be deelped within ne year after thenal decisin n the status f Ks.

Until these instruments are nt cmpletely deelped a Temprary Legal Bdywill be in charge f the implementatin f the DECLARATIoN in the parts thathae nt been prperly implemented r implemented at all thrugh Ksar law – priding the authrities f Ks with all denitins, guidelines, rdinancesand directies that are t be implemented.

The Temprary Legal Bdy fr the Implementatin f the Declaratin will becmpsed f 5 members – legal experts (2 representaties f the orthdxChurch, and 2 representaties f Ks’s Authrities and 1 internatinal expert).

If all legal, administratie and technical instruments fr the implementatin

f the Declaratin are nt passed in a year, the orthdx Church may ask t prlng the wrk f the Temprary Legal Bdy fr the Special Issues f SPC.

Any ilatin f this statement shuld be the subject f cnsideratin by KsarCurts as well as f the Eurpean Curt fr Human Rights.




This Declaratin reects the best and mst pen psitin f the Ksardelegatin t implement the best practices abut human rights standards inEurpe. All prisins in this Declaratin cncerning the respnsibility f theKsar Authrities are uncnditinal.

Hweer, we are ffering this Declaratin in rder fr it t be signed by theSerbian orthdx Church as well and t be witnessed and mnitred by theinternational community.



Chapter 14

The Regime f Munt Aths

Charalambs K. Papastathis

Introduction

The peninsula f Aths in Chalkidiki, in Central Macednia, had been fr seeralcenturies a centre f Christian hermits. In 963 the rst cenbite mnastery f the

Great Lara was funded by the mnk Athanasius the Athnite, with the nancialsupprt f the Byzantine Emperr Nicephrus Phcas. Eer since then, Byzantineemperrs hae granted t the whle mnastic cmmunity, t arius particularmnasteries and establishments, as well as t indiidual mnks, priileges f self-administratin (as regards the exercise f administratie, legislatie and judicial pwers), in additin t ther religius, persnal and nancial priileges: they haeals prided generus nancial aid. Sereign princes f Eastern and Suth-Eastern Eurpe made large dnatins t the mnasteries f Munt Aths and

ensured priileged prtectin t their dependencies (metochia) in the territriesthey ruled. At the same time, the Ecumenical Patriarchs in Cnstantinple grantedt Munt Aths special prtectin in the frm f ecclesiastical self-administratin,as well as direct spiritual bedience t the Patriarchal See f Cnstantinple, theEcumenical Patriarch being the bishp f Munt Aths. The priileged statusf the peninsula cntinued t be respected een after it was cnquered by theottmans in 1430.

Soon after the foundation of the Great Lavra, many other monasteries were

established and gradually Munt Aths came t be called Hagion Oros, the Holy

Muntain. It became the mst signicant centre f orthdx faith, with mnkscming frm almst all parts f the orthdx wrld, and it exerted a tremendusinuence upn the secular and religius culture f the peples f Eastern andSuth-Eastern Eurpe during the Byzantine and Pst-Byzantine perids.1 All the

1 Fr a bibligraphy n Munt Aths published befre 1963, see P. Irénée Dens, ‘Bibligraphie de la Sainte Mntagne de l’Aths’, in Le Millénaire du Mont Athos,

963–1963 (Éditins de Cheetgne 1964, 337–495, 2nd ed., Biblithèque Athnite, 2001, preface by Ch. Papastathis, 182); fr Russian wrks cncerning chiey the relatins between Russia and Munt Aths, see Ananatlij Prsirnin, ‘Afn i Russkaja Cerk.Bibligraja’ [1976] Bogoslovskie Trudy 185. Basic wrks n the histry and art fMunt Aths: Manuel Geden, Ὁ Ἄθως. Ἀναμνήσεις, ἔγγραφα, σημειώσεις [ Mount Athos. Memoirs, Documents, Notes] (Cnstantinple 1885, repr. Athens 1990); Episkp PrrijUspenskij, Istorija Afona (č. I, Kie 1877), Id., Vostok christianskij-Afona. Istorija Afona




fundatins and mnks in Munt Aths, regardless f ethnic rigin, enjyed the benets f the Athnite status.2

Legislative Sources of the Athonite Regime

Internal Sources

Munt Aths has neer been a sereign State r regin: at rst it was part f theterritorium f the Byzantine Empire, then f the ottman Empire. The agents f itsself-administratin were inested with potestas delegata, while State sereigntywas cnned, as a rule, t maintaining rder and t ensuring the implementatinchiey f nancial regulatins.

During the First Balkan War, in Nember 1912, the Greek Nay liberated theAthos Peninsula from the Ottomans. The Hellenic State made strenuous efforts in

rder t:

(č. II–III, 1–2, Sankt Peterburg 1892); Deacn Csmas vlachs, Ἡ χερσόνησος τοῦ ἉγίουὌρους Ἄθω καὶ αἱ ἐν αὐτῇ μοναὶ καὶ οἱ μοναχοὶ πάλαι τε καὶ νῦν [The Peninsula of the Holy

Mountain Athos and its Monasteries and Monks in Past and Present Times] (vls 1903);

Archimandrite Gerasimos Smyrnakis, Τὸ Ἅγιον Ὄρος [The Holy Mountain] (Athens 1903,repr. Karyae 1988); Frederick William Hasluck, Athos and its Monasteries (Kegan Paul1924); Archimandrite Christphrs Ktenas, Ἅπαντα τὰ ἐν Ἁγίῳ Ὄρει ἱερὰ καθιδρύματα

[ All the holy Foundations in Mount Athos] (Athens 1935); Emmanuel Amand de Mendieta, La presqu’île des Caloyers. Le Mont Athos (Desclée de Bruwer 1955); Ioannis Mamalakis,

Τὸ Ἅγιον Ὄρος (Ἄθως) διὰ μέσου τῶν αἰώνων [The Holy Mountain (Athos) through thecenturies] (Sciety f Macednian Studies 1971).

2 Fr a selectie legal bibligraphy n Munt Aths, see: P. Irénée Dens andCharalambs Papastathis, ‘Νομική βιβλιογραφία Αγίου Όρους (1912–1969)’ [Legal

Bibligraphy n Munt Aths (1912–17)] [1970] Makednika 121; P. Irénée Dens,Charalambs Papastathis, Knstatins Papagergiu and Dimitris Niklakakis, Νομοκανονική βιβλιογραφία Αγίου Όρους Άθω (1912–2000) [ Nomocanonical Bibliographyon Mount Athos (1912–2000)], (Munt Aths 2007; Philipp Meyer, Die Haupturkunden für die Geschichte der Athosklöster (J.C. Hinrichs 1894, repr. 1965); Dimitris Petrakaks,Τὸ μοναχικὸν πολίτευμα τοῦ Ἁγίου Ὄρους Ἄθω [The Monachal Regime of Mount Athos](Athens 1925; Panays Panaytaks, ‘Ἡ ὀργάνωσις τοῦ μοναχικοῦ πολιτεύματος ἐν ἉγίῳὌρει’ [‘The organizatin f the Mnachal Regime in Munt Aths’] [1949] Archeion Ecclesiastikou kai Canonikou Dikaiou 79; Charalambs Papastathis, ‘The Status f Munt

Aths in Hellenic Public Law’, in Anthny-Emil N. Tachias (ed.), Mount Athos and the European Community (Institute fr Balkan Studies 1993) 55–75; Eyaggels Dris, Τοδίκαιον του Αγίου Όρους Άθω [The Law of Mount Athos] (1994–2004) ls I–II; NiklasAntnpuls, H συνταγματική προστασία του αγιορειτικού καθεστώτος [The Constitutional Protection of the Athonite Regime] (Trkalia 1997); P. Grigris Papathmas, Le PatriarcatŒcuménique de Constantinople (y compris la politeia monastique du Mont Athos) dansl’Europe Unie (Epektasis 1998) 169–491, 754–82.



The Regime of Mount Athos 275

1. safeguard the centuries-ld existing regime thrugh cnstitutinal prisins. Articles 109–112 f the 1927 Cnstitutin f the HellenicRepublic did indeed cntain prisins recgnizing the general priilegedstatus f Munt Aths, as did later Articles 103 and 105 f the 1952 and1975 Cnstitutins respectiely.3

2. draw up a new Regulatin fr Munt Aths, t replace the Athnite GeneralRegulatins f 1911–12. The releant wrk resulted in 1924 in the MuntAths Charter (hencefrth MAC), drawn by a cmmissin f Athnitemnks and ted by the cmpetent authrities f the Hly Muntain. Itwas subsequently ratied by the Hellenic State in the Legislatie Decree(hencefrth LD) f 10/16 September 1926. Bth the MAC and the LD cameint frce ne day after the Cnstitutin f 1927, that is, n 4th June 1927.

The Hellenic State has always recgnized and prtected the existing status fMunt Aths. It has added, frm time t time, regulatins fr bth religius andidelgical reasns, and als ut f a sense f respnsibility arising frm itsinternatinal law bligatins twards Aths. This special treatment, hweer, is

3 Article 105 (C. 1975):‘§ 1. The Aths peninsula extending beynd Megali vigla and cnstituting the regin

f the Hly Muntain f Aths in accrdance with its ancient priileged status, is a self-gerned part f the Hellenic State, whse sereignty theren remains intact. Spiritually,Munt Aths is under the jurisdictin f the Ecumenical Patriarchate. All persns leadinga mnastic life theren acquire Hellenic citizenship withut further frmalities, upnadmission as novices or monks.

§ 2. Munt Aths is gerned in accrdance with its regime by its twenty HlyMnasteries amng which the entire Aths peninsula is diided; the territry f the peninsula is exempt frm exprpriatin. Administratin f the Munt Aths regin is exercised by representaties f the HlyMnasteries, which cnstitute the Hly Cmmunity. N change whatseer is permittedin the administratie system r in the number f Mnasteries f Munt Aths, r in theirrder f preeminence, r in their psitin with regard t their subrdinate dependencies.Heterdx r schismatic persns are prhibited frm dwelling theren.

§ 3. The determinatin in detail f the regimes f Munt Aths and the manner fperatin theref is effected by the Charter f Munt Aths which, with the cperatin fthe State representatie, is drawn up and ted by the twenty Hly Mnasteries and ratied by the Ecumenical Patriarchate and the Parliament f the Hellenes.

§ 4. Faithful bserance f the regimes f Munt Aths in the spiritual eld is under the

supreme superisin f the Ecumenical Patriarchate, and, in the administratie eld, underthe superisin f the State, which als is exclusiely respnsible fr safeguarding publicorder and security.

§ 5. The afre-mentined pwers f the State are exercised thrugh a gernr, whserights and duties are determined by law.

The law likewise determines the judicial pwer exercised by the mnastic authritiesand the Hly Cmmunity, as well as the custms and taxatin priileges f Munt Aths’.




cmpatible with the cnstitutinal principle f equality (Article 4), fr the latterin fact requires equal r same treatment fr all persns in the same r similarcircumstances.

As far as the nature of the MAC is concerned, the Constitution declares that

the MAC is the law determining in detail the Athnite regimes and the manner ftheir peratin. The MAC is a law f superir frmal frce in cmparisn withthe ther laws f the Hellenic Republic: nne f its prisins may be mdiedr repealed by cmmn laws. Such a change has t be drawn up and ted bythe representaties f all the Athnite mnasteries and ratied by the EcumenicalPatriarchate and the Hellenic Parliament. Furthermre, the Cuncil f State (thesupreme administratie curt) has ruled (Rulings 869/1967 and 2140/1975) thatany mdicatin f the MAC shuld be explicitly mentined in subsequent law.In ther wrds, it is nt sufcient, as is usually the case in law, t simply include

a clause t the effect that any preius general r special prisin is hencefrthrepealed.

International Sources

In 1878 Munt Aths rst receied internatinal prtectin.4 The Treaty of

San Stefan (1878) recgnized and prtected it, but nly as regards its Russianmonks.5 The Treaty f Berlin (1878), which superseded that f San Stefan, als

recgnized the status f Munt Aths in its existing frm and extended prtectint all the mnks, regardless f their natinal rigin.6

When ottman rule ended in 1912 there fllwed a eritable tug-f-warer wh shuld hae State sereignty er Munt Aths. owing t Russianinterests, the Ambassadrs’ Cnference in Lndn (1913) called fr Munt Aths’autonomy.7 Hweer, the Peace Treaties f Bucharest (July–August 1913), Athens

4 Niclas Antnpuls, ‘La cnditin internatinale du Mnt Aths’, in Le

Millénaire du Mont Athos, 963–1963 (Éditins de Cheetgne 1963) 381–405.5 Article 22 f the San Stefan Treaty refers t Munt Aths as fllws: ‘… Lesmines du Mnt Aths d’rigine russe sernt maintenus dans leurs pssessins et aantagesantérieurs et cntinuernt à juir, dans les tris cuents qui leur appartiennent et dans lesdépendances de ces derniers, des mêmes drits et prérgaties que ceux qui snt assurés auxautres établissements religieux et cuents du Mnt Aths’, see Gabriel Nradunghian, Recueil d’actes internationaux de l’Empire Ottoman (l. III, F. Pichn 1902) 519.

6 Article 62 § 8: ‘Les mines du Mnt Aths quel que sit leur pays d’rigine, serntmaintenus dans leurs pssessins et aantages antérieurs et juirnt, sans aucune exceptin

d’une entière égalité de drits et prérgaties’, see Gabriel Nradunghian, p. cit., l.Iv, 191–2.7 ‘Le Mnt Aths aura une autnmie indépendante et neutre …’, Niclas

Antnpuls, p. cit., 398; see als, Charalambs Papastathis ‘Το καθεστώς του Αγίου Όρους και της Εκκλησίας στην Μακεδονία μετά την Συνθήκη του Βουκουρεστίου’ [‘TheRegime f Munt Aths and the Church in Macednia after the Treaty f Bucharest’], in Η Συνθήκη του Βουκουρεστίου και η Ελλάδα [The Treaty of Bucharest and Greece], IMXA,




(Nember 1913) and Neuilly-sur-Seine (1919) included Munt Aths withinHellenic territry and said nthing abut an autnmus status. Finally, theTreaties f Sères (1920) and Lausanne (1923) recgnized Greece’s sereigntyer the territry f Munt Aths and the persns therein. Article 13 f the specialTreaty f Sères cncerning the prtectin f minrities in Greece (which wasincluded in the Sixteenth Prtcl f the Treaty f Lausanne), safeguarded therights and liberties f the nn-Greek mnastic cmmunities,8 repeating in principlethe prisins f Article 62 § 8 f the Treaty f Berlin.

This internatinal prtectin f the Athnite regime is still in frce and has been furthermre crrbrated by the Eurpean Unin. The Final Act (1979) fthe Agreement cncerning the accessin f the Hellenic Republic t the EurpeanEcnmic Cmmunity includes Jint Declaratin nο. 4 cncerning Munt Aths,which species that:

Recgnizing that the special status granted t Munt Aths, as guaranteed byarticle 105 f the Hellenic Cnstitutin, is justied exclusiely n grunds fa spiritual and religius nature, the Cmmunity will ensure that this status istaken int accunt in the applicatin and subsequent preparatin f prisinsf Cmmunity law, in particular in relatin t custms franchise priileges, taxexemptins, and the right f establishment’9

The Constitutional Protection

The Cnstitutin recgnizes and prtects the centuries-ld status f Munt Aths.This prtectin takes three frms: 1. specic prisins f a special nature; 2.specic prisins f a general nature; 3. authrizatin f the cmmn legislatr(that is, Parliament) t regulate certain specic issues.

1. The rst categry includes self-administratin, with a wide range fdirectly related issues, such as the delimitation of the territory of Mount Athos

and its subrdinatin t Hellenic sereignty; the inalienability f the peninsula’s

1990, 197–8; Id., ‘The Incrpratin f Macednia int the Greek State. Ecclesiasticalincrpratin’, in Iannis Klipuls and Iannis Hassitis (eds), Modern andContemporary Macedonia (l. II, Papazizzis – Paratiritis 1992) 34–7.

8 ‘La Grèce s’engage à recnnaître et maintenir les drits traditinnels et les libertés,dnt juissent les cmmunautés mnastiques nn grecques du Mnt Aths d’aprèsles dispsitins de l’article 62 du Traité de Berlin du 13 juillet 1878’, see Gerg F. de

Martens, Nouveau recueil général de traités et autres actes relatifs aux rapports de droitinternational (3e série, par H. Triepel, l. 12) 806. This Treaty was sanctined by theDecree f 29.9/30.10.1923 ‘on the prtectin f Minrities in Greece’, ofcial Gazette fGreece A.311/30.10.1923.

9 ofcial Jurnal f the Eurpean Cmmunities 291/19.11.1979, 186; N. Skandamis,‘Το Άγιο Όρος και οι Ευρωπαϊκές Κοινότητες’ [‘Munt Aths and the EurpeanCmmunities’] [1983] Helleniki Epitheorissi Europaikou Dikaiou 271.




territry, which is distributed exclusiely amngst the ruling mnasteries; thedirect spiritual jurisdictin f the Ecumenical Patriarchate f Cnstantinple;the prhibitin f any change in the administratie system, the number f rulingmnasteries (20), their hierarchical rder and their psitin in relatin t theirdependencies; the prcess f drawing up, adpting and ratifying the MAC; andthe allcatin f supreme superisin er spiritual matters t the EcumenicalPatriarchate and administratie matters t the State, which is als in charge f public rder and security (Article 105, §§ 1–4).

2. The specic prisins f a general nature are included in §§ 3 and 4f Article 105 and refer, biusly, t any kind f priilege which has eer beenrecgnized r granted, regardless f whether r nt it has anything t d with self-administratin. The Cuncil f State has asserted that cnstitutinal prtectincers nly thse prisins fr Athnite status relating t self-administratin.10

I hesitate t accept this pinin. It is quite clear that the prisins f §§ 1 and 2f Article 105, which cncern the καθεστώς (status) f Munt Aths, are limitedt the cntext f its self-administratin (‘… [it] in accrdance with its ancient priileged status, is a self-gerned part …’); but in §§ 3 and 4 the Cnstitutinuses the term καθεστώτα (regimes) and stipulates that their determinatin in detailand the manner f their peratin is effected by the MAC. Furthermre, it alsstates clearly which authrities are t exercise supreme superisin er theirfaithful bserance. In ther wrds, I beliee that §§1 and 2 intrduce special

prisins, which safeguard self-administratin t its fullest extent (bth inscpe and in cntent), whereas §§3 and 4 intrduce a general prisin, whichsafeguards the scpe bth f self-administratin (tgether with the prisins f§§ 1 and 2) and f any ther kind f regulatin which has eer been enactedin relatin t Munt Aths. At the same time, this prisin als safeguards thecntent f these regulatins, but nly partially, since the Cnstitutin assigns theirdetailed determinatin t the MAC, which is a law f superir frmal frce. Theseregulatins arise frm arius ld legal surces, such as Byzantine chrysobulls

(imperial decrees), charters (Τυπικά), sigils (patriarchal decrees), rmans of

arius ottman sultans and general regulatins issued at arius times, as alsfrm age-ld mnastic institutins and regimes, as stated in Article 188 f theMAC. I therefre beliee that the priileged regulatins f the MAC (regardlessf whether they are whlly r partially faurable r unfaurable t Munt Athsand its inhabitants): i) may nt be ablished r mdied by a unilateral legislatieact f the Hellenic State; ii) may nt be repealed by any reisin f the MACwithut being replaced; and iii) may be mdied, as t their cntent, by reisinf the MAC, insfar as the cnstitutinally safeguarded Athnite legal traditin

allws, but by cnstitutinal rder the extent and the type f the arius priilegedregulatins cannt be ignred in this case.

It seems t me that Jint Declaratin N. 4 f the Agreement cncerning theaccessin f the Hellenic Republic t the Eurpean Ecnmic Cmmunity pints

10 Cuncil f State 869/1967; 2140/1975.




in this directin. The Jint Declaratin interprets Article 105 f the HellenicCnstitutin as recgnizing the whle scpe f the special status f Munt Aths – nt merely with regard t self-administratin – and it ges n t cnsider asmanifestatins f that status the issues f tax and custms exemptin and right festablishment. The special and general regulatins fr Munt Aths are describedin the surces f Athnite law as “καθεστώτα” (regimes), “προνόμια” (priileges),“ασυδοσίαι” (immunities), and πλεονεκτήματα (benets).

Mst f these Athnite institutins hae nt been included in the MAC andthe LD. The Aris Pags (Greece’s supreme ciil curt) and mdern legal theryagree that prisins and institutins which were laid dwn in the distant past andare not included in the MAC and the LD remain valid if, at the time when Mount

Aths was rst granted cnstitutinal prtectin (by the 1927 Cnstitutin), theywere nt specically repealed.11 The prisins and institutins relating t these

regimes may be written r unwritten, as I beliee is understated in MAC 188 §2.It is nly if such legal surces were nt instituted, r if they were instituted butwere repealed r nt implemented because they had lst opinio juris when the

1927 Cnstitutin came int frce, that general orthdx cann law and cmmnHellenic ecclesiastical law apply.

Thus, een regulatins which hae at arius times been instituted fr themnastic cmmunity, the establishments and the mnks f Munt Aths, but haent been included in the MAC and the LD, cntinue t be alid, as lng as: i) they

were nt repealed explicitly r implicitly when Munt Aths was rst grantedcnstitutinal prtectin; and ii) they d nt cntraene the prisins f Article105 f the Cnstitutin, the MAC, r the LD. The prtectin granted t MuntAths by explicit cnstitutinal prisins (bth specic prtectin relating t thescpe and cntent f its self-administratin and general prtectin relating t theextent f its general regimes) binds the cmmn legislatr and applies een if ithappens t cntraene ther prisins f the Cnstitutin.

3. Cnstitutinal prtectin als extends t ther areas, which areenumerated in § 5 f Article 105. They are the rights and duties f the Gernr(the Hellenic State’s representatie n Munt Aths), the judicial pwer f themnastic authrities and the custms and taxatin priileges f Munt Aths.The Cnstitutin stipulates that all this shall be determined by cmmn law.Cnstitutinal prtectin is cnned here t: i) the safeguarding f the existencef the Gernr’s rights and duties; ii) the exercise f judicial pwer by themnastic authrities; and iii) the granting f nancial exemptin by the State.The scpe f these regulatins, hweer, lies with cmmn laws by cnstitutinalauthrizatin.

11 Aris Pags 170/1964.




Self-administration of Mount Athos

The administratie pwer f Munt Aths lies in self-administratin in the rstand secnd degree.

First-degree self-administratin is exercised by the 20 sereign mnasteries.12

This number may nt be changed, nr may the rder f preeminence, r een their psitin twards their dependencies ( sketes, kellia and hermitages). Accrding tthe MAC, the mnasteries are either cœnbitic r idiorrhythmic, depending nthe way in which their members cnduct their lies. In a cœnbitic mnasteryeerything is cmmunal; the mnks share a cmmn way f life and hae n priate prperty. The mnks in an idirrhythmic mnastery are allwed t supprtthemseles thrugh priate resurces, t hae their wn prperty and t dispsef it as they wish (thugh nt by an act mortis causa). The idiorrhythmic system

came int being in the early 15th century. The mnasteries can change frmidirrhythmic t cœnbitic, but nt ice ersa. Tday all the mnasteries in MuntAths are cœnbitic. The cœnbitic mnasteries are administered by the Abbt(Hegumen/Ηγούμενος) and the Elders’ Assembly (Gherntia/Γεροντία), whileidiorrhythmic mnasteries were administered by the Leaders’ Assembly (Σύναξιςτων Προϊσταμένων).

Each mnastery draws up and tes its wn Internal Regulatin, n which is based its self-administratin. The Regulatin cers all matters cncerning the

internal life f the mnastery, its administratin, the electin f its representaties,and the management f its prperty. Each mnastery submits its Regulatin tthe Hly Cmmunity fr appral and it must t accrd with the Cnstitutin,the MAC and the arius institutins f the priileged status. Each mnasteryelects its administratrs and prperty managers with n interentin frm therAthnite, State r ecclesiastical authrities. The elected fcials administer themnastery, manage the prperty and they cnstitute a curt f rst instance,withut any external interentin r interference.

Secnd-degree self-administratin is exercised territrially thrughut the peninsula and persnally er all indiiduals upn it, whether mnks, clergy rlaymen. The members f the agencies f secnd-degree self-administratin: i) areelected by the mnasteries withut State r patriarchal interentin; and ii) are thenly bdies cmpetent t deal with eery issue relating exclusiely t Munt Aths.

The Hly Cmmunity (Ιερά Κοινότης) is the main agent f secnd-degreeself-administratin. It sits in the capital f Munt Aths, Karyes, and cmprises20 members, each f whm represents ne sereign mnastery. They sere frne year, but can be re-elected an indenite number f times. The Gernr,

12 The 20 mnasteries, in the rder f preeminence, are: Megisti Lara, vatpedi,Iirn, Chilandari, Dinyssiu, Kutlumussi, Pantcratr, Xerptamu, Zgraphu,Dcheiariu, Karakallu, Philtheu, Simns Petra, Hagiu Palu, Starnikita,Xenphnts, Grigriu, Esphigmenu, Rssikn (Hagis Panteleimn) and Kastamnitu(MAC 1).




representing the Hellenic State, may attend the sessins in a cnsultatie capacity,if called upn. The administratie pwer f the mnastic cmmunity rests withthe Hly Cmmunity, as the supreme permanent agency which als functins as acurt f law (sect. vI).

The Hly Cmmunity’s executie rgan is the Hly Superintendence(Ιερά Επιστασία), which cmprises fur mnks drawn annually frm furdifferent mnasteries in rtatin. Thus, each mnastery is represented at theHly Superintendence eery e years.13 The leader of the four is known

as the Πρωτεπιστάτης r Πρώτος (Prts = First), and is als in charge f theadministratin and management f the Hly Cmmunity. Apart frm being theHly Cmmunity’s executie rgan, the Hly Superintendence als perfrmsspecic duties f certain State authrities, namely the plice frce and plicecurt. It als has municipal cmpetence: it is respnsible fr keeping Karyes clean

and repairing rads; it maintains public lighting; it carries ut hygiene inspectins;it xes the prices f fdstuffs in the shps and restaurants f Karyes; it ensuresthat bth mnks and laymen cnduct themseles with decency and decrum, prhibiting disrderly behaiur, secular sngs, gambling, hrse-riding andsmking in the main streets; it frbids shps t pen during vespers, n Sundaysand n fcial hlidays; it frbids the sale f meat and the preparatin r publiccnsumptin f nn-Lenten fd n Wednesdays, Fridays and ther fast-days; itexpels laymen and nn-Athnite clerics and mnks wh engage in miscnduct.

It has the Athnite plice frce under its cmmand and may, if necessary, alscall upn the State plice frce (MAC 37). Under cmmn penal law, it tries theminr ffenses cmmitted in Karyes by mnks and laymen (MAC article 40),impsing (LD 7; MAC 71) upn mnks the penalties laid dwn by cann law r ane, which cnsists in giing the Church f the Prtatn in Karyes an amunt fwax r il, and upn laymen detentin f between ne and 30 days r a ne and/r expulsin frm the peninsula. Prisn sentences are sered n the premises fthe State plice frce. The Hly Superintendency als prcesses and stamps theHly Cmmunity’s crrespndence (MAC 37). It issues pilgrims with the permit(diamonitirion) necessary fr their isit, which will be discussed further n. It alsadministers the Cmmn Fund, which cnsists f cntributins by the mnasteries.With this fund, the Church f the Prtatn and the mtr rad between Karyes andDaphne (Karyes harbur) are maintained and the Hly Cmmunity’s emplyeesas well as the Athnite plice frce are remunerated. Eery expense must besupprted by a decisin f the Hly Cmmunity (MAC 35 and 36).

13 1. Megisti Lara, Dcheiariu, Xenphnts, Esphigmenu; 2. vatpedi,Kutlumussi, Karakallu, Starnikita; 3. Iirn, Pantcratr, Philtheu, SimnsPetra; 4. Chilandari, Xerptamu, Hagiu Palu, Grigriu; and 5. Dinyssiu,Zgraphu, Rssikn, Kastamnitu (MAC 28). The Regulatins f all the mnasteries,as well as thse f the agencies f secnd-degree self-administratin, hae been published by Ch. Papastathis, Εσωτερικοί Κανονισμοί Αγίου Όρους [ Regulations of Mount Athos],Athens-Kmtini 2004.




There are tw further rgans f self-administratin, which, unlike the preceding nes, are nt permanent. The Extrardinary Biannual Twenty-MemberAssembly (΄Εκτακτος Δισενιαυσία Εικοσαμελής Σύναξις) cmprises the abbts fall the mnasteries. It sits twice a year in rder t te the Regulatie Prisinsf Munt Aths and t act as a special curt (sect. vI). The ther nn-permanentrgan f self-administratin is the Extrardinary Duble Assembly (΄ΕκτακτοςΔιπλή Σύναξις), which cnsists f all the members f the Hly Cmmunity plusa representatie frm each mnastery, therefre it has 40 members. This rganis nt prided fr in the MAC r the LD, and that is why its authrity has beencalled int questin.14 Persnally, I d nt agree with this iew which, anyway,has nt preailed in practice. The Extrardinary Duble Assembly has cnenedrepeatedly in the past and cntinues t functin tday. It was this bdy, indeed,that ted the MAC in 1924. It has n ccasin been summned by the Hly

Cmmunity t deal with serius matters. In ther wrds, it was perating when thecnstitutinal prisin fr Munt Aths came int frce in 1927. Cnsequently,regardless f the fact that it is nt stipulated expressis verbis in the Constitution,

the MAC and the LD, its basis cannt be challenged, precisely because it is ne fthe customary regimes f Munt Aths. In any case, the MAC and the LD d ntinclude r regulate all the institutins f Munt Aths.

The questin which nw arises is: hw can the status quo be maintained andsafeguarded? Is there any authrity empwered t interene if r when the rgans

f self-administratin exceed the bunds f their cmpetence, and, if s, whichis it? There are tw cntrlling agents: the Gernr f Munt Aths and theEcumenical Patriarchate.

The Gernr is a gernment fcial, answerable t the Ministry f FreignAffairs and residing in Karyes. He is inested with public authrity, but is nt anagent f Athnite self-administratin. Fr this reasn, I cnsider the use f the term‘Gernr’ (dioiketes) in the Cnstitutin t be inexact. Shuld the Cnstitutin be reised, this term really ught t be replaced.

L. 2594/1998, which deals with the internal rganizatin f the Ministry frFreign Affairs, in Article 21 regulates matters relating t the persnnel f the (ciil)administratin f Munt Aths. It prides that a Presidential Decree determine thesectin, the rank and specialty f each staff member. The persnnel cnsists f the(ciil) Gernr, the Deputy (ciil) Gernr and a number f clerks wh ccupy permanent psts under priate law cntracts. The qualicatins frmally requiredfr the Gernr are limited t ‘… (haing) a persnality f great prestige, withexperience in administratin and knwledge f the affairs f Munt Aths’ (sic).Frtunately, the Deputy Gernr is required t hld a uniersity degree.15

14 Iannis Iliakis, Οἱ αγιορειτικοὶ θεσμοί [The Athonite Institutions] (Athens 1938)16; Panays Panaytaks, p. cit. 130–132. Cntra: Dimitri Th. Tsatss, ‘Άγιον Όρος.Προνομιακόν καθεστώς’ [‘Munt Aths. Priileged status’] [1953] Themis 428.

15 Charalambs Papastathis, ‘Church and State in Greece in 1997’ [1998] Journal ofChurch and State Research 48.




The Cnstitutin entrusts the Gernr with the task f ensuring that theAthnite regime is strictly bsered, frm an administratie pint f iew. Hefullls this duty: 1. at the decisin-making stage, by attending the sessins fthe Hly Cmmunity, if and when called upn t d s; and 2. after decisinshae been made, when he has t check the legality f the actins prpsed by thergans f self-administratin. If he nds that any f their decisins cntraene theregimes, the MAC r ther prisins, the Gernr draws the Hly Cmmunity’sattentin t the fact. If the Hly Cmmunity disagrees with his appraisal f thesituatin, then the Gernr seeks the guidance f the Minister fr Freign Affairs.The Gernr’s actins are subject t the cntrl f the Cuncil f State,16 as also

are the administratie actins f the Athnite agencies, with the exceptin f thsewhich relate t the internal administratin f Munt Aths. The jurisprudence fthe Cuncil f State accepts that internal issues include all the relatins between

the mnastic establishments and the mnks themseles, bth between each ther,the monastic authorities and the Holy Community.17

The ther cntrlling agent is the Ecumenical Patriarchate f Cnstantinple,whse jurisdictin cers matters f a spiritual nature. The Patriarchate als ratiesthe Extrardinary Biannual Twenty-Member Assembly’s regulatie prisinsrelating t spiritual matters and – in the past – any decisin aimed at cnertingan idiorrhythmic mnastery t the cœnbitic system; it issues permits t clericst g t Munt Aths and fciate there and prides letters f recmmendatin

t schlars wishing t study in the archies and libraries. The Patriarchate must be infrmed f the electin, resignatin and depsing f abbts, as well as f thechair-persns and members f the mnastic assemblies. The Patriarch with thePatriarchal Synd, cnened tgether, frm the Athnite curt f justice (sect. vI).

The Legislative Power

Legislatie pwer n Munt Aths is regulated by the prisins f: 1. theMAC; 2. the laws referred t in § 5 f Article 105 f the Cnstitutin; and 3. theRegulatie Prisins f the Extrardinary Biannual Twenty-Member Assemblyof Mount Athos.

The MAC is drawn up and ted by the 20 ruling mnasteries f Munt Aths,that is t say by the Hly Cmmunity (Cnstitutin, Article 105, § 2, sect. b). TheGernr als may get inled in drawing up the MAC, but des nt hae the rightt te. After being ted, the MAC is submitted t the Ecumenical Patriarchate andthe Hellenic Parliament fr raticatin. I beliee that the Patriarchate’s raticatin

is cnned t the spiritual prisins and the Parliament’s t the administratie prisins, since § 4 f Article 105 f the Cnstitutin stipulates that the strictbserance f the regimes f Munt Aths in the spiritual eld shall be under the

16 Cuncil f State 339/1976; 2421-2424/1980.17 Cuncil f State 1093/1936; 1267/1966.




supreme superisin f the Ecumenical Patriarchate and in the administratie eldunder that of the Hellenic State.

As has already been pinted ut, sect. Iv, Article 105, § 5 f the Cnstitutinstipulates and safeguards: i) the rights and duties f the Gernr; ii) the judicial pwer exercised by the Athnite authrities; and iii) the custms and taxatin priileges granted by the Hellenic State t Munt Aths. The scpe f all theserights, hweer, is nt determined by the Cnstitutin r the MAC, but by cmmnlaws passed by the Hellenic Parliament.

The Regulatie Prisins are drawn up and ted by the ExtrardinaryBiannual Twenty-Member Assembly, which is the ‘supreme legislatie and judicial bdy f Munt Aths’ (MAC 43 and 45). The Regulatie Prisins areissued in rder t regulate arius specic pints in the MAC and the LD, as alsthers fr which these texts make n prisin. They are cmmunicated t the

Gernr and the cmpetent minister, while thse related t spiritual matters aresubmitted t the Ecumenical Patriarchate fr appral. Bth the minister and thePatriarchate may grant r withhld raticatin f the Regulatie Prisins, butthey may not amend them.

The Judicial Power

Matters relating t judicial pwer are regulated by the prisins f the MAC andthe LD. The Athnite curts exercise ciil, penal and ecclesiastical jurisdictin.The Athnite curts are: 1. the mnastic curts (the Elders’ Assembly and

the Abbt in each cœnbite mnastery); 2. the Hly Cmmunity; 3. the HlySuperintendence; and 4. the Ecumenical Patriarch with the Patriarchal Synd, wh,hweer, hae the right t delegate their pwers in this sphere t a special tribunal,cmprising a three-member exarchate f patriarchal metrplitans dispatched nMunt Aths and the Extrardinary Biannual Twenty-Member Assembly.

Priate law disputes which may be resled by the Athnite curts are thse whicharise in cnnectin with: 1. the bundaries f the arius mnasteries’ prperty; and2. the homologa (bnds), that is, written agreements drawn up between mnasteriesand their dependencies cncerning the use f land n the peninsula.

It is the mnastic curt which deals with bundary disputes between tw rmre f its dependencies. The Hly Cmmunity is a curt f bth rst and secndinstance. As a curt f rst instance, it deals with: 1. bundary disputes betweenmnasteries; 2. disputes er ‘bnds’ between a mnastery and its dependency;and 3. disputes between dependencies f tw r mre mnasteries. As a curt f

secnd instance, it handles appeals against the decisins f the mnastic curts.The Ecumenical Patriarchate (r the Special Tribunal) acts as a curt f secndinstance fr appeals against decisins by the Hly Cmmunity. All ther disputesarising in priate law between the Athnite establishments are brught befrethe rdinary ciil curts: the Curt f First Instance in Halkidiki, initially, and,subsequently, the Curt f Appeal in Thessalniki.




offences and felnies cmmitted under cmmn penal law are tried by the penal curts in Thessalniki. Munt Aths enjys a special priilege in thisrespect: the releant inquiries are carried ut n Munt Aths and a member f theHly Superintendence is present thrughut the prceedings.

Misdemeanrs under cmmn penal law, and market and plice ffensescmmitted n Munt Aths by mnks, clerics and laymen are tried by Athnitecurts: the mnastic curt, when the ffense is cmmitted within the mnastery premises, and the Hly Superintendence, when it is cmmitted in Karyes.

Cannical ffenses (ecclesiastical and disciplinary) cmmitted by Athnitemnks are dealt with by the curt f the mnastery cncerned, with the exceptinf thse ffenses which entail unfrcking, whether simple mnks r mnks whare als rdained priests (hieromonks). The Hly Cmmunity acts as a curt fappeal against the decisins f the mnastic curts. Applicatins fr reiew f

the Hly Cmmunity’s decisins are examined by the Patriarch and Synd (r bythe Special Tribunal). If the accused is a hiermnk and his ffense is punishable by unfrcking, he is tried in the rst and last instances by the Patriarch andSynd, in which case the Hly Cmmunity is restricted t an inestigatry rle.Furthermre, if a nn-Athnite mnk r cleric cmmits a cannical ffense n theAths Peninsula, the inestigatin is carried ut by the Hly Cmmunity, whichremits the brief t the ecclesiastical authrity f the accused.

Further Treatment of Mount Athos

In additin t self-administratin in the bradest sense, the Hellenic State has alsrecgnized (in the Cnstitutin, the MAC, the LD and ther laws) arius ther priileges fr Munt Aths. Sme f them are mentined in the Jint Declaratin N. 4 f the Final Act f the Agreement cncerning the accessin f the HellenicRepublic t the Eurpean Ecnmic Cmmunity (1980). The priileges that arent mentined in the Jint Declaratin areas are the fllwing:

1. The territry f the whle peninsula (including the littral) is the inalienableand exclusie prperty f the 20 sereign mnasteries, as diided amngthem (Cnstitutin, article 5, § 2; MAC 2).

2. The prtectin f the heirlms f each mnastery lies with the mnasteryitself (LD 2).

3. Only the Holy Community, the monasteries and the sketes may have and

use a seal (MAC 25, 31, 172).

4. It is frbidden t frm any assciatins n the peninsula (MAC 183).5. Athnite mnks and nices are exempt frm military serice (MAC 93;

LD 38; Law 1763/1988, article 6, § 1, sect. Iii).6. The dcuments f the Hly Cmmunity, as well as thse sent by the

mnasteries and their dependencies t the Hly Cmmunity, must be written




in Greek (MAC 26); ther dcuments may be written in any language themnasteries and dependencies wish.

7. only the Hly Cmmunity may establish a printing-press n the peninsula(MAC 180).

8. When a layman dies on Mount Athos intestate and without heirs, his

belngings and mney are inherited by the Hly Cmmunity r by themnastery in which he passed away, in lieu f the State (MAC 179).

9. Cllectins f mney may be made with the permissin f the HlyCmmunity and nly fr religius, educatinal r charitable purpses(MAC 185).

10. ‘Prselytism and prpaganda – mral, religius, ecclesiastical, scial,natinal r f any ther nature – are prhibited, n pain f expulsin frmthe peninsula’ (MAC 184).

11. The peninsula’s frests d nt cme under the frestry laws f the HellenicState (MAC 169).

12. on Munt Aths it is frbidden t sell icns r handicrafts nt made n the peninsula itself; the prductin f icns and handicrafts n the peninsula bylaymen is als prhibited (MAC 174).

13. Land n the peninsula may nt be sld, but nly exchanged betweenmnasteries (MAC 100).

14. The Hly Cmmunity and the mnasteries d nt pay the emplyer’s quta

t the arius scial security funds fr their lay emplyees and wrkers(Law 1759/1989, article 4, § 1).15. Usucaptin by third parties f the mnasteries’ prperty ff the peninsula

is nt pssible (LD f 22 April 1926); this in fact applies in Greece t allmnasteries, whether Athnite r nt, orthdx r nt.

16. Athnite mnks (like all mnks in Greece) are insured by the AgrarianInsurance organizatin, frm which they receie medical care and pensins(Law 4169/1961).

17. The Hellenic Republic ffers an annual subentin t the mnasteries:in 1924, sme 200,000 acres f land utside the peninsula, belnging tmnasteries f Munt Aths, were exprpriated fr the benet f refugeesfrm Asia Minr, and as the Hellenic State was unable t indemnify themnasteries at that time, an annual subentin was agreed upn. Law1166/1981 prides that this subentin shuld nt amunt t less than30,000,000 drachmas per year (= € 88.000).

18. Law 1198/1981 established the State-run Centre fr the Preseratin fthe Heritage f Munt Aths, which is based in Thessalniki (Ministry f

Macednia and Thrace) and carries ut arius cnstructin wrks n the peninsula, nanced by the Hellenic State and the Eurpean Cmmunity.




Special Treatment According to Joint Declaration No. 4 between the

European Union and Greece

Let us nw cme t the custms franchise priileges, tax exemptin18 and the rightf establishment which are explicitly mentined in the Jint Declaratin f theAgreement cncerning Greece’s accessin t the Eurpean Ecnmic Cmmunity.

Article 105, § 5 f the Cnstitutin safeguards Munt Aths’ nancial priilegesand empwers the law t determine their extent. This des nt ilate the principlef equality f taxatin (Cnstitutin 4, § 5) because the same principle recgnizescertain exceptins which sere the general interest. The custms and mst f thetax priileges f Munt Aths directly cncern the mnks: the ttal extent f sme priileges is determined n the basis f the number f inhabitants f the peninsula,while thers are instituted fr their direct benet.

Customs Franchise Privileges

1. Exemptin frm duties n any gds imprted t Munt Aths fr themnasteries and ther fundatins, up t a ttal alue f 1,000 fcial judicial mnetary units (metalliki drachmi) per mnk per year (MAC167; LD 2, i). The gds must be imprted by the agents f Athnite self-administratin (nt by merchants r isitrs). At the mment the fcial

judicial mnetary unit fr Munt Aths’ custms exemptins is equialentin alue t € 1.50, accrding t a Decisin f the Ministry f Finance19 (thatis, € 1,500 per mnk per year).

2. Exemptin frm duties n bth frestry and ther prducts exprted frmMunt Aths (MAC 168, § 1). The said prducts must hae been prducedn the peninsula and be exprted by the fundatins.

Tax Privileges

Munt Aths’ tax priileges cnsist in the exemptin f the fundatins r f themnks, r f bth, frm the bligatin t pay arius taxes. These are:

1. Tax n incme frm real prperty (Law 2238/1994, Article 103 § 1, sect. b).

2. Tax n large real prperty (L 2459/1997, Article 23).3. Tax n dnatins f mables, mney and real prperty, as well as n

inheritances (L. 2961/2001, Article 25 § 1, a; Article 43 § 1).

18 Knstantins Papagergiu, ‘Το προνομιακό φορολογικό και τελωνειακόκαθεστώς του Αγίου ΄Ορους’ [‘The priileged tax and custms regime f Munt Aths’][2003] Nomocanonica 31.

19 Law 4055/1960, Article 2 § 5.




4. Tax n real prperty transfer transactins (purchase and sale, L. 1882/1990,Article 14 §7).

5. Municipality and cmmunity rates n real prperty (L.2130/1993, Article24 § 7, b).

6. value added tax and ther excise duties (L. 1642/1986, Article 2 § 2 a; L.2127/1993, Article 16; L. 2187/1994, Article 16).

7. Fishing ff the cast f Munt Aths is exempt frm all tax, as lng as itis carried ut fr the purpse f the mnks’ wn sustenance (MAC 170).

8. Purchase tax n thse prducts which are prduced and cnsumed by themnks n the peninsula (LD 2, sect. b, 3).

9. Dnatins t the mnasteries f Munt Aths are subtracted frm thednr’s taxable incme (LD 3223/1955, Article 4, 7, i).

10. Transfer f prperty n the peninsula is exempt frm prperty transfer tax.

This priilege applies t the exchange f real prperty between mnasteriesand the transfer f mables by the fundatins and the mnks (LD 2, sect, b, 2).

11. Incme frm prperty n the peninsula is exempt frm taxatin (LD 2,sect. b, 2). This priilege is particularly useful t the kellia (cells ff themain facility f the mnastery), the residents f which subsist n theirwn agricultural prduce and handicrafts. Hweer, laymen engaged incmmerce n the peninsula are nt exempt frm this tax.

12. Cntracts drawn up n Munt Aths by the Hly Cmmunity and themnasteries relating t the transfer f rights er real prperty n the peninsula are exempt frm stamp duty (LD 2, sect, b, 4). This priilegehas been extended t cer ‘cntracts f all kinds’ made between theHly Cmmunity r the mnasteries and any third party, as are als alldcuments issued by r submitted t the Hly Cmmunity r the ariusestablishments f Munt Aths (LD 2561/1953, Article 13, § 4).

13. The Athnite mnks are exempt frm the tax and general state leies n thealchl prduced and cnsumed n the peninsula. They are als exemptfrm certain frmalities gerning the prductin f alchl (Frced Lawf 14/14.10.1935) and tax n the purchase f cars fr the needs f themonastery.

The abementined exemptins are extended t the dependencies f eachmnastery, which are situated utside the peninsula (metochia).

Restrictions On the Right of Establishment

1. Any male, irrespectie f ethnic rigin r natinality, may settle n MuntAths as a mnk r nice. He must, hweer, be an orthdx Christianand a member f a regular orthdx Church. Schismatic and nn-orthdx persns and members f mst ther religins are excluded (Cnstitutin105, § 2, sect, ii; MAC 5). Like any ther Greek citizen, the mnk and




the nice hae the right t abandn the orthdx faith and adpt antherChristian dctrine r becme atheists. In this case, hweer, they cease t be Athnites and may n lnger dwell n Munt Aths.

2. The MAC impses special restrictins n the mnks’ right f freemement, wing t their mnastic status and the bserance f mnasticbedience. Thus the mnks may nt leae the peninsula withut written permissin frm their mnastery, which must be infrmed f the reasn frthe absence and its duratin. Hweer, the mnastery may nt refuse leaef absence t mnks wh are fllwing a curse f study (MAC 96).

3. Mnks wh d nt belng t Athnite mnasteries r dependencies andare fund wandering abut n Munt Aths are expelled by the HlySuperintendence (MAC 177). The Hly Superintendence als has the rightt expel laymen wh cause a disturbance (MAC 37).

4. Until 1998 eeryne (nn-Athnite mnk, clergyman, r layman) whisited Munt Aths (fr any purpse ther than that f settling there) wasbliged t preiusly btain a permit (diamonitirion) in Karyes, whichgae him the right t trael n the peninsula and seek hspitality frm themonasteries. The diamonitirion was issued by the Hly Superintendence,which als determined its duratin (MAC 176). Clergymen, whetherorthdx r nt, als had t btain a permit frm the EcumenicalPatriarchate (MAC 173). In additin, bth clergymen and laymen wh

were nt Greek citizens had t btain a permit frm the Ministry f FreignAffairs in Athens or the Ministry of Macedonia and Thrace in Thessaloniki.

If the isitr did nt leae when the permit expired, he was expelled by theHly Superintendence.

All these prcedures, hweer, were nt stipulated in the Cnstitutin, the MACr in any ther legal surce f Munt Aths. They cntraened the MAC as wellas the internatinal prtectin f Munt Aths, as has been mentined abe. TheAths mnks expressed their ppsitin t these practices, especially after 1974when the plitical climate in Greece changed. There were threatening tensins between Munt Aths n the ne hand, the Greek State and the EcumenicalPatriarchate on the other.

These tensins ended faurably fr the freign isitrs. on 28 July 1998Presidential Decree N. 227/1998 ‘on the organizatin f the [Ciil] Gernancef Munt Aths’ was published in the Ofcial Gazette of the Hellenic Republic

(A, N. 176). Accrding t Article 3 § 2, ‘… the entry t Munt Aths and the isitt the Mnasteries and their dependencies is unrestricted t any male indiidual

that resides, stays, r has legitimately entered the territry f the Greek state’.This measure was fllwed by Circular N. P20a-18949/AS8706 issued by theSecretary General n Administratin and organizatin f the Ministry fr FreignAffairs. The Circular makes clear that




… it is explicitly stipulated [in the Presidential Decree], in cngruence withthe cnstitutinally guaranteed principles f indiidual and religius freedm(articles 5 and 13 f the Cnstitutin) and the internatinal agreement f thecuntry that … the entry int Munt Aths and the isit f the Hly Mnasteriesand f their dependencies is unrestricted t eery male indiidual … Regardlessf natinal rigin r religin … Frm the afrementined prisins it becmeseident that the entry t Munt Aths and the pilgrimage t its Hly Mnasteriesand their Dependencies can in n way be dependent n the license f any stateauthrity r agency. This als applies t freigners, regardless f their cuntry frigin, n the self-explanatry cnditin that they hae legitimately entered intGreek territry, the regin f Munt Aths being a part f this territry.

Frm then n, anyne wishing t isit Aths needs nly a diamonitirion, which

he can btain frm the fces f the Hly Superintendence in Thessalniki r inouranuplis (a illage at the ‘brder’ f Munt Aths). Fr orthdx wrshipers – regardless f their citizenship – accrding t the custmary institutins f MuntAths, there is n waiting list, as is the case fr fllwers f ther cults and religins.This practice is nt prided fr in the Presidential Decree but is fllwed by theHly Superintendence. The ciil Gernr f Munt Aths is allwed t interenenly in case he has strng indicatins that a isitr will cmmit punishable actsupn his entry. He may then petitin the Hly Superintendence requesting that n

diamonitiorion be granted him. If the Hly Superintendence agrees, the Gernrmay rder the plice t frbid the entrance f the specic isitr r t deprt himif he has already entered the peninsula (Article 3 § 1, c). on the ther hand, the prcedure by which the Gernr granted a license t thse wishing t indwell isn lnger in effect.

5. Anyne wishing t study in the mnasteries’ libraries and archies must present at the Hly Cmmunity with a letter f recmmendatin frm theEcumenical Patriarchate r the Hellenic Ministry f Freign Affairs (MAC185 § 2).

6. The presence f all females, whether wmen r animals, n MuntAths has always been prhibited (MAC 186). vilatin f this rule isan ffence under Cann law, which means that sanctins may be appliednly t orthdx Christians. The Hellenic State has therefre issued LD2623/1953, which was included as Artcle 43 b in the LD that ratied theMAC. It impses a prisn sentence f between tw and 12 mnths, with nalternatie ne, n any wman wh sets ft n the peninsula. In 1956, the

Extrardinary Biannual Twenty-Member Assembly passed a RegulatiePrisin punishing anyne wh intrduces female animals nt MuntAths with a ne and detentin f up t e days. A mre recent RegulatiePrisin f the same Assembly decrees that any ship with wmen nbardmust sail at least 500m ff shre. In 1975, which was declared InternatinalWmen’s Year, a member prpsed t the Hellenic Parliament that the




prhibitin n wmen entering Munt Aths be lifted by law. Parliamentrejected the prpsal because: i) the prhibitin has always existed, andtherefre cmes under the cnstitutinal and internatinal prtectin fMunt Aths; ii) the prhibitin is included in the MAC, any amendmentf which lies exclusiely in the hands f the Athnite mnks.20

7. Laymen may exercise their prfessin n Munt Aths nly with the permissin f the Athnite authrities. Further, the practice f trade isrestricted t Karyes and its harbur f Daphne, since it is ‘abslutely’frbidden t set up cmmercial establishments in the mnasteries and theirdependencies, as well as t trade anywhere n the peninsula in gds whichare nt essential there (MAC 175).

8. Freigners wh cme t lie n Munt Aths as mnks r nices acquireHellenic citizenship ipso jure upn their enrllment in the releant

mnastery’s register (Cnstitutin 105, § 1; MAC 6). Lss f Helleniccitizenship is nt expressly mentined in any legislatie text cncerningMunt Aths; in this case the prisins f the Cde n Hellenic Citizenship(LD 3370/1955, Law 1438/1984) shuld apply.21

Epilogue

The acquisitin f Hellenic citizenship is a priilege, because thus it is nt pssiblefr a freign-brn mnk r nice t be expelled. Freigners wh wish t settle nAths may d s in whicheer mnastery they wish. Russians, Serbs, Bulgariansand Rmanians traditinally chse St Panteleimn, Chilandari and ZgraphuMnasteries, and the Skete f St Jhn the Baptist respectiely. Like the ther 17,these three mnasteries are under the ecclesiastical jurisdictin f the EcumenicalPatriarchate, as well as legal persns under Hellenic public law.22 At the same

time, hweer, they are als sanctuaries f the Russian, Serbian and Bulgarian peple, as the Skete f the Baptist is a sanctuary f the Rmanian peple.23 They

enjy self-administratin and all the ther priileges gien by the Cnstitutin andthe laws f the Hellenic Republic. They als receie internatinal prtectin, inaccrdance with the prisin f the Treaty f Sères cncerning the prtectin fminrities in Greece, which was carried n by the Treaty f Lausanne. Despite theinterening wars and the natinal and plitical differences which hae crept int

20 See Charalambs Papastathis, ‘The Enclsure f Munt Aths in the Framewrk

f Gender Discriminatin’ [2000] Kanon 265.21 Charalambs Papastathis, ‘The Natinality f the Munt Aths Mnks f nn-Greek origin’ [1967] Balkan Studies 84.

22 Cuncil f State 1093/1936; Curt f the rst Instance f Athens 7922/1954.23 See Charalambs Papastathis, ‘The legal Status f the Mnks f nn-Greek origin

in Munt Aths’ in Medžunarodni Naučen Skup Osam Vekova Hilandara (SANU 2000)179–85.




its relatins with ther orthdx cuntries, it is a fact that Greece has respectedthe rights and liberties f these establishments. They were the cradles f theirrespectie cuntries’ natinal and cultural rebirth and t this day cntinue t fferthem spiritual sustenance. The existence f these mnastic cmmunities may becnsidered as an indisputable tken f the ecumenical nature f Munt Aths,where orthdx, regardless f ethnic rigin, lie tgether as mnks and nices.In the 1,000-year Amphictyny f Munt Aths, this peculiar sciety has much tteach ur wrld. Frm this pint f iew Jint Declaratin N. 4 f the Final Act(1979) f the Agreement fr the accessin f Greece int the Eurpean EcnmicCmmunity cncerning Munt Aths was nt nly a starting pint fr the studyf Athnite issues in the age f the United Eurpe, but als an ccasin fr theEurpean Unin t discer its 1,000-year-ld spiritual expressin.In cnclusin:

1. The Character f Munt Aths as Hly Place is justied n spiritual andreligius grunds, n the cmmn cultural heritage f the whle orthdxwrld and n the surial f the traditins f the united Church befre theSchism f 1054.

2. The present legal regime functins smthly and wheneer new necessitiesappeared a legislatie initiatie tk place (fr example accessin fGreece t the EU).

3. object f the prtectin is the multinatinal religius cmmunity indwellingin the peninsula.4. The prtectin is based upn: a) internatinal law; b) the Cnstitutin f

the Hellenic Republic; c) the Charter f Munt Aths, which is drawn up by the Hly Cmmunity itself; d) laws f the Republic; e) regulatins f therst- and secnd-degree Athnite administratie rgans; and f) the writtenand custmary Athnite institutins existing ab antiquo (953).



Chapter 15

Sacred Heritage in Cyprus:

Blstering Prtectin Thrugh theImplementatin f Internatinal LawStandards and the Adptin f an

object-oriented ApprachAlessandro Chechi

Introduction

Cyprus pssesses a rich archaelgical and artistic heritage reecting its turbulenthistry. Different ciilizatins cnquered the island er the centuries, such as the

Rmans, the Arabs, the Byzantines, the venetians and the ottmans. Each ciilizatincntributed twards shaping the heritage f Cyprus and the identity f its peple. Neertheless, the cultural traditin f the island has remained in the rbit f Greekciilizatin and Christianity, especially as a result f the inuence f the Byzantineculture. The marks f this inuence can be traced in the Byzantine orthdx Christianart, such as mnastery wall paintings, churches, icns and wd carings.

Regrettably, Cyprus’ rich cultural patrimny is in large part lst r crumbling.Archaelgical sites hae suffered theft and spliatin. Religius mnuments hae been demlished, andalized r abandned. In additin, the cntent f religius buildings, including icns and msaics, hae been stlen and illegally exprtedabrad. only a few items hae been repatriated. An example is the litigatin erfur Byzantine msaics remed frm the Church f the Panagia Kanakaria, inthe illage f Lythrankmi.1 In this case, a United States court ruled that art dealer

Peg Gldberg had t surrender pssessin f the msaics t the plaintiffs, theAutcephalus Greek-orthdx Church f Cyprus and the Republic f Cyprus(RC). Anther telling example is the restitutin f tw 13th-century Byzantinefresces by the Menil Fundatin in Hustn.2

1 Autocephalous Greek Orthodox Church of Cyprus v. Goldberg , 717 F. Supp. 1374(S.D. Ind. 1989), aff’d , 917 F.2d 278 (7th Cir. 1990).

2 The fresces were acquired by Dminique de Menil in 1983. After a thrughinestigatin, Mrs de Menil learned that the artwrks had been lted. She alerted theChurch f Cyprus and tgether agreed n a rescue plan. Under its terms, the Fundatin




These cases are imprtant in that they depict the effrts made by the Cyprusauthrities t ght against the imperishment f the unique cultural heritage fthe island. Mreer, they are ntewrthy as they bring t light tw fundamental prblems. The rst cncerns the cause f the lsses. The heritage f the island has been attacked mstly as a cnsequence f the ghts between Greek and TurkishCyprits. The secnd prblem relates t the nature f the prperty that has been‘ictimized’. The rial grups hae mstly destryed r lted the religiusheritage sacred t the enemy. This chapter fcuses n this type f prperty.

This is nt a marginal issue. Tday the prtectin f cultural heritage frmthe icissitudes f war is, at the same time, ne f the gals n the agenda f theinternatinal cmmunity and ne f the cmpnents f the s-called ‘Cyprus prblem’. This chapter attempts t identify sme principles fr enhancing the legal prtectin f the heritage sacred t the peples f Cyprus with a iew t cntributing

t the schlarly debate releant t the eentual settlement f the Cyprus prblem.Fr these purpses, this chapter prides sme histrical backgrund and examinesthree key legal questins: (i) whether the assets f religius imprtance lcated inCyprus qualify as ‘cultural prperty’ entitled t internatinal prtectin; (ii) whetherthe nrthern part f Cyprus meets the legal denitin f ‘ccupied territry’; and (iii)whether the ‘ictimizatin’ f religius prperty in nrthern Cyprus culd gie riset internatinal respnsibility n the part f the ccupying pwer.

The ‘Cyprus Problem’ – an Overview

In rder t examine the Cyprus prblem it is essential rst t pride a briefoverview of the recent history of the island to illustrate the events that have led to

the current impasse. Hweer, the present inquiry cannt be carried ut withutfrmulating tw preliminary caeats: (i) in Cyprus almst eery actin is related tthe plitics f the Cyprus prblem; (ii) histrical narratie and the media cnstitute pwerful means thrugh which the parties inled seek t fster their respectieinterests and bjecties.3 But academic detachment is crucial, while selective

perceptins f the Cyprus prblem actually fuel its persistence.4 Therefore, the

bught the wrks n behalf f the Church; in exchange, the Menil Fundatin wasgranted a lng-term lan f the fresces. See Menil Fundatin, Letter frm the Directr,23 September 2011, aailable at <www.menil.rg/ByzantineFrescChapelNews.php>

accessed 23 January 2014.3 See Nichlas Augustins, ‘The Prtectin f Cultural Heritage in the Eent f

Armed Cnict: The Cyprus Experience’, in Nrman Palmer (ed.), The Recovery of Stolen Art (Kluwer Law Internatinal, 1998) 217–9. See als Christphrs Christphru,Synthia Pavlou and Sanem Sahin, Media Narratives, Politics and the Cyprus Issue (PeaceResearch Institute osl [PRIo], Reprt I 2010).

4 Brendan o’Malley, ‘victims and villains: The Inuence f Freign MilitaryInterests and Ethnic Fighting n the Diisin f Cyprus’, in Fuskas K. vassilis and RichterA. Heinz (eds), Cyprus & Europe. The Long Way Back (Bibliplis, 2003) 51.



Sacred Heritage in Cyprus 295

guiding spirit behind this chapter is t fcus n the prblem f the prtectin f thesacred heritage f Cyprus judiciusly and impartially.

Historical Background

Cyprus fell under the rule f the ottman Empire in 1571. This is an imprtant datein Cyprus histry because the ottman ictry affected the pre-existing cmpsitinf the ppulatin. In effect, after 1571 arund 20,000 Muslims settled n the island.Hweer, the ottmans sught neither t establish a Turkish majrity nr t setup a dminant Turkish ecnmic class. on the cntrary, they fllwed a lenient plicy tward the autchthnus ppulatin. The ottmans emancipated the Greekorthdx Cyprits frm the ppressin f the Cathlic venetians, ablished thefeudal system,5 and established a system f ‘ethnarchy’ (the millet system).6 Under

this system the ppulatin was diided by religius afliatin, which allwedCyprits f Greek descent and Greek-orthdx faith t cexist with Cyprits fTurkish descent and Muslim faith.7 Yet the two communities were not concentrated

in any ne specic gegraphical area. Greek Cyprit illages were intermingledwith Turkish Cyprit twns thrughut the island, and in these twns and illagesChristian orthdx churches frequently std next t Muslim msques. The twcmmunities cexisted fr the mst part in peace and mutual respect, tlerant freligius differences, and they ften jined tgether in cmmercial transactins

and scial functins; hweer, they rarely intermarried due t religin-basedrestrictins. In spite f this, the Greek Cyprits became the dminant ecnmic and plitical pwer and regarded themseles as the rightful rulers.8

The relatinship between Turkish and Greek cmmunities began t deteriratein 1878, fllwing the ccupatin f the island by the United Kingdm.9 The Greek

Cyprits belieed that the British wuld allw them t realize their ambitin tunite the island with Greece ( Enosis). But Britain made it clear that it had nintentin f relinquishing cntrl f Cyprus. This was cnrmed in 1925, whenBritain frmally declared Cyprus a Crwn Clny fllwing the disslutin f theottman Empire in 1923.10 In cntrast, the Turkish Cyprit minrity (apprximately20 per cent f the ppulatin) resisted the idea f Enosis for fear of discrimination

and supprted the partitin f the island and its annexatin t Turkey (Taksim).Tensins between Greek and Turkish Cyprits intensied at the beginning f the1950s, when ilent attacks by extremist grups resulted in the death f many

5 Clement Ddd, The History and Politics of the Cyprus Conict (Palgrae Macmillan,

2010) 1–2.6 Brendan o’Malley, ‘victims and villains’, p. cit., 52.7 Ibid.8 Clement Ddd, The History and Politics of the Cyprus Conict , p. cit., 2.9 In return fr the island, the United Kingdm undertk t gie diplmatic and

material aid t the ottman gernment against the Tsarist Kingdm f Russia. Ibid., 3.10 Ibid., 3 ff.




inncent ciilians – Turks, Greeks and British – and the wantn destructin fmuch prperty.11 The prspect f a ciil war between the tw cmmunities n thene hand, and f a cnict between Greece and Turkey n the ther, paed the wayfr the cnference between representaties f the Greek and Turkish gernmentsin Zurich in February 1959. At the cnference, Greece and Turkey agreed n theindependence f Cyprus frm the United Kingdm (which was prclaimed n

16 August 1960), n a Cnstitutin,12 and n three treaties that aimed t preserethe plitical rder established by the Cnstitutin: the Treaty f Guarantee, theTreaty f Establishment and the Treaty f Alliance.13

Althugh the Cnstitutin safeguarded the basic rights and freedms f all itscitizens, it cntained a number f unwrkable prisins. In 1963, the president fthe Republic prpsed cnstitutinal amendments, which hweer were rejected by the Turkish Cyprit cmmunity and Turkey. As a result, Greek Cyprits became

increasingly estranged frm Turkish Cyprits and a ilent inter-ethnic cnict brke ut in 1963–67. This cnict brught t an end the bi-cmmunal pwer-sharing system enisaged by the Cnstitutin and prked the displacement f bth Greek and Turkish Cyprits frm their hmes. In particular, Turkish Cypritsmoved into armed enclaves in the north.14 The United Nations Security Council

(hereinafter ‘UNSC’) dened the situatin in Cyprus as a ptential threat tinternatinal peace and security, and requested the gernment f Cyprus t takeall ‘measures necessary t stp ilence and bldshed’.15 Yet war brke ut n

20 July 1974, when Turkish trps landed n the nrth cast f Cyprus andadanced t Nicsia. on 22 July a cease-re was negtiated between the tw sidesunder UN auspices. This paed the way fr the start f frmal peace talks in Genea between the three Guarantr Pwers and the representaties f the island’s tw

11 Ibid., 20 ff.12 The Cnstitutin aimed t recncile Greek and Turkish Cyprit plitical ambitins

by priding, inter alia: (i) a nn-territrial pwer-sharing system; (ii) the allcatin f

gernment psts and public fces alng a 70:30 per cent rati; and (iii) autnmy incultural and religius matters thrugh the institutin f cmmunal chambers. Ibid., pp. 42–8.13 The Treaty f Guarantee gae recgnitin t the basic articles f the Cnstitutin,

required the RC t maintain the state f affairs established by the treaties and acknwledgedthe entitlement f the three named Guarantr Pwers, the United Kingdm, Greece andTurkey, jintly r separately, t maintain the state f affairs being established. The Treatyf Establishment included the right f the United Kingdm t retain military bases nthe island. The Treaty f Alliance bliged the signatries (Greece, Turkey and Cyprus) tcperate in their cmmn defence. Ddd, ibid., pp. 38–9, 41. The treaties are reprduced in

Nathalie Tocci, The ‘Cyprus Question’: Reshaping Community Identities and Elite Interestswithin a Wider European Framework (CEPS Working Document No. 154, 2000) 48 ff.14 Clement Ddd, The History and Politics of the Cyprus Conict , p. cit., 53–5.15 Reslutin 186 (1964). With this Reslutin the UNSC established the United

Natins Peacekeeping Frce in Cyprus (UNFICYP) with the task f preenting ‘arecurrence f ghting and, as necessary, t cntribute t the maintenance and restratin flaw and rder and a return t nrmal cnditins’.




main cmmunities. After the negtiatins brke dwn n the mrning f 14 August,Turkish frces began the secnd phase f their military peratins. As a result, bylate August Turkish military frces had extended their cntrl er the nrthern

37 per cent f the island.16 The Turkish inasin caused the displacement f ne-thirdf the ppulatin: an estimated 170,000 t 200,000 Greek Cyprits ed t the suth,whereas er 65,000 Turkish Cyprits were frced t me nrthward. Mreer,it was estimated that arund 6,000 Greek Cyprits died during the cnict, with anadditinal 3,000 missing. Turkish Cyprits estimated 1,500 dead, with an additinal2,000 wunded.17 T this ne must add that during the inasin and the rst weeksafter the cessatin f the hstilities Turkish trps cmmitted large-scale lting anddestryed r ccupied immable prperty abandned by Greek Cyprits.

Different narraties cncerning the causes f the inasin are fund n bthsides. Be that as it may, it is certain that the Turkish interentin fllwed a Greek-

spnsred military cup (planned with the assistance f the Cyprit armed frcesand aimed at achieing Enosis thrugh the erthrwing f Makaris, the Presidentf Cyprus),18 as well as intense, self-interested Cld War-style maneuringrchestrated by the British, Russian and United States gernments.

After the termination of hostilities the authorities in the Turkish held area of

Cyprus declared the establishment f the ‘Turkish Federated State f Cyprus’,which became the ‘Turkish Republic f Nrthern Cyprus’ (TRNC) in 1983.Hweer, n cuntry except Turkey has recgnized the TRNC. Instead the RC

gernment is recgnized internatinally as the gernment f the island inthe cntext f diplmatic and treaty relatins and the wrking f internatinalrganizatins19 – with de jure but nt de facto sereignty er the nrth.

Since 1974 attempts t resle the Cyprus prblem hae failed dismally andthe diisin f the Greek and Turkish cmmunities has deepened, further withthe migratin f Turkish natinals t nrthern Cyprus.20 As a result, tday Cyprusis diided ethnically, plitically and gegraphically by a tract f barbed wire(the ‘Green Line’) that is under the cntrl f UN trps. The TRNC relaxed bundary restrictins in 2003, allwing free mement f peple n bth sidesf the diide. In 2007, the bundary between the RC and the UN buffer znewas demolished in Ledra Street, in the heart f Nicsia, and was repened in the

16 Clement Ddd, The History and Politics of the Cyprus Conict , p. cit., 110–128.17 Brendan o’Malley, ‘victims and villains’, p. cit., 59.18 Ibid., 57–9.19 See UNSC Reslutin 541 (1983). See als Reslutin (83) 13 f the Committee

f Ministers f the Cuncil f Eurpe f 24 Nember 1983.20 Richter A. Heinz, ‘The Plicy f Ankara twards Cyprus and the EU’, in Fuskas K.vassilis and Richter A. Heinz (eds), Cyprus & Europe. The Long Way Back , p. cit., 159–71.Despite the lack f cnsensus n the exact gures, bth parties cncurred that Turkish natinalsarried in nrthern Cyprus. Accrding t reliable estimates, the number f pst-1974 Turkishsettlers was mre than 100,000. Cuncil f Eurpe, Parliamentary Assembly, Recmmendatin1608 (2003), Colonisation by Turkish Settlers of the Occupied Part of Cyprus.




presence f Greek and Turkish Cyprit fcials in April 2008.21 Nevertheless, the

peace prcess is still a wrk in prgress and is further cmplicated by a bizarreaberratin: Turkey ccupies illegally the territry f a member f the EurpeanUnin (EU), the ery Unin that Turkey is trying t jin.22

The Cultural Losses Sustained by Cyprus

When the Turkish Cyprit gernment pened the checkpints in 2003, cuntlessCyprits crssed er t isit their hmes and illages. Fr many f them itwas a time f disillusinment. They fund that eerything had disappeared rirreersibly changed. At the same time, the cuntry’s chief cultural institutins aswell as internatinal and reginal rganizatins witnessed the degradatin f thecultural heritage in the Turkish-held area.

one f the appraisals23 was carried ut in 1989 by Senatr Ymenus vanDer Werff, General Rapprteur t the Cuncil f Eurpe’s Sub-Cmmittee nArchitectural and Artistic Heritage.24 van Der Werff isited bth parts f theisland and prduced a detailed reprt priding examples f the cnsiderable andirretrieable damage t the island’s immable heritage. The 1989 Reprt pintedut that mst f the damage was sustained by Greek orthdx sacred sites inthe Turkish-held area. Furthermre, the Reprt described the disappearance freligius prperty, namely icns riginally displayed in churches and mnasteries.

In 2002, a secnd reprt was submitted t the Cmmittee n Culture, Science andEducatin f the Cuncil f Eurpe by General Rapprteur vlasta Stepá.25 The

2002 Reprt cnrmed that the heritage f the whle island was still threatenedand stated that the reasns were ‘diametrically different in the nrth and the suth.The nrth lack[ed] resurces fr the maintenance f a number f mnuments andt preent the utw f mable cultural gds due t thefts and illegal exprt. Inthe suth, the integrity f the histric settlements and the beautiful Cyprit culturallandscape [were] threatened by excessie urbanizatin […]’26

21 Paul Hamils, ‘Hundreds Gather fr Repening f Diided Cyprus Street’, The Guardian (3 April 2008).

22 Cyprus jined the EU in 2004.23 The rst fcial inestigatin was cnducted n behalf f UNESCo by Jacques

Dalibard, but his reprt (Cyprus: Status of the Conservation of Cultural Property, UNESCO,

1976) was classied cndential and neer made public in its entirety. Subsequently,UNESCo was precluded frm isiting and priding expert adice t the TRNC; t dtherwise wuld hae implied recgnitin.

24 Cuncil f Eurpe, Parliamentary Assembly, Reprt Cultural Heritage of Cyprus,Dc. N. 6079, 6 July 1989 (hereinafter ‘1989 Reprt’). The reprt f art histrian

Dr Rbin Crmack was annexed t the 1989 Reprt.25 Cuncil f Eurpe, Parliamentary Assembly, Reprt Cultural Heritage of Cyprus,

Dc. N. 9460, 7 May 2002 (hereinafter ‘2002 Reprt’). The reprt f Dr Jsef Štulc wasannexed t the 2002 Reprt.

26 Ibid.




Besides the mnitring by internatinal rganizatins, arius jurnalistsisited nrthern Cyprus after 1974. These substantiated the accunts f refugeesabut desecrated graes, damaged mnasteries, churches demlished r litteredwith excrement, rubbish and the remains f ecclesiastical furniture.27 Later on,

ther jurnalistic accunts described the desecratin f fresces, the theft ficns, msaics and ther ecclesiastical items and the transfrmatin f religius buildings int msques, military camps, stables, latrines, shps, gyms, htels andso forth.28 Regrettably, nt all reprts hae acknwledged the relatinship betweenthe lsses sustained by the Greek Cyprit heritage that ccurred after 1974 and thegratuitus destructin f msques, graes and ther ottman and Islamic religiussites since the early 1960s and after 1974.29 Fr instance, in 1964 in Paphs themain msque was burned dwn and the nearby cemetery was heaily damaged.30

Finally, the lss f Cyprit heritage in the ccupied part f the island is

demnstrated by the numerus restitutin claims brught against museums and priate cllectrs. In effect, Greek Cyprit authrities and the Church f Cyprushae been ery diligent in their search t recer wrngfully remed materials.Fr instance, the Goldberg case brught t light the existence f a sphisticated,wrldwide smuggling ring that perated with impunity in the Turkish-held areaand inled lcal lters, Turkish Cyprit fcials and art traders.31

The Sacred Dimension of Cultural Heritage

Against this backgrund it seems apprpriate t pride a denitin f ‘sacredheritage’. This will help t clarify why cultural heritage is intertwined with thesettlement f the Cyprus prblem.

The internatinal instruments that hae been adpted by the United NatinsEducatinal, Scientic, and Cultural organizatin (UNESCo) in rder t prtect

27 See Jhn Fielding, ‘The Rape f Nrthern Cyprus’, The Guardian (6 May 1976),cited in Patrkls Staru, ‘The Destructin f the Cultural Heritage f Cyprus fllwing theTurkish Inasin f the Island’, in Cyprus: The Plundering of a 9000 Year-Old Civilization(Cultural Centre f the Municipality, 1994) 39–43.

28 See Yasin Mehmet, ‘The Cyprus which Is vanishing’, Olay (26 April 1982), andHeinz Gstrein, ‘Painful Lss’, Hannover Anzeiger (1 June 1982), cited in Patrkls Staru,‘The Destructin f the Cultural Heritage f Cyprus’, p. cit. See als Dan Hfstadter,‘Annals f the Antiquity Trade – The Angel n Her Shulder’, The New Yorker (13 June1992 [Part I] and 20 July 1992 [Part II]), cited in Nichlas Augustins, ‘The Prtectin f

Cultural Heritage’, p. cit., 222.29 A ntable exceptin is Jhn Fielding, ‘The Rape f Nrthern Cyprus’, p. cit.30 1989 Reprt, supra nte 24.31 Further eidence was gathered in octber 1998, when German plice arrested

Aydin Dikman, the ‘mastermind’ f the pillaging in nrthern Cyprus. See Mark Rse,‘Frm Cyprus t Munich’ (1998) Archaeology <http://archie.archaelgy.rg/nline/features/cyprus/> accessed 23 January 2014.

http://archive.archaeology.org/online/features/cyprus/







the tangible and intangible cultural heritage d nt pride a denitin f the term‘sacred heritage’. Neertheless, these instruments apply t assets and sites that areimprtant t cmmunities belnging t different faiths r beliefs.

The treaties cncerning the prtectin f the tangible heritage frm theicissitudes f war and illicit trafcking merely establish that they apply t‘mnuments’, ‘buildings’, ‘centres’ and mable ‘cultural prperty’ as lng asthese are imprtant, inter alia, n ‘religius’ grunds.32 It is als wrth ntingthat the Statute f the UNESCo Intergernmental Cmmittee fr Prmting theReturn f Cultural Prperty t its Cuntries f origin r its Restitutin in Casef Illicit Apprpriatin33 establishes that a ‘request fr the restitutin r return[…] may be made cncerning any cultural prperty which has a fundamentalsignicance frm the pint f iew f the spiritual alues […] f the peple f a[…] State […] and which has been lst as a result f […] freign ccupatin [….]’

(Article 3(2)).The instruments regarding the intangible cultural heritage are als ntewrthy.

These emphasise tw imprtant aspects. The rst is that the tangible and intangibleheritage are inherently interdependent: any cultural manifestatin – either materialr immaterial, irrespectie f its aesthetic signicance r mnetary alue – embdiesdistinctie spiritual, histrical and intellectual alues that are cllectiely created,alued, shared and handed dwn frm generatin t generatin. This aspect iseidenced by Article 2 f the 2003 UNESCo Cnentin fr the Safeguarding

32 The Cnentin fr the Prtectin f Cultural Prperty in the Eent f ArmedCnict (14 May 1954, 249 UNTS 240 – hereinafter ‘1954 UNESCo Cnentin’)establishes that nly ‘mable r immable prperty f great imprtance t the culturalheritage f eery peple’ falls within its scpe f applicatin (Article 1). The Convention onthe Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownershipof Cultural Property (17 Nember 1970, 823 UNTS 231 – hereinafter ‘1970 UNESCoCnentin’) includes in the denitin f ‘cultural prperty’ t be prtected the ‘prpertywhich […] is specically designated by each State as being f imprtance fr archaelgy,

prehistry, histry, literature, art r science’ and which belngs t ne f the categries listtherein (Article 1). The Cnentin n Stlen r Illegally Exprted f Cultural objects (24 June 1995, 34 ILM 1322), which was adpted by UNIDRoIT (Internatinal Institutefr the Unicatin f Priate Law) upn request f UNESCo, cers the same categriesidentied by the 1970 UNESCo Cnentin, but des nt include the requirement f Statedesignatin. The UNESCo Cnentin Cncerning the Prtectin f the Wrld Culturaland Natural Heritage (16 Nember 1972, 1037 UNTS 151) des nt dene the ntin f‘cultural heritage’ n the basis f religius r spiritual meaning. Hweer, the operatinalGuidelines fr the Implementatin f the Wrld Heritage Cnentin clarify that the

inscriptin f certain places n the List set under the Cnentin is justiable by irtue ftheir religius meanings r purpses.33 Established with Reslutin 20 C4/7.6/5 f 24 octber–28 Nember 1978. The

Committee was entrusted with the mandate t assist UNESCo Member States in dealingwith cases falling utside the framewrk f the 1970 UNESCo Cnentin, such as thedisputes cncerning histrical cases f cultural bjects lst as a result f clnial r freignccupatin, r as a result f illicit apprpriatin that ccurred prir t 1970.




f the Intangible Cultural Heritage.34 This includes in the denitin f ‘intangiblecultural heritage’ t be prtected ‘the practices, representatins, expressins,knwledge, skills – as well as the instruments, bjects, artefacts and culturalspaces assciated therewith – that cmmunities, grups and, in sme cases,indiiduals recgnize as part f their cultural heritage’ and which pride suchcmmunities, grups and indiiduals ‘with a sense f identity and cntinuity […]’.The secnd aspect relates t the fact that, ‘in s far as cultural heritage representsthe sum f practices, knwledge and representatins that a cmmunity r gruprecgnize as part f their histry and identity, it is aximatic that members fthe grup, indiidually and cllectiely, must be entitled t access, perfrm andenjy such cultural heritage as a matter f right’.35 Indeed, cultural heritage cannt be treated in islatin frm human rights. In this respect it is useful t recallArticle 5 f the Uniersal Declaratin n Cultural Diersity: ‘The urishing f

creatie diersity requires the full implementatin f cultural rights as dened inArticle […] 15 f the Internatinal Cenant n Ecnmic, Scial and CulturalRights [ICESCR]’.36 The rights set frth in Article 15 f the ICESCR include thefreedm f thught, cnscience and religin and entail the State’s bligatin t: (i)recgnize the existence f different cultures within its jurisdictin; (ii) prtect thefreedm f indiiduals t chse, express and deelp their wn culture; and (iii)maintain and presere the artistic, histric and archaelgical prperty lcated nthe territry as an integral aspect f adancing the cultural life f the inhabitants

and fr the benet f all humankind.37

In light f the analysis set ut abe, it results that ‘sacred heritage’ is cmpsedf three layers. The rst is the ‘artistic’ (r ‘cultural’) layer. This refers t the factthat buildings, places and artefacts are the tangible creatin f artists, architectsr craftsmen. The secnd is the ‘symblic’ layer. This relates t the relatinship between a space r an item, the rituals, memries, traditins and legends thatsurrund it, and the identity f indiiduals r f a gien cmmunity. Fr instance,many sanctuaries hae played an imprtant rle in the histry f a religin andhence hae a prfund spiritual cnnectin with peples, be they religius rnt. As such, sacred assets are imprtant fr the cultural heritage f the whlehuman cmmunity as witnesses f cultural diersity. The third is the ‘religius’(r ‘spiritual’) layer. This entails that certain buildings, places and bjects areessential t a specic liing religius grup t manifest, practise, deelp andteach its religius custms and ceremnies. This is ften the cnsequence f thefact that diine manifestatins r supernatural eents ccurred in such spaces r areassciated with certain bjects. As a result, these spaces r bjects hae a special

34 17 octber 2003, UNESCo Dc. 32C/Reslutin 32.35 Francesc Francini, ‘Culture, Heritage and Human Rights: An Intrductin’, in

Francesc Francini and Martin Scheinin (eds), Cultural Human Rights (Brill, 2008) 1–15, 6.36 2 Nember 2001, 41 ILM 57.37 Rger o’Keefe, ‘The “Right t Take Part in Cultural Life” under Article 15 f the

ICESCR’ (1998) International and Comparative Law Quarterly 904–923, 909.




alue in peple’s existence beynd their alue as art r as histrical r educatinbjects, as intermediaries with a pwer beynd the peple r used in ceremnieswhich attempt t cnnect the peple with that pwer.38 Clearly, the religius layeris clsely linked t certain fundamental human rights, such as the right t freedmf religin, the right t wn, maintain, prtect and hae access t religius sitesand the right t manifest ne’s religin r belief in teaching, practice, wrship andbserance, alne r in cmmunity with thers, in public r priate.39

on the basis f this cnceptualizatin, it appears that sacred heritage is asaried as the human perceptin f the sacred and as arius as the wrld’s faiths.As such, it cnstitutes a fundamental expressin f the identity f the peplet which such heritage is ascribed. This is why the destructin and desecratinf mnuments and artefacts that fllwed the 1974 Turkish inasin cnstituteissues f paramunt imprtance fr the peple f Cyprus. Many mnuments and

artefacts used fr religius rituals and purpses signify Greek Cyprits’ deep linkst their faith. This is underlined by the statement by Cstas Katsars, head f theAutcephalus Greek-orthdx Church f Cyprus’ legal department, in relatint the restitutin f the Lysi fresces by the Menil Fundatin: ‘[the Lysi fresces]are liing mnuments and symbls f ur faith. […] Thse treasures f ur religinand cultural heritage are f inaluable merit fr Cyprit peple, wh were lngwaiting fr their return in their hmeland’.40

Analysis of the Principles of International Law Applicable to Situations of

Armed Conict and Occupation

The denitin prided abe makes it pssible t argue that the ratio for the

safeguarding f the sacred heritage resides in the prtectin f the rights andidentity f indiiduals and grups. It lgically fllws that subjects in search ftheir identity shuld be enabled t prtect and recer their heritage. In turn, Statesshuld reme any bstacle inhibiting r limiting access t a persn’s heritage.These are the challenges at stake in Cyprus, where a prtracted ethnic cnictinling plitical turmil and humanitarian needs is accmpanied by claimscncerning sacred sites and heritage practices.41

The sectins that fllw examine these challenges thrugh the prism finternatinal law. Yet space permits but the briefest f eriews f the releantinternatinal practice. The bjectie f this analysis is threefld: t emphasise that

38 Patrick J. o’Keefe, ‘Repatriatin f Sacred objects’ (2008) Art Antiquity and Law 225–243.39 See Article 18 UDHR and Article 9 ECHR.40 Duglas Britt, ‘Hustn’s Menil Is Returning Hly Artwrks t Cyprus’, Houston

Chronicle (26 September 2011).41 Cstas M. Cnstantinu and Mete Hatay, ‘Cyprus, Ethnic Cnict and Cnicted

Heritage’ (2010) Ethnic and Racial Studies 1600.




the assets f religius imprtance lcated in Cyprus qualify as ‘cultural prperty’entitled t internatinal prtectin; t examine the acts by which the internatinalcmmunity has reacted t the crimes cmmitted against cultural heritage; and tdemnstrate that the prtectin f sacred heritage in times f war and ccupatinis guaranteed by a number f principles. These principles are the bligatin t prtect cultural heritage frm the icissitudes f armed cnict, the prhibitin facts f ilence against cultural heritage, the prhibitin f plundering artwrksand the ensuing bligatin f restitutin. These principles hae achieed the statusf custmary internatinal law, thus they are binding n all States, irrespectie fwhether r nt the State cncerned has ratied the treaties regulating these issues.These general principles can be cnsidered the crllaries f the prhibitin tuse frce set frth in Article 2(4) f the Charter f the United Natins (hereinafter‘UN Charter’).

The Obligation to Protect Cultural Heritage and the Prohibition of Acts ofViolence Against it

The destructin f cultural materials during armed cnicts is nthing new.Any armed cnict is characterized by the lss f cultural prperty haing nmilitary alue. Yet in recent times the internatinal cmmunity has been calledupn t react t acts f barbarism whereby damage was inicted n prperties

with religius signicance in rder t hurt the enemy thrugh the eliminatinf the tangible symbls f their existence and identity. Althugh the effects fsuch destructin are emtinal rather than physical, they are n less painful.As emphasised abe, a peple’s sense f heritage and identity is ften linkedt bjects and their eliminatin may prduce feelings f lss and annihilatin.42

The respnse prided by internatinal law has been reslute: it sanctins theinilability f cultural heritage and cnrms that the practice f destrying thesymbls f the defeated is n lnger permitted.

The earliest cdicatin f the rules n the prtectin f cultural heritage frmthe direct and indirect effects f armed cnict tk place in 1863 when the LieberCde was drafted at President Lincln’s rders.43 This was designed t regulatethe cnduct f the Unin frces in the American Ciil War and it prhibited actsf ilence against mable and immable cultural assets. The inuence f theLieber Cde can be traced thrugh the Hague Cnentins f 1899 and 1907 andtheir annexed Regulatins.44 Article 23(g) f the Regulatins annexed t the 1907

42 Wayne Sandhltz, Prohibiting Plunder. How Norms Change (oxfrd UniersityPress, 2007) 196.43 Instructins fr the Gernment f Armies in the Field as Authrized by the Laws

and Usages f War n Land, General orders N. 100 f 24 April 1863, Articles 34–6.44 Cnentin (II) with respect t the Laws and Custms f War n Land, 29 July

1899, AJIL, 1907, 66; and Cnentin (Iv) respecting the Laws and Custms f War nLand (18 octber 1907, AJIL, 1908, 165 – hereinafter ‘1907 Cnentin’).




Cnentin establishes that, during hstilities, mnuments and buildings dedicatedt art and science ught nt t be attacked r bmbarded, unless necessary frmilitary reasns. Mreer, Article 47 frmally prhibits pillage, whereas Article56 prides that ‘destructin r wilful damage dne t institutins [dedicated treligin, charity and educatin, the arts and sciences], histric mnuments, wrksf art and science, is frbidden […]’.

The Hague Regulatins did nt succeed in preenting widespread and systematicdestructin during the tw Wrld Wars. UNESCo reacted t the deastatinthat tk place during Wrld War II with the adptin f the 1954 UNESCoConvention.45 This treaty, whse bligatins are widely regarded as reectingcustomary international law,46 bliges the High Cntracting Parties t take specialcare t aid damage t ‘mable r immable prperty f great imprtance tthe cultural heritage f eery peple’ (Article 1(a)), because ‘damage t cultural

prperty belnging t any peple whatseer means damage t the cultural heritagef all mankind’ (Preamble). The 1954 UNESCo Cnentin distinguishes betweenthe ‘safeguarding f’ and ‘respect fr’ cultural prperty. The frmer cncept referst the bligatin f each State t adpt (preentie and) prtectie measures in time

f peace (Article 3). Mreer, Article 7 underlines that States are required t takemeasures befre the utbreak f hstilities by intrducing specic prisins inttheir military regulatins r instructins and by fstering a spirit f respect in themembers f their armed frces fr the culture and cultural prperty f all peples.

The cncept f ‘respect’ applies t situatins f war and military ccupatin andregards the prperty situated within the territry f the ccupying pwer as wellas within the territry f ther States (Article 4). Article 5 f the 1954 UNESCoConvention regards the case f military ccupatin. This article establishes thatthe ccupying State ‘shall […] supprt the cmpetent natinal authrities f theccupied cuntry in safeguarding and presering its cultural prperty’ (paragraph1). on the ther hand, ‘[s]huld it pre necessary t take measures t preserecultural prperty situated in ccupied territry and damaged by military peratins,and shuld the cmpetent natinal authrities be unable t take such measures’,the ccupying State ‘shall […] in clse c-peratin with such authrities […] takethe mst necessary measures f preseratin’ (paragraph 2). In the intentin f thedrafters, this prisin was essential t deal with the prblem f the preseratinf the riginal features and functins f prperties. It has been cntended thatArticle 5 des nt place a heay burden n the ccupying State because, n thene hand, that State is nt preented frm engaging in archaelgical excaatinsand, on the other, it is required t pride its assistance fr the preseratin f the prperties situated in the ccupied territry nly ‘as far as pssible’. However,

45 Turkey has ratied the 1954 UNESCo Cnentin (15 December 1965) and theFirst Prtcl (15 December 1965) but it has nt ratied the Secnd Prtcl; the RChas ratied the 1954 UNESCo Cnentin (9 September 1964), the First and the SecndPrtcl (9 September 1964 and 16 May 2001, respectiely).

46 UNESCo General Cnference, Reslutin 3.5, 13 Nember 1993, Preamble.




the preailing iew is that a prhibitin is implied by the language and spirit fArticle 5.47 Furthermre, Article 28 f the 1954 UNESCo Cnentin bliges theStates Parties t ‘prsecute and impse penal r disciplinary sanctins upn thse persns, f whateer natinality’, accused f ilatins f the Cnentin.

Since 1954 ther releant treaties hae been intrduced, mst ntably theAdditinal Prtcls t the 1949 Genea Cnentins.48 Protocol I relates to

internatinal wars, Prtcl II t internal cnicts. Bth Prtcls frbid militaryactins directed at, r any military use f, ‘histric mnuments, wrks f art r places f wrship which cnstitute the cultural r spiritual heritage f peples’.49

Mreer, Article 85(4)(d) f Prtcl I establishes that ‘making the clearly-recgnised histric mnuments, wrks f art r places f wrship […] the bjectf an attack […]’ is a serius breach. These Prtcls therefre cnrmed nef the fundamental principles f warfare, that attacks shall be limited strictly t

military bjecties.The lting and destructin that characterized the First Gulf War and the

Yugsla War triggered further deelpments in internatinal law. Fr the purpses f this chapter it is sufcient t fcus n the Secnd Prtcl t the1954 UNESCo Cnentin.50 This signicantly impred the legal regime fr the prtectin f cultural heritage in time f war by: (i) dening clearly and restrictielythe limits f ‘military necessity’ (Article 6); (ii) intrducing the new system f‘enhanced prtectin’ (Articles 10–14); (iii) setting up a permanent Cmmittee

(the Intergernmental Cmmittee fr the Prtectin f Cultural Prperty in theEent f Armed Cnict) t superise the peratin f the Prtcl (Articles

24 ff.); and (i) framing in clear terms the duty f prtectin, thereby impring the prtectin regime prided fr by the 1954 UNESCo Cnentin. With respectto the latter innovation, Article 9(1) f the Secnd Prtcl afrms that ccupyingStates ‘shall prhibit and preent in relatin t the ccupied territry […] (c) anyalteratin t, r change f use f, cultural prperty which is intended t cnceal rdestry cultural, histrical r scientic eidence’. Mreer, Article 9(2) prides

47 Theresa Papademetriu, ‘Destructin f Cultural Prperty in the Nrthern Part fCyprus and vilatins f Internatinal Law’ (The Law Library f Cngress, Directrate fLegal Research LL File N. 2008-01356, April 2009), 33.

48 Prtcl Additinal t the Genea Cnentins f 12 August 1949 Relating tthe Prtectin f victims f Internatinal Armed Cnict (8 June 1977, 1125 UNTS 3 –hereinafter ‘Prtcl I’) and Prtcl Additinal t the Genea Cnentins f 12 August1949 Relating t the Prtectin f victims f Nn-Internatinal Armed Cnicts (8 June1977, 1125 UNTS 609 – hereinafter ‘Prtcl II’).

49 Article 53 f Prtcl I, ibid., and Article 16 f Prtcl II, ibid.50 26 March 1999, 38 ILM (1999) 769. It is wrth mentining that, at the judicial leel,the Internatinal Criminal Tribunal fr the frmer Yugslaia has repeatedly cnrmed thatthe prhibitin f acts f destructin and willful damage t sites f educatinal, religiusand cultural relevance has achieved the status of customary international law. See for

example Prosecutor v. Strugar , IT-01-42-PT, Judgment, 31 January 2005; and Prosecutorv. Jokić, IT-01-42/1-S, Judgment, 18 March 2004.




that any ‘alteratin t, r change f use f, cultural prperty in ccupied territryshall, unless circumstances d nt permit, be carried ut in clse c-peratinwith the cmpetent natinal authrities f the ccupied territry’. Eidently these prisins single ut the alteratin and change f use as a specic threat.

The last instrument that it is wrth mentining in rder t demnstrate thatthe prhibitin t attack wrks f art r places f wrship belngs t custmaryinternational law is the UNESCO Declaratin Cncerning the IntentinalDestructin f Cultural Heritage f 2003. This act was adpted by the UNESCO

General Conference to cndemn the gratuitus demlitin f the Buddhas fBamiyan cmmitted by the Taliban in 2001.51 By adpting the Declaratin, theUNESCo General Cnference cnrmed: (i) that the deliberate destructin fcultural heritage cnstitutes a breach f custmary internatinal law; and (ii)that State respnsibility and indiidual criminal respnsibility derie frm the

intentinal destructin r the failure t take apprpriate prtectie measures.Accrdingly, the Declaratin inalidates the shield f territrial sereignty.52

In ther wrds, the imprtance f cultural heritage fr the identity f natins,cmmunities and indiiduals justies the limitatin f the territrial State’sabslute discretin and the crrespnding attributin f State respnsibility frthe wantn destructin r failure t prtect the autchthnus heritage.

The Obligation to Halt or Prevent the Looting of Cultural Objects and the

Corresponding Obligation of Restitution

The plundering f religius articles, military symbls, wrks f art and archies wasthe symblic dimensin f war by which the ictrs demnstrated their superirityer the anquished.53 The 1907 Cnentin prided the rst cdicatin f therule that the plundering f cultural prperty is unlawful and that all lt shuld bereturned. Article 56 f the Regulatins annexed t the 1907 Cnentin stated thatall cultural bjects, including State prperty, were t be treated as priate prperty,and hence culd neither be cnscated (Article 46) nr plundered (Article 47) by ccupying frces. The same principles were reafrmed in the peace treatiesconcluded in the aftermaths of the two World Wars.54

51 Francesc Francini and Federic Lenzerini, ‘The Destructin f the Buddhas fBamiyan and Internatinal Law’ (2003) European Journal of International Law 619.

52 Ana F. vrdljak, ‘Intentinal Destructin f Cultural Heritage and InternatinalLaw’, Thesaurus Acroasium (vl. XXXv, Institutn Diethnus Dēmsiu Dikaiu

kai Diethnōn Scheseōn Thessalnikēs 2007) 377–96; Jseph Fishman, ‘Lcating theInternatinal Interest in Intranatinal Cultural Prperty Disputes’ (2010) Yale Journal of International Law 347.

53 Wayne Sandhltz, Prohibiting Plunder , p. cit., 32–3.54 See fr example Treaty f Saint-Germain between the Allied Pwers and Austria

(1919), Treaty f Triann between the Allies and Hungary (1920), and the Treaty f Peacewith Italy (1947).




State practice deelped primarily as a reactin t Nazi spliatin f culturalbjects. Befre the end f Wrld War II, the Allies tk steps against the systematiclting carried ut by the Nazi regime by adpting the ‘Lndn Declaratin’.55

This warned the enemy States and neutral cuntries that the Allies intended ‘t dtheir utmst t defeat the methds f dispssessin practiced by the [Nazis]’ andresered the right t annul transfers r dealings taking the frm f pen lting r plundering as well as seemingly gd faith transactins. In this way the Allies madeit clear that restitutin was a means f reersing the gencidal and discriminatry Nazi practices.56 Fllwing the end f Wrld War II, the prhibitin f lting andthe restitutin principle became treaty standards as they were transplanted intthe 1954 UNESCo Cnentin and the 1970 UNESCo Cnentin. The 1954UNESCo Cnentin calls upn the States Parties ‘t prhibit, preent and, ifnecessary, put a stp t any frm f theft, pillage r misapprpriatin f, and any

acts f andalism directed against, cultural prperty’ as well as the ‘requisitining[f] mable cultural prperty […]’ situated in ccupied territry (Article 4(3)).Binding regulatins in matters f restitutin are cntained in the First Prtcl t the1954 UNESCo Cnentin.57 Accrding t Article I(1) f the First Prtcl, StatesParties are required t preent the exprtatin f cultural prperty frm territriesthey hae ccupied during armed cnict. If the ccupying State fails t cmplywith this bligatin, it ‘shall pay an indemnity t the hlders in gd faith f anycultural prperty which has t be returned’ (Article I(4)). The First Prtcl requires

the cperatin f all the High Cntracting Parties in the ght against trafckingin lted art bjects. All States Parties – including the ccupying State – must takeint custdy the cultural prperty imprted int their territry frm any ccupiedterritry (Article I(2)) and return it t the cmpetent authrities f the territry preiusly ccupied at the clse f hstilities (Article I(3)).58 The latter prisinals emphasises that the cultural prperty that has been illicitly exprted frm anccupied territry ‘shall neer be retained as war reparatins’. It can be assertedthat the bligatin t return illicitly taken cultural bjects belngs t custmaryinternatinal law because it is inherent in the bligatin t respect cultural prpertyand in the prhibitin n seizing cultural prperty: if such bjects shuld nt be seized by the ccupying State and if they hae been wrngfully exprted, a fortiori, they

shuld be returned.59 Article 11 f the 1970 UNESCo Cnentin regards as illicit

55 Declaratin f the Allied Natins against Acts f Dispssessin Cmmitted inTerritries under Enemy occupatin r Cntrl, 5 January 1943 (8, Department f StateBulletin 21).

56 Ana F. vrdljak, International Law, Museums and the Return of Cultural Objects (Cambridge Uniersity Press, 2006) 141.57 14 May 1954, 249 UNTS 358.58 Article II(5) impses an bligatin f restitutin upn the State where cultural

prperty has been depsited by anther State fr the purpse f safekeeping.59 Jean-Marie Henckaerts and Luise Dswald-Beck (eds), Customary International

Humanitarian Law (l. I, Rules, The Internatinal Cmmittee f the Red Crss, 2005) 137.




the exprt and transfer f wnership f cultural materials under cmpulsin arisingfrm the ccupatin f a cuntry by a freign pwer. This prisin reinfrces theFirst Prtcl. Hweer, Article 11 ges further than the First Prtcl in that it ntnly utlaws the exprt f prperty but als transfer f wnership. Article 7 f the1970 UNESCo Cnentin is als releant t the present analysis in that it applies bth in peacetime and in situatins f armed cnict.60 It requires Cntracting Statest ensure that their museums d nt acquire illegally exprted cultural bjects, t prhibit the imprt f prperty that has been stlen frm museums, religius rsecular mnuments and t assist ther Cntracting States t btain the return fsuch prperty, prided the prperty is n the inentry f the institutin cncerned.Therefre, Article 7 applies t prperty that has been lted frm museums, religiusr secular mnuments and subsequently exprted abrad cntrary t the prisinsf the 1954 UNESCo Cnentin.

The Secnd Prtcl strengthened the prhibitins cntained in the UNESCoCnentins f 1954 and 1970. Article 9(1), which deals with the prtectin fcultural prperty in ccupied territry, requires an ccupying party t prhibit and preent certain actiities in the territry cncerned, such as ‘any illicit exprt, therremal r transfer f wnership f cultural prperty [and] any archaelgicalexcaatin […]’. Furthermre, Article 21 f the Secnd Prtcl explicitly bligesthe States Parties t adpt legislatie, administratie r disciplinary measurest suppress ‘any use f cultural prperty in ilatin f the Cnentin r this

Prtcl’ as well as ‘any illicit exprt, ther remal r transfer f wnership fcultural prperty frm ccupied territry in ilatin f the Cnentin r thisPrtcl’. This clause implies a psitie bligatin t preent r put a stp tthe prhibited acts regardless f wh is respnsible. Cmmanders f militaryfrces therefre hae the bligatin t preent the lting f cultural assets and tadpt punitie measures against individuals who have violated or have ordered a

ilatin t be cmmitted, be they sldiers r ciilians.

Judgments f natinal and internatinal curts as well as the practice f Statesand internatinal rganizatins hae shwn that the prhibitin f lting andtrafcking and the bligatin f restitutin mirrr rules f custmary law. In thisrespect it is essential t emphasise the imprtance f UNSC Reslutin 1483(2003).61 This addressed the lsses sustained by the Iraqi heritage in the aftermathf the entry f United States frces int Baghdad in April 2003 and prided that:‘[…] all Member States shall take apprpriate steps t facilitate the safe returnt Iraqi institutins f Iraqi cultural prperty and ther items f archaelgical,histrical, cultural, rare scientic, and religius imprtance illegally remedfrm the Iraq Natinal Museum, the Natinal Library, and ther lcatins in Iraq

[…], including by establishing a prhibitin n trade in r transfer f such itemsand items with respect t which reasnable suspicin exists that they hae beenillegally remed […]’ (para. 7).

60 Kein Chamberlain, War and Cultural Heritage (Institute f Art & Law, 2004) 17.61 UN Dc S/RES/1483, 22 May 2003, ILM, 2003, vl. 42, 1016 ff.




The Turkish Invasion and the Sacred Heritage in Cyprus

On the International Response to the Turkish Invasion

A lt f ink has been pured abut the histry and plitics f the Cyprus prblem.In particular, attentin has been dedicated t the questin f the legality f the warf 1974. As said abe, Greek and Turkish Cyprits hae ery different iews nthis issue. Fr the Greek Cyprits the inasin was an illegal act f aggressinunder the pretext f the restratin f the cnstitutinal rder. Turkey and theTurkish Cyprits regard the interentin as a legitimate peace peratin aimed at prtecting the Turkish Cyprit minrity and ensuring an end t their persecutin by the Greek Cyprit majrity.

In cming t any cnclusin abut the questin f the legality f the Turkish

actin in nrthern Cyprus, it is necessary t cnsider the eents f 1974 and theiraftermath in the light f the internatinal rules utlined abe. With this in mind, itis cnenient t analyse separately the tw phases f the war. As fr the peratinstaged in the rst phase, which tk place n 20–22 July 1974, Turkey cntendedthat it was legal under the terms f Article Iv f the Treaty f Guarantee f 1960.This prided fr Greece, Turkey and the United Kingdm ‘t cnsult tgetherwith respect t the representatins r measures necessary t ensure bserance’f the prisins f the Treaty. It further established that in the absence f

agreement n cncerted actin, ‘each f the three [Guarantr pwers] reseresthe right t take actin with the sle aim f re-establishing the state f affairscreated by the present Treaty’. In effect, Turkey cnsulted with Britain when theGreek military junta staged the military cup aimed at erthrwing PresidentMakaris. Instead, Archbishp Makaris refused t meet the then Turkish PrimeMinister.62 Therefre, at rst sight, it wuld appear that Turkey was within its pwers. Hweer, n clser examinatin it appears that the military interentinwas illegal: rst, because Article Iv did nt explicitly grant a right t wage war;secnd, because if Article Iv had granted such a right, it wuld hae ilatedArticles 2(4) and 103 f the UN Charter;63 third, because Articles I and II f theTreaty f Guarantee prhibited any actiity t prmte unin with any ther Stater partitin f the island.64 As fr the secnd phase f the Turkish interentin,which began n 14 August 1974, fllwing the failure f peace talks in Genea,it appears that it was nt aimed at re-establishing the state f affairs agreed bythe parties in 1960 – which is ne f the cnditins cntained in the Treaty fGuarantee – but at creating a radically different situatin. This is demnstrated bythe eictin f Greek Cyprits frm the nrthern part f the island, the Turkey-

spnsred immigratin f settlers after 1974 and the enduring ccupatin. It can

62 Clement Ddd, The History and Politics of the Cyprus Conict , p. cit., 110.63 Article 103 establishes that States’ bligatins under the UN Charter erride

States’ bligatins under any ther treaty.64 See supra nte 13.




therefre be suggested that the secnd military peratin was als cntrary t theTreaty of Guarantee and to the UN Charter.

Fr these reasns the 1974 Turkish actin prmpted strng and unanimusinternatinal cndemnatin. The United Natins General Assembly (hereinafter‘UNGA’) adpted a number f reslutins deplring the Turkish inasin and allunilateral actins aimed at changing the demgraphic structure f Cyprus. Theseresolutions also demanded an immediate withdrawal of Turkish armed forces and

afrmed the right f the RC and its peple t full and effectie sereignty andcntrl er the entire territry f Cyprus. The UNGA als called fr the returnf refugees t their hmes.65 Similarly, the UNSC passed reslutins demandingthe immediate end f military ccupatin thrugh the withdrawal f Turkisharmed frces ther than thse allwed by the treaties f 1960.66 Furthermre,the UNSC declared the 1983 Declaratin f Independence f the TRNC ‘legally

inalid’ and called upn ‘all States nt t recgnize any Cyprit State ther thanthe Republic f Cyprus’.67 Mreer, in 1999 the UNSC rejected the TRNCgernment’s demand fr the recgnitin f the existence f tw peples inCyprus and their respectie rights t self-determinatin.68 However, no concrete

internatinal actin has been taken t put an end t the unlawful ccupatin fCyprus. Arguably, the cnguratin f the geplitical interests in the regin issuch that the States sitting in the UNSC d nt want t pressure Turkey er theCyprus prblem.69

Other condemnations of the Turkish invasion have come from the Council ofEurpe70 and the Eurpean Curt f Human Rights (hereinafter ‘ECtHR’). TheECtHR has issued arius prnuncements n the prblem f the Greek Cyprit prperties in the Turkish-held area.71 Since 1996, when it deliered its landmark

65 See Reslutins 3212 (XXIX) f 1 Nember 1974, 3395 (XXX) f 20 Nember1975, 33/15 f 9 Nember 1978, 34/30 f 20 Nember 1979, 37/253 f 13 May 1983.

66 See fr example Reslutins 353 (1974), 357 (1974), 360 (1974), 361 (1974), 364

(1974), 365 (1974), 367 (1975), 391 (1976), 410 (1977), 422 (1977) and 430 (1978).67 See Reslutins 541 (1983) and 550 (1984).68 Reslutin 1251 (1999).69 Nichlas Augustins, ‘The Prtectin f Cultural Heritage’, p. cit., 236. See als

United States Cmmissin n Internatinal Religius Freedm, Annual Reprt, May 2011,333 ff. <www.uscirf.g/images/bk%20with%20cer%20fr%20web.pdf> accessed23 January 2014.

70 See Reslutin (83) 13 f 24 Nember 1983 f the Cmmittee f Ministers fthe Cuncil f Eurpe <www.mfa.g.cy/mfa/mfa2006.nsf/All/C1E21396890CA83CC

22571D2001E8A47/$le/Res%2083.pdf?openElement> accessed 23 January 2014. Seeals Reslutin 1628 (2008) f the Parliamentary Assembly f the Cuncil f Eurpe<http://assembly.ce.int/Mainf.asp?link=/Dcuments/AdptedText/ta08/ERES1628.htm>accessed 23 January 2014.

71 This prblem relates t the prperties (huses and agricultural, cmmercialand industrial enterprises) that Greek Cyprits left behind in 1974 and that the TRNCgernment has exprpriated and assigned t Turkish sldiers, Turkish Cyprits r t the




decision in the Loizidou case,72 the ECtHR has rendered numerus judgments infaur f the applicants, namely Greek Cyprits claiming that they were preentedfrm haing access t and frm using their prperty by the Turkish army. Withthese judgments the ECtHR has established that: (i) Greek Cyprits displaced frmnrthern Cyprus are the legal wners f prperties abandned and exprpriated;(ii) Greek Cyprits applicants are entitled t nancial cmpensatin fr the lssof use f their prperty;73 (iii) Turkey is respnsible fr the cntinuing ilatinf the right t prperty (Article 1 f Prtcl N. 1 f the Eurpean Cnentinfr the Prtectin f Human Rights and Fundamental Freedms74 – hereinafter‘ECHR’) as well as the right t respect fr priate and family life, hme andcrrespndence (Articles 8 ECHR). By attributing internatinal respnsibilityfor ECHR violations to Turkey,75 the ECtHR recgnized that the RC is the nlylegitimate gernment and that Cyprus is under Turkish military ccupatin as

Turkey exercises ‘effectie erall cntrl’ er nrthern Cyprus.76

settlers that arried frm Turkey after 1974. See als the case law f the Curt f Justicef the Eurpean Unin, in particular cases C-432/92, Anastasiou I [1994] ECR-3087,Judgment f 5 July 1994, n the intrductin f trade restrictin n TRNC prducts fr thelack f certicates f rigin issued by RC institutins; and C-420/07, Meletis Apostolides

v. Linda and David Orams [2009] ECR I-3571, Judgment f 28 April 2009, establishing thatthe decisins f the curts f the RC against anyne ccupying Greek Cyprits prpertiesin the nrth can be enfrced in any ther EU Member State, een thugh the RC des ntexercise de facto cntrl in nrthern Cyprus.

72 Loizidou v. Turkey (Applicatin N. 1518/89, ECtHR Judgment f 18 December1996).

73 The ECtHR established a new pattern with its decisins in the cases Xenides-Arestisv. Turkey (Applicatin N. 46347/99, Judgment f 22 December 2005) and Demopoulosand Others v. Turkey (Applicatins Ns 46113/99, 3843/02, 13751/02, 13466/03, 10200/04,

14163/04, 19993/04, 21819/04, Decisin f 1 March 2010) as a result f the cmpensatinmechanism instituted by the TRNC Gernment in 2005 in rder t pride effectieremedies t dispssessed Greek Cyprit prperty wners.

74 4 Nember 1950, ETS N. 005.75 The Cnstitutinal Curt f the TRNC has implicitly admitted that Nrthern

Cyprus was under Turkish military cntrl in National Unity Party v. TRNC Assembly ofthe Republic (Judgment D 3/2006 f 21 June 2006). In this case the Curt recgnized thatthe internatinal law n ccupatin prhibiting the cnscatin f priate prperty by theinading belligerent (Article 46 f the 1907 Cnentin) applied in the TRNC.

76 The ECtHR based its reasning n the presence f a large number f Turkish trpsengaged in actie duty in nrthern Cyprus and n the fact that the TRNC is nt regardedas an independent State but as a satellite f Turkey. Ntably, the cnclusin that Turkeyexercises an ‘effectie erall cntrl’ er nrthern Cyprus des nt cntradict the iewadpted by the internatinal cmmunity that the RC gernment is the sle legitimategernment f Cyprus: territrial cnquest des nt imply the transfer f sereignty frmthe ccupied State t the ccupying State.




Finally, it is interesting t mentin the 2006 Declaratin f the Parliament fthe Eurpean Unin.77 The Parliament reafrmed the respnsibility f the TurkishState by acknwledging that ‘mre than 133 churches, chapels and mnasteriesthat are lcated in the nrthern part f Cyprus and hae been cntrlled by theTurkish army since 1974 hae been desecrated, 78 churches hae been cnertedint msques, 28 are used as military depts and hspitals and 13 are used asstckyards […] whereas their ecclesiastical items, including mre than 15,000icns, hae been illegally remed and their lcatin remains unknwn’.78

On the Responsibility of the Turkish State Regarding the Sacred Heritage in Northern Cyprus

In the light f the freging discussin, it can be asserted that the cntinuing

ccupatin f nrthern Cyprus by Turkey meets the criteria f military ccupatin.Under internatinal humanitarian law, that is, the law f armed cnict, a territryis cnsidered ccupied when it is placed under the authrity f a hstile army as aresult f an armed cnict between tw r mre States – regardless f the reasnsthat led t the ccupatin. This is s een if the said ccupatin meets with n armedresistance and een if there is n declaratin f war r ccupatin r recgnitin fthe state f war by ne f the States.79 Furthermre, it can be argued that the failuret prtect the cultural and religius heritage situated in nrthern Cyprus, and the

tleratin f – r failure t – preent the destructin, desecratin, seizure and illicitexprtatin f artwrks belnging t the heritage f the island amunt t ilatinsof the laws and customs of war. As such, they constitute war crimes that could

gie rise t Turkey’s respnsibility under internatinal law as well as indiidualcriminal respnsibility. As fr the issue f State respnsibility, it is a recgnized principle f internatinal law that ‘[e]ery internatinally wrngful act f a Stateentails the internatinal respnsibility f that State’.80 An internatinally wrngfulact, which may consist of either an action or omission, constitutes a violation of

an internatinal bligatin f the State and can be cnsidered t hae a cntinuingcharacter if it extends fr the entire perid during which the causal cnduct f a

77 Declaratin n the Prtectin and Preseratin f the Religius Heritage in the Nrthern Part f Cyprus, oJ EU C 305 E/92, 14 December 2006 <http://eur-lex.eurpa.eu/LexUriSer/LexUriSer.d?uri=oJ:C:2006:305E:0092:0093:EN:PDF> accessed 23January 2014.

78 Ibid. See als the infrmatin made aailable by the Ministry f Freign Affairs

f Cyprus n its website <www.mfa.g.cy/mfa/mfa2006.nsf/cyprus07_en/cyprus07_ en?openDcument> accessed 18 Nember 2012.79 See Article 42 f the 1907 Cnentin, Article 2 f the Furth Genea Cnentin,

and Article 18 f the 1954 UNESCo Cnentin.80 See Article 1 f the Articles n Respnsibility f States fr Internatinally

Wrngful Acts, Internatinal Law Cmmissin, Reprt n the Wrk f Its Fifty-thirdSessin, UN GAoR, 56th Sess., Supp. N. 10, 43, UN Dc. A/56/10 (2001).

http://www.mfa.gov.cy/mfa/mfa2006.nsf/cyprus07_en/cyprus07_en?OpenDocument







State cntinues and remains cntrary t an internatinal bligatin.81 The Articles

f the Internatinal Law Cmmissin further establish that when a State breachesan internatinal legal bligatin there are three key principles that cme int play.First, the respnsible State has a duty t perfrm the bligatin breached (Article29). Secnd, if the ilatin is nging, the respnsible State has the bligatin tcease the act (Article 30(a)) and t guarantee nn-repetitin (Article 30(b)). Third,the respnsible State has t make full reparatin (Article 31). There are threemain frms f reparatins: restitutin, cmpensatin and satisfactin (Articles34–7). With respect t restitutin, material restitutin shuld be distinguishedfrm juridical restitutin. Examples f material restitutin include the return fwrngly seized prperty. Juridical restitutin requires the mdicatin f a legalsituatin either within the legal system f the respnsible State r in its legalrelatins with the injured State. Such cases include the recatin, annulment r

amendment f legislatie prisins enacted in ilatin f internatinal law rthe recnsideratin f judicial measures unlawfully adpted in respect f prpertyf freigners.82

As far as nrthern Cyprus is cncerned, it can be suggested that Turkey, asthe ccupying pwer exercising ‘effectie erall cntrl’ er nrthern Cyprus, bears respnsibility fr acts against cultural prperty cmmitted in cntraentinf the bligatins cntained in the treaties t which it was party at the time f theinvasion83 and the releant principles f custmary internatinal law. Specically,

the actins and missins cmmitted by the Turkish gernment, Turkishcmmanders and Turkish Cyprit authrities since the military inasin f July1974 cnstitute interferences f the srt cntemplated by the legal instrumentsanalysed abe in that they failed t: (i) refrain frm using prperties f culturaland religius imprtance and their immediate surrundings fr purpses thatwere likely t expse them t destructin r damage; (ii) aid and preent actsf hstility against such prperty nt nly by their wn sldiers but als by theciilian ppulatin; (iii) prhibit, preent and (if necessary) stp any frm f theft, pillage, misapprpriatin, imprt and exprt f cultural prperty; (i) return anyillegally exprted prperty and pay damages t any gd-faith hlder f such prperty; () refrain frm any act against cultural prperty as a reprisal; (i) allwreligius cmmunities liing in the RC and religius minrity cmmunitiesliing in nrthern Cyprus access as well as the right t restre, maintain and utilize places f wrship and cemeteries that are lcated within the brders f Turkishmilitary znes in nrthern Cyprus; (ii) establish criminal jurisdictin t prsecuteindiiduals wh hae engaged in acts f destructin, desecratin and pillage; and(iii) respect the nrms regulating the alteratin and change f use f the prperty

lcated in the ccupied territry.

81 See Article 14 f the Articles n Respnsibility f States fr InternatinallyWrngful Acts, ibid.

82 Ibid., 97–8.83 See supra nte 45.




With respect t the bligatin t preent the exprtatin f cultural assets,arius reprts – als by Turkish and Turkish Cyprit newspapers – haedemnstrated that the Turkish and TRNC gernment and military fcialsclluded r were bribed and that antiquities hae nt nly disappeared frmarchaelgical sites and religius buildings situated within r nearby militaryznes but als frm the places where they were taken fr safekeeping.84 As regardsthe inability f orthdx Christians, ther religius cmmunities (includingArmenians, Marnites and Jews) and religius clergy t access and hld sericesat their places f wrship and cemeteries in the nrth, particularly thse that existwithin the brders f Turkish military znes, it must be stressed that the bstaclesfaced by belieers and clerics hamper the religius freedm f the remainingmembers f these cmmunities.85

A Reappraisal of Responsibilities and Solutions

The analysis set ut abe prides an ersimplied ersin f the Cyprus prblem whereby nly ne party is held respnsible fr the damage sustained byCyprus’ sacred heritage. In reality, barbaric attacks against the religius heritagef the enemy and human rights ilatins were cmmitted by bth sides.86 It is

therefre it is essential t recnsider the rles f Greek and Turkish Cyprits

as regards the imperishment f the island’s heritage. With this in mind, it isnecessary t identify the perids in which the attacks against the cultural heritage tk place.

The rst perid, which ges frm 1960 t 1974, witnessed arius actinsf Greek Cyprit paramilitary grups against the Turkish Cyprit minrity. Thewrst incident tk place in 1963, when Greek Cyprit extremists attacked anddestryed 103 Turkish illages.87 As a result, half f the Turkish Cyprit cmmunitywas drien int enclaes and seeral Turkish religius sites were destryed acrssthe island. The secnd perid cincides with the military peratins that startedn 20 July 1974. In this phase, the attacks against cultural heritage in nrthernCyprus were the – intentinal r unintentinal – utcmes f the armed cnict.

84 Nichlas Augustins, ‘The Prtectin f Cultural Heritage’, p. cit., 221, 223.85 In cnnectin t this, in 2010 the Church f Cyprus ldged an applicatin with the

ECtHR against Turkey cmplaining f a ilatin f Article 1 Prtcl 1 ECHR – fr thealleged lack f access and enjyment f the religius prperty belnging t the Church in

the Turkish held area – and Articles 9 and 11 ECHR – as Turkish Cyprit authrities haecntinuusly preented the orthdx Church and its parishiners frm hlding religiusserices in buildings lcated in nrthern Cyprus. Chrysostomos v. Turkey (Applicatin N.66611/2009, Decisin f 4 January 2011). The applicatin was rejected fr nn-exhaustinf dmestic remedies pursuant t Article 35 ECHR.

86 Clement Ddd, The History and Politics of the Cyprus Conict , p. cit., 132.87 Jhn Fielding, ‘The Rape f Nrthern Cyprus’, p. cit.




The third perid began shrtly after the end f military peratins and cntinuesuntil tday. It is pssible t identify at least three causes fr the lting and neglectthat characterize this phase. First, the sites sacred t Greek Cyprits were attackedas retaliatin by the Turkish Cyprits wh had been usted frm their hmes.88

The spntaneus ilence f Turkish Cyprit illagers against Christian orthdx buildings was rted in the memries f massacre and plundering cmmitted bythe Greek Cyprits in the 1960s. Christian orthdx churches were perceiedas symbls f ppressin that inited reenge.89 Secnd, the cultural heritage fCyprus was (and still is) explited as a mney-making enterprise. As explainedabe, if they were nt damaged, the artwrks cntained in churches, mnasteries,museums, cllectins r libraries were remed and sld n the internatinal artmarket. Antiquities excaated frm archaelgical sites suffered the same fate.90

Unfrtunately, this is nt surprising: wheneer there is an inter-State r inter-

ethnic war r sme kind f unrest, cultural bjects inariably get destryed rlted. Third, cultural heritage was ‘targeted’ fr plitical reasns. In the GreekCyprit iew, the sacred sites lcated in the nrthern part f the island fell preyt Turkish and Turkish Cyprit natinalist extremists wh aimed t ‘Turkify’ thearea. In ther wrds, Greek Cyprits cntend that the destructin and desecratinf religius sites was (and still is) aimed at eradicating the Hellenic culturalcharacter f the area after the eictin f Greek Cyprit peple.91 This argumentis ppsed by the Turkish Cyprits. They cntend that this claim is part f the

prpaganda emplyed by Greek Cyprits t discredit Turkish Cyprits and theTRNC. They deny that there was widespread plundering r lting after 1974.92

on the cntrary, the TRNC gernment has repeatedly argued that its cmpetentauthrities are engaged in actins designed t presere and prtect religius sites,regardless f their rigin.

These are the dminant arguments in Cyprus: each party pints t the(nging) ethnic cnict as the reasn fr the destructin f heritage, cmplainsthat it is the ictim f attempts at ethn-cultural cleansing and blames the ther frthe deliberate targeting r neglect f its wn heritage.93 Hweer, the allegatinsf ethnic cleansing were rejected in the 1989 Reprt by van Der Werff. Thiscategrized bth the Greek and Turkish Cyprit claims as ‘prpaganda’94 and

attributed mst f the damage t the rganized lting carried ut by the art thieesthat raided the island after 1974.95 Equally, the 2002 Reprt by vlasta Stepá

88 2002 Reprt, supra nte 25.89 Jhn Fielding, ‘The Rape f Nrthern Cyprus’, p. cit.

90 2002 Reprt, supra nte 25.91 Nichlas Augustins, ‘The Prtectin f Cultural Heritage’, p. cit., 221.92 Ibid., 222.93 Cstas M. Cnstantinu and Hatay Mete, ‘Cyprus, Ethnic Cnict and Cnicted

Heritage’, p. cit., 1600–1601.94 1989 Reprt, supra nte 24, paras 4, 4.2.3. and 4.3.95 Ibid., para 5.1.




did nt alidate the argument that the TRNC administratin ‘intentinally andsystematically’ supprted a prcess aimed at ‘destrying histrical memry by thegradual annihilatin f all eidence f the cntinuity er mre than 3000 yearsf Greek settlement and Greek culture in Cyprus’.96 on the cntrary, it pintedut that ‘the effectie preentin f the illegal exprt f cultural gds is […] ntwithin the pwer f lcal nrthern administratin […] gien the relatie pertyf the cuntry and, therefre, its ther mre urgent needs’.97

In the light f these ndings, it can be cncluded that – regardless f whetherthe 1974 armed cnict in Cyprus was lawful r unlawful – the Greek and TurkishCyprits share respnsibility fr the damage sustained by the sacred heritage f theisland since 1960. The destructin and lting f Christian orthdx heritage aswell as the bliteratin f ottman and Turkish mnuments and Islamic antiquitiesare deeply rted in the inter-ethnic cnict between Greek and Turkish Cyprits.

Therefre, the recgnitin and cndemnatin f the desecratin f the GreekCyprit heritage call fr the recgnitin and cndemnatin f the destructin fthe Turkish Cyprit heritage. Indeed, the lss f Islamic heritage sites at the handsf the Greek Cyprit extremists befre and after 1974 shuld nt be dwnplayedr denied. Likewise, the respnsibility f the Greek Cyprit authrities fr haing permitted r tlerated such eents shuld nt be cndned.

Furthermre, the argument fr jint respnsibility can be reinfrced bycnsidering that the issue f heritage preseratin has been (and still is) explited

by bth sides f the Green Line t prmte plitical bjecties unrelated t purelycultural heritage cncerns.98 on the ne hand, Greek Cyprits deplre the lss f theChristian orthdx heritage in the nrth and emphasise the necessity t recer rrebuild it in rder t pursue the reunicatin f the island. Fr the same reasn, thecncern f successie RC gernments has been the identicatin and prtectinf mnumental sites and places which are assciated with the ethnic cmmunitiesn the island, including the ‘Turkish’ ethn-religius heritage. Accrdingly,msques, castles, hamams and archaelgical ruins hae been brught under the jurisdictin f the RC department f antiquities.99 on the ther hand, the fcialargument f Turkish Cyprit authrities is based n the idea that the ottman andIslamic heritage in the suth is best redeemed thrugh its recnstructin in thenrth, which in turn legitimates the partitin.100 Instead, only a few ancient Greek

96 2002 Reprt, supra nte 25.97 Ibid.98 See Nichlas Augustins, ‘The Prtectin f Cultural Heritage’, p. cit., 221,

and Cstas M. Cnstantinu and Hatay Mete, ‘Cyprus, Ethnic Cnict and CnictedHeritage’, p. cit., 1614.99 This was acknwledged in the 1989 Reprt, supra nte 24. Hweer, van Der

Werff criticized frm a strictly cultural heritage pint f iew the rebuilding f msqueswhich had ‘n architectural imprtance’.

100 Cstas M. Cnstantinu and Hatay Mete, ‘Cyprus, Ethnic Cnict and CnictedHeritage’, p. cit., 1614.




sites and histrically aluable Byzantine churches hae been presered in nrthernCyprus because f the presence f sme Greek Cyprit illagers, whereas mrerecent r less aluable buildings hae been either neglected r transfrmed.101

These selective perceptins and plicies signify that the RC and TRNC explitthe island’s treasures t adance their claims and strengthen their bargaining pwerin Eurpean and internatinal fra. This is bth dangerus and at dds with the basic tenets f internatinal cultural heritage law.

In the light f these circumstances and f the current diplmatic impasse, itappears that the best alternatie fr the prtectin f the sacred heritage situatedin Cyprus and fr the prper implementatin f the applicable internatinallaw standards is the adptin f an object-oriented apprach. Accrding t thisapprach, cncern fr the prtectin and preseratin f sacred bjects and placesshuld be separated frm cncern fr their enjyment. In ther wrds, the island’s

treasures shuld be prtected and presered by the RC and TRNC gernmentsas examples f Byzantine r ottman art and architecture regardless f whetherChristian orthdx and Islamic wrshippers are preented frm haing accesst and frm using them. In practical terms, internatinal rganizatins and nn-gernmental rganizatins shuld persuade the RC and TRNC gernments,thrugh suitable incenties, t abide by the existing legal standards in rder tbtain the prtectin f the heritage lcated within their – de facto – jurisdictinfr the purpse f internatinal appreciatin and study. The RC in the suth and

the TRNC in the nrth shuld thus agree t becme the custdians f the heritageunder their cntrl. Eidently, the adptin f this bject-riented apprach entailsthat internatinal rganizatins and nn-gernmental rganizatins shuldcperate with the TRNC gernment, regardless f the legality f its existence.

Clearly, this ptin is a palliatie that is suggested nly because an agreement between the parties inled in the cnict is nt expected in the near futureand irrespectie f the aws f this bject-riented apprach. Admittedly, it is pintless t pursue preseratin fr the sake f the bjects and nt fr the sakef the peple fr whm they hae a meaning. As explained abe, sacred placesare nt suppsed t be merely appreciated, but shuld be accessible and used frrituals and ceremnies. Mreer, nly the use f sacred heritage by the peplewhse religius identity that heritage expresses affrds an adequate cntext inwhich it can be prtected and presered.

As said, the bject-riented apprach makes practical sense fr Cyprusnly because f the enduring demgraphic and ethnic partitin and the currentdiplmatic impasse. Hweer, there are ther reasns fauring the adptin fsuch an apprach. one is that it des nt jepardize the ‘cultural’ and ‘symblic’

layers identied abe. on the cntrary, the apprach under cnsideratin makesit pssible t ‘freeze’ such dimensins. These culd then be reied when a

101 The Hellenic heritage has nt been duly presered als because f the lack fexpertise and nancial resurces gien the perty and the relatie islatin f the TRNCand the lack f use. See 2002 Reprt, supra nte 25.




plitical decisin n the erall cnict will allw peple access t the spaces andartefacts sacred t them. Anther reasn is that an bject-riented apprach canact as a catalyst fr enhancing the relatins between Greek and Turkish Cyprits.As pred by the cperatie endeaurs initiated by the tw cmmunities in theeld f cultural heritage prtectin in the last decade,102 this alternatie apprachcan make it pssible t bridge diisins, reduce miscnceptins and fears anderde the causes f the inter-cmmunal cnict.103 In shrt, Cyprits culd setaside the multiple issues related t the cnict if they are encuraged t fcus nthe island’s heritage as the subject f internatinal bligatins and as a resurce frecnmic and scial deelpment nly. This can happen if, fr instance, culturalheritage preseratin is assciated with deelpment plicies as a resurce fr priding suitable respnses t the existing ecnmic challenges in the TRNC.104

Concluding Remarks

The Cyprus cnict, which is rted in the eents that tk place during theottman and British dminatin, erupted after 1960 als as a result f cmplexCld War geplitical strategies. As explained in this chapter, Cyprus’ sacredheritage is a hstage f this cnict. The legal framewrk necessary fr directing achange is already in place: the destructin f Cyprus’ heritage can be diminished r

preented thrugh the applicatin f the rules cdied in the treaties adpted sincethe end f the 19th century fr situatins f armed cnict and military ccupatin.These rules, which are widely regarded as reecting custmary internatinal law,are the prhibitin f acts f ilence against cultural heritage, the bligatin t prtect cultural heritage frm the icissitudes f armed cnict, the prhibitinagainst plundering artwrks and the ensuing bligatin f restitutin. The bindingnature f these rules is further reinfrced by the internatinal legal regime fState respnsibility, which identies the bligatins ensuing frm the ilatinsf internatinal legal precepts. Finally, this chapter adcates the adptin fan bject-riented apprach as a mdest palliatie fr ercming the ethn-religius dichtmies that cnceal the cmmn respnsibility fr the culturallsses sustained in Cyprus. Thus, it is nly thrugh slidarity and jint actinagainst art theft and destructin that the island’s sacred heritage can be handeddwn t future generatins.

102 Fr an eriew see Alessandr Chechi, ‘Beynd Prtectin: Cperatin as aTl t Cpe with Unresled Cultural Heritage Issues in Pst-Cnict Cyprus’ (2011)Cultural Heritage and Arts Review 22.

103 Nathalie Tcci, The ‘Cyprus Question’ , p. cit., 18.104 Fr an eriew f arius examples f cperatie endeaurs in the eld

f cultural heritage prtectin initiated by the tw cmmunities in the last decade seeAlessandr Chechi, ‘Beynd Prtectin’, p. cit., 31.



Chapter 16

Mecca: The ‘Blessed Heart’ f Islam

Simn Page

Mecca in History, Tradition and Revelation

Arund the early 6th century AD the Arab tribe f Quraysh began their rule era small area in the Hejaz f Arabia at abut 70 km inland frm the Red Sea. oer

time they adapted frm their centuries-ld nmadic life and settled in a trridalley there by a well that went by the name f Zamzam. Beside the well was alittle sanctuary knwn as the Ka’bah (‘cube’, in irtue f its shape). The Ka’bahhad been a sacred site frm ery ancient times. Accrding t Muslim traditin,the city f Mecca (latitude f apprximately 21 degrees t the nrth and lngitudef 39 degrees east, abut 300 metres abe sea leel) was established by theJurhumite tribe at the time f the Prphet Abraham.1

Abraham tk his secnd wife, Hagar, and their sn, Ishmael, int exile t the

alley knwn as ‘Bakka’2

in Western Arabia. Accrding t traditin, Abraham leftHagar and Ishmael alne. Eentually they were ercme by thirst. There weretw hills in the alley, named Safa and Marwa. Hagar climbed rst ne, then thether, lking in all directins t nd water. She passed seen times between thetw hills, until at the end f the seenth passage she sat dwn fr a rest and anangel came t their aid, shwing Hagar a spring f water.3 A very similar story is

narrated in Genesis, 21 (17–19):

1 It is nt a matter here f judging the histrical grunds f such an accunt, as in theIslamic wrld it is nt always easy t differentiate a clear bundary between histry andtraditin. Mreer, in this same Muslim wrld cntext ecnmic, plitical, legal, scial,religius r spiritual spheres are cnsidered as cexisting and interacting with each ther,and they are dealt with accrdingly. The methdlgical challenge f this paper is nt trefute such ambiguity a priri.

2 ‘The rst Huse (f wrship) appinted fr men was that at Bakka: full f blessingand f guidance fr all the wrlds’. The Qur’an, 3: 96, frm The Holy Qur’an, Englishtranslation of the meanings and commentary (The Presidency f Islamic Researches,

IFTA, Call and guidance, King Fahad Hly Quran printing cmplex 1990). The alley ismentined in the Psalms t, erses 84:4–6: ‘Blessed are thse wh dwell in Yur huse;They will still be praising Yu. Selah. Blessed is the man whse strength is in Yu, whseheart is set n pilgrimage. As they pass thrugh the valley f Baca, they make it a spring;the rain als cers it with pls’. Psalm 84:4–6 (New King James ersin).

3 Martin Lings, Muhammad. His life based on the earliest sources (Inner Traditins2006).

http://-/?-

http://-/?-

http://-/?-

http://-/?-

http://-/?-




And Gd heard the ice f the lad. Then the angel f Gd called tHagar ut f heaen, and said t her, ‘What ails yu, Hagar? Fear nt,fr Gd has heard the ice f the lad where he is. Arise, lift up the ladand hld him with yur hand, fr I will make him a great natin’. Then

Gd pened her eyes, and she saw a well f water. And she went andlled the skin with water, and gae the lad a drink.4

The well f Zamzam was situated in an extremely dry alley and the enirnmentwas nt suitable fr a large-scale settlement. Hweer, it was faurable frtrade as it was at the crssrads f imprtant rutes leading nrthwards t Syria,nrth-eastwards t Iraq, suthwards t Yemen and westwards t the Red Sea

(t Abyssinia and elsewhere). At the end f the 6th century the Quraysh frmedthe ruling class f Mecca. other tribes had als pured int Mecca frm different

parts f the Arabian Peninsula. Hweer, since the times f Abraham the lcaltribes had abandned the mntheistic belief and had embraced pagan practices.

The hly sanctuary f the Ka’bah was already a destinatin fr pilgrimage eenduring pagan times, attracting thusands f peple frm all er the regin andthus bringing wealth t the inhabitants f Mecca. The sanctuary was als knwn asthe Huse f Gd ( Baitullah). Althugh it has been destryed and rebuilt seeraltimes since its fundatin, it has always remained a ery simple building madef stne, with a cubid structure,5 riginally deted t receiing dnatins frm

pilgrims.At the eastern crner f the Ka’bah was ‘the Black Stne’ ( Al-Hajar al-Aswad ).It is a dark basaltic stne, belieed t be a meterite fund n the nearby hill fAbu Qubays, presered there until it was brught t Mecca.6 The stone is still

isible tday,7 while the ancient ritual f circumambulatin arund the Ka’bah(tawaf ) is practiced in ur times by millins f pilgrims frm all er the wrld,and the sanctuary indicates the directin (kibla) that all Muslims should face when

praying.8

4 Genesis 21:17–19 (New King James versin).5 Its dimensins are apprximately 10m by 12m (hrizntally) by 16m (ertically).

Titus Burckhardt, Art of Islam. Language and Meaning (cmmemratie editin, WrldWisdm, 2009).

6 Martin Lings, Muhammad , p. cit., 2006.7 ‘It is raised frm the grund at abut ne and a half meters. Its length is half a

cubit and its width is ne third a cubit’. Mhammed H. Al Mjan, The Honorable Kabah.

Architecture and Kiswa (Al Kawn Center, 2010).8 ‘We see the turning f thy face (fr guidance) t the heaens: nw shall we turn theet a Qibla that shall please thee. Turn then thy face in the directin f the Sacred Msque:whereer ye are, turn yur faces in that directin’, The Holy Qur’an; p. cit.; 2, 144. It iswrth nting that until abut the 2nd year frm the Hijra (the migratin t Medina), thedirectin f prayer had been t the hly temple munt in Jerusalem. After the Quranicreelatin Mhammed cmmanded the Muslims t pray facing Mecca.



Mecca: The ‘Blessed Heart’ of Islam 321

As cncerns the spiritual meaning f the Ka’bah, it crrespnds t myth r treelatin, depending n the pint f iew. Its rle as liturgical centre f the Islamicwrld is directly related t the fact that it cnstitutes a crucial bnd with the PrphetAbraham, and therefre with the rigins f all mntheistic religins.9 Indeed

accrding t the Qur’an the Ka’bah was built by Abraham and his sn Ishmael,and Abraham himself instituted the ritual f the pilgrimage t the hly sanctuary.

In the wrds f the Qur’an:

And remember Abraham and Ismail raised the fundatins f the Huse (withthis prayer): ‘our Lrd! Accept (this serice) frm us: fr Thu art the All-Hearing, the All-Knwing’.10

Allah made the Ka’ba, the Sacred Huse, a means f supprt fr men, as als the

Sacred mnths, the animals fr fferings, and the garlands t mark them: that yemay knw that Allah hath knwledge f what is in the heaens and n earth andthat Allah is well acquainted with all things.11

Behld! We pinted the site, t Abraham, f the (Sacred) Huse, (saying):‘Assciate nt anything (in wrship) with Me; and sanctify my Huse fr thsewh cmpass it rund, r stand up, r bw, r prstrate themseles (therein prayer).12

The building is traditinally cered with a garment (kiswa), replaced eery year,made f black clth embridered with gld lettering.

The custm f ‘clthing’ the sanctuary was apparently intrduced by an ancientHimyarite king, and seems t be part f an extremely enerable Semitic traditinwhich is, in any case, alien in style t the Grec-Rman wrld: t ‘clthe’ a huseis, in a way, t treat it as a liing bdy r as an ark bearing a spiritual inuence,and that is hw the Arabs understd it.13

At the time when the Prphet Mhammed was brn in Mecca, abut 570 AD,the city was the mst imprtant religius and cmmercial centre f the Hejaz.But because agriculture was impssible in the city, the Quraysh relied slely ncmmerce and n the incme frm pilgrims. In ther wrds, they needed peace inrder t prsper, and therefre ‘they established the Haram, a zne with a twenty-mile radius, with the Kabah at its center, where all ilence was frbidden’.14

9 Titus Burckhardt, Art of Islam, p. cit.

10 The Holy Qur’an; p. cit.; 2,127.11 Ibid.; 5, 97.12 Ibid.; 22, 26.13 Titus Burckhardt, Art of Islam, p. cit. Mreer, this authr establishes a parallel

between the Ka’ba and the Hly f Hlies, cntaining the Ark f the Cenant, in theTemple f Jerusalem (because f their cubic shape).

14 Karen Armstrng, Mohammad. Prophet for our time (Harper Perennial, 2007).




Since the time f the Quraysh the landmarks that indicate the brders f the Haram (sanctied area) hae been renated by all the rulers that subsequentlycntrlled Mecca. The sacred precincts include the area arund Mecca and aremarked by special landmarks, n all rads leading t and frm Mecca. The mst wellknwn are the nes n the rads twards Medina (3 miles frm the Ka’bah), Yemen(7 miles), Iraq (7 miles), Taif (11 miles), Jaa’ranah (9 miles), Jeddah (10 miles).15

What happens within these brders is gerned by special rulings accrding ttraditinal Islamic surces. Therefre, nn-Muslims are preented frm enteringthe Haram area (in Mecca as well as in Medina). N bld shuld be spilledwithin the sacred precincts, and hunting is prhibited as well as uprting treesand carrying any weapn.

Ibn Abbas reprted that n the day f the cnquest f Makkah (Mecca), thePrphet (peace be upn him) said, ‘verily this is a Sacred City, its thrns and its

plants must nt be cut, its wild game must nt be frightened, and nne is allwedt pick up lst articles unless ne knws its wner (in rder t return it t him)’. 16

Many other ahadith17 cntain clear references t the inilability f Mecca. Frexample, it was related that Abd Allah ibn Zaid Assem (may Gd be pleased withhim) said that the Messenger f Gd (prayers and peace upn him) said: ‘Abrahamawed Makkah t be inilable and inked blessings upn thse wh dwell init. I aw Makkah t be inilable as Abraham awed it t be inilable, and Iinke twfld measure f blessings upn thse wh dwell in it’.18

At the time f the Prphet, 360 idls were surrunding the Ka’bah, while themst reered deity was prbably the Mabite idl Hubal, which had been set upwithin the Ka’bah itself. But there were ther temples thrughut the regin, themst imprtant being thse f the s-called ‘daughters f Gd’ (banat Allah): al-Lat in the twn f Taif, al-Uzzah in the alley f Nakhla and Manat at Qudayd, nthe Red Sea. ‘Een thugh they had n shrine in Mecca, the Quraysh led thsegddesses and begged them t mediate n their behalf with the inaccessible Allah’.19

It is nly with the cnquest f Mecca by Mhammad and the Muslim frces in630 AD that all the idls in and arund the Ka’bah were destryed. The Prphethimself cntributed t the destructin f the idls, while reciting the Quranic erse:‘Truth has cme; anity has anished; in truth anity is eanescent’.20 The Prphet,in ther wrds, had succeeded in restring ‘the psitin f the Ka’ba and the haramarund it t its riginal Abrahamic rle as centre f a mntheistic cult’.21

15 Mhammed H. Al Mjan, The Honorable Kabah, p. cit.16 Cit. in As-Sayyid Sabiq, Fiqh us-Sunna (American Trust Publicatins 1991).

17 Sing.: hadith, maxim r saying attributed t the Prphet.18 Mokhtaser Sahih Muslim (cllectin f sayings f the Prphet), reised andtranslated by A. & D. Zidan, Islamic Inc.

19 Karen Armstrng, Muhammad , p. cit.20 The Holy Qur-an, 17,81, cit. in T. Burckhardt, Art of Islam, p. cit.21 Hugh Kennedy, ‘Jurney t Mecca, A Histry’, in venetia Prter (ed.), Hajj,

journey to the heart of Islam (The British Museum Press, 2012).




(increasing the ttal capacity f the Grand Msque t mre than 2.5 millin).The prject expects t add tw minarets, bringing the ttal number t 11, and tincrease the area of the mataf .

These extensins were made necessary in rder t accmmdate the eer-increasing numbers f pilgrims, especially during the Hajj23 season. The

authrities try t cntain the numbers f pilgrims by impsing qutas. Hweer,disapprbatin has been grwing at the apparent unwillingness t cnsere and prtect the histrical and archaelgical heritage f Islam’s tw hly cities.It is estimated by the Washingtn-based ‘Gulf Institute’ that 95 per cent fthe 1,000-year-ld buildings in the tw cities hae been destryed in the past 20 years:24

In Mecca, the Masjid al-Haram (Grand Msque), the hliest site in Islam anda place where all Muslims are suppsed t be equal, is nw ershadwed by

the Jabal omar cmplex, a deelpment f skyscraper apartments, htels and anenrmus clck twer. T build it, the Saudi authrities destryed the ottman eraAjyad Frtress and the hill it std n.25

other histric sites destryed included the huses f the Prphet Mhammed, hisrst wife Khadija, Caliph Abu Bakr and seeral msques built n the graeyardsf cmpanins and relaties f the Prphet.26 This can be explained als bycnsidering the Wahabi interpretatin f Islam that ppses anything which mayemblden the faithful twards idl wrship. Peple are strngly discuraged frm

isiting lcatins cnnected t the birth f Islam and pwerful clerics encuragetheir destruction.27

Anything that departs frm the neness f Gd as dened by the Wahhabisis cnsidered as ‘shirk’ (idlatry), and implies ‘kufr’ (disbelief). Frm its earliestappearance, Wahhabism has thus iewed many Hijazi custms and rituals –especially thse that inle hnuring the Prphet Mhammed r his cmpanins, particularly celebratins f the Prphet’s birthday, isiting f shrines, reerence fthe dead, dreams and isins, the sanctity f sites r shrines and especially Su practices – as superstitius, if nt heretical.28

23 The annual pilgrimage t Mecca that is incumbent n eery Muslim at least ncein his lifetime, if he has the means t carry it ut. It is ne f the e pillars f Islam (arkanal Islam).

24 Jerme Taylr, ‘Medina: Saudis take a bulldzer t Islam’s histry’, The Independent (Lndn 26 octber 2012) <www.independent.c.uk/news/wrld/middle-east/medina-saudis-take-a-bulldzer-t-islams-histry-8228795.html?printSerice=print>

accessed 27 octber 2012.25 Ibid.26 Ahmed Irfan, ‘The destructin f Hly Sites in Mecca and Medina’ [2010]

Islamica Magazine.

27 J. Taylr, Medina, p. cit.28 Mai Yamani, Cradle of Islam. The Hijaz and the quest for identity in Saudi Arabia

(I. B. Taurus 2009).

http://www.independent.co.uk/news/world/middle-east/medina-saudis-take-a-bulldozer-to-islams-history-8228795.html?printService=print







Madawi Al Rasheed, Prfessr f Anthrplgy f Religin in Lndn, hasals tackled this subject, cmmenting n the religius literature aimed at preentingisits t the hly cities f Islam and thereby cmmitting ‘blasphemus acts’. 29

But the persnality wh has been mre adamant abut the fate f Islamichistric sites in Mecca and Medina is n dubt Architect Sami Angawi.30

Dr Angawi, a well renwned expert f Islamic architecture and art and funder in1975 f the Hajj Research Center, beliees that ‘we are witnessing nw the lastfew mments f the histry f Mecca’ and that ‘we are destrying physical linkst ur past and turning ur religin and histry int a legend’.31

It is nt ur intentin t judge r cndemn such a plicy r habit, especially ina highly cntrersial eld like religius belief. What can be stated is that such anapprach by the fcial religius establishment f the Kingdm f Saudi Arabiacan easily be traced in publicatins related t the matter. Fr example, the Standing

Cmmittee fr Schlarly Research and Issuing Fatwas issued a series f fatwas nthis subject32 such as:

Building n graes is an abminable ‘bid‘ah’ (innatin in religin) thatinles excessie eneratin f thse wh are buried there. It is als a meansthat can lead t ‘shirk’ (assciating thers with Allah in His Diinity r wrship).It is therefre bligatry fr a Muslim ruler r his representatie t rder theremal f these buildings n graes and that they be leelled t the grund, t

end this ‘bid‘ah’ and t blck the means t ‘shirk’.33

In case that the land n which the Masjid (msque) was built is free f graes, perfrming Salah (prayer) there is permissible therwise the Masjid shuld bedestroyed.34

It is impermissible t cnstruct buildings er graes r t plaster r marblethem, as the Prphet (peace be upn him) frbade all f this. Islam des ntallw any frm f Ibadah t be ffered at graes whether it is Salah, recitatin fthe Qur’an, slaughtering animals, distributing fd r Tawaf (circumambulatin)

29 Madawi Al Rasheed, Contesting the Saudi State. Islamic voices from a new generation (Cambridge Uniersity Press 2007).

30 Laith Abu-Ragheb, ‘Dr Sami Angawi n Wahhabi Desecratin f Makkah.Deelpers and Purists Erase Mecca’s Histry’ (Reuters 12 July 2005) <www.

islamicpluralism.rg/467/dr-sami-angawi-n-wahhabi-desecratin-f-makkah> accessed30 April 2013.

31 Ibid.32 Published n the website f the Saudi General Presidency f Schlarly Researchand Ifta, <www.alifta.cm>.

33 Fatwas f the Permanent Cmmittee, Grup 1, vlume 1: Aqidah (1), Creeds,Exaggeratin regarding graes and building Masjids (msques) er them, Ruling n building er graes (fatwa n. 7210).

34 Ibid., fatwa n. 10422.

http://www.islamicpluralism.org/467/dr-sami-angawi-on-wahhabi-desecration-of-makkah


http://www.alifta.com/

http://www.alifta.com/






(…) There is a Hadith which pres that seeking blessings frm graes andthse wh dwell therein is prhibited and is regarded as majr Shirk.35

Sheikh Abdulaziz ibn Baz, Grand Mufti – the highest religius gure f theKingdm –als issued many fatwas n the subject frm 1993 until his deathin 1999.36 Sme Hejazi schlars cmmented that this disregard twards thecnseratin f the heritage f Mecca and Medina by the religius schlars fWahhabi inspiratin can als be explained cnsidering that their rigin is mstlythe regin f Qassim, in central Arabia (in the wider regin knwn as Najd),almst 1,000 kilmetres frm Mecca and the Hejaz.

This phenmenn reects als a general attitude twards the sacred which isery different frm the ne we nd in the West r in ther parts f the wrld, wherethere is a direct and natural cnnectin between antiquities, ancient art, cultural

heritage and religius practices and ceremnies. This has t be emphasized, because it wuld therwise be difcult t understand the cmpletely differentstandards f preseratin f histric heritage in the hly cities f Islam cmparedt similar places f wrship elsewhere. Similarly, it has been written that ‘the GreatMsque, which fr centuries held the rle f a uniersity, became slely a placefr pilgrimage and prayer under Saudi adherence t Wahhabism’s exclusinarytenets’.37 It is therefre imprtant t draw ur attentin nw t the signicance fthe pilgrimage t the hliest city f Islam.

The Pilgrimage

The pilgrimage t Mecca (Hajj) is the s-called fth pillar f Islam,38 and its

bligatry character – fr eery member f the faithful wh can affrd it andwh is mentally and physically t – deries directly frm the Qur’an (3:97).It cmprises a set f rituals taking place in Mecca and in ther lcatins in its

35 Ibid., fatwa n. 5339.36 Fr example: ‘The Prphet (peace be upn him) explains that the peple wh

build Masjids (msques) and dmes er graes as well as thse wh make idls in themare the wrst peple in the sight f Allah. He cursed them in the Hadith f ‘Aishah and didnt differentiate between thse wh built them fr wrship and thse wh tk them asmemrials. Therefre building (dmes and Masjids er graes) is nt permissible, becausethey are a big means t Shirk. It is als a traditin f the Jews and the Christians which we

were prhibited t fllw’. Fatwas f Ibn Baz, vlume 1, Refuting Mustafa Amin www.alifta.net.

37 Mai Yamani, Cradle of Islam, p. cit.38 The ther fur being 1) the Shahadah, that is ‘t acknwledge erbally that ne

accepts the reality f Gd and the prphecy f Muhammad’; 2) the Salat r ritual prayer;3) Zakat, cmmnly translated as ‘alms tax’; and 4) fasting during the mnth f Ramadan.Cf. Sachiko Murata and William C. Chittick, The Vision of Islam (Paragn Huse, 1994).

http://www.alifta.net/







ritual of the Jamarat r ‘stning f the deil’. Mreer, a quta system thatcontrols per capita Hajj participatin and pegs natinal qutas t ppulatin sizewas adpted, essentially freezing such participatin at 1990 leels (n mre than

1,000 pilgrims fr eery millin peple, in the case f Islamic cuntries; exceptinsare made fr Muslim minrities in nn-Islamic Cuntries), s that the ttal numberof Hajjis (pilgrims perfrming Hajj) frm erseas wuld nt exceed, riginally,1.3 millin annually (currently the number allwed is 1.8 millin). At the sametime the number f internal pilgrims resident in Saudi Arabia was als limited.42

Accrding t Rbert Bianchi,

… the hajj has transfrmed internatinal relatins as much as dmestic plitics(…) The need fr a glbal pilgrimage plicy and a permanent internatinalauthrity t implement it is a driing frce behind the organizatin f the Islamic

Cnference (oIC). Debates er hajj plicy frame the struggle fr pwer ininternatinal Islamic rganizatins and affect relatins between Muslim statesand their wrld diplmacy.43

Rbert Bianchi highlights Muslims’ expectatins that their rulers make eeryeffrt t guarantee their right t isit Mecca in rder t full their religiusduties. Eentually a cmprmise was reached between different and cnictingappraches t sereignty and free access t the Hly Cities. Mreer, Bianchi

establishes a pertinent cmparisn between Hajj management and maritime law:

… like the law f the sea, the hajj is a eld where custmary law rules thatgerned fr centuries brke dwn rapidly and where the frmatin f new rulesexpsed sharp disagreement er the rle f internatinal law. Just as the maritime pwers f the West used their naies t enfrce a uniersal cde fr the high seas,the great land empires f the Islamic wrld used their armies t pride safe passage fr Muslims isiting the Hly Cities. In each instance, a few hegemnic pwers laid dwn the law, but trade and trael eerywhere beneted.44

Hweer, he prbably erestimates the recnciliatin between ‘seeminglyincmpatible principles f uniersal access and exclusie jurisdictin’ and the rlef the oIC in determining the Hajj plicies and mnitring their implementatin.

Indeed it is difcult t acknwledge the existence f a Hajj regime based ncustmary internatinal law as Bianchi des. And if anything like an Islamicinternatinal law exists, an issue that cannt be discussed here, it certainly desnt hae much inuence n the administratin f the Hajj and f the Hly Cities.

on the cntrary, Saudi Arabia appears t be keeping a rm grip n the sereign

42 Ibid.43 Ibid. In 2011 the name f the rganizatin was changed t organizatin fr Islamic

Cperatin.44 Ibid.




rule er Mecca and Medina. And abe all there seems t be nthing like a Hajjregime ensuring a cmmn heritage preseratin f the Islamic hliest sites, as wehae seen in this chapter.

The End of Mecca?

It is sad t think that we are maybe witnessing, as Dr Angawi has said, the lastfew mments f the histry f Mecca. The image f this sacred city as the ‘heart’f the Islamic wrld is well knwn. Accrding t this metaphr, Hajj therefrerepresents the circulatin f the ‘bld’ – that is, the faithful – f Islam mingacrss the Islamic wrld, with Mecca and the Ka’bah being the heart.45 The end

f Mecca, r f its histry, culd hae seere cnsequences fr Islam as a whle,

and particularly fr it as a wrld ciilizatin. In this regard, and in cnclusin,it is wrth mentining the wrds f a renwned British Su writer and schlarMartin Lings, wh is als knwn as Sheikh Abu Bakr Siraj Al Din, an authrthat we hae already quted here. In a beautiful dcumentary46 using smeextrardinary archie material Dr Lings recllects the experiences f the tw Hajj pilgrimages that he perfrmed in 1948 and in 1976. At the end f the interiewhe cannt refrain frm bsering that Mecca changed immensely in the almstthree decades between his tw Hajj experiences. He expresses his regret that een

Safa and Marwa, that are amng the ‘mnuments’ (r ‘symbls’) f Gd,47

in themeantime hae been mre r less destryed. Nnetheless, he adds that after therst Hajj he made a certain spiritual prgress, and thus became mre sensitiet certain things, and especially t the Baraka (blessing, spiritual presence). TheQur’an ften mentins this term, whse surce is always and nly Allah. Gd’s blessing perades many things, humans and places. It perades Mecca, as statedin the Qur’an (3,96). Being mre spiritually sensitie during the 1976 Hajj, in acertain sense Martin Lings appreciated mre his secnd pilgrimage. Despite allthe changes that had ccurred in Mecca er the decades, what remains ttallyunchanged, he cncludes, is the Baraka.

45 ‘Accrding t a Su interpretatin, the Ka’ba crrespnds t the heart, as the seatf the Diine “Presence”, and the encircling mement f the pilgrims arund the Ka’ba

recalls the mement f thughts r meditatins turning perpetually arund the sul’sungraspable center’. Titus Burckhardt, Art of Islam, p. cit.46 Circling the House of God: Reections on Hajj with Martin Lings (dcumentary

lm, Matmedia prductins, 2009).47 ‘Behld! Safa and Marwa are amng the symbls f Allah. S if thse wh isit

the Huse in the seasn r at ther times, shuld cmpass them rund, it is n sin in them’.The Holy Qur-an; p. cit.; 2, 158.



Chapter 17

Cnclusin:

A Sft-law Apprach t the Protection of Sacred Places?

Sili Ferrari

The third part f this bk was an illustratin f hw different the sacred placesf the Mediterranean are. Althugh they are grunded n a thelgical cnceptinf sacred space that is shared by Judaism, Christianity and Islam, sacred placesinclude different physical entities (buildings, pen spaces, twns, gegraphicalareas and s n) that are subjected t legal regimes ranging frm extraterritrialityt systems f internatinal guarantees, frm full subrdinatin t State cntrl andt a large degree f autnmy and self-determinatin.1 A single legal instrumentcntaining a unifrm and analytical regulatin f all the sacred places f the

Mediterranean wuld be f little help t pride effectie prtectin t suchdierse realities. A mre sphisticated and diersied apprach is required, basedn a number f distinctins that take adantage f all the multiple functins thatlaw can perfrm. As stated in Peter Petkff’s chapter, deelping a new categry f prtectin f sacred places under internatinal r natinal law is nt the pririty atthis stage. Such an endeaur requires a preius reectin n ‘the ways in whichdifferent, and smetimes erlapping, legal tls are applied in the prtectin fdifferent, and smetimes erlapping, bjects, which culd be bradly describedas sacred places’. This bk aims t ffer this type f fd fr thught, fllwing a bttm-up methdlgy clearly illustrated by the pages deted t the study f thesingle sacred places f the Mediterranean. They shw that whateer the discussinf a prtectin framewrk fr the sacred places may be, it has t be based nan analytical examinatin f their legal discipline: in this way the elements fcmmnalities that supprt the framewrk emerge frm the inestigatin f thediersities that characterize each sacred place.

The cntributins cllected in this bk suggest that such a gal is best attained by striking the crrect balance amng the tensins that exist between general/

specic and hard/sft legal prisins.First f all it is helpful t identify tw different leels f legal interentin.

This distinctin reects the tw dimensins which are a recurrent theme whendealing with the sacred places f the Mediterranean: n the ne hand there are

1 Fr these differences see the chapter by Umbert Leanza in this bk.




the cmmnalities which characterize them and suggest the need t identify smeshared principles that set the stage fr further actiity; n the ther, there is thespecicity f each sacred place which makes it impssible t adpt the sameunifrm legal discipline fr them all. At the rst leel, a few guidelines whichsere as a general framewrk f prtectin and prmtin can be identied, at thesecnd these cmmn principles must be translated int mre detailed prisinsthat apply t single sacred places. While this last task is primarily the respnsibilityf lcal actrs, the building f the general framewrk can inle subjects that haea brader scpe f actin, like internatinal rganizatins, NGos and biuslyreligius cmmunities. The Declaratin that is published at the end f this bkis an example f the frm that such a framewrk culd take, but it needs t becmplemented by prisins that t the specic requirements f each sacred place.

Secnd, taking int cnsideratin the suspicin with which States and

religius cmmunities lk at a legal discipline f sacred places that culd limittheir pwer t rule er them, the rst step twards a prtecting system shuldtake the frm f sft law – that is, nn-binding prisins that are accepted byall the inled parties. A few guidelines cntained in a declaratin that is pent the signature f States, internatinal rganizatins, religius cmmunities andther stakehlders is a gd way t intrduce a ‘gentle’ regulatin f sacred placesthat is nt perceied as threatening by the pwers that hae their cntrl. oncethese prisins are implemented and hae pred their capacity t pride a

sund legal status fr the sacred places withut encraching upn the States’ andreligius rganizatins’ prergaties, a discussin abut the pprtunity t metwards mre binding rules culd be started withut raising the suspicins andencuntering the bstacles that it wuld face tday.

The cmbinatin f general and specic prisins and f sft and hard lawutlines a multi-layered system, where different rules taken frm different legalelds and cering different prles f sacred places may intercnnect in the areaf their legal prtectin. The nature itself f sacred places – that is, places wherereligin, culture and histry meet – suggests the need fr multiple legal tls that‘apprach sacred places thrugh their multiple identities and sere as a mdelfr legal reasning which wuld see these identities in cnjunctin and nt inislatin’.2 In this cntext prisins safeguarding freedm f religin and belief,cnentins prtecting cultural heritage and laws regarding minrity and prpertyrights culd cnerge in a prtectin system f the sacred places.3 A sft-law textlike the ne mentined abe is the place where such cnergence takes shape. Itdes nt want t be a legal tl fr a detailed regulatin f sacred places. Rather,it is the place where their different facets that require t be legally regulated are

identied and the legal principles guiding their discipline are utlined.

2 Peter Petkff, in this bk.3 See n this pint the interentin f Cesare Mirabelli in Andrea Benz (ed.),

Proceedings of the Seminar ‘Protecting the Sacred places of the Mediterranean’ (Brussels,6 March 2012, order f Malta 2012) 30.



Conclusion 333

Fie guiding principles fr the prtectin f the sacred places f theMediterranean are singled ut in the text f the Declaratin. They are:

1. the religious nature of sacred places and their link with religious freedom.

As explained in the intrductin t this bk, sacred places are primarilyt be regarded as liing heritage that answers the religius needs f peple.The right t establish, maintain and use a sacred place is an integral part fthe fundamental human right f religius freedm and shuld be prtectedas such, as well as fr the fact that it is a part f the wrld cultural heritage(when this is the case).4

2. the signicance of the sacred places for the development of a plural society.

This principle stresses the need t prmte the awareness that sacred places play an irreplaceable rle in safeguarding the diersity f religius and

cultural traditins, withut which n fruitful dialgue is pssible betweenthe different ciilizatins cexisting in the Mediterranean area. Fr thisreasn the prtectin and prmtin f the sacred places is nt a cncernf the religius cmmunities nly. It is f central imprtance fr thedeelpment f a ital ciil sciety and, as such, it requires the attentinand participatin f all the indiiduals and rganizatins that are interestedin building the Mediterranean as a space f exchange and dialgue,independently frm their religius r nn-religius afliatin.

3. the protection of sacred places, understd bth as preseratin f their physical integrity and as respect fr their sacred and cultural signicance.Frequently, sacred places are places f utstanding religius and culturalimprtance at the same time: this cncmitance gies rise t the prblemf nding a balance between interests that may be in cmpetitin – the physical preseratin f buildings, sites and bjects n the ne hand andtheir cntinuing use as indispensable cmpnents f the religius practicef a cmmunity n the ther. The dialgue between the representaties fthe rganizatins that are in charge f these interests and the inlementf the religius cmmunities in the cnseratin wrk aimed at preseringthe religius and cultural heritage is the mst prmising path t fllw.5

4. the relationship between sacred places and communities of the faithful ,which is manifested by the latter’s interest in liing in the icinity f theirsacred places and in managing them withut utside interference. The presence f a religius cmmunity is essential t maintain the characterof living heritage f a sacred place. Its permanence frequently depends

4 See Declaratin, Article 1, annexed t this bk.5 The need fr this dialgue has been stressed by Munir Buchenaki in his

interentin in Andrea Benz (ed.), Proceedings, p. cit. 73–4. A number f gd practicesare described in Herb Stel, Nichlas Stanley-Price and Rbert Killic (eds), Conservationof Living Religious Heritage. Papers from the ICCROM 2003 Forum on Living Religious Heritage: conserving the sacred (ICCRoM 2005).




n scial and ecnmic prcesses n which law has little impact. Withinthese limits, facilitating the cntinuing life f the religius cmmunity thatfrmed arund a sacred place shuld be understd as part f the prtectinframewrk as the religius cmmunity itself is part f the heritage that hast be prtected.6

5. access to sacred places, recgnized t all withut distinctin f natinalityr religin but subject t cmpliance with the rules – established by thereligius authrity in charge f the sacred place – that are necessary frthe preseratin f the nature and purpse f a sacred place and f theactiities taking place in it.7 The right t exclude entire categries f peple – wmen, members f a different religin, peple wh d nt prfess anyreligin – frm access t sme sacred places is ne f the mst delicatetpics currently debated. While limitatins based n the respect f rules

aimed at safeguarding the dignity and sacred character f the place r the perfrming f religius rites (which may be resered t the members fthe religius cmmunity) are acceptable, a general exclusin that is ntfunctinal t these gals may raise sme questins, in particular because it preents peple frm haing access t places that hae nt nly a religius but als a cultural signicance.

These e principles are deelped in the ‘Declaratin n the Prtectin f the

Sacred Places in the Mediterranean Area’ that fllws these cnclusins. Thedeclaratin aims t be a tl aailable t all stakehlders wh, by adhering tit, manifest their willingness t respect its principles in the gernment andmanagement f sacred places. It merely cntains sme fundamental principles,withut ging int the details f the prtectin f sacred places nr indicatingthe legal frms thrugh which it can be guaranteed (internatinal r natinalinstruments, agreements, cdes f gd practice and s n): this task is left tthe parties that are inled in the management and cnseratin f particularsacred places, as they are best placed t assess the prtectin system that is mstapprpriate fr the identity, histry and characteristics f each f them. Mreer,the declaratin wants t cmplement (and nt t replace) the existing prisinsthat prtect sacred places as a cmmn heritage f the whle f humankind. 8 In

6 See n this pint Jørgen Bøytler, ‘Christiansfeld: a religius heritage alie andwell’, in Herb Stel, Nichlas Stanley-Price, Rbert Killick (eds), Conservation of Living Religious Heritage, p. cit., in particular 25–9. The authr writes that ‘the religius bdy’

(that is the Christian cngregatin) that created the settlement ‘is part f the heritage’, sthat its disappearance affects the heritage itself: ‘nce the religius dimensin, n whichcertain religius cultural heritage is funded, is erruled r een errun by new ecnmic, plitical and cultural interests, the next generatin will inherit smething different; whatwas there is gne freer’ (25–6). See als Declaratin, Articles 4.3 and 6.5.

7 See Declaratin, Article 3.8 See Declaratin, Article 8.



Conclusion 335

ding s, it underlines the religius signicance f sacred places, a prle thathas nt yet been fully deelped in the legal instruments aimed at their prtectin.

In her pening address at a cnference n sacred places, the EU CmmissinerAndrulla vassiliu said that there is ‘a sacred gegraphy f the Mediterranean’that makes it pssible t draw ‘a map that wuld shw the regin as a netwrkf reginal and internatinal places f pilgrimage, f mnumental temples,synaggues, churches and msques’. This map, she cncluded, ‘is part f urcmmn histry’ but ‘sadly, it cincides with the map f scars and cnicts’.9 It is

difcult t disagree with her remark: histrically, sacred places hae been placesf cnict as well as f peace. Hweer, this utcme is nt the unaidable fatef sacred places; rather, it is the result f human actins. Recalling Maimnides,Kellner writes that ‘hliness […] is a challenge, nt a gien; nrmatie, ntdescriptie […]. This srt f hliness des nt reect bjectie reality; it helps

cnstitute scial reality’.10 Building a sund system f prtectin and prmtinf sacred places ges twards cnstituting a scial reality where the elements f peace preail er the elements f cnict. If this bk can be a little step in thisdirectin, this will be the best reward fr the wrk its authrs put int it.

9 Andrulla vassiliu, ‘opening Remarks’, in Andrea Benz (ed.), Proceedings, p.cit. 8.

10 Menachem Kellner, Maimonides’ Confrontation with Mysticism (The LittmanLibrary f Jewish Ciilizatin, 2006).



Appendix

Declaration on the Protection and

Enhancement of Sacred Placesin the Mediterranean Area

Explanatory Note

The present Declaratin cnstitutes the main utcme f a research prjectcmmissined in 2008 by the Sereign order f Malta aimed at cntributing tthe establishment f sme cre principles n access t and the legal prtectin andenhancement f sacred sites f uniersal signicance.

A grup f well-knwn academics chaired by Prfessr Sili Ferrari f theUniersity f Milan was appinted t study the situatin f seeral prminentsacred sites in the Mediterranean area. Their studies, which now feature in this

bk, hae prided a clearer assessment f the differences in typlgy, size,

histry and current legal discipline that exist amng these places. The arietythese studies hae shed light n has prided a wide spectrum f patterns andexperiences, thus enabling the authrs t identify thse features that are cmmnt all sacred places: these hae therefre been put at the cre f this new andcmprehensie legal framewrk.

Within the general framewrk set by the fllwing Declaratin, each sacred place may then be the subject f a mre specic legal discipline allwing it tfulll its wn religius, cultural and ciilizatinal rle stemming frm histry andtradition.

Declaration on the Protection and Enhancement of Sacred Places in the

Mediterranean area

The Signatries, Reafrming the fundamental right t religius freedm as enshrined ntably

in Article 18 f the Uniersal Declaratin f Human Rights, in Article 18 f the

Internatinal Cenant n Ciil and Plitical Rights, and in ther internatinalinstruments,

Stressing that the right t religius freedm includes, inter alia, bth the

aailability f a place f wrship, as afrmed in Article 6(a) f the Declaratinn the Eliminatin f All Frms f Intlerance and f Discriminatin Based n




Religin r Belief, and the enjyment f the places that are sacred t each religiuscommunity;

Recognizing that sacred places are part f the religius experience and thecultural heritage f humankind and are a fundamental cmpnent f the memryand identity of individuals and communities;

Keeping in mind the central rle that sacred places hae played in religin,culture and internatinal relatins thrughut histry, and appreciating their aluefr prmting dialgue, mutual respect, peace and recnciliatin;

Aware that sacred places hae t frequently becme an issue f cnict andsmetimes the target f destructin and desecratin;

Believing that a clear cmprehensin f the uniersal dimensin f sacred places and f the specic characteristics f each f them is a pre-cnditin frsafeguarding their religius signicance, fstering respect fr them and aiding

any imprper explitatin theref;Convinced that eery sacred place and its immediate surrundings shuld

be regarded as a balanced whle where physical space and human presence andactiities are inextricably linked;

Acknowledging the need fr a cmprehensie and shared set f guidelines nthe prtectin f the sacred places f the Mediterranean area, their preseratinand apprpriate use, that pride a framewrk where, if necessary, specic rulesgerning each f them culd be inserted, and cncerned that prmpt and effectie

measures shuld be taken in this eld in the interest f the whle humankind,Hae agreed as fllws:

Article 1. Freedm f religin and sacred places.

1. Freedm f religin and belief includes the right f the faithful f areligius cmmunity t establish, maintain, administer and use the placessacred to them.

2. The signatries recgnize that they hae a cmmn interest in pridingthe sacred places with legal prtectins that safeguard their utstandingcultural, histrical, spiritual and religius alue and their distinctiecharacter bth fr the cmmunities t which they are assciated and frhumankind.

Article 2. Denitin f sacred place.

1. Fr the purpses f the present Declaratin, a sacred place is a place

actually resered t purpses and actiities f religin that fr fundatinal,histrical, ideal r ther reasns has a unique and irreplaceable signicancet the faithful f particular religius cmmunities, whether uniersally rin the regin where the place is lcated. Fr the aidance f any dubt,the ntin f sacred place des nt apply nly t buildings but can include



Appendix 339

ther denite areas, fr example cemeteries r shrines, that meet therequirements indicated abe.

Article 3. Access t sacred places.

1. Public authrities shall guarantee the right t hae free and unhinderedaccess t any sacred place. The exercise f this right can be limited nly inthe presence f cmpelling reasns f public rder and security.

2. The access t a sacred place is subject t the restrictins established bythe respectie religius authrities and t the regulatins aimed at grantingrespect fr the religius nature f the place and f the actiities taking placein it.

3. States will facilitate the permanent presence in their territry f religius

persnnel sering the sacred places and entry int the cuntry f isitrsand pilgrims t the sacred places cming frm abrad.

Article 4. Religius cmmunities.

1. The signatries shall respect the distinctie relatinship f the fllwersf a religius cmmunity with their wn sacred places and shall safeguardthe religius and cultural rle f the latter in the life f the cmmunities

concerned.2. Religius cmmunities shall enjy full freedm in the administratin

f their wn sacred places. Public authrities shall cperate with therespectie religius cmmunities with reference t the maintenance fsafety, security and public rder at sacred places.

3. States shall d whateer pssible t ensure that the fllwers f a religiuscmmunity, in particular when they cnstitute a minrity, can cntinue tlie in the neighburhd f and in ital cntact with their sacred places asa means f presering and fstering bth the cmmunity identity and thefull signicance f the sacred place. Such measures shuld be undertakenwith the greatest pssible participatin f the cmmunities and grups f peple cncerned.

Article 5. Preseratin f sacred places.

1. The integrity f sacred places shall be safeguarded. They shall nt bedestryed, damaged r disgured fr any reasn r purpse.

2. Religius cmmunities shall nt be depried f their sacred places thrughexprpriatin, natinalizatin, cnscatin r ther similar measures.

3. In the case f transfer f the wnership f a sacred place frm ne wner tanther, its nature, destinatin and use will be safeguarded.




4. In cmpliance with public regulatins, religius authrities shall be free tundertake wrks aimed at the maintenance and preseratin f the sacred places and at the enhancement f their use.

Article 6. Prtectin f sacred places

1. Public authrities shall prtect sacred places frm any act r cnduct thatdesecrates r in any way harms r impairs their religius character andfunctining r that can reasnably be perceied as deliberately ffensie tthe religius sensibilities f the faithful.

2. Public authrities shall nt subject any sacred place t aderse discriminatinin matters f taxatin r in the applicatin f any laws.

3. The designatin f a gien sacred place as a humankind heritage site r as a

natinal, histric, cultural site, hweer dened, shall be withut prejudicet its character and functining as a sacred place.

4. Public authrities shall ensure that the area surrunding a sacred site ismade and kept prper and is apprpriately safe and decrus.

5. When necessary fr the preseratin and functining f a sacred place,the area surrunding it may need t be safeguarded by special measuresaimed at (a) aiding any deelpment r actiity that culd damage thehistrical, cultural, architectural r archelgical cntext in which the

sacred place is lcated and (b) fstering the harmnius and sustainabledeelpment f the cmmunities inhabiting that area.

Article 7. Educatin

The Signatries shall take effectie measures, in cnsultatin and cperatin withthe religius cmmunities cncerned, t reinfrce mutual respect fr the sacred places and fr the indiiduals and cmmunities wh manifest their faith there.

Article 8. Final article

1. The articles f this declaratin add t and d nt detract frm any rights r prtectins recgnized r accrded by any instrument r custm r underany law.

2. The articles f this declaratin shall nt be s cnstrued as t excludecnferring r accrding a mre faurable treatment in relatin t all rsme sacred places.

3. The applicatin f the articles f this declaratin t any sacred place cannly take place at the request r with the free cnsent f the cmpetentauthrity f the religin cncerned.



Index

Abdulaziz ibn Baz, Sheikh 326Abdullah, King of Saudi Arabia 323Abraham the Patriarch 81 –3, 110, 319– 22Abrahamic faiths 26 –35, 93, 112, 119Absentee Property Law (Israel, 1950) 185Abu Bakr bin Ayyash 177

Abu Bakr Siraj Al Din 329Abu Khalaf, M. 21Adam 110African Charter on Human and People’s

Rights 61Ahtisaari, Martti (and the Ahtisaari Plan)

204 –8, 216– 17, 222, 253– 8, 263airport chapels 93 –4al-Aqsa Mosque 176 –7, 186

Albanians in Kosovo 198 –202, 206– 7, 213, 225, 232– 4, 241American Civil War 303American Convention on Human Rights

(ACHR) 61, 67Angawi, Sami 325, 329Antarctic Treaty (1959) 18anthropology 27antiquities, denition of 124; see also Law

of Antiquitiesarchaeological excavations 19, 26, 145,

304; depoliticization of 154

archaeological heritage 236Arsenije, St 215Assem, Abd Allah ibn Zaid 322Athanasius the Athonite 273Auffarth, Christoph 29 –30Augustine, St 97– 100Auschwitz 56, 97‘awesomeness’ of situations 80 –2

Balkan War s 11Bamiyan Buddhas 11, 306Bar Yochai, Shimon 125Barroso, Manuel 4, 208

Beilin, Yossi 149Benedict XI, Pope 248Benzo, Andrea 2– 3; coordinator and

author of Chapter 2

Berlin Congress and Treaty (1878) 17, 276Bianchi, Robert 328

Biblical references 76– 85, 89, 91– 3, 99Bici, Marin 249 bilateral treaty obligations 131 –4Bogdani, Pjetër 250Bowman, A.A. 79Brussels Convention (1874) 137Bulgaria 247; see also Mount Athos

Caird, Edward 77

Catholicism and the Catholic Church 95 –7,133, 160The Cenacle, Mount Zion 148Chittik, William C. 327Christian holy places, Ottoman list of

161– 2Christian tradition of holy places 91 –100Christianization 30– 1, 91civil rights movement 76civil society 8– 9‘clash of civilizations’ thesis 26 –7Clement VIII, Pope 248Cohen, Hermann 75, 85– 8Cohen, Raymond 130Cohen, Shear-Yashuv 97Collin, Bernardin 21‘common heritage of mankind’ concept 18,

55, 122, 138community involvement in sacred places

9– 10Constantine, Emperor 30 –1, 91– 4, 246Cottier, Cardinal 239Council of Europe 204, 217– 18, 267– 8, 310Council of Nicaea 91 –2Crusades 32




cultural Heritage 9– 10, 23, 40, 54, 244, 256, 259, 263, 294, 299– 302,315– 18; destruction of 137 –8,

236; obligation to protect 303– 6;

reconstruction of 239 –40; tangible

and intangible 300– 1cultural property: denition of 64 –5;

protection of 65 –6, 135, 138, 154, 306– 8; ‘safeguarding of’ as distinct

from ‘respect for’ 304cultural rights 167Cust, Lionel 121, 130, 164– 5Cyprus 39, 135, 293– 9, 302– 3, 309– 18;

cultural losses sustained by 298 –9;

Turkish invasion of (1974) 309 –14‘Cyprus problem’, the 294, 297, 309, 314;

historical background to 295– 8

Dayan, Moshe 142Dečani Monastery see Visoki Dečani

MonasteryDeclaration on the Elimination of

All Forms of Intolerance and

Discrimination Based on Religionor Belief (1981) 10, 62, 158– 9Declaration on the International

Destruction of Cultural Heritage(2003) 66, 235, 306

Declaration on the Protection andEnhancement of Sacred Places inthe Mediterranean area 115, 332– 40

Declaration on the Rights of PersonsBelonging to National or Ethnic,Religious or Linguistic Minorities(1992) 63

democracy 8de-privatization of religion 11desecration 140, 240Devič Monastery 212 –14, 228– 9

Dome of the Rock 13, 32, 112, 177– 8, 187– 8Doty, George 146Durkheim, Émile 35– 6

Eagen, Sarah 269East Jerusalem 147, 186– 7East Timor 69Eide, Kai 216, 225, 227Eliade, Mircea 28– 30

‘end of history’ thesis 26Englard, Izhak 140Eordegian, M. 21ethnic cleansing 315European Convention on Human Rights

(ECHR) 39, 61, 63, 67, 311European Court of Human Rights (ECtHR)63, 135, 310– 11

European Framework Convention for theProtection of National Minorities 63

European Parliament 20 –1, 312European Union (EU) 3 –4, 43, 46– 9, 56,

115, 207– 8, 218, 277, 287, 298Eusebius of Caesarea 31

extraterritorial status for holy places 242

Fahd, King of Saudi Arabia 323Al-Fârâbî 104 fatwas 325 –6Ferrari, Silvio 165; coordinator , author of

Chapter 1 and Conclusion

Fukuyama, Francis 26Fumagalli, Pier Francesco 7– 8

Gamaliel, R. 83Gasparri, Pietro 41Geneva Conventions 65, 128, 187, 305Genocide Convention (1948) 40‘gentle’ regulation of sacred places 332Al-Ghazâlî, Abû Hâmid 92, 103– 4Gjini, Gasper 245Goldberg, Peg 293Gorioč Monastery 222

Gračanica Monastery 210 –11, 214, 216

Greece see Mount AthosGregory the Great 247Gregory of Nyssa 99Ground Zero 97‘guaranteeing powers’ 54Guatemala 69

Hague Convention for the Protection ofCultural Property in the Event ofArmed Conict (1954) 40, 64, 66,

127, 137, 235Hague Convention with Respect to the

Laws and Customs of War on Land(1907) 64, 66, 137, 303– 4



Index 343

Hague Convention on the Rules of AirWarfare (proposed, 1923) 137

al-Haram al-Sharif 176 –90; legal status of

186–9Hassner, Ron 27, 153

Hayden, Robert 27Hebron, Tombs of the Patriarchs andMatriarchs at 93

Heidegger, Martin 7Helen, St 212Helena, Empress 30, 91Hellenism 32, 34Heraclius, Emperor 32Herod 34

Hiroshima 97Hirsch, Moshe 136holiness: concept of 22, 82, 85– 8, 93– 4,

335; of Zion 99 –100

holy cities, characteristics of 157holy places: denition of 160, 162, 179– 84,

195; destruction of 191 –3; free

access to 225 –7; in Kosovo 210 –17;

legal status as distinct from actual

condition 185 –6; protection of 241;respect for 168– 9; use of the term 17

Holy Sepulchre church, Jerusalem 13,139– 40, 146– 7, 153

holy sites: adjudication of disputes over138– 40; denition of 120; freedom

of access to 134– 7, 140– 1,145– 7, 153; governing laws and

regulations 123– 38human rights 17, 38, 50, 63, 239– 41, 301,

314Human Rights Watch 202 –4humanity, concept of 75Huntington, Samuel 26

Ibn Abbas 322Ibn Battuta 327Ibn Kathir 177– 8Ibn Khaldoun 176Ibn Paquda 92indigenous peoples, rights of 67 –8Inter-American Commission on Human

Rights (IACHR) and Court onHuman Rights (IACrtHR) 67– 8

interdisciplinary initiatives 27, 36

internally-displaced persons (IDPs)209 –10, 240

International Committee of the Red Cross(ICRC) 65

International Council on Monuments and

Sites (ICOMOS) 236International Court of Justice (ICJ) 135– 6,205– 7

International Covenant on Civil andPolitical Rights (ICCPR) (1966)39, 61– 3, 127– 9, 134, 158

International Covenant on Economic,Social and Cultural Rights(ICESCR) (1976) 159, 301

International Criminal Court 236International Criminal Tribunal for theformer Yugoslavia 3, 236

international law 13, 17, 37– 57, 68– 9, 134, 153, 187, 302– 8, 312– 13

International Law Commission 313internationalization of holy sites 55interreligious and intercultural dialogue 7– 9Islam 22, 329; sacred places in 101 –15

Israel, State of 18– 19, 22, 27, 51, 53, 97, 119– 21, 131– 3, 138– 45, 170, 178– 90

Italy 115; see also Vatican, the

Jacobson, Tracy 222Jerusalem 31– 4, 39, 56, 60, 68, 94, 99–

100, 109, 112– 15, 195; boundaries

of 119– 20, 179; Christian holy

places in 148, 161– 2; as a holy

place in itself 155 –73; Jewish holy

places in 149 –51, 162; legal regime

for 50– 4; Muslim holy places in

147, 162, 175– 6, 179; number

of holy places in 121 –2, 163;

protection of holy places underIsraeli law 182 –5; rights needing to

be guaranteed 166– 73; the Temple

in 33 –4; see also East JerusalemJesus Christ 91– 4, 99Jewish view of sacred places 22– 3, 75– 89;

see also JudaismJoannicius, St 212, 214, 228John Paul II, Pope 7, 76, 89Jonas, Hans 78




Jordan 51, 53, 135– 6Jovanović, Miodrag 206– 9

Judaism 33, 95– 6; see also Jewish view ofsacred places

Julian the Apostate 31

Ka’bah, the 319– 23Katsaros, Costas 302Kellner, Menachem 87–8Koran, the 47– 8, 93, 102– 3, 107– 13, 175,

321– 2, 326, 329Kosovo 39, 48– 50, 54, 191– 21;

Constitution of 254, 267; Council

for Cultural Heritage 259– 61;

denition of sacred places in 257– 61; history of religion and religious

heritage 245 –50; holy places in

210– 25, 241– 2; legal framework

in 252 –7; present legal status of

201–8; religious buildings in 244,

251, 257, 261; r eligious institutions

in 250 –2; special protective zones

in 215 –19, 223– 4, 255– 8, 261– 6

Laguna Group 27Lapidoth, Ruth 139Lateran Treaty (1929) 41, 43Lausanne Treaty (1923) 277Law of Antiquities (Israel, 1978) 183 –4Le Morne island 56Leo III, Emperor 247Licinius, Emperor 30Lieber Code 303Lincoln, Abraham 303Lings, Martin 329looting of cultural assets 306– 8, 315

Macphela Cave 183, 188Maimonides 86– 8, 335Makarios, Archbishop 297, 309Mali, Vaclav 244Mamre 31manifestation, divine 12Martini, Carlo Maria 100Mayor, Federico 18Mecca 47– 8, 68, 109– 15, 319– 29; Grand

Mosque 323– 6Medina 108– 9, 113– 15, 322– 9

Mejía, Jorge 97Menil Foundation 293, 302Metohia 198, 200; see also KosovoMilan 115; Edict of 30

Milosevic, Slobodan 253

minority religions 13monitoring bodies for sacred places 20monotheism 3– 4, 37, 39, 75– 6, 82, 112,

178Montoisy, Jean-Dominique 21Moses 81– 3mosques 104– 12, 186, 244; see also

Mecca: Grand MosqueMount Athos 19– 21, 39, 44– 7, 60, 68, 195,

273– 92; constitutional protectionfor 277– 9; judicial power over

274–5; legislative power over 283–

4; self-administration of 280 –3

Mount Athos Charter (MAC) 275 –85, 289Mount of Olives 150– 1Mozambique 69Muhammad the Prophet 47, 101, 107– 12,

177, 322, 324

Mujahid bin Jaber 176multilateral agreements 38 –41, 54Murata, Sachiko 327Mussolini, Benito 41Mušutište Church of the Mother of God

Hodegetria 230

Nachmanides’ Cave 149– 50national identity 238 Nemanja, Simeon 212 Nicephorus Phocas, Emperor 273 North Atlantic Treaty Organization

(NATO) 48– 9, 191 Nowak, Manfred 64

object-oriented approach to protection ofsacred objects and places 317– 18

Oman, John 78– 80, 89Organization for Security and Cooperation

in Europe (OSCE) 61, 261‘Other’, the 76Otto, Rudolf 28, 78– 9‘Oxford Manual’ (1880) 137

paganism 31 –2



Index 345

Palestine 18– 20, 27, 30– 1, 51– 2, 120, 170, 175, 180, 185– 6

Pallavicini, Yahya 2; author of Chapter 8

Paul, St 99, 245Peć Patriarchate 215, 224, 228, 232

Petkoff, Peter 1, 331; author of Chapter 5Pieraccini, Paolo 21 pilgrimage 10 –11, 30– 1, 34, 47, 97,

111– 14, 136– 7, 166, 210, 320, 323– 9; to Mecca 326 –9

Pius IX, Pope 41Pius XI, Pope 41 places of worship, protection of 58–65, 68,

134– 5

Platonism 32Poma, Andrea 82, 86, 88Porrogenet, Konstantin 247

prayer 10Prizren 229 –31 property rights 66– 70, 219– 21, 225, 239‘protecting power’ role 56 public order considerations 141

Qatada bin Da’ama al-Sadousi 176 –7Qur’an, the see KoranQuraysh tribe 319, 321

Al Rasheed, Madawi 325Rečani 233

Reiter, Y. 21relics of holy persons 211 –12religious autonomy 166religious buildings and monuments 39– 40religious freedom 10– 11, 17, 23, 38– 40,

54, 60– 4, 70, 134, 136, 159, 166, 168, 184, 238– 9, 243– 4, 250, 255– 6; ‘neighbouring rights’ to 39

religious heritage as distinct from othertypes of heritage 21

religious minorities 63– 4religious studies 28– 9religious symbols 109 –12religious violence 64reparations 313repatriation of refugees and displaced

revelation, divine 3– 7Roman Empire 30–2Roth, Leon 86, 88Rücker, Joachim 222

Sacks, Jonathan 26sacred heritage, ‘layers’ of 301 –2sacred places: characteristics of 22,

333– 4; as a common heritage 14;

communty involvement with 19 –20;

community rights in res pct of 13;

concept of 1– 7, 17, 31; cultural and religious signicance of 9– 11;

denition of 19, 21, 29, 59, 257– 61;

destruction of 11, 26; as a distinctcategory 58 –61; importance 5– 11;

legal regime for 13, 40– 56, 61– 8;

in literature and religious traditions21 –2; particular and universal

manifestations of 11– 13; and places

of reconciliation 88 –9; protection

of 7– 14, 17– 19, 23, 27, 71, 331– 2;

recent documents on 17 –18; self-

administration of 38; symbolismand imagery of 13, 29; unanswered

questions about 59 –60; undivisibility and unshareability of 27

sacred sites: destruction of 239; protection

of 256– 7; revitalization of 240

sacredness: basis of 109; of Creation

112 –13; as distinct from holiness

82; Durkheim’s concept of 35 –6;

inclusive 93 –4; nature of 76– 80;

types of 28Salim II, Sultan 323San Stefano Treaty (1878) 276Schechter, Solomon 88Schwartzchild, Stephen 88Second Vatican Council (1962–65) 92– 7secular ization 25– 6Serbia 48 –9, 191– 2, 208– 10; freedom

of access to holy places 225 –7;

historical context 195– 201;

proposed legal framework for holyplaces 235–41