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Jurisdiction and Holiness: Reflections on the Coptic-Ethiopian Case

Published online by Cambridge University Press:  12 February 2016

Walter Zander
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Extract

The Coptic-Ethiopian case is the first dispute between Christian Churches over their rights in the Holy Places to come before the Supreme Court of Israel. It concerns only a small area, but the legal issues involved are far-reaching. They deal with the jurisdiction over Holy Sites, and therefore affect potentially all Christian communities which claim rights in the Sanctuaries.

The history of the jurisdiction over the Holy Places is dramatic and rich in contradictions. For many centuries control over the Sanctuaries was in the hands of Moslem rulers who decided disputes according to their discretion. In view of the widespread impact of these decisions on the Christian world as a whole, the tendency gradually developed to avoid all changes, and in 1878 the Treaty of Berlin suspended every jurisdiction by its Art. LXII which prescribed “that no alteration can be made in the status quo in the Holy Places”.

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Articles
Information
Israel Law Review , Volume 17 , Issue 3 , July 1982 , pp. 245 - 273
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1982

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References

1 The Coptic Patriarchate v. The Minister of Police (1971) (I) 25 P.D. 225; The Coptic Patriarchate v. The Government of Israel (1979) (I) 33 P.D. 225.

2 See Zander, W., “On the Settlement of Disputes About the Christian Holy Places” (1973) 8 IS.L.R. 331–61.Google Scholar

3 “Memoire des Latins à la Conférence de la Paix (1919)”, in Zander, W., Israel and the Holy Places of Christendom (London, 1971) 181.Google Scholar

4 Supra n. 2 at 351 ff.

5 Ibid., at 353–54.

6 Drayton, , The Laws of Palestine, III, (London, rev. ed., 1934) 2625.Google Scholar

7 Loc. cit.

8 1 L.S.I. 7.

9 22 L.S.I. 75.

10 Hugim Leumiyim v. Minister of Police (1970) (II) 24 P.D. 141; see generally Klein, , “The Temple Mount Case” (1971) 6 Is.L.R. 257.Google Scholar

11 For further description of the monastery and the conflict between the two communities, see Cust, L.G.A., The Status Quo in the Holy Places (H.M. Stationary Office, 1922).Google Scholar

12 The decision read as follows:

“According to the decision of the council of Ministers in its session of February 12, 1961… pertinent to the dispute over the ownerhip of Deir-Al-Sultan in Jerusalem between the Abyssinian and Coptic communities, I submit herewith the recommendations regarding this matter for their immediate implementation by the above-mentioned communities with the knowledge that this decision is considered final and binding on both parties, who are to carry it out and conform to it in accordance with the rules of Article 3 of the Edict of the Holy Land— Palestine, July 25, 1924 and Article 2 of Regulation No. 28 (1950) and the Royal Decree issued on July 19, 1950:

1. The keys of the north gate shall be retained by the Orthodox Copts and they shall have permission to use it as a gateway to the Church of the Holy Sepulchre across the roof of the convent only during the holidays which are recognised as allowing them such a passage, and these are, The Feast of the Cross and Easter (Holy Saturday) on condition that each time the Government supervises this operation on a fixed time and under no other circumstances may the Copts use it.

2. The removal of the Coptic Monk who stays with the Abyssinians at Deir-Al-Sultan.

3. The declaration of the ownership of the Abyssinian community to Deir-Al-Sultan in its known borders which are located on the pathway to the court of the Church of the Holy Sepulchre, i.e. the Church of the Angel Michael and the Church of the Four Animals.

4. The transfer of the key of the south gate of Deir-Al-Sultan from the Copts to the Abyssinians or its retention by the Government to facilitate the first recommendations mentioned above.

5. The transfer of the key of the Church of the Angel Michael, the door of which is located on the eastern side of the public square outside the Church of the Holy Sepulchre, from the Copts to the Abyssinians.

6. Should the Copts refuse to comply with this matter, the locks of the north gate, the south gate and the west gate which is the gate of Angel Michael's Church, would be substituted by other locks by the Government and their keys would be given to the Abyssinians; however, the right of passage to the Church of the Holy Sepulchre given to the Copts only on the recognised holy days would continue as mentioned in the first clause above.

7. As for the dome of St. Helen's Church which is located in the center of the yard of Deir-Al-Sultan and around which the Abyssinian procession takes place, it is a possession of the Armenians in their capacity as the proprietors of the Church of St. Helen and they have the right to repair and improve it from the interior i.e. from the Church of St. Helen. As for the exterior, where the dome seems to be in the centre of the yard of Deir-Al-Sultan, the Government would carry out any checks and repairs that may become necessary.

13 See especially Beakov v. Herzlia Municipality (1963) 17 P.D. 1583, 1589, Mani J.: “The rule that no person may take the law into his own hands is one of the basic laws of our legal system.”; Pasternak v. The State of Israel (1960) 14 P.D. 2293, Landau J.: “The principle which forbids taking the law into one's own hands must be sustained with the utmost strictness.”

14 The Coptic Patriarchate v. The Minister of Police (1971) (I) 25 P.D. 225.

15 The meetings of the Ministerial Committee are, of course, not open to the public, but the State Attorney authorised that the proceedings, as submitted to the Court, appear on affidavits that record the Committee's main activities and are part of the Court's file.

16 The Coptic Patriarchate v. The Government of Israel (1979) (I) 33 P.D. 225.

17 HC 95/76, 499/76 (not published).

18 22 L.S.I. 257.

19 Courts Law, 1957 (11 L.S.I. 157).

20 HC 95/76 (not published).

21 See text at pp. 251–2.

22 HC 410/80 (not published).

23 Supra n. 16.

24 Smith, S.A. de, Judicial Review of Administrative Acts (4th ed., 1980) 543–44.Google Scholar

25 Supra n. 19.

26 Supra n. 18.

27 23 L.S.I. 283.

28 Ibid., at 285.

29 Supra n. 14.

30 Supra n. 16.

31 UNSCOP Report 1947, ch. 3, sec. 6.

32 Stoyanowski, J., The Mandate for Palestine (London, 1928) 302Google Scholar; Collin, B., Le Problème Juridique des Lieux Saints (Paris, 1956) 98Google Scholar; and see W. Zander, supra n. 3 at 70.

33 See text at p. 250.

34 Supra n. 10.

35 Zander, supra n. 2.

36 Ibid. at 355, 363.

37 On the acquisition of rights in the Holy Places by purchase, Firmans, and international treaties, see Zander, supra n. 3 at 164 ff.

38 This was expressed rather sharply in 1757 by the Grand Vizier to the French Ambassador who protested against a change in the Sanctuaries: “These places, Sir, belong to the Sultan and he gives them to whom he pleases; it may well be possible that they always were in the hands of the Franks, but today His Highness wishes that they belong to the Greeks”. (Collin, B., Le Problème Juridique des Lieux Saints (Paris, 1956) 38.Google Scholar

39 Between the years 1630–37 control of the Sanctuaries changed hands no less than six times (Collin, B., Les Lieux Saints (Paris, 1948) 74 ffGoogle Scholar).

40 Supra n. 11.

41 Land Law, 1969 (23 L.S.I. 283) sec. 1: “In this Law—‘immovable property’ or ‘property’ means land, everything built or planted on land and every other thing permanently fixed to land, except severable fixtures;”

42 Out of the large literature on Res Divini Juris, reference is here made to Buekland, W.W., A Manual of Roman Private Law (1939) 108Google Scholar; Sohm, R., Institutionen des Roemischen Rechts (1911) 370Google Scholar; Kaser, M., Das Roemische Privatrecht, I, (Munich, 1955) 320 ff.Google Scholar

43 Declaration of the Establishment of the State of Israel (1 L.S.I. 3) at 4.

44 21 L.S.I. 76.

45 Supra n. 18.