The Holy Places of Jerusalem in Middle East Peace Agreements: The Conflict between Global and State Identities (review)

The status of the Holy Places in Jerusalem is central to any resolution of the Israel-Palestine conflict. It is not for nothing that the late King Husayn of Jordan suggested that ownership of the Temple Mount belongs to G-d. From a more mundane perspective, however, the Holy Places must be regulated through international as well as domestic legal instruments.

Enrico Molinaro’s study, drawn from his Hebrew University doctoral thesis, focuses on “The Holy Places of Jerusalem in Middle East Peace Agreements.” He approaches the subject through the prism of two competing collective identities: the global/transterritorial model and the state/territorial model.

There is no doubt that Molinaro supports the global/transterritorial model of collective identity and looks to a stippled definition of sovereignty that distinguishes between concepts such as title, jurisdiction, and independence. He wants to apply the experience of the Ottoman millet system as well as the system of colonial capitulations and indeed (although he does not deploy this example), the overlapping sovereignties of the Holy Roman Empire, to the problem of the Holy Places. In his view, the “vested interests of the recognized [religious] communities in the Holy Places are protected by international principles.”

Molinaro may very likely be correct in his policy prescriptions, but the legal analysis he uses to reach it is not without controversy. For example, Molinaro’s analysis places considerable weight on the legal status of the so-called “Status Quo.” The “Status Quo” is the term given to the collection of (often contradictory) firmans or decrees issued by the Ottoman sultans concerning Christian “rights” or “privileges” in the Holy Places (i.e., question of possession, access, repair, houses of worship, internal administration, etc.) These rules were collectively “enshrined” in international law by the 1878 Treaty of Berlin and the British Mandate for Palestine and later reaffirmed by Jordan in 1948.¹

The exact legal authority of the Ottoman “Status Quo,” however, is unclear. The Ottomans viewed the firmans as an extension of privileges granted by the sultans. In contrast, the Christian communities viewed them as having the quality of rights. Equally important, the “international law” consequences today of the Treaty of Berlin and even the League of Nations Mandate for the State of Israel is an elusive matter.

Molinaro is an outlier in his reciting of the relevant legal documents regarding Jerusalem’s Holy Places. For one, he puts considerable weight on the so-called “Holst letter.” That letter between then Israeli Foreign Minister Peres to Norway’s Foreign Minister Holst dated October 11, 1993 was a “side” letter to the Oslo Accords which stated that “the Palestinian intentions of East Jerusalem and the interests and well being of the Palestinians of East Jerusalem are of the greatest importance and will be preserved,” further stating that “all the Palestinian institutions of East Jerusalem, including the economic, social, educational, and cultural, and the holy Christian and Muslim places, are performing an essential task for the Palestinian population.”

Molinaro argues that the Holst letter forms an “integral part” of the Oslo Agreement and has legal implications for the Israeli government. Most international lawyers, however, would follow Ruth Lapidoth’s view that the letter is a mere statement of policy of the Israeli government at one moment in time.

Similarly, Molinaro holds the outlier view that the 1924 Mandatory Order-in-Council removing issues of Holy Places from the Mandate courts and placing them in the executive branch was a temporary measure designed to facilitate funneling of those controversies to the (never created) multi-religious Holy Places Commission (or failing that, to a committee of the League of Nations). However, while this view has been considered heterodox, recent work by Raymond Cohen in Saving the Holy Sepulchre...