Freedom of Religion in Jerusalem

The Jerusalem Institute for Israel Studies
Founded by the Charles H. Revson Foundation, N.Y.
Freedom of Religion
in Jerusalem
Edited by
Ruth Lapidoth
and
Ora Ahimeir
1999
‫כל הזכויות שמורות למכון ירושלים לחקר ישראל‬

Founded by the Charles H. Revson Foundation, N.Y.
Freedom of Religion
in Jerusalem
Edited by
Ruth Lapidoth and Ora Ahimeir
1999
)
The Jerusalem Institute for Israel Studies Research Series No. 85
Freedom of Religion in Jerusalem
Edited by Ruth Lapidoth and Ora Ahimeir
The statements made and the views expressed are the sole responsibility
of the authors
© 1999, The Jerusalem Institute for Israel Studies

The Hay Elyachar House
20a Radak St., 92186 Jerusalem
Email: machon@jiis.org.il
Tel: 02-5630175
Fax: 02-5639814

Table of Contents
Introduction
by Ruth Lapidoth, Ora Ahimeir 1
I. Freedom of Religion and of Conscience in Israel

by Ruth Lapidoth 3
A. Introduction 3
B. Preliminary Remarks 4
C. The Jewish Character of the State 5
D. The Principle of Freedom of Religion and Conscience 6
E. The Holy Places 10
F. Equality of Civil and Political Rights of Members of
Various Religions and Communities 15
G. The Right to Change One's Religion 19
H. Proselytizing 20
I. The Right to a Religious Education .-. 21
J. Matters of Personal Status 21
K. Note on Freedom of Religion of Muslims in Israel
with Special Reference to East Jerusalem 23
L. Conclusion 29
Notes 31
II. Freedom of Religion and Conscience in a Heterogeneous City

by Chamman P. Shelach 47
Notes 58
Selected Bibliography 59
III. Freedom of Religion and the "Constitutional Revolution"

by Rotem Giladi 61
A. Introduction 61
B. The Basic Laws and their Interpretation by the Supreme Court 63

C. Does Basic Law: Human Dignity and Liberty Protect Rights
Not Specifically Enumerated? 64
D. Does Basic Law: Human Dignity and Liberty Protect
Freedom of Religion? 66
E. The Content of Freedom of Religion in Light of the
Constitutional Revolution and its Relationship to Other
Fundamental Rights 67
F. Observations on the Freedom of Religion under the
Constitutional Revolution 71
Notes 75
IV. Freedom of Religion and the Status of the Christians

in Jerusalem 1967-1997
by Amnon Ramon 81
A. Introduction 81
B. The Six-Day War and Its Ramifications 82
C. The Impact of the Intifada 93
D. The Influence of the Israeli-Palestinian Peace Process 100
E. The Effect of the Agreements Between Israel and the Holy See 107
F. Conclusion 110
Notes 115
V. Freedom of Pilgrimage to Christian Holy Places

in Jerusalem Under International Law
by Moshe Hirsch 121
A. Introduction 121
B. Freedom of Religion and Freedom of Pilgrimage Under
General International Law 122
C. Freedom of Pilgrimage under the Fundamental Agreement 124
D. The Controversy over Guidance of Pilgrims at the Holy Places 127
E. Concluding Remarks 129
Notes 131
About the Authors 138

INTRODUCTION
Religion has always had considerable influence upon humanity as a whole, as

well as upon the lives of different peoples and individuals. Religion has given
human beings hope and happiness, but in its name and for its sake many atrocities
have been committed. Throughout history, competition among different religions
has caused terrible suffering.
No wonder then that Jerusalem, which is sacred to three religions, has been
time and again an arena for religious struggles. Competition among the various
communities for whom it is holy has caused suffering, ruination of sacred sites
and symbols and sometimes destruction of the city. This is the reason we chose
to dedicate this publication to the examination of issues related to freedom of
religion in this city.
Under Ottoman rule during the 19th and early 20th centuries, no systematic
religious persecution occurred. Yet the blood libel of 1840 showed again how
much harm and injustice religious prejudice can cause. During both the Ottoman
and British Mandate periods, Jews were severely discriminated against regarding
access to and worship at places sacred to them. The years of Jordanian rule
(1948-1967) exacerbated the situation, as Jews were completely denied access
to their holy sites.
When the Jewish people, who had long been subjected to religious
persecution, finally established a state, they declared at the outset in their 1948
Declaration on the Establishment of the State of Israel that the state would
"guarantee freedom of religion and conscience, of language, education and
culture," and would "safeguard the holy places of all religions." These principles
were reinforced by later statements, court decisions and specific laws, as well as
by certain international commitments assumed by the state. During 50 years of
statehood, Israeli authorities usually succeeded in protecting freedom of religion,
including the rights of every religion to access and worship at their Holy Places.

Unfortunately, however, from time to time incidents of intolerance and
violence by extremist groups or individuals have occurred, particularly in
Jerusalem, a city with numerous holy sites and diverse religious communities.
While freedom of religion has generally been upheld, public safety

considerations sometimes have limited believers' access to their holy sites, as is
noted in most of the articles in this volume. Similarly, public safety considerations
also have prohibited building or excavation work in and around holy sites.
At the turn of this second Christian millennium, we hope that Jerusalem

will know peace, tolerance and mutual respect, and that its inhabitants and
visitors will fulfill the precept of "love thy neighbor" that is common to most
religions. Let us hope for wise and tolerant religious leadership that will encourage
cooperation, acceptance and respect for members of other religions, in the spirit
of Isaiah's prophecy: ‫״יהא ביתי בית ת פ י ל ה לכל ה ע מ י ם ״‬
("My House shall be a House of prayer for all the nations").
Ruth Lapidoth, Ora Ahimeir

I. FREEDOM OF RELIGION AND OF CONSCIENCE
IN ISRAEL
BY RUTH LAPIDOTH*
A . Introduction
For almost two thousand years, the Jews lived as a religious minority in a great
number of countries, sometimes tolerated and at other times persecuted. Only in
1948 did they succeed in establishing a state where they constitute the majority
of the population. Moreover, this state was formally established as a "Jewish
State." These circumstances explain the special interest in the question of how
and to what extent Israel recognizes and implements the right to freedom of
religion and of conscience.
Since its establishment, Israel has been committed to and has endeavored to
guarantee freedom of religion for the various religious communities. In particular,
the right to access and worship at holy places, as well as the equality of rights
for adherents of different religions, have been protected and preserved by law
and by the administration. Walking through the streets and picturesque alleys in
Jerusalem, one meets many different religious groups, including pilgrims, on
their way to their places of worship and holy shrines.
We will not merely rely on such impressions, however, but will carefully
examine the various aspects of freedom of religion and their implementation in
Israel. Like all other human rights, this one as well has to be judged not simply
by a general proclamation of the right but by the details of its implementation
and by its limitations. After a few preliminary remarks, we will start with an
examination of the Jewish character of Israel, the principle of freedom of religion

and conscience, and the limitations of this freedom. A study of the implementation
of this freedom requires an analysis of certain related aspects: the status of the
holy places, equality of rights for members of different religions, the right to
change one's religion, regulation of proselytizing activities, the right to a religious
education, matters of personal status, and the status of people who do not belong
to any religious group. Most of these subjects are mentioned in the 1981 Untied
Nations Declaration on the Elimination of A l l Forms of Intolerance and of
Discrimination Based on Religion and Beliefl as ingredients of freedom of
2
religion. Others are relevant to a few countries only, including Israel (e.g. the
status of holy places and jurisdiction in matters of personal status). The general
discussion will be supplemented by some specific remarks about Muslims.
B. Preliminary Remarks
1. Israel has a rather heterogeneous population that belongs to various ethnic

groups, adheres to different religions, speaks several languages, has different
cultural and social traditions and holds many different political allegiances
and ideologies. Thus, religious affiliation is often connected with ethnic
origin, language, culture or political allegiance.
2. The land - or certain places in it - is also holy to four major faiths:

Judaism, Christianity, Islam and Baha'i. For the Baha'i, Israel is not only
the site of various holy places, but also of their spiritual and administrative
world center.
3. About 80 percent of the population is Jewish, but Jews are rather divided
on matters of religion.
4. Israel has no written constitution. When the state was established, the
Constituent Assembly decided not to draft a Constitution, but instead resolved
that basic laws on the various aspects of government and administration
would be adopted gradually. Until 1992, human rights and civil rights were

not codified in a basic law. Rather, they were guaranteed by the judiciary,
which has developed voluminous case law on the subject (much like in the
United Kingdom). In 1992, however, Basic Law: Freedom of Occupation
3
and Basic Law: Human Dignity and Liberty were adopted. These laws do
not deal specifically with freedom of religion, but they may have an impact
on it.
5. Due to the prevailing system of government in Israel - a multi-party

parliamentary democracy - Jewish Orthodox religious parties have a
considerable influence on the political life of the country.
6. Like many other Middle Eastern countries, Israel fears the spread of religious
fundamentalism.
C. The Jewish Character of the state
Although there is a Jewish majority in the country, Judaism has not been proclaimed
the official religion of Israel. Neither is Jewish law the applicable legal system,
except in certain matters of personal status for Jews.
Some legal instruments, however, do refer to the Jewish character of the

state. The 1948 Declaration on the Establishment of the State of Israel proclaimed
4
"the establishment of a Jewish state in the Land of Israel - the State of Israel."
Similarly, Basic Law: The Knesset provides that:
A candidates' list shall not participate in elections to the Knesset if its

objects or actions, expressly or by implication, include one of the following:
(1) negation of the existence of the State of Israel as the state of the Jewish
people;
(2) negation of the democratic character of the state;
5
(3) incitement to racism (Section 7 A )

The Jewishness of the state is also reflected by the declaration of the Sabbath
and Jewish holidays as official days of rest for Jewish residents, by the expression
of Jewish tradition in the national flag and emblem, and by the requirement that
6
the army provide Kosher food to soldiers.
Another interesting Jewish-oriented provision was included in the Law on

7
the Foundations of Law of 5740-1980, which deals with the filling of lacunae
by the judges. "Where the court, faced with a legal question requiring decision,
finds no answer... in statute law or case-law or by analogy, it shall decide in the
8
light of the principles of freedom, justice, equity and peace of Israel's heritage."
The term Israel in this context refers to Judaism, or the Jewish people.
Another relevant provision was included in the two 1992 basic laws, Basic
Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. Their
express purpose is to protect the rights dealt with by these laws "in order to
establish in a basic law the values of the State of Israel as a Jewish and democratic
9
state."
Several authors have discussed the compatibility between the Jewishness

10
and the democratic character of the state. According to Supreme Court Justice
Prof. I. Zamir, no contradiction exists between those terms if both are interpreted
11
reasonably and moderately.
12
In no official text has the Jewish character of the state been defined. It
should, however, be remembered that the term "Jewish" has a religious as well
13
as an ethnic connotation, and that the two aspects are interwoven. It is almost
impossible to make a clear distinction between them.
14
D . The P r i n c i p l e of Freedom of R e l i g i o n and Conscience
The basic attitude of the state toward religious freedom and pluralism is reflected
in the 1948 Declaration on the Establishment of the State of Israel. It declares

that the state "will guarantee freedom of religion and conscience, of language,
15
education and culture," and "will safeguard the holy places of all religions."
The Declaration is neither a constitution nor a statute, but the Supreme Court
has decided that it "expresses the nation's vision and its credo," and should be
taken into consideration "when [attempting] to interpret or clarify the laws of the
16
state." Moreover, the legislature has "upgraded" the Declaration by including a
provision in the two above-mentioned basic laws that "these rights [i.e.,
fundamental human rights] shall be upheld in the spirit of the principles set forth
17
in the Declaration on the Establishment of the State of Israel."
In this context, we should refer also to a legislative text enacted in 1922 at

the time of the British Mandate, which is still in force in Israel. It reads, " A l l
persons in Palestine [now Israel] shall enjoy full liberty of conscience and the
free exercise of their forms of worship, subject only to the maintenance of
public order and morals. Each religious community shall enjoy autonomy for the
internal affairs of the community, subject to the provisions of any ordinance or
18
order issued by the High Commissioner [now the minister of religious affairs]."
The two basic laws of 1992 deal specifically with "human dignity and
liberty" and certain rights therefrom derived, and with the "freedom of occupation."
The general reference to "fundamental human rights" in the context of basic
19
principles, however, could be interpreted as recognition of other fundamental
human rights not expressly mentioned in the text, including freedom of religion.
If this broad interpretation of the two basic laws is adopted by the Supreme
Court, the result could be that freedom of religion would, to a certain extent,
20
prevail over ordinary laws.
Israel also committed itself to freedom of belief and religion through various
international instruments. For instance, it ratified the 1966 International Covenant
on Civil and Political Rights, which provides for religious freedom (Article
21
18). Similarly, under the 1993 Fundamental Agreement between the Holy See
and Israel, Israel committed itself to uphold and observe freedom of religion
2 2
(Article l ) . This text also gives a legally binding effect - as between the two

contracting parties - to the provision on religious freedom in the 1948 Universal
23
Declaration of Human Rights (Article 18).
Compliance with freedom of religion in Israel has been assured by criminal

law that made outraging religious sentiments, disturbing worship and desecrating
24
places of worship punishable offenses. The above-mentioned freedoms, and
the protection by criminal law, have been granted to members of "all religions"
without distinction.
The Supreme Court of Israel has recognized and implemented the principle
of freedom of religion in various cases. In H . C. 292/83 Faithful of the Temple
25
Mount et al. v. The Commander of Police in the Jerusalem Area, Justice Barak
wrote:
Every person in Israel enjoys freedom of conscience, of belief, of religion,

and of worship. This freedom is guaranteed to every person in every
enlightened, democratic regime, and therefore it is guaranteed to every
person in Israel. It is one of the fundamental principles upon which the
State of Israel is based. ... This freedom is partly based on Article 83 of the
Palestine Order in Council of 1922, and partly it is one of those 'fundamental
rights that "are not written in the book" but derive directly from the nature
26
of our state as a peace-loving, democratic state.' ... On the basis of these
rules - and in accordance with the Declaration of Independence - every
law and every power will be interpreted as recognizing freedom of conscience,
27
of belief, of religion and of worship.
Freedom of religion is not an absolute right, though. It is subject to limitations

and derogation. Thus, Israel's Supreme Court decided that:
The freedom of conscience, belief, religion and worship is relative. It has to

be balanced with other rights and interests that also deserve protection, like
[the right to] private and public property and freedom of movement. One of
28
the interests that have to be considered is public order and security.

At the same time, not every concern for public order and security justifies a
restriction of freedom of religion and worship. Authorities may restrict this
29
freedom only if the danger to public order is very probable or almost certain.
An important court case relevant to this issue considered a police refusal to
allow a group of Jews to pray outside the Temple Mount near one of its gates on
the anniversary of the unification of Jerusalem. The police feared an alleged
danger to public order from Muslim reaction to the prayers. The Supreme Court
rejected the police attitude and ordered them to permit the prayer service under
certain conditions.
This limitation on the freedom of religion is in line with the provisions of

the relevant international documents. Article 29 of the 1948 Universal Declaration
of Human Rights provides that "in the exercise of his rights and freedoms,
everyone shall be subject only to such limitations as are determined by law
solely for the purpose of... meeting the just requirements of morality, public
30
order and the general welfare in a democratic society." Also, the 1966
International Covenant on Civil and Political Rights declares that the "freedom
to manifest one's religion or beliefs may be subject only to such limitations as
are prescribed by law and are necessary to protect public safety, order, health, or
31
morals or the fundamental rights and freedoms of others" (Article 18(3)).
The Supreme Court of Israel has emphasized that it recognizes and sanctions
not only freedom of religion, but also freedom from religion - namely, the
32
freedom not to practice any religion.
An interesting question concerning freedom of religion has been raised in

several bigamy cases. In Israel, bigamy is forbidden by penal law, but it is
permitted according to Islamic law and according to the custom of several
Jewish communities. In some cases, people accused of bigamy tried to defend
themselves by claiming that the law against bigamy was contrary to the principle
of freedom of worship. The Supreme Court has rejected this argument by making
a distinction between what religion allows, on the one hand, and what it commands,
on the other hand. Since bigamy is, at most, permitted by the relevant religious

laws and not commanded, its outlawing by the secular legislature is not contrary
33
to the freedom of worship.
E . The Holy Places
Freedom of religion implies certain rights with regard to holy places, namely,
the freedom of access and of worship, as well as the protection of those places.
34
Holy places have often been a source of conflict. In the 18th and 19th
centuries, bitter controversies arose when certain European countries extended
their protection over certain Christian communities in Palestine and over the
places holy to them. To regulate the status of the different communities at the
holy places, the Ottoman government promulgated a number of f i r m a n s , the
35
most important one in 1852. That f i r m a n determined the powers and rights of
the various denominations in certain holy places. That arrangement has become
3 6
known as the historical status quo.
The status q u o has been applied in Jerusalem to the church of the Holy
Sepulcher and its dependencies, to the Deir (Convent) al-Sultan, to the Sanctuary
of the Ascension on the Mount of Olives and to the Tomb of the Virgin Mary
near Gethsemane, as well as in Bethlehem to the Church of the Nativity, to the
M i l k Grotto and to the Shepherds' Field. The status q u o obtained international
recognition at the 1856 Conference of Paris after the Crimean War and in the
37
1878 Treaty of Berlin. It was reconfirmed in the 1993 Fundamental Agreement
38
between the Holy See and Israel (Article 4).
39
The 1922 Terms of the British Mandate for Palestine, approved by the
Council of the League of Nations, also dealt with the holy places. The Mandatory
power was requested to preserve "existing rights" at the holy places and to
ensure free access to and free worship at them, subject to the requirements of
public order and decorum. A n international commission should have been
established to "study, define and determine" the various rights and claims in
10

connection with the holy places. A lack of agreement among the nations about
40
the commission's composition and powers prevented it from being formed.
In 1924 Britain adopted the Palestine (Holy Places) Order in Council, which
provided that "no cause or matter in connection with the Holy Places or religious
buildings or sites or the rights or claims relating to the different religious
41
communities in Palestine shall be heard or determined by any court in Palestine."
Although the Order in Council does not say so expressly, these matters were to
42
be handled by the British high commissioner (today the minister of religious
affairs).
43
The 1936 Criminal Law Ordinance through which the Mandatory authorities
codified penal law in Palestine, includes several provisions for the protection of
places of worship against desecration. These provisions are today included in
44
Israel's Penal Law, 5737-1977.
In 1948 the State of Israel was established, and, as mentioned earlier, the
Declaration signed at that time by the leaders of the Jewish community included
45
a provision on safeguarding the holy places of all religions.
Between 1948 and 1967, most of the holy places in the territory of former
mandatory Palestine were under Jordanian control. The 1967 Six-Day War brought
them under the administration of Israel. Immediately after the fighting ended,
Prime Minister Levi Eshkol convened the spiritual leaders of the various
communities and reassured them that Israel intended to protect all the holy
46
places and to permit free worship at them. Soon after that, the Knesset adopted
4 7
the Protection of the Holy Places Law, 5727-1967 which ensures protection
against desecration and freedom of access to the holy places. These principles
were reconfirmed with regard to the holy places situated in Jerusalem by the
48
1980 Basic Law: Jerusalem Capital of Israel. Regulations enacted by the minister
of religious affairs in accordance with the Protection of the Holy Places Law set
out the details of the implementation of this law at some of the Jewish holy
places.
11

In addition, other provisions dealing with the holy places can be found in
50
specific laws, such as the Mining Ordinance of 1925 and the Antiquities Law,
51
5738-1978
In order to complete the picture, we should remember certain international

texts related to the holy places. We have already mentioned the 1993 Fundamental
Agreement between the Holy See and Israel, which deals both with the preservation
of the historical status q u o at the Christian holy places where the status quo
applies, and with the protection of freedom of Catholic worship at other holy
52
places (Article 4). In the 1994 peace treaty between Israel and Jordan, Israel
promised "to respect the present special role of... Jordan at Muslim Holy shrines
in Jerusalem," and "when negotiations on the permanent status will take place,
53
Israel will give high priority to the Jordanian historic role in these shrines."
Regarding the Palestinians, we should mention a letter sent by then Foreign

Minister of Israel Shimon Peres to the Foreign Minister of Norway in Oct.
54
1993. The letter was kept secret for some time, and its discovery aroused much
criticism in Israel. According to this letter, "all the Palestinian institutions of
East Jerusalem, including the economic, social, educational, cultural, and the
holy Christian and Moslem places, are performing an essential task for the
Palestinian population..." and "will be preserved." This text raises difficult
55
questions of interpretation.
Freedom of access and worship at the holy sites in the West Bank and Gaza
Strip, as well as the protection of those sites, was dealt with in the 1994 Agreement
56
on the Gaza Strip and the Jericho Area, in the 1995 Israeli-Palestinian Interim
57
Agreement on the West Bank and the Gaza Strip, and in the 1997 Protocol
58
Concerning the Redeployment in Hebron.
How do courts in Israel deal with disputes that involve holy places? We
have seen that the principles of freedom of religion and worship are generally
recognized. Moreover, very few serious disputes have erupted regarding freedom
of access and worship at places that are holy to only one religion or denomination.
12

Though in recent years disputes - sometimes accompanied by violence - have
59
occurred over prayer at the Western Wall among Jewish groups, most disputes
concern p\aces that are YioYy to two or more TeWgions or denominations.
The attitude of the courts may be summarized as follows. The 1924 Palestine
60
(Holy Places) Order in Council is still in force except where it has been
superseded by later Israeli legislation, such as the 1967 Protection of the Holy
61
Places Law. Therefore the courts will not rule on questions of s u b s t a n t i v e
62
r i g h t s o r c l a i m s t o "Holy Places, religious buildings or sites". Similarly, the
court does not feel authorized in principle to adjudicate on the right to worship
63
at holy places. Instead, the court will leave the government to deal both with
disputes about substantive rights to holy places and with the modalities of worship.
The Supreme Court has so far refused to intervene to ensure the right of Jews to
pray in groups on the Temple Mount, which is holy to both Jews and Muslims
4
and is under the administrative control of the Muslim W a q f ?
On the other hand, the courts consider themselves authorized to deal with
65
all matters mentioned in the Protection of the Holy Places Law, 5727-1967,
namely, protection against the desecration of holy places, the violation of freedom
of access to holy places and the offending of the feelings of the members of a
66
community for whom the place is sacred. The courts are also authorized to
67
deal with criminal offenses that would disturb public order at holy places.
Even where a dispute relates directly to claims or rights to a holy site, the courts
may intervene as an interim measure to restore possession of a holy site to a
68
community deprived of this possession by a recent act. The reason for this rule
is that the courts have an obligation to preserve law and order.
This last consideration - the preservation of law and order - is so important

that in some cases the Supreme Court has refused to override a police decision
to deny freedom of access (independent of worship) to a holy site because of a
fear that such access would jeopardize law and order. Thus, in certain cases,
individual Jews were denied access to the Temple Mount for reasons of public
13

order. Moreover, even a temporary blanket prohibition for Jews to ascend the
70
Mount may be lawful for reasons of safety.
An interesting ruling concerns the distinction between the right to worship

at holy places - which is not within the court's jurisdiction - and the right to
access holy places - which is under their jurisdiction. The Supreme Court ruled
that a request by Jews for permission to pray in a group on the Temple Mount is
71
considered a matter of worship, but the right of an individual to pray quietly by
72
himself is part of his right of access.
A n overall consideration has been that there is a presumption in favor of

upholding the courts' jurisdiction, and that "where there are two possible
interpretations, the interpretation that should be chosen is the one that preserves
73
jurisdiction, and not the one that excludes it."
Even in the cases where the courts do have jurisdiction, they exercise the
power with great caution:
There are certain matters in the sphere of law that are also matters of
society, faith, morals and policy. In such matters, the Court is apt to decide
not strictly according to the law, and it may interpret and implement the
law flexibly, in accordance with non-legal considerations, if the public
74
welfare requires it. Such are, usually, matters related to the holy places.
The holy places in Israel are administered by members of the faith for whom
those places are holy. In practice, Israel has been very careful to carry out its
policy of respect for the holy places of all religions. The ministry of religious
affairs has posted at the entrance of each holy place an announcement in several
languages requesting visitors not to desecrate the place, to be properly dressed
and to behave becomingly. In the few cases of violations of the sanctity of holy
places, the police has acted diligently to apprehend the offenders and to bring
them to justice.
14

The right balance between granting autonomy to the administrators and
assuring adequate protection of the holy sites can be difficult to achieve, as too
much protection might be interpreted as interference or obstruction.
F. Equality of Civil and P o l i t i c a l Rights of Members of Various

Religions and Communities
Discrimination on the grounds of religion or belief would certainly be contrary

to religious freedom and not tolerated by Israel's legislation or courts. The
Declaration of the Establishment of the State of Israel proclaimed that the state
"will ensure complete equality of social and political rights for all its inhabitants,
75
irrespective of religion, race or sex." A n interesting example demonstrating
this equality is the provision in the 1964 Basic Law: The President of the state,
which lays down only two conditions for a person to qualify as a candidate for
76
the office of president. The president must be a citizen and a resident of Israel.
An amendment proposed to reserve this office for Jews only was not adopted by
the Knesset.
According to the Supreme Court, the general principle of equality is a basic

value of Israel's legal system. It is a central ingredient in the social consensus on
77
which Israel's society is based. This principle implies that any differentiation
78
must be justified by the nature of the case and by its circumstances. Such
differentiation exists, for instance, in matters of military service. Jewish and
Druze citizens are subject to compulsory service in the Israeli army, while others
are not. This special treatment for non-Jews was designed to prevent a conflict
of conscience, as most non-Jews in Israel are Arabs, either Muslim or Christian,
who may have close relatives in countries not yet at peace with Israel. Incidentally,
this exemption, however considerate, brings about a material disadvantage for
the residents who do not become soldiers, since the state grants certain benefits
only to individuals who have served in the army. Many non-Jewish youths serve
in the Israeli army on a voluntary basis, after which time they are qualified to
receive the benefits.
15

Respect for religious pluralism and the wish to preserve the identity and
traditions of different communities is the basis for laws that in certain areas
reject indiscriminate equality for the entire population. Thus the Law on Adoption,
5741-1981, prescribes that the people who adopt a child must be of the same
79
religion as the adopted child. In the matter of weekly rest, the Hours of Work
and Rest Law provides that non-Jews may choose Sunday or Friday as their day
80
of rest instead of Saturday, the Jewish Sabbath.
Equality cannot, of course, be measured only by reference to the legal

system, and some inequality on economic and social levels might exist despite
the laws. The lack of full social equality and intermingling in Israeli society is
probably the result of the political situation. As mentioned, most of Israel's
non-Jews are ethnically Arabs. Their affinity with people in neighboring countries
still hostile towards Israel has resulted in some suspicion and distrust between
Israel's Jews and Arabs.
Provisions in Israel's laws intended to guarantee protection and equality for

members of all religions can be found e.g. in the Crime of Genocide (Prevention
81 82
and Punishment) Law, 5711-1951, the Employment Service Law, 5719-1959,
83 84
the Succession Law, 5725-1965 and the Defamation Law, 5725-1965.
Equality among the members of different ethnic groups and faiths must be
supplemented by provisions against intolerance. Yet a blanket prohibition against
intolerance may easily be interpreted as a violation of the principle of freedom
of opinion and expression, which is the cornerstone of every democratic society.
Thus, intolerance is prohibited only when it reaches a certain level. Under the
85
Penal Law, 5737-1977, the offense of sedition includes the promotion of feelings
of ill will and enmity between different segments of the population. The law
also prohibits the publication or reproduction of publications of a seditious
nature. Certain acts of sedition are considered serious offenses, for which the
86
perpetrator may be imprisoned for up to five years. Other provisions that deal
with offending religious or traditional sentiments, call for punishment of one to
16

three years imprisonment. The punishment may be doubled if the act is related
87
to a racist motive.
Also in this context, the legislature has excluded parties whose objectives
or actions entail incitement to racism from the elections to the Knesset, and has
88
enacted a general prohibition of incitement to racism.
Despite these legal provisions, incitement to hatred on religious (or ethnic)

grounds occurs among members of some extremist groups. One may deplore
that the state, despite its efforts, has not been more diligent in prosecuting the
offenders.
Some people allege discrimination against non-Jews in the fields of

immigration and nationality. The Declaration on the Establishment of the State
states that "the State of Israel will be open to Jewish immigration and the
89
ingathering of the Exiles." Consequently, the Law of Return, 5710-1950,
90
provides that "every Jew has the right to immigrate to the country," and the
Nationality Law, 5712-1952, provides that he may easily acquire Israeli
91
nationality, unless he does not wish so. This privilege does not involve improper
discrimination on religious grounds for several reasons.
1) When a people attains statehood in fulfillment of its aspiration for national

liberation, it is common and natural that all members of that people are
92
permitted and invited to come and live in that country. From this point of
view, Israel is no more discriminatory than most other new states. In fact,
many states, both new and old, have granted preference in bestowing
nationality to persons who have close social, cultural or ethnic links with
the nation, e.g., Greece, the Federal Republic of Germany, the former USSR,
Italy, former Czechoslovakia, Denmark, E l Salvador, Guatemala, Honduras,
93
Liberia, Mexico, Nicaragua, Poland, Venezuela and Jordan.
2) In 1965, the U N adopted the International Convention on the Elimination

of A l l Forms of Racial Discrimination, which is in force among more than
17

140 states including Israel. Although this document deals with racial
94
discrimination, by analogy we can draw some important conclusions
regarding restrictions or preferences on religious grounds as well. The
Convention laid down that states may prefer certain persons in matters of
nationality, citizenship and naturalization, on the condition that it does not
discriminate against any particular group (Article 1(3)). Since Israeli
legislation does not impose restrictions on any particular group, it is within
the letter and the spirit of the Convention.
3) Moreover, the Convention permits the granting of preferences, if necessary,

to undo the effects of prior discrimination, i.e., affirmative action (Article
1(4)). In the case of Israel, the gates of Mandatory Palestine had almost
been closed to Jewish immigration since 1939, thus contributing to the
deaths of millions of Jews in Europe during World War II. The opening of
the gates for Jews at the establishment of Israel can hence be considered a
lawful case of affirmative action.
4) The law does not close the state's doors to anybody, but simply creates a
95
preference in favor of Jews. The rules of immigration applicable to non-Jews
are quite similar to those that exist in other states. Anyone, including non-Jews,
may apply for permission to enter Israel and for naturalization. Just the
automatic right to enter and easily acquire nationality is reserved for Jews.
5) Not only Jews enjoy those rights, but so do their family members, whether
96
or not they are Jewish.
In the matter of immigration and nationality, the dual nature of Judaism as a

religion and an ethnic origin is of particular relevance. Despite the semi-religious
definition of a Jew, the above-mentioned laws are basically concerned with the
return of members of the Jewish people to their homeland. This right involves a
continuing debate over the question "who is a Jew," a matter beyond the scope
97
of this article.
18

G. The R i g h t to Change One's Religion
Another aspect of religious freedom concerns the possibility to change one's

religion. This right is the subject of a special enactment adopted during the
98
Mandatory period, the Religious Community (Change) Ordinance of 1927,
which is still in force. Since - as will be seen later - belonging to a religious
community has important consequences in matters of personal status and the
jurisdiction of the courts, any change in a person's religion must be registered.
Everyone is free to change his or her religion, but for that conversion to have
legal consequences for the jurisdiction in family matters, and for that purpose
99
only, the change requires the consent of the new religious community he or she
joins. The head of this religious community will provide the convert with an
appropriate certificate, which must be used to notify the ministry of religious
affairs of the change. The consent of the community that the person leaves is not
00
needed.'
The religion of a minor cannot be changed unless both parents consent, or

unless a court approves the conversion. If the minor is above the age of 10, his
101
or her consent is also required.
In 1998 the government submitted to the Knesset a proposal for a new law
on a uniform conversion procedure for Jews in Israel. If this bill is adopted, it
will give the Orthodox Jewish authorities exclusive power to confirm a person's
conversion into the Jewish faith in the State of Israel, though non-Orthodox
experts will be allowed to participate in the teaching program at a new institute
102
where candidates for conversion will study. The subject became controversial
in the wake of a 30 D e c , 1998, decision by the Jerusalem District Court, which,
for the purpose of the Population Register, recognized some Reform and
Conservative conversions of residents of Israel performed in Israel.
19

H. Proselytizing
It is doubtful whether a right to proselytize is included in the principle of

freedom of religion. The above-mentioned international instruments provide for
the right to manifest one's religion or belief "in teaching, practice, worship and
103
observance," but do not mention proselytizing. Nevertheless, we will add a
few clarifications on this matter.
Proselytizing is legal in Israel, but since 1977 the promise of money or

other material advantages to induce people to change their religion has been
prohibited. Similarly, the receipt of material advantages in exchange for a promise
104
to change one's religion is prohibited. In short, missionary activity is allowed,
but the buying of souls for money is prohibited. This practice has also been
condemned by various religions. This law applies equally to all religions.
According to an instruction of the Attorney General, however, prior authorization
by the state attorney is required to prosecute under this law. In fact, the law has
never been applied.
From time to time tensions rise as a result of overzealous attempts to

proselytize, probably because of the differing attitudes of various religions to
proselytizing. For instance, the Jewish and Druze religions do not encourage
people to join their ranks, while some Christian groups consider proselytizing a
holy mission. One can understand how members of a religion who do not try to
influence others to join it can be irritated when members of other religions try to
proselytize them.
In reaction to the mailing of missionary literature to half a million Israeli

homes, some members of Knesset in 1997 proposed bills to limit missionary
activity in Israel. As of the writing of this article, the fate of these bills is
unclear.
20

/. The R i g h t to a Religious Education
105
The right to religious education is guaranteed by law. Essentially, this right is
secured by governmental support and recognition of the autonomy of the various
religious communities. Parents may choose to send their child to a secular state
106
school, a religious state school or a private religious school. The curriculum
of schools in Arab areas is adapted to the environment and relevant traditions. In
the eastern neighborhoods of Jerusalem, children used to study in accordance
with the Jordanian curriculum, but most schools have switched to the Palestinian
one. In this context, it should also be mentioned that Israel ratified the U N
Convention on the Rights of the Child (1989) on 4 Aug., 1991.
J. M a t t e r s of Personal Status
Matters of personal status involve perhaps the most complicated and controversial
issues of religious freedom in Israel. Under Ottoman rule (1517-1917), recognized
religious communities (Millets) were granted autonomy in matters of personal
status. This system was preserved with some modifications by the Mandatory
107
authorities and later by the State of Israel. Today, in addition to the Jewish
community, Israel recognizes 13 other religious communities: the Muslim, Eastern
Orthodox, Latin Catholic, Gregorian Armenian, Armenian Catholic, Syrian
Catholic, Chaldean Uniate, Greek Catholic-Melkite, Maronite, Syrian Orthodox,
Druze (since 1962), Episcopal-Evangelical (since 1970) and Baha'i (since 1971)
communities. The last two do not have their own religious tribunals.
108
The list of recognized religious communities does not include several
Christian communities - e.g. Christian Monophysites such as the Copts and the
Ethiopian Orthodox Church, Protestant-Lutheran, Baptist and Quaker - nor does
it include certain other communities inside or outside the bounds of the Jewish
community.
21

Priests in the various religious communities are in charge of conducting
109
marriages and notifying government authorities for the purpose of registration.
Tribunals of recognized communities have jurisdiction in certain matters of
personal status, sometimes to the exclusion of the jurisdiction of civil courts.
There are differences in the scope of jurisdiction among the various communities.
The Muslim tribunal has the broadest powers. In certain matters, the jurisdiction
of the religious tribunals is exclusive, while in others it is concurrent and depends
110
on the consent of all parties involved.
Both the religious tribunals and the civil courts apply mainly the religious
111
laws of the parties concerned to questions of personal status, in addition to
2
relevant laws enacted by the Knesset." The difference between the application
of religious law by the civil courts on the one hand, and the religious tribunals
on the other hand, is apparent in two matters. First, each of these jurisdictions
applies its own rules of procedure and evidence. Second, the civil courts take
into consideration rules of private international law (conflict of laws), whereas
the religious tribunals disregard them.
Due to the jurisdiction and autonomy of the religious tribunals, Israel had
to add to its 1991 ratification of the 1966 International Covenant on Civil and
Political Rights a reservation that "to the extent that such law [the religious law
of the relevant parties] is inconsistent with its obligations under the Covenant,
113
Israel reserves its right to apply that law."
Although, as mentioned, religious tribunals are in principle autonomous

and may apply their respective legal systems, Israel's Supreme Court decided
that these tribunals have to comply with certain laws of the state, e.g. the Succession
114
Law, 5725-1965. Moreover, they should also apply general legal principles
derived from the basic values of Israel's legal system, including human rights.
Thus, in view of the right to freedom of movement, the Supreme Court limited
115
the power of a Jewish religious tribunal to prohibit a party to leave the country.
Similarly, the Court ruled that a tribunal has to judge in conformity with the
22

presumption of equal partnership of spouses in the property acquired by one of
116
them.
The jurisdiction of the Rabbinical tribunals has given rise to considerable

opposition from many Jews. This opposition probably stems from three reasons.
First, many non-religious Jews resent the exclusive authority of the religious
117
institutions and consider it to be religious coercion. Second, although Jewish
law is quite liberal on certain matters, such as divorce by consent, it nevertheless
includes some rather rigid rules and restrictions, as well as discrimination between
118
the genders, which may be considered outdated and may create unnecessary
hardship. Third, the Jewish population in Israel is quite heterogeneous, but so far
the state has given the Orthodox movement a monopoly over official activities,
i.e., the registration of marriages and jurisdiction in matters of personal status.
This has engendered resentment from members of other movements, including
119 120 121
Conservative, Reform, Kara'ites and Falashas (the Ethiopian Jews).
It thus follows that non-believers and members of unrecognized religious

groups are at a disadvantage in matters of personal status. No lay officials are
authorized to register marriages; there is no secular law on marriages; and civil
courts have no jurisdiction in matters of marriage and divorce of Israelis. In
order to alleviate the situation, however, jurisdiction in matters of the dissolution
of marriage not within the exclusive jurisdiction of a religious tribunal have
122
been granted to civil courts in certain circumstances.
Moreover, the situation has seemingly improved somewhat due to the
establishment in 1995 of lay courts for family matters, though the law expressly
123
provides that it does not restrict the jurisdiction of the religious tribunals.
K. Notes on Freedom of R e l i g i o n of M u s l i m s i n I s r a e l , with

124
Special Reference to East Jerusalem
From a legal standpoint, there is no difference between Israel's Jewish and

Muslim citizens. The laws of the state relating to freedom of religion apply
23

equally to Jews, Christians and Muslims. Practically speaking as well, Muslims
enjoy freedom of worship and free access to their holy places.
The principal holy places for the Muslim community (besides the Temple
Mount) are the mosques, cemeteries and tombs of saints that can be found in
every Muslim locality. Maintenance of the holy places is carried out by the
ministry of religious affairs as part of its duty to provide services to the adherents
of all religions. In places formerly inhabited by Muslims but abandoned and
destroyed in the war of 1948, houses of worship have rarely been preserved.
Most of the Muslim religious institutions that existed before 1948 remained
intact after 1948. Israel did not attempt to abolish any institution, though some
institutions practically ceased to exist. Thus, for example, the Supreme Muslim
Council, which had been active during the British Mandate period, ceased to
exist because its members no longer resided within the State of Israel.
125
Under the Absentees' Property Law of 1950, control over Muslim religious
endowments in Israel, i.e. the Awqaf, was transferred to the ministry of religious
affairs as the agent of the custodian of absentees' property. In practice, however,
the religious A w q a f properties (mosques and cemeteries) have been administered
and maintained by Muslim officials and clerics, who fulfill their functions with
the ministry's consent. The Muslim A w q a f that generate income and are not
religious sites, such as apartments, farmland and shops, are maintained by the
custodian of absentees' property.
As for religious education, Arab schools - both Muslim and Christian -

have continued to exist as a separate, autonomous educational system within the
framework of the general educational network in Israel. These schools until the
1980s devoted special lessons to religious studies based on a curriculum unchanged
from Mandate times. In the 1980s, the division of Arab education in the ministry
of education and culture drew up a new curriculum for Islamic studies at all
school levels - elementary, junior high and high school - that replaced the
Mandatory program. The new curriculum, formulated by a committee of Muslim
24

educators, was intended to reform teaching methods and consolidate the approach
that religion should be understood through analytical tools and universal values,
instead of the old custom of rote-learning chapters from the Qur'an.
Until 1967 Muslims in Israel lacked a higher institution for religious studies.
The problem was that after 1948 no religious sages or teachers of stature who
could have continued teaching Muslim theology and religious law remained in
Israel. This situation produced ramifications in the training and qualifications of
religious officials in the various Muslim institutions. A change occurred after
1967, when Muslims gained the opportunity to pursue studies in religious colleges
in the West Bank and the Gaza Strip. The experience of Israeli Muslims who
attended Al-Azhar University in Cairo following the signing of the
Israeli-Egyptian peace treaty in 1979 was not successful. In Israel, teachers of
Islam are now trained at Beit Berl College near Tel Aviv and at a college
established in the 1980s in the city of Baka el-Garbiya.
Official holidays and commemorative days of all the non-Jewish religious

communities are recognized as rest days by the public sector, by the Arab and
Druze educational systems, by local governments, and, as a result, by the private
sector as well. Over time, the main holy days of the Muslim community - the
Feast of the Sacrifice (Id a l A d h a ) , the month of Ramadan and the days marking
the end of the Ramadan fast (Id a l F i t r ) - have been supplemented by additional
days that have acquired official status and are recognized by Israeli state
institutions. These are the Feast of a l - I s r a w a ' a l - M i ' r a j , which marks the ascent
to heaven of the Prophet Muhammad, and a l - M u l a d a l - N a b a w i , the Feast of the
Prophet's Birth. The Arabs in Israel have also maintained popular seasonal festivals
that involve visiting the graves of saints (e.g., the mass visit to Sidni A l i , near
Herzliya, or visits to the tomb of Nebi Sallah in Ramla at the beginning of May)
or celebrating occasions such as the onset of the watermelon season in the
summer.
Until 1977 Israeli Muslims were not permitted to make the hajj - the
pilgrimage to Mecca. Following the death in that year of Queen Aliya, the wife
25

of King Hussein of Jordan, the leaders of the Israeli Muslim community paid a
condolence visit to Jordan, and the king acceded to their pleas to persuade the
Saudi authorities to permit Israeli Muslims to go on the hajj. After the condolence
delegation paid a symbolic visit to Mecca, the Saudi and Jordanian authorities
permitted Muslims from Israel to carry out the precept of the hajj as well as the
u m r a , a minor pilgrimage that can be undertaken at any time during the year.
Beginning in 1978, the Israeli government permitted Muslims from Israel bearing
Jordanian travel documents to pass through countries that do not have peace
treaties with Israel, in order to fulfill the commandment of the pilgrimage to
Mecca.
Every year a few dozen Jews and Christians (mainly women) convert to
Islam. This is performed by a q a d i of the Shari'a Court. Most of those who
convert do so for the purpose of marriage. Cases of Muslims converting to
Judaism or to Christianity are rare.
The Knesset refrains in principle from enacting laws that directly infringe
on Muslim religious law, and the Shari'a courts have continued to exercise
jurisdiction to the same extent as they did before 1948. The ministry of religious
affairs assisted in the restoration and activation of the Shari'a courts. General
Israeli legislation that has sought to introduce new social norms, however, has
also affected the country's Muslims and had an impact on the application of the
126
law by the Shari'a courts. Examples are the women's equal rights law of 1951,
127
the minimum age for marriage, and, in particular, the 1973 law regulating
128
financial relations between spouses. Other cases are the ban on polygamy and
the prohibition on the forcible divorce of a woman, as stipulated in the Penal
129 130
Code and the Succession L a w . The latter law granted the District Court
parallel jurisdiction with the Shari'a court, and so succession cases may now be
brought to the Shari'a court only if all the heirs agree. In the case of a clash
between Shari'a law and state law, the latter prevails. At its own initiative, the
Shari'a court has introduced reforms to help women initiate divorce proceedings
and get better financial settlements and higher alimony payments for them and
their children. Nevertheless, recent years have seen a growing trend by Muslim
26

women to turn to civil courts rather than the Shari'a court, since civil courts
operate on the principle of equality between the sexes.
A striking change occurred with the establishment of the Family Court in

131
1995. Muslims, Christians and Jews alike are now more inclined to turn for
relief to a family court than to a religious court. In 1998 Arab members of the
Knesset introduced a bill that would deprive the Shari'a courts of exclusive
jurisdiction regarding matters of personal status, except in matters of marriage
and divorce. This would make their jurisdiction equivalent to that of the Jewish
and Druze courts. These Arab members of Knesset argue that women are
discriminated against in the Shari'a courts with respect to alimony payments,
child custody, and the financial consequences of divorce.
Of special interest is the situation of Muslims in the eastern sectors of

Jerusalem, which came under Israeli control in 1967. In truth, their situation has
remained unchanged despite the fact that Israel formally applies its law, jurisdiction
and administration to the entire municipal area of Jerusalem, within new boundaries
132
set by Israel.
The Israeli government allows Muslims to continue administering their

institutions and their religious life autonomously. The Muslims in east Jerusalem
enjoy freedom of access to their holy places, including those located inside the
Green Line. Since 1967 Israeli Muslims too have had freedom of access to the
Temple Mount ( a l - H a r a m a l - S h a r i f ) in Jerusalem and the Cave of the Patriarchs
in Hebron ( a l - H a r a m a l - I b r a h i m i ) , and freedom to worship at them. Moreover,
Israel allows groups from the Muslim world who wish to visit the Muslim holy
places - including citizens of countries that are not at peace with Israel - free
access to all the areas under its control. Occasionally Muslim delegations from
Libya, Malaysia, Indonesia and other countries visit the holy places. Free access
of Muslims to the Temple Mount is only restricted in periods of high tension or
when an immediate danger to public safety exists. In such instances, the two
principles of freedom of access to holy sites and the maintenance of public
security clash.
27

Since the 1980s there has been a steep rise in the number of worshippers
who attend Friday prayers at the mosques on the Temple Mount, including
Muslims who reside inside the Green Line. On the Fridays of the month of
Ramadan, for example, more than 150,000 people crowd the site. There is no
interference with the Friday sermons delivered at a l - A q s a Mosque, even though
they are sometimes political in content and border on incitement. Each Friday
Israel Radio's Arabic Service broadcasts sermons and public prayers from a
different mosque in Israel, including a l - A q s a . A l l the Arabic media in Israel -
state radio and television and the private press - devote considerable space to
religious programs geared to Muslims and Christians, particularly in conjunction
with religious holidays. Such programs are intended to expand the public's
knowledge on religious customs and precepts.
In the period from 1967 to 1998, the number of mosques in east Jerusalem
has doubled. The new mosques were built at the initiative of the Waqf and with
funding from the Waqf and private donations. The Israeli planning authorities
did not prevent this large-scale construction. In addition, institutions for religious
education have been established, including two new colleges for Islamic affairs
in east Jerusalem and study groups for the Qur'an and the H a d i t h (the oral law).
Israel expropriated land in the Old City on which Muslim religious buildings
were standing only in the plaza in front of the Western Wall and in the Jewish
Quarter, which were restored and rehabilitated as Jewish national sites.
In Sept. 1996 an exit from the tunnel that leads from the Western Wall
along the Temple Mount - but not under the Mount - to the Via Dolorosa was
opened. At various points, the tunnel passes below Muslim religious structures
that are outside the Temple Mount. The event generated a violent mass protest
by Palestinians in Jerusalem, the West Bank and the Gaza Strip.
Although the Shari'a courts in east Jerusalem are not integrated into the
Shari'a Court system of Israel, Israel has not prevented the Muslims in east
Jerusalem from continuing to maintain a two-tiered Shari'a court that deals with
matters of personal status. The court functions as an organic element of the
28

Jordanian judicial system, applying Jordanian Shari'a based law in all matters
relating to personal status and is administered by the office of the Chief Qadi of
Jordan.
The Shari'a judicial system in Israel has tended to recognize judgments and
documents emanating from the Shari'a court in east Jerusalem in matters relating
to personal status. For the decisions of the east Jerusalem court to be recognized
by the Israeli authorities, however, the litigants and the interested Muslim parties
must apply to the Israeli Shari'a court, located in west Jerusalem, to obtain
confirmation. The main procedures involved in such instances are the issuing of
identity cards, registration of children as residents of Jerusalem and various
changes of personal details.
L. Conclusion
This survey has shown that under Israeli law, freedom of conscience, belief,
religion and worship is guaranteed in most spheres, in line with the state's
international obligations. These freedoms are based both in legislative acts and
in court decisions. These freedoms, however, must be balanced with other rights
and interests and may be restricted for reasons of public order and security.
They are protected i n t e r a l i a by provisions of the penal law.
Israel also respects freedom of access to and worship at the holy places and
ensures the protection of these sites. In this sphere, however, the powers of the
courts are somewhat restricted in favor of the government, which is considered
to be better suited to deal with certain matters concerning the holy places because
of the international aspects of this sphere. A n overriding consideration is the
need to preserve law and order - a consideration of particular relevance regarding
the Temple Mount.
Freedom of religion requires equality of civil and political rights among

members of different faiths. Equality for all citizens is a basic tenet of Israel
29

law, and distinctions are permitted only if they can be objectively justified by
the nature and circumstances of the case. Such distinctions are sometimes necessary
in order to respect the right of a religious group to be different and preserve its
identity.
Incitement, namely severe intolerance, and the offending of religious feelings

are outlawed by provisions of penal law.
Israel also recognizes the right to change one's religion. Proselytizing is

permitted, but not for material gain. Recently proposed legislation may perhaps
deal with this issue. Every Israeli parent has the right to choose between a
secular and a religious school for his or her children. Private religious schools
are also recognized.
In matters of personal status, religious freedom is both particularly evident

and problematic. The right of priests to celebrate and register marriages, and the
jurisdiction of the tribunals of recognized religious communities in certain matters
of personal status, do enhance the religious freedom and autonomy of those
communities. On the other hand, as some of these powers are exclusive, people
who do not belong to any religious group or those who are part of an unrecognized
denomination may have grave difficulties. One way to overcome this hardship
33
would be to introduce an optional civil marriage' as well as a secular law for
matters of personal status, which would be applied by civil courts that would
have jurisdiction parallel to the religious tribunals.
30

Notes
* This article is partly based on a lecture given at the Conference on the Fundamental
Agreement between the Holy See and Israel held at the Columbus School of Law of the
Catholic University of America in Apr. 1997. The author wishes to express her thanks to
Dr. Yaffa Zilbershats and to Mr. Rotem Giladi for their most valuable remarks. I also
thank Ms. Mary Ann DeRosa, Ms. Cathy Strain and Ms. Ricki Fishel for their patience
and meticulous typing. An earlier, shorter version of this article was published in Catholic
University Law Review, A l , 1998, pp. 441-465. We thank the editors of that review for
permission to reproduce it here. I am grateful to Dr. Yitzhak Reiter for his comments
concerning the Muslims' freedom of religion, which appear in chapter K. The article is
updated through the end of 1998.
1. UN General Assembly Resolution 36/55, 25 Nov. 1981, UN GAOR, 36th Session,

supp. 51, p. 171.
2. Due to the objection of some Muslim states, however, the Declaration does not
expressly mention the right to change one's religion; See N. Lerner, "The Final
Text of the UN Declaration Against Intolerance and Discrimination Based on
Religion or Belief," Israel Yearbook o n Human Rights (henceforth: I.Y.H.R.), 12,
1982, p. 185. It is, however, generally recognized that under international law,
freedom of religion includes the right to embrace another religion; See, e.g., Article
18 of the Universal Declaration of Human Rights of 1948 (UN Doc. A/811);
Article 18 of the International Covenant on Civil and Political Rights of 1966,
United Nations Treaty Series, 999, p. 172, and the general comment on this article
by the Human Rights Committee adopted at its 48th session, 1993, Compilation of
General Comments and General Recommendations adopted by Human Rights Treaty
Bodies, UN Doc. HRI/GEN/l/Rev. 3, of 15 Aug. 1997, p. 36; See also the above
article by N. Lerner.
3. Basic Law: Human Dignity and Liberty, Sefer H a - C h u k k i m (book of statutes),

1391, 5752 (1991/1992), p. 150; Amended by Basic Law: Human Dignity and
Liberty (Amendment), Sefer Ha-Chukkim, 1454, 5754 (1993/1994), p. 90; Basic
Law: Freedom of Occupation, Sefer Ha-Chukkim, 1387, 5752 (1991/1992), p. 114;
Amended in 1994, Sefer Ha-Chukkim, 1454, 5754 (1993/1994), p. 90, in 1996,
Sefer Ha-Chukkim, 1602, 5757 (1996/1997), p. 4 and in 1998, Sefer Ha-Chukkim,
31

1662, 5778 (1997/1998), p. 178. On basic laws, see A. Rubinstein and B. Medina,
infra n. 6, pp. 382-408.
4. Laws of the State of Israel, Authorized Translation (henceforth L S. /.), 1, 5708-1948,
p.3.
5. L . S. I., 39, 5745-1984/85, p. 216; For an interpretation of section 7A, see Amnon
Rubinstein and R. Har-Zahav, The Basic Law: The Knesset, Jerusalem: The Sacher
Institute, Faculty of Law, 1993, pp. 52-65; See also Section 5(1) of the Law on
Political Parties, 5752-1992, Sefer Ha-Chukkim, 1395, 5752 (1991/1992), p. 190.
6. For references and other relevant provisions, see Amnon Rubinstein and B. Medina,
The C o n s t i t u t i o n a l Law of the State of Israel, 5th ed., Tel Aviv: Schocken, 1996,
pp. 109-111 (Hebrew).
7. L.S.I., 34, 5740-1979/80, p. 181.
8. On this law, see Rubinstein and Medina, supra n. 6, pp. 79-80.

9. Supra n. 3.
10. A. Barak, Interpretation in L a w , 3: Constitutional Interpretation, Jerusalem: Nevo,
1994, pp. 328-347 (Hebrew); M. Elon, "Constitution by Legislation: The Values
of a Jewish and Democratic State in Light of the Basic Law: Human Dignity and
Personal Freedom," Tel A v i v University L a w Review 17, 5753-1993, pp. 659-688
(Hebrew); A. Rozen-Zvi, "A Jewish and Democratic State: Spiritual Parenthood,
Alienation and Symbiosis - Can We Square the Circle?" Tel A v i v University Law
Review 19, 5755-1995, pp. 479-519 (Hebrew); R. Gavison, "A Jewish and
Democratic State - Political Identity, Ideology and Law," ibid, pp. 631-682
(Hebrew); A. Ma'oz, "The Values of a Jewish and Democratic Sate," ibid., pp.
547-630 (Hebrew); A. Kasher, "A Jewish and Democratic State - Philosophical
Outline," ibid., pp. 729-739; H. Cohn, "Values of a Jewish and Democratic State -
Reflection on Basic Law: Human Dignity and Freedom," Ha-Peraklitt (Jubilee
Book), 1993, pp. 9-52 (Hebrew); C. Klein, La démocratie d'Israël, Paris: Seuil,
1997, pp. 286-294; B. Neuberger, R e l i g i o n and Democracy in Israel, Jerusalem:
Floersheimer Institute for Policy Studies, 1997 (Hebrew); E. Schweid, "Israel as a
Jewish-Democratic State: Historical and Theoretical Aspects," N . Rakower, ed.,
Jerusalem City of L a w and Justice, Jerusalem: The Library of Jewish Law, 1998,
pp. 125-145; A. Maoz, "The Values of a Jewish and Democratic State," ibid., pp.
147-172.
32

11. I. Zamir, A d m i n i s t r a t i v e P o w e r , 1, Jerusalem: Nevo, 1996, pp. 39-48, at 47-8
(Hebrew).
12. As stated by A. Barak in his book, supra n. 10, p. 332.
13. C. Klein, Le Caractère juif de l'état d'Israël, Paris: Cujas, 1977, p. 102.
14. On freedom of religion in Israel, see, e.g. Z. Berinson,"Freedom of Religion and

Conscience in the State of Israel," I.Y.H.R., 3, 1973, pp. 223-232; S. Shetreet,
"Some Reflections on Freedom of Conscience and Religion in Israel," I.Y.H.R., 4,
1974, pp. 194-218; S. Meron, "Freedom of Religion as Distinct from Freedom
from Religion in Israel," I.Y.H.R., 4, 1974, pp. 219-240; S. Shetreet, "A Rejoinder,"
I.Y.H.R., 4, 1974, pp. 241-244; C. P. Shelach, "On Freedom of Conscience and
Freedom of the Heart - Freedom of Conscience and of Religion in Israel and the
Limitations on the Freedom to Marry," R. Gavison, ed., Civil R i g h t s in Israel -
Essays in H o n o u r of Haim H. Cohn, Jerusalem: Association for Civil Rights, in
Israel, 1982, pp. 85-115 (in Hebrew); idem., "Freedom of Conscience and of
Religion in Israeli Law," R. Gavison, ed., Freedom of Conscience and of Religion:
A Collection of Essays in Memory ofChamman P . Shelach, Jerusalem: Association
of Civil Rights in Israel, 1990, p. 23 (Hebrew); S. Z. Abramov, Perpetual Dilemma
- Jewish R e l i g i o n in the Jewish State, Rutherford: Associated University Presses,
1976; I. Englard, "Law and Religion in Israel," A m e r i c a n Journal of Comparative
Law, 35, 1987, p. 185; idem, "Religious Freedom and Jewish Tradition in Modern
Israeli Law - A Clash of Ideologies," E. B. Firmage, B. G. Weiss and J. W. Welch,
eds., Religion and Law - Biblical-Judaic and Islamic P e r s p e c t i v e s , Winona Lake:
Eisenbrauns, 1990, pp. 365-375; idem, "The Conflict between State and Religion
in Israel: its Ideological Background," M . Mor, ed., International Perspectives on
Church and State, Omaha: Creighton University Press, 1993, pp. 219-237; idem,
"The Conflict between State and Religion in Israel - Its Historical and Ideological
Background", Tel A v i v University L a w Review, 19, 5755-1995, pp. 741-758
(Hebrew); S. Goldstein, "The Teaching of Religion in Government Funded Schools,"
Israel Law Review, 25, 1992, pp. 36-64; C. Klein, La Démocratie d'Israël, Paris:
Seuil, 1997, pp. 229-264; A. Rubinstein and B. Medina, supra n. 6, pp. 175-236;
A. Rubinstein, "State and Religion in Israel," Journal of Contemporary History,
Oct. 1967, pp. 107; A. Ma'oz, "State and Religion in Israel," M . Mor, ed., International
Perspectives o n Church and State, 1993, p. 247; A. Ma'oz, "Religious Human
* Rights in the State of Israel," J. D. van der Vyver and J. Witte, eds., R e l i g i o u s
33

H u m a n R i g h t s i n Global Perspective: L e g a l P e r s p e c t i v e s , The Hague: Nijhoff,
1996, pp. 349-389; F. Raday, "Religion, Multiculturalism and Equality: The Israeli
Case," I.Y.H.R., 25, 1995, pp. 193-242; S. Shetreet, The Good Land Between
P o w e r and R e l i g i o n , Tel Aviv: Yedioth Ahronoth, 1998 (Hebrew); S. Shetreet,
Between Three B r a n c h e s of G o v e r n m e n t : The B a l a n c e of R i g h t s in Matters of
R e l i g i o n in Israel, Jerusalem: The Floersheimer Institute for Policy Studies, 1999
(Hebrew); E. Rubinstein and N. Solberg, "Religion and State in Israel in its Jubilee
Year," Gesher, 138, 1998, pp. 7-20 (Hebrew).
15. Supra n. 4.
16. Justice Agranat in Election Appeal 1/65, Yardor v. Chairman of the Central Elections
Committee for the Sixth Knesset, 19(111) P. D. 1965, p. 365, at 386.
17. The full text of section 1 common to both basic laws reads: "Fundamental human
rights in Israel are founded upon recognition of the value of the human being, the
sanctity of human life, and the principle that all persons are free; these rights shall
be upheld in the spirit of the principles set forth in the Declaration on the Establishment
of the State of Israel."
18. Palestine Order in Council, 1922, Drayton, L a w s of P a l e s t i n e , 3, 1934, p. 2587,

Section 83.
19. Text inn. 17.
20. This would be the consequence of the provision in Section 8 of Basic Law: Human
Dignity and Liberty: "The rights according to this Basic Law shall not be violated
except by a statute that befits the values of the State of Israel and is directed toward
a worthy purpose, and to an extent that does not exceed what is necessary, or by
regulation promulgated by virtue of express authorization in such a statute." The
law has no retroactive effect, though: "Nothing in this Basic Law affects the
validity of laws that existed prior to this Basic Law's coming into force," Section
10 (translation by Prof. D. Kretzmer, kindly transmitted to the author by F. Hazan).
On the interpretation of this law, see Civ. Ap. 6821/93, United Mizrahi Bank Ltd.
et al. v. Cooperative Village Migdal et al., 49(IV) P. D.,• p. 221; An English
summary was published in two parts in the Jerusalem Post, 1 Jan. and 8 Jan. 1996;
H. C. 1715/97, Association of Investment Directors in Israel v. Minister of Finance,
Takdeen Elyon 97(2) 5757/5758-1997, p. 721; See also Rubinstein and Medina,
supra n. 6, p. 176; H. Sommer, "The Non-Enumerated Rights: on the Scope of the
34

Constitutional Revolution," Mishpatim, 28, 1997, pp. 257-340, in particular pp.
324-326 (Hebrew); R. M. Giladi, "Freedom of Religion and the 'Constitutional
Revolution,'" infra.
21. Adopted by Resolution 2200 A (XXI) of the UN General Assembly on 16 Dec.

1966, and entered into force on 23 Mar. 1976, United Nations Treaty Series, 999,
p. 171. Israel ratified the Convention in 1991.
22. International Legal Materials, 33, 1994, p. 153; See also M.-P. Lafranchi, "L'Accord
Fondamental du 30 décembre 1993 signé entre le Saint-Siège et Israël," A n n u a i r e
français de droit international, 40, 1994, pp. 326-355.
23. UN General Assembly Resolution 217 (III) of 10 Dec. 1948. Originally, the UN
General Assembly adopted the Declaration "as a common standard of achievement"
to which people should strive (Preamble). Opinions are divided on whether it has
in the meantime acquired binding legal force. Its provision on religious freedom is
referred to in the Fundamental Agreement as follows: "The State of Israel... affirms
its continuing commitment to uphold and observe the human right to freedom of
religion and conscience, as set forth in the Universal Declaration of Human Rights
and in other international instruments to which it is a party" (Article 1(1)). For the
parallel obligation of the Holy See, see Article 1(2).
24. Penal Law, 5737-1977, L . S . I . , Special volume, sections 170-174; See also infra,
text accompanying notes 85-88; For a detailed analysis of the relevant provisions,
see S. Berkovitz, The L e g a l Status of the Holy Places in J e r u s a l e m , Jerusalem
Institute for Israel Studies, 1997, pp. 28-37 (Hebrew).
25. 38 (II) P. D., 1984, p. 449, at 454.
26. Quotation from Justice Landau in H. C. 243/62, Filming Studios in Israel Ltd. v.
Guery et al., 16 P. D., p. 2407.
27. See also Justice Zamir in H. C. 7128/96, Movement of the Faithful of the Temple
Mount et al. v. Government of Israel et al., ("Solomon's Stables" case), Takdeen-
Elyon, 97(1), 5757/5758-1997, p. 480.
28. H. C. 292/83, supra n. 25, p. 455.
29. Ibid.,p. 456.
30. Supra, n. 2 and 23.
35

31. Supra, n. 21.
32. See, e.g., H. C. 3872/93, Meatrael Ltd v. The Prime Minister and Minister of
Religious Affairs et al., 47 (V) P. D., 1993, p. 485, at 506; See also H. C. 5016/96,
Lior Horev et al. v. Minister of Transport et al., Takdeen Elyon, 97(2),
5757/5758-1997, pp. 611-648; Ibid., p. 465(1-36); Ibid.,p. 421(1-40). In this case
the Supreme Court looked for a balance between the right to freedom of movement
and the need to respect religious feelings of the religious community. The dispute
concerned traffic on the Sabbath in Bar Han St. Excerpts in English were published
in J u s t i c e , 14, 1997, pp. 34-40.
33. See, e.g., Cr. Ap. 112/50, Yossipoff v. Attorney General, 5 P. D., 1951, p. 481; H.
C. 49/54, Malham v. Shari'a Judge in Acre, 8 P. D., 1954, p. 910; Cr. Ap. 338/74,
State of Israel v. Rubin, 29(1) P. D., 1975, p. 166.
34. S. Berkovitz, The Legal Status of the Holy Places in Israel, thesis submitted for the
degree of Ph.D. to the Hebrew University, Mar. 1978, pp. 8-30; W. Zander, Israel
and the Holy Places of Christendom, London: Weidenfeld and Nicolson, 1971.
35. English translation reproduced in Zander, supra n. 34, pp. 178-180. A f i r m a n , in

Turkish, is an order or edict of the Ottoman sultan.
36. On the historical status q u o , see Berkovitz, supra n. 34, pp. 3-45; Zander, supra n.
34, pp. 53-54; L. G. Cust, The Status Quo i n the Holy P l a c e s , London: H. M .
Stationery Office, 1929, reproduced Jerusalem: Ariel, 1980; I. Englard, "The Legal
Status of the Holy Places in Jerusalem," Israel Law Review, 28, 1994, pp. 589-600,
at 591-593. The term status q u o is used in Israel in the religious context with three
different meanings: First, the historical status q u o mentioned above; second, the
general situation of the various holy places and communities; third, in the context
of relations between secular and religious Jews in Israel - compromise arrangements
on matters concerning the Jewish faith, such as respect for the precepts of Judaism
in public places and in the army, safeguarding the rights of the religious establishment,
and the application of religious law in marriage and divorce proceedings. On this
status q u o , see E. Don-Yehiya, The P o l i t i c s of Accommodation: Settling Conflicts
of State and R e l i g i o n in I s r a e l , Jerusalem: Floersheimer Institute for Policy Studies,
1997, pp. 31-67 (Hebrew). See also H. C. 5016/96, Lior Horev et al. v. Minister of
Transport et al., supra n. 32, and Justice Cheshin in H. C. 3872/93, supra, n. 32, pp.
506-507.
36

37. C. Parry, Consolidaded Treaty Series, 114, 1855-1856, Article IX, Dobbs Ferry,
N.Y.: Oceana, 1977, p. 406; Ibid., 153, 1878, Article 62, p. 190.
38. Supra n. 22.
39. R. Lapidoth and M. Hirsch, eds., The A r a b - I s r a e l Conflict and Its R e s o l u t i o n :

Selected D o c u m e n t s , Dordrecht: Nijhoff, 1992, pp. 25-32.
40. W. Zander, supra n. 34, pp. 64-70.
41. Drayton, Laws of P a l e s t i n e , 3, 1934, p. 2625. In implementing this provision, the

courts had to deal with the question of what is a holy place. The courts have
generally held that, in the absence of a definition in the Order in Council, it may be
presumed that the holiness depends on the belief of members of the relevant
groups, namely, on their religion. See Berkovitz, supra n. 34, pp. 410-491. See
also H. Cohn, "The Status of Jerusalem in the Israel Legal System," in J. Prawer
and O. Ahimeir, eds., Twenty Years in J e r u s a l e m 1 9 6 7 - 1 9 8 7 , the Ministry of
Defense and the Jerusalem Institute for Israel Studies, 1988, pp. 246, at 258-261.
42. See S. Berkovitz, "The Holy Places in Jerusalem: Legal Aspects: Part II", Justice,
12, 1997, pp. 17-21, at 17-19. According to Justice Agranat, the President of the
Supreme Court, in H. C. 222/68 (infra n. 63, at pp. 203, 211), the authority of the
Mandatory administration derived from the Terms of the British Mandate for Palestine
(supra n. 39), and from the purpose of the Order in Council. In Israel, it is also
based on Basic Law: The Government of 1968, Section 29, which grants the
government all powers not given to another organ. In the later, 1992 version of this
law, the relevant provision is in Section 40, Sefer H a - C h u k k i m , 1396, 5752
(1991/1992), p. 214.
43. Palestine Gazette, Supplement 1,1, 1936, p. 285.
44. Supra n. 24. For an analysis of the relevant provisions, see S. Berkovitz, "The Holy
Places in Jerusalem: Legal Aspects: Part I", Justice, 11, 1996, pp. 4-14, at 7-9; H.
H. Cohn, "The Status of Jerusalem in the Law of the State of Israel," supra n. 41,
pp. 252-253.
45. Supra n. 4.
46. Address of 7 June 1967, published in Israel's Foreign Relations: Selected Documents
1 9 6 7 - 1 9 7 4 , M. Medzini, ed., Jerusalem: Ministry of Foreign Affairs, 1976, pp.
244-245.
37

47. L.S.I., 21, 5727-1966/67, p. 76.
48. L.5./., 34, 5740-1979/80, p. 209.
49. Regulations on the Protection of Places Holy for Jews, 5741-1981, Kovets Ha-
Takanot (collection of regulations) 4252, 5471 (1980/81), p. 1212. The regulations
were amended in 1990 - Kovets Ha-Takonot, 5237, 5750 (1989/90), p. 190.
50. Drayton, L a w s of P a l e s t i n e , 2, 1934, p. 938.
51. L . S . I . , 32, 5738-1977/78, p. 93, Section 29(c), p. 100. For additional provisions
and for an analysis, see Berkovitz, supra n. 44, p. 6, and Berkovitz, supra n. 24, p.
27 (Hebrew).
52. Supra n. 22.
53. I n t e r n a t i o n a l L e g a l Materials, 34, 1995, Article 9, p. 43. On the background of

this provision, see N. Shragai, The Temple Mount Conflict, Jerusalem: Keter, 1995,
p. 387 (Hebrew).
54. Reproduced in the Jerusalem Post, 7 June 1994.

55. For an analysis of these questions, see J. Singer, "Aspects of Foreign Relations
under the Israeli-Palestinian Agreements on Interim Self-Government Arrangements
for the West Bank and Gaza," Israel Law Review, 28, 1994, pp. 268-296, at
292-293; R. Lapidoth, "Jerusalem and the Peace Process," Israel L a w Review, 28,
1994, pp. 402^134, at 428-430. On the background to the sending of this letter, see
S. F. Musallam, The Struggle f o r Jerusalem: A Programme of A c t i o n for Peace,
Jerusalem: Passia, 1996, pp. 37-48, and M. Klein, The Jerusalem Question in the
Arab-Israeli Peace Negotiations - A r a b Stands, Jerusalem Institute for Israel Studies,
1995, pp. 26-27 (Hebrew).
56. U N Doc. A/49/180-S/1994/727 (Annex), 20 June 1994, I n t e r n a t i o n a l Legal
Materials, 33, 1994, pp. 622-720.
57. International Legal Materials, 36,1997, p. 551 (excerpts). The full text was published
in K i t v e i - A m a n a , 33, No. 1071, p. 1.
58. International Legal Materials, 36, 1997, p. 650; See also R. Lapidoth, "The Holy
Places and Palestinian Self-Government" (unpublished).
59. See e.g. H. C. 257/89 and H. C. 2410/90, Anat Hoffman et al. v. Custodian of the
Western Wall et al., 48(11) P. D., 1994, pp. 265-358.
38

60. Supra n. 41.
61. Supra n. 47.
62. Quoted from the Palestine (Holy Places) Order in Council, supra n. 41; For an
interesting case, see H. C. 109/70, The Coptic Orthodox Mutteran of the Holy Seat
in Jerusalem and the Near East v. The Minister of Police, Jerusalem, et al1)25 ‫״‬ )
D., 1971, p. 225; H. C. 188/77, The Coptic Orthodox Mutteran of the Holy Seat in
Jerusalem and the Near East v. The Government of Israel et al., 33(1) P. D., 1979,
p. 225.
63. See, e.g., H. C. 222/68, National Groups - A Registered Association et al. v. The
Minister of Police, 24 (II) P. D., 1970, pp. 141-228; H. C. 33/92, Baruch Ben-Yosef
v. The Minister for Religious Affairs et al., 46(1) P. D., 1992, p. 855; H. C. 537/81,
Hayim Stanger, adv., v. Government of Israel et al., 35(IV) P. D., 1981, pp. 673.
64. Cases referred to in n. 63. Waqf is a Muslim religious endowment. The special
difficulty with the Temple Mount is that it is not only holy for Jews and Muslims,
but it has also become a national symbol for both communities; see N. Shragai,
The Temple Mount Conflict, Jerusalem: Ketter, 1995, (Hebrew); Y. Reiter, The
Temple Mount/al-Haram al-Sharif: P o i n t s of A g r e e m e n t and D i s p u t e , Jerusalem
Institute for Israel Studies, 1997, p. 2 (Hebrew).
65. Supra n. 47.
66. For an analysis of these notions and the relations between them, see Justice Zamir
in H. C. 7128/96, supra n. 27.
67. See, e.g., Cr. Case Jerusalem 2986/87, Government of Israel v. The Idra Institutions
and Rabbi Goren, 5749 (II) Pesakim, pp. 156-176 (Justice Proccacia), and the
petition to the Supreme Court, H. C. 267/88, The Idra Institutions and Rabbi Goren
v. The Local Court in Jerusalem and the Government of Israel, 43 (III) P. D., 1989,
pp. 728-746 (Justice Barak); Cr. Case Jerusalem 203/84, State of Israel v. Livni et
al. 5750 (1989/90), (III) Pesakim, p. 330 (the case of the Jewish underground); Cr.
Case Jerusalem 51/76, State of Israel v. Chanan et al., 5737 (1977), (I) P e s a k i m , p.
392. In principle, the courts may deal with criminal cases related to the holy places
unless the offense is directly connected with the sanctity of the place where it was
perpetrated. So far, the courts have not abstained from assuming jurisdiction because
of such a connection in any case.
39

68. See, e.g., H. C. 109/70, supra n. 62.
69. See, e.g., H. C. 2725/93, Salomon v. Commander of the Police in Jerusalem,

Takdeen Elyon, 96(1), 5756/5757-1996, p. 370, and H. C. 4044/93 between the
same parties, ibid., p. 447. In both cases the Supreme Court decided by majority
vote and not unanimously.
70. H. C. 1663/94, Salomon et al. v. Police Officer Givati et al., Takdeen-Elyon, 94

(1), 5754/5755-1994, p. 1078.
71. Supra, n. 63.
72. H. C. 99/76, Cohn v. Minister of Police, 30, (II) P. D., 1976, pp. 506-507. This
ancillary right was implicitly recognized by the Supreme Court but was not
implemented in another case because the police feared that prayer with a prayer
shawl may cause provocation: H. C. 67/93, "Kach" Movement et al. v. The Minister
for Religious Affairs et al., 47 (II) P. D., 1993, p. 1, at 6. According to Prof, (later
Justice) Englard, "Freedom of access without freedom of worship is an absurdity,"
I. Englard, "The Legal Status of the Holy Place in Jerusalem," Israel Law Review,
28, 1994, pp. 589-600, at 597, footnote 24.
73. H. C. 267/88, supra n. 67, p. 742.
74. H. C. 7128/96, supra n. 27, at p. 480/2, paragraph 2.
75. Supra, n. 4.
76. Basic Law: The President of the State, L.S.I., 18, 5724-1963/64, p. 111, Section 4.
77. See, e.g., H. C. 721/94, El-Al Israel Airlines Ltd. v. Danilevitz et al., 48 (V) P. D.,
1994, p. 749, at 759. According to the Supreme Court, pp. 759-760, the principle
of equality is also implied in Basic Law: Human Dignity and Liberty (supra n. 3).
78. Ibid., p. 761: See also the general comment on discrimination prepared by the
Human Rights Committee established under the 1966 International Covenant on
Civil and Political Rights, supra n. 2, p. 26.
79.
Adoption of Children Law, 5741-1981, L . S . I . , 35, 5741-1980/81, p. 360. In Dec.
1997 the law was amended to permit adoption of children from abroad even if they
are not of the same religion like the adopting parents, under certain circumstances:
Sefer Ha-Chukkim, 1641, 5758 (1997/98), p. 20.
40

80. Hours of Work and Rest Law, 5711-1951, L . S . I . , 5, 5711-1950/51, p. 125.
81. The Crime of Genocide (Prevention and Punishment) Law, 5710-1950, L . S . I . , 4,

5710-1949/50, p. 101.
82. L.S.I., 13, 5719-1958/59, p. 29, Section 42(a).
83. L.S.I., 19, 5725-1964/65, p. 58, Section 143.
84. L.S.I., 19, 5725-1964/65, p. 254, Section 1.
85. L.S.I., Special Volume, Sections 133-137.
86. See also ibid., the provisions on unlawful association (Section 145) and public
mischief (Section 198).
87. Sections 170-174 and 144 D(l) (a). See, e.g., Cr. Ap. 697/98, Tatiana Sozkin v.
State of Israel, Takdeen Elyon 98 (2), 5758/59-1998, p. 1. For a summary in
English, see J u s t i c e , 19, 1998, pp. 50-54.. The case dealt i n t e r alia with offenses
against sentiments of religion and tradition committed with a racist motive. The
court tried to find therightbalance between freedom of expression and the prohibition
against hurting sentiments of religion
88. The relevant provision in the Law on Political Parties is quoted supra in the text
accompanying n. 5. The provisions on incitement to racism are included in Penal
Law (Amendment No. 20), 5746-1986, L . S . I . , 40, 5746-1985/86, p. 230, adding
Sections 144a-144e to the Penal Law, 5737-1977; See, e.g., Cr. Ap. 2831/95,
Rabbi Ido Elba v. State of Israel, 50(V) P. D., 1996, p. 221; An English summary
was published in Justice, 18, 1998, p. 38.
89. Supra, n. 4.
90. L.S.I., 4, 5710-1949/50, p. 114. This right may be refused to a person engaged in
activity directed against the Jewish people, a person who endangers public health
or a person with a criminal past liable to endanger public welfare.
91. L.S.I., 6 , 5712-1951/52, p. 50. See C. Klein, "La Nationalité israélienne,"

Jurisclasseur, 1983.
92. A. Kasher, "Justice and Affirmative Action: Naturalization and the Law of Return,"
I.Y.H.R., 15, 1985, pp. 101-112.
41

93. L a w s Concerning Nationality, UN Legislative Series, ST7LEG/SER. B/4, 1954:
See p. I l l (Czechoslovakia), 123 (Denmark), 188 (Greece), 198-199 (Guatemala),
215-216 (Honduras), 217 (Italy), 228 (Jordan), 288 (Liberia), 311 (Mexico), 351
(Nicaragua), 354 (Norway), 387 (Poland) and 544-545 (Venezuela); See also De
Castro, "Nationalité, double nationalité et supra-nationalité," Recueil des Cours de
l'Académie de D r o i t International, 102, 1961, pp. 521, at 566-568.
94. The term racial discrimination has a very comprehensive meaning for the purpose
of this Convention: "Any distinction, exclusion, restriction or preference based on
race, color, descent, or national or ethnic origin," Article 1, UN Treaty Series, 660,
p. 195.
95. See N. Lerner, "Equality of Rights Under Israeli Law," Patterns of Prejudice, 9,
No. 6, 1975, pp. 1-4; C. Klein, supra n. 13, p. 35.
96. Section 4A of the Law of Return, added in 1970, L . S . I . , 24, 5730-1969/70, p. 28.
97. See on this question for example A. H. Shaki, Who is a Jew in the Law of the State
of I s r a e l , Institute for the Study of the Family and Family Law in Israel and the
Rav Cook Institute Jerusalem, 1976-1978, two volumes (Hebrew); M . Shava,
"Comments on the Law of Return (Amendment No. 2), 5730-1970 (Who is a
Jew)", Tel A v i v University Law Review, 3, 1977, p. 140 (Hebrew); Rubinstein and
Medina, supra n. 6, pp. 111-131.
98. Drayton, L a w s of P a l e s t i n e , II, 1934, p. 1294.
99. The Supreme Court decided that the requirement for the consent of the head of the
new religious community is relevant only for the purpose of jurisdiction in matters
of personal status: H. C. 1031/93, Pessaro (Goldstein) et al. v. Minister of the
Interior et al., 51 (IV) P. D., 1997, p. 661. The case arose because the authorized
Orthodox Rabbinate had not recognized a conversion to Judaism effected by the
petitioner before a panel of the Reform movement. An English summary of this
decision was published in Justice, 15, 1997, pp. 43-48.
100. See P. Shifman, "Religious Affiliation in Israeli Inter-Religious Law," Israel Law
Review, 15, 1980, pp. 1-48, at 15-40 ("Change in Religious Affiliation"); M .
Shava, "The Legal Aspects of Change of Religious Community in Israel," I.Y.H.R.,
3, 1973, pp. 256-269; A. Maoz, "Who is a Convert?" J u s t i c e , 15, Dec. 1997, pp.
11-19.
42

101. Capacity and Guardianship Law, 5722-1962, as amended by Capacity and
Guardianship (Amendment) Law, 5725-1965, L . S . I . , 19, 5725-1964/65, p. 123
(Section 13A).
102. See G. Allon, "The Amended Conversion Law will be Based on the Recommendations
of the Ne'eman Committee," Ha'aretz, 5 June 1998, p. A l and A14; Maoz, supra n.
100.
103. The 1948 Universal Declaration of Human Rights, supra n. 2 and 23. The 1966
International Covenant on Civil and Political Rights contains a similar provision:
"to manifest his religion or belief in worship, observance, practice and teaching"
(supra n. 21). The question of what is the difference, or what is the boundary,
between teaching and proselytizing may be raised. See also Article 6 of the Declaration
on the Elimination of All Forms of Intolerance and of Discrimination Based on
Religion, 1981, supra n. 1, and Article 9(4) of the Document of the Copenhagen
Meeting of the Conference on the Human Dimension of the Conference on Security
and Cooperation in Europe, International Legal Materials, 29,1990, pp. 1306-1321;
See, however, the case of Kokkinakis v. Greece, decided by the European Court of
Human Rights, 260-A Eur. CT. H. R. (ser. A ) 18, 1993, discussed in T. Jeremy
Gunn, "Adjudicating Rights of Conscience Under the European Convention on
Human Rights," in J. D. van der Vyver and J. Witte, Jr., eds., R e l i g i o u s H u m a n
Rights in Global Perspective: Legal Perspectives, The Hague: Nijhoff, 1996, pp.
305-330; See also A. Garay, "Liberté religieuse et prosélytisme: l'expérience
européenne," Revue t r i m e s t r i e l l e des droits de l ' h o m m e , 17, 1994, pp. 7-29; M .
Hirsch, "The Freedom of Proselytism under the Fundamental Agreement and
International Law," Catholic University Law Review, 47, 1998, pp. 407-425.
104. Penal Law, 5737-1977, as amended by Penal Law Amendment (Enticement to

Change Religion) Law, 5738-1977, L.S.I., 32, 5738-1977/78, p. 62, Sections 174A
and 174B; See also R. Levush, "Israel Status Report on the Anti-Proselytization
Bill," Law Library Scope Topics, 10, June 1997.
105. The main laws in this field are: Compulsory Education Law, 5709-1949, L . S . I . , 3,
5709-1948/49, p. 125; State Education Law, 5713-1953, L . S . I . , 7, 5713-1952/53,
p. 113; See also C. Klein, supra n. 13, pp. 133-134.
106. S. Goldstein, supra n. 14.
43

107. See E. Vitta, The Conflict of Laws in Matters of Personal Status in P a l e s t i n e , Tel
Aviv. Bursi, 1947.
108. The Second Schedule to the Palestine Order in Council, 1922-1947, which was
added by the Palestine (Amendment) Order in Council, 1939, Palestine Gazette,
898, suppl. 2, p. 459, Section 16. See also Rubinstein and Medina, supra n. 6, at p.
149.
109. Marriage and Divorce (Registration) Ordinance of 1919, Drayton, Laws of Palestine,
II, 1934, p. 903.
110. See Articles 47, 51, 52, 53 and 54 of the 1922 Palestine Order in Council, Drayton,
L a w s of P a l e s t i n e , III, p. 2581; Rabbinical Tribunals Jurisdiction (Marriage and
Divorce) Law, 5713-1953, L . S . I . , 7, 5713-1952/53, p. 139; Druze Religious
Tribunals Law, 5723-1962, L . S . I . , 17, 5723-1962/63, p. 27; See also P. Shifman,
Family L a w in I s r a e l , Jerusalem: The Sacher Institute for Legislative Research,
Faculty of Law, The Hebrew University of Jerusalem, 1984 (Hebrew).
111. Article 47 of the 1922 Order in Council (for the civil courts); Section 2 of the
Rabbinical Tribunals Jurisdiction (Marriage and Divorce) Law (for the Jewish
religious tribunals).
112. E.g., the Succession Law, 5725-1965, supra n. 83.
113. The International Covenant on Civil and Political Rights of 1966 was signed by
Israel on 19 Dec. 1966, and ratified in 1991, with the above reservation. Under an
additional declaration, Israel's state of emergency constitutes a public emergency
within the meaning of Article 4(1) of the Covenant and therefore the state may
derogate from some of the obligations under Article 9 of the Covenant.
114. If a religious tribunal disregards a provision of a law of the Knesset addressed to

the religious tribunals, its decision may be set aside by the Supreme Court because
of excess of jurisdiction. The case law of the Court on this matter is not uniform,
however; See Rubinstein and Medina, supra n. 6, p. 194; For the Succession Law,
see supra n. 83.
115. H. C. 3914/92, Lev v. The Religious District Tribunal, 48 (II) P. D., 1994, p. 491.
116. H. C. 1000/92, Bavli v. The Supreme Rabbinical Tribunal, 48(11) P. D., 1994, p.
221; For an analysis of these two judgments, see R. Halperin-Kaddari, "Rethinking
Legal Pluralism in Israel: The Interaction Between the High Court of Justice and
44

Rabbinical Courts," Tel A v i v University L a w Review, 20, 1997, pp. 683-747
(Hebrew).
117. See sources referred to in n. 14.
118. See A. Rozen-Zvi, Israeli Family L a w , the Sacred and the Secular, Tel Aviv:
Papyros, Tel Aviv University Press, 1990, p. 216 (Hebrew); Idem, "Rabbinical
Courts, Halacha and the Public: A Very Narrow Bridge," Mishpat Umimshal, 3,
1995, pp. 173-220 (Hebrew); See also on the status of an apostate under the
Rabbinical Tribunals Jurisdiction (Marriage and Divorce) Law, 5713-1953, Rabbi
Y. Yisraeli, "The Marriage and Divorce Law in Practice," G u e v i l i n , No. 21-22,
1965, p. 37 (Hebrew); A. Maoz, "The Status of the Apostate," Mishpatim, 7, 1977,
p. 442 (Hebrew).
119. S. Z. Abramov, supra n. 14, pp. 345-379. In recent years, the Supreme Court has
several times decided in favor of the inclusion of women and non-Orthodox persons
in the religious councils, namely, the local bodies that deal with supplying religious
services. Unfortunately the Orthodox religious establishment has tried and is still
trying to circumvent these decisions. See, e.g., H. C. 699/89, 955/89, 1025/89,
Anat Hoffman et al. v. The Jerusalem Municipal Council et al., 48(1) P. D., 1994,
p. 678; H. C. 4733/94, 6028/94, 7105/94, Prof. Judith Naot et al. v. The Haifa
Municipal Council et al., 49 (V) P. D., 1995, p. I l l ; H. C. 3357/95, Adi Guises-
Steinman et al. v. The Rishon le-Tzion Municipal Council et al., Takdeen Elyon
95(3), p. 1422; H. C. 3551/97,_Dr. Joyce Gilla Brener et al. v. the Ministerial
Committee according to the Jewish Religious Services Law et al., Takdeen Elyon
97(3), p. 41; H. C. 4247/97, 921/98, The Meretz Faction in the Jerusalem Municipal
Council et al. v. The Minister for Religious Affairs, decided on 2 Nov. and 19 Nov.
1998 (from Internet); See also Jewish Religious Services (Amendment No. 10)
Law, 5759-1999, Sefer Ha-Chukkim, 1703, 5759 (1998/99) p. 86.
120. The Chief Rabbi of the Kara'ites in Israel is, however, recognized as a competent
"Registering Authority" under the Marriage and Divorce (Registration) Ordinance
of 1919, supra n. 109; On the Kara'ites, see M. Corinaldi, The P e r s o n a l Status of
the Kara'ites, Jerusalem, 1984 (Hebrew).
121. M. Corinaldi, Ethiopian Jewry - Identity and Tradition, Jerusalem, 1988 (Hebrew);
See also generally B. Bracha, "Personal Status of Persons Belonging to a Non-
Recognized Religious Community," I.Y.H.R., 5, 1975, p. 88.
45

122. Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 5729-1969,
L . S . I . , 23, 5729-1968/69, p. 274.
123. The Court for Family Matters Law, 5755-1995, Sefer Ha-Chukkim, 1537, 5755
(1994/95), p. 393; And see lead article in Ha'aretz, 11 May 1998, and article by A.
Golan, 19 May 1998, p. B3.
124. The following remarks are based on comments made by Dr. Y. Reiter; I am most
grateful to him.
125. Absentees' Property Law, 5711-1951, L . S . I . , 5, 5711-1950/51, p. 63.
126. Women's Equal Rights Law, 5711-1951, L.S.I., 5, 5711-1950/51, p. 171.
127. Marriage Age Law, 5710-1950, L.S.I., 4, 5710-1949/50, p. 158.
128. Spouses (Property Relations) Law, 5733-1973, L . S . I . , 27, 5733-1972/73, p. 313.
129. Penal Law Amendment (Bigamy) Law, 5719-1959, L . S . I . , 13, 5719-1958/59, p.

152.
130. Supra n. 83.
131. Supra, note 123.
132. Law and Administration Ordinance (Amendment No. 11) Law, 5727-1967, L.S.I.,
21, 5727-1966/67, p.75; Law and Administration Order (No. 1), 5727-1967, Kovetz
Ha-Takanot (collection of regulations), 2064, 5727 (1966/67), p. 2690.
133. P. Shifman, Civil Marriage in Israel: The Case for Reform, Jerusalem Institute for
Israel Studies, 1995 (Hebrew).
46

II. FREEDOM OF RELIGION AND CONSCIENCE
IN A HETEROGENEOUS CITY
BY CHAMMAN P. SHELACH
The above title may suggest that problems of freedom of religion and conscience
are particularly acute in cities with mixed populations. Such an attitude seems to
me mistaken, both as a description of the present situation in homogeneous
cities in Israel, and as a forecast for the future of cities with ethnically mixed
populations. Indeed, Most of the acute conflicts in Israel over this subject have
occurred in homogeneous cities. For example, the controversies in the 1950's
over Sabbath traffic in West Jerusalem are still remembered; nor has the present
conflict concerning the Ramot Highway, anything to do with the fact that Jerusalem
is a heterogeneous city. The same is true of the problems that have arisen in
Tel-Aviv concerning the allocation of a plot for a Reform synagogue, or the
number of cinemas which may operate on Sabbath in defiance of a municipal
by-law, and in Herzliya, where the municipality has organized Sabbath
transportation to the seashore. Therefore, it can not be said that peace reigns in
ethnically homogeneous cities. The fact that a city may be heterogeneous could
indeed aggravate a given problem, but such a process is not unavoidable. M y
own view is that the municipal government in such a city has a greater number
of options in strivig for a more complete fulfillment of freedom of religion and
conscience.
To substantiate this view, I shall briefly review the status of this freedom in
Israeli law,and the powers and areas of activity of local authorities which may
affect it. Following this, I shall dwell on the relevant Supreme Court jurisdiction
and its possible implications.
The status of the freedom of religion and conscience has been an issue of
serious controversy in the state of Israel ever since its establishment in 1948,
47

and even before. The Israeli public opinion has been divided on this issue and no
ideological decision can be expected in the foreseeable future. Generally, one
may identify three basic approaches in Israeli society which are sometimes
reflected even injudicial decisions.
The L i b e r a l A p p r o a c h holds that any religion or faith is a matter of the

individual's conscience, a relationship between himself and his God. The state
should refrain to the greatest possible extent from infringing upon this private
domain, and religious officialdom should refrain from invasion of public and
political domains. Should clergymen violate this guideline, they would not be
entitled to any special treatment by the State; their status is that of any other
citizen.
The R e l i g i o u s A p p r o a c h regards H a l a c h a (Jewish religious law) and the

T o r a h (the Old Testament and the Talmud, in this case) as preferable sources of
inspiration in light of which the attitude of the law toward the various religions
should be determined.
The p o s i t i v e n a t i o n a l a p p r o a c h regards public consciousness as the pivotal

factor. It recognizes the national importance of religious factors and elements
despite the fact that its declared point of view is secular. It tends to solve each
problem of religion and conscience separately, in accordance with the public
consensus with regard to each case.
The first two approaches are comprehensive, aspiring to shape reality and
to change it; they are of conceptualistic and deductive nature, progressing from
the general to the particular- deriving a solution to an actual problem from a
general position of principle. The positive national approach, on the other hand,
is of a more pragmatic nature. It refrains from formulation of a comprehensive,
clear-cut outlook based on principle, fearing that it cannot be realized without
subjecting society to a painful schism. The principle of status q u o is a political
reflection of this approach. Its true meaning is not a "freeze" in a situation which
is clearly not static, but rather limitation of the conflict by abstaining and refraining
from decisions on principle.
48

This approach is clearly expressed in the judgement of Justice Landau
(former President of the Supreme Court) in H.C. No. 58/68, S h a l i t v. t h e M i n i s t e r
of t h e I n t e r i o r :
There exists the large camp of the non-religious, who do not observe the
religious injunctions but acknowledge the uniqueness of the Jewish people,
the close traditional ties between the people and their faith, and the H a l a c h a
as a national asset. Being concerned about the unity of the Jewish people in
Israel and in the Diaspora, they do not deem our generation entitled to or
capable of breaking loose from these things and shaking off the rich spiritual
heritage to which the nation has clung throughout the thousands of years of
its existence... The power of our democratic regime lies in permitting
people of divergent opinions to live and fight together for the things that
unite us all, and primarily for the physical and spiritual continuity of the
Jewish people. This struggle for existence requires of us not to let fanaticism
and litigiousness - with which our people has always been afflicted - drive
us into aggravating ideological differences but to keep striving for a tolerable
1
modus v i v e n d i by means of a necessary compromise.
The awareness within the positive national approach of the conflicts existing
between the liberal and religious approaches does not necessarily signify identical
attitudes toward either of the two. Expressions and opinions that attribute less
importance to secular consciousness and conscience than to religious belief can
be found. In H.C. 30/76 - Joseph Sihu v. t h e K a r a i t e C o m m u n a l C o u r t , Justice
Landau says:
Subjecting them (the Karaites - Ch. Sh). to...rabbinical jurisdiction against

their will (even if the rabbinical courts were ready to handle such claims in
matters of marriage and divorce without the consent of both spouses) denotes
an extreme conscientious coercion, far more severe than that involved in
imposing the jurisdiction of the Rabbinical Court upon a non-believing
2
Jew.
49

Other examples illustrating this asymmetrical attitude may be found, especially
in cases where criticism was levelled at couples who were married privately
because of their conscientious objection to a religious wedding. This attitude
may, of course, be consistent with the basic concept of the positive national
3
approach in that it reflects the consensus of public opinion.
I do not intend to discuss at length the many powers of local authorities by

which they can shape urban ways of life. It suffices to mention that the local
authority has the power to determine the days and hours when businesses may
operate. In most cases it olso exercises jurisdiction in matters of traffic, education,
planning and construction. Apart from these, it controls substantial budgets.
The question that concerns us in this context is whether the local authority,
while exercising its powers, is permitted to enforce religious conduct, even
when its motive is not the enforcement of such conduct per se but consideration
for the sensitivities of the religious public.
The Supreme Court has consistently answered this question in the negative.
In cases relating to attempts by local authorities to prevent the sale of non-kosher
meat, notably pork (before special legislation on pork had been passed), the
Supreme Court adopted the liberal approach: religion is a private matter, and a
clear separation between the private and public domains must be upheld. Any
deviation from this rule is permitted only with the explicit approval of the
sovereign power - that is, the Knesset.
The famous judgement H.C. 122/54, A x e l v. t h e M a y o r of N e t a n y a ? dealt

with the question of whether, under the Municipalities Ordinance, a municipality
may make the granting of a butcher's license dependent upon the latter's undertaking
not to trade in pork. The Court through its President, Justice Olshan, ruled that
the issue at hand was that of restricting individual freedom, and was therefore a
matter for the legislative authority. The latter may empower other agencies to
impose such restrictions, but it must do so...
50

...explicitly, and in unambiguous language, especially when the case is
dealing with an issue far more national, rather than local, in scope. In the
latter event, no implicit granting of such power may be inferred, unless the
intent to grant it is evident and is clearly reflected in the wording of the law
5
or its explicit aim.
The judgement purposely refrains from taking an explicit stand on the matter:
It is not within the power of this Court to express its opinion as to the
bearing of the above prohibition on the principle of individual freedom,
that is, whether it is justified to enforce such a prohibition by means of
legislation... Were we to do so, we would be availing ourselves of powers
6
that were not meant to be vested in this Court.
Nevertheless, the very act of raising the question, and its phrasing, tells us about
Justice Olshan's stand. The judgement further implies that the Court questions
the moral right of a parliamentary majority to restrict an individual freedom, if
the subject had not constituted a major issue in the election campaign:
It is an attribute of democracy that the power to limit individual freedom

springs from the will of the people, and is therefore entrusted to the institution
qualified to speak and decide on its behalf, namely - the legislature. The
legislature may use this power as it deems necessary, in compliance with
national interests. Sometimes the very question of whether such necessity
exists in respect of a certain matter becomes, due to its importance, an issue
to be decided upon by the people when they go to the polls - e.g., when it
is included in the platforms of the contending parties, or, in some countries,
by means of a referendum. This matter is of such importancethat the legislative
majority will sometimes refrain from exercising its majority rights when
this issue - namely, the need to restrict individual freedom in a particular
case - has not been put before the people at the time of the elections, and
7
this majority therefore cannot judge the public opinion on the issue.
51

This approach was adopted and applied in numerous Supreme Court rulings.
The Court was not ready to deviate from it even when the local authority in
question was not motivated by a desire to impose religious conduct.
In H . C . 155/60 - E l a z a r v. t h e M a y o r of B a t Yam* - the Municipality

refused to license a non-kosher butcher's shop for fear of upsetting public peace
and order. Supreme Court Justice Silberg rejected the argument in the following
unequivocal terms:
Whatever the case may be in respect to security and public order matters
arising from other considerations, they cannot warrant municipal interference
when the anticipated disturbance is liable to be caused by the ideological
controversy between religious and non-religious... This is a dangerous,
two-edged sword, capable of delivering public institutions into the hands of
street terrorism... The proper arena for the ideological tussles between the
different segments of the population is the Knesset or the major Government
9
institutions...
In another High Court of Justice case, H.C. 357/61 - T e t l i s v. t h e M a y o r of

1 0
Herzliya - the Municipality wanted to forbid the opening of a non-kosher
butcher's shop, because its location near the Central Synagogue and another
synagogue would hurt the feelings of worshippers. This plea, too, was dismissed
by the Court; Justice Landau ruled as follows:
In any event, propriety and the respect for other people's feelings depend
upon the sagacity and tolerance displayed by the various groups and do not
belong among the juridical considerations which ought to guide the
11
municipality in its decisions...
The jurisprudence dealing with forced observance of the Sabbath imposed by

local authorities reflects a similar approach.
52

Exceptional in this context was High Court of Justice case 174/62 - t h e
1 2
L e a g u e f o r t h e P r e v e n t i o n of R e l i g i o u s C o e r c i o n v. t h e J e r u s a l e m C i t y C o u n c i l
- which dealt with the closure of King George Street for the duration of the
service at the Yeshurun Synagogue, and the detouring of motorized traffic. The
argument in support of the decision was the wish to avoid disturbing the
worshippers. The Court declined to revoke the decision:
Undoubtedly, by considering the disturbance caused to the concentration of

worshippers by the traffic.it considered an interest of a religious nature.
But there is nothing wrong with it, just as one could not find fault with
consideration given to cultural, commercial, medical or other interests,
13
provided they concern a large segment of the population.
This is an apparent deviation from the usual approach. The reason, however,
was that street noises objectively interfere with prayer inside the synagogue.
One has known streets to be closed on the occasion of concert. Thus, even while
constituting a certain deviation from the customary course, this judgement rests
on the same grounds - protecting what happens inside the house, as it were.
This state of affairs, which seems clear and unquestionable, has been
undergoing certain changes in recent years. They were heralded by a case in the
village of Usfiyah, where two-thirds of the population are Druze. The local
council refused a license to a coffee-shop which insisted on having music played
late into the night - a practice regarded as inconsistent with the Druze tradition
and faith. In its judgement H.C. 166/71 - H a l o o n v. H e a d of t h e L o c a l C o u n c i l ,
14
Usfiyah -the Supreme Court refused to invalidate the decision. Justice Berinzon
writes:
We do not feel justified in negating the wish of the body elected by the
inhabitants to maintain the special character of their village, located in a
rural neighborhood, and in accordance with the culture and tradition of the
majority of its inhabitants, who are members of a religion and a community
15
of unique customs and life-style.
53

These words, though applied to the Druze and to a single isolated community,
found an echo, when the Jerusalem Municipality, in case H.C. 230/73 - S.Z.M.
1 6
v. t h e M a y o r of J e r u s a l e m - tried to deny a license to an "Eros" showroom in
the city's business district, relying upon the above ruling. The argument was that
in a heterogeneous city, consideration must be given to the feelings of all groups
of the population, and to the danger that offending these feelings might lead to a
disturbance of public peace. The Supreme Court, through Justice Ezioni rejected
the argument; the decision was repealed on grounds, indeed, that "we are discussing
here the opening of an office in a commercial district, on the second floor,
without a show-case, in a mixed, pluralistic city that does not possess a
17
homogeneous character."
As for the protection of the public's feelings and the fear of disturbances,
the Judge agreed with the Judgement in the cases of T e t l i s v. t h e M a y o r of
H e r z l i y a a n d E l a z a r v. t h e M u n i c i p a l i t y o f N e t a n y a . However, Justice Y. Cahan,
concurring, added that one may be justified in "denying license to a business
which, by its very nature, outrages public sentiments in the neighborhood where
18
it is to be located, and which, consequently, is liable to jeopardize public peace"
- for example, a nightclub in the heart of Mea Shearim (an ultra-orthodox
neighborhood), or a tavern in a religious Moslem neighborhood. We have here
an opening, allowing consideration by local authorities of the religious feelings
of residents in a given place, in clear contrast to the ruling in the case of T e t l i s
v. t h e M a y o r of H e r z l i y a .
In the case of Hashomer Street in Ben-Bnei Brak, H.C. 531/77 - B e n - B a r u c h

v. t h e C o n t r o l l e r of R o a d Transport™ - invoking the closing of said street on the
Sabbath, the main argument was the protection of the religious inhabitants'
mode of living:
Just as the traffic on King George Street in Jerusalem interfered with prayers
at the Yeshurun Synagogue, so the noise made by a variety of vehicles...
disturbs the Sabbath peace of the residents of this area, known for its
20
ultra-Orthodox character.
54

Nevertheless, u n l i k e t h e case of t h e L e a g u e f o r t h e P r e v e n t i o n of R e l i g i o u s
C o e r c i o n and services at the Yeshurun Synagogue, here the protection given to a
religious life-style was extended from the interior to the street and into the
public domain. The mere fact that the issue was discussed from the viewpoint of
a balance of interests implies that the wish to impose religious conduct in public
is a legitimate interest. In this case, the consideration that tipped the scale was
"that we are dealing with disturbing the Sabbath rest of a large, densely-populated
Orthodox community in the center of an Orthodox locality, almost a fortress of
21
Orthodox Jewry." I n o t h e r w o r d s , t h i s i s a a s e g r e g a t e d n e i g h b o r h o o d of
t o t a l l y homogeneous c h a r a c t e r a n d t h i s r e a s o n i n g reads l i k e a c o n t i n u a t i o n of
t h e H a l o o n ruling.
A similar case concerning the Jewish Quarter of Jerusalem's Old City, H.C.
1 1
114/78 - B u r k a n v. t h e M i n i s t e r of F i n a n c e - led to the ruling that refusal to
sell buildings in the Jewish Quarter to non-Jews was in order and could not be
repealed on the grounds of discrimination, since the objective was the rehabilitation
of the Quarter and the preservation of the Jewish character it had had before the
War of Liberation.
All these rulings involve somewhat unusual circumstances. Yet they indicate
a general trend which leads us to conclude that in the future the Court may be
prepared to accept the invocation and application of religious considerations
which it disqualified in the past, whenever the protection of the way of life of a
homogeneous population in a well-defined area is under consideration. We have
here the beginning of an evolution in Israel's case law, the course of which no
one can, as yet, predict.
At this point, we should note the provisions whereby homogeneous and

clearly defined areas can be granted separate legal status. Under paragraphs 6-12
of the Municipalities Ordinance (revised), such an area may be granted the
status of borough, provided its residents so desire. The main function of the
borough council thus constituted is to initiate and carry out public works within
its boundaries, in addition to the regular works conducted there. A n even more
55

significant right is the one provided in paragraph 4 of the Local Councils Ordinance
(revised) - to set up a local council "in a given borough of a municipal area
which, by its special needs and nature, differs from the rest of the city." The
power to constitute a borough, or to set up a local council, is given to the
Minister of the Interior rather than the Municipality, an arrangement indicative
of the degree of the autonomy of local government. In the event of such a local
council being created, it will naturally be free to act in accordance with the
guidelines and considerations approved by the Court.
Is exercising the powers of bestowing special states on separate, homogeneous

boroughs desirable? As in many other cases, the answer is far from definite, and
depends on the circumstances.
Its influence could be beneficial if power is exercised wisely and provided

that it does not undermine the ability of the rest of the inhabitants to lead a
different way of life. In other words: that which happens within these zones
must not shape the whole life-style of the whole city. The possibility of maintaining
a unique culture and mode of life within the restricted, almost private border of
these boroughs may enhance mutual tolerance outside them. If such considerations
are applied, then, just as the gates of Mea Shearim close on the Sabbath, so
could public transportation to Ramot operate on the Sabbath too (leaving aside,
for the moment, the question as to which road would be used).
The reality of everyday life in a heterogeneous city may enhance such

tolerance. Ever since Jerusalem's reunification, the concept of a uniform way of
life has been broken. Nowadays we see restaurants open on the Sabbath and
bread sold during Passover. Bus service to Gilo and Neve Ya'acov is operated
on the Sabbath; the Moslems and Christians who operate these services are not
expected to observe either the Jewish Holy Days or the laws of kashrut (Jewish
dietary laws). Tolerance towards members of other faiths may eventually pave
the way to recognizing the rights of atheists and non-practicing Jews to lead the
life of their choice. This way of thinking is reflected in the S.Z.M. judgement
quoted above. In this respect, the experience gained by Jerusalem can be extremely
valuable.
56

There are, however, certain risks that cannot be ignored:
a. The physical existence of separate districts (Ramot, Gilo, etc.) is problematic,

their boundaries are under perpetual processes of change. In a series of
articles published in M a ' a r i v some years ago, journalist Levi Yitzhak
Hayerushalmi described the demographic changes in Northern Jerusalem,
an area which is becoming increasingly Orthodox in character. The point is
that the situation is dynamic, and when such processes are taking place
conflicts may evolve.
The example of the conflicts in New York and the U.S.A in general, with
racial or ethnic minorities penetrating "good" neighborhoods, is far from
encouraging. Moreover, there is reason to assume that, should the legal
status of a given borough actually change as a result of an influx of religious
or secular newcomers, the residents might resist the change by resorting to
a variety of legal means. Examples might be inclusion of clauses in lease
contracts or objection to the building of a synagogue lest it lead to a street
closure. Such things have been known to happen in Israel and in Jerusalem,
though on a limited scale. However, they are in danger of becoming
widespread and legitimate phenomena.
b. The asymmetrical attitude towards religious and secular groups discussed

earlier may arouse future conflicts.
c. The definition of fields in which such considerations may be applied is

problematic. It is clear concerning the closure of a street on the Sabbath.
But where should the line be drawn? For instance, could a decision be
made concerning the length of the sleeves on women's dresses? (Requests
to this effect exist in Mea Shearim, though they are not binding.)
These dangers spell a deterioration of relationships and the emergence of a

sectarian, rather than a pluralistic, society. They are particularly imminent in a
mixed city such as Jerusalem. It is only too easy to carry the issue from religious
into national and even international arenas. If we drag not only Ramot and Mea
57

Shearim but also the Moslem Quarter into this polemic, the consequences will
be predictable. Again, much depends on the wisdom and sensibility of the local
authority. A l l is foreseen - but freedom of choice is given.
Note
This article was first published in J e r u s a l e m - Aspects of L a w , Discussion
Paper No. 3, The Jerusalem Institute for Israel Studies, 1983, and appears
here verbatim. It was not updated since the author was killed two years
after its publication
Notes
1. 23 (2) P . D . (Supreme Court Decisions) A l l at p. 517.
2. 31 (1) P.D. 13, Justice Landau at p. 19.
3. For example, see H.C. 80/63, Gurfinkel and Haklai v. the Minister of the Interior,
17 P . D . , 2048 at p. 2060; H.C. 158,132-130/66, Segev and Reichert v. the Rabbinical
Court in Safad 21 (2) P.D. 505 at p. 557.
4. 8 P . D . , 1524.
5. M a t pp. 1531-1532.
6. Id. at p. 1530.
7. Id. at p. 1531.
8. 14P.£>: 1511.
9. Id. at p. 1512.
10. 16 P . D . 902.
11. Id. at p. 904.
12. 16 P . D . 2665.
58

13. Id. at p. 2668.
14. 25 (2) P.D. 591.
15. Id. at p. 594.
16. 28 P.D. (2), 113.
17. Id. at p. 117.
18. Id. at p. 121.
19. 32 (2) P.D. 160.
20. Justice Landau (then Deputy President), id. at pp. 164- 165.
21. Id. at p. 165.
22. 32 (2), P.D. 807.
Selected Bibliography
In English
1. Z. Berinzon, "Freedom of Religion and Conscience in the State of Israel," Israel
Yearbook on Human R i g h t s , Vol. in, 1973, pp. 223-232.
2. S. Meron, "Freedom of Religion as Distinct from Freedom From Religion," Israel

Yearbook on Human R i g h t s , Vol. IV, 1974, pp. 219-240.
3. A. Rubinstein, "Law and Religion in Israel," Israel L a w Review, Vol. 2, 1967, pp.
380-414.
4. C. P. Shelach, "Exemptions for Reasons of Religion and Conscience," in S. Goldstein

(ed.), Israeli Reports t o the XI International Congress of Comparative L a w , 1982,
p. 284.
5. S. Shetreet, "Some Reflections on Freedom of Conscience and Religion in Israel,"

Israel Yearbook on H u m a n R i g h t s , Vol. IV, 1974, pp. 194-218; Rejoinder to S.
Meron; Ibid, pp. 241-244.
59

In Hebrew
1. Z. Berinzon, "Freedom of Religion and Conscience in the State of Israel," Tel A v i v
University L a w Review, Vol. 3, 1973, pp. 405-413.
2. S. Meron, "Freedom of Religion as Distinct from Freedom From Religion," Tel

A v i v University L a w Review, Vol. 3, 1973, pp. 414-432.
3. Y. Meron "Muslim Polygamy and the Constitutionality of its Prohibition," Mishpatim,

Vol. 3, 1972, pp. 515-539.
4. Y. Meron, The Freedom of R e l i g i o n and Conscience in the Israeli Defense Army,

1976.
5. S. Shetreet, The Freedom of R e l i g i o n and Conscience - Theoretical Foundations

and the Situation in Israeli L a w , L L . M thesis, The Hebrew University of Jerusalem's
Faculty of Law, 1970 (updated 1975).
6. S. Shetreet, "Freedom of Religion and Conscience," Mishpatim, Vol. 3,1972, pp.

467-493.
7. C. P. Shelach, Freedom of Religion and Conscience in Israeli L a w , doctoral thesis,

Jerusalem: The Hebrew University of Jerusalem's Faculty of Law, 1978.
8. C. P. Shelach, "The Agnostic Witness and the Oath," (note on H.C. 172/78 Becker
v. Justice H. E i l a t , 32(3) P.D. 370), Mishpatim, Vol. 9, 1979, pp. 508-523.
9. C. P. Shelach, "On the Freedom of Conscience and the Freedom of the Heart (the
freedom of religion and conscience in Israel and the limitation on the freedom of
marriage)," in R. Gavison (ed.), Civil Rights in Israel, a Collection of Essays in
honour of Haim H. Cohn, Jerusalem: The Association for Civil Rights in Israel,
1982, pp. 85-115.
10. I. Shelach, Indications Towards Secular Religion in Israel, Jerusalem, The Hebrew
University of Jerusalem, The E. Kaplan School of Economics and Social Sciences,
1975 (in the series: Papers in Sociology).
11. L. Shelef, "Disobedience to the Law on Conscientious Grounds," in R. Gavison

(ed.), Civil R i g h t s in Israel, a Collection of Essays in honor of Haim H. Cohn,
Jerusalem, The Association for Civil Rights in Israel, 1982, pp. 117-151.
60

III. FREEDOM OF RELIGION
AND
THE "CONSTITUTIONAL REVOLUTION"
BY ROTEM M . GILADI
I n 1 9 9 2 , t h e Knesset passed two Basic Laws dealing with fundamental human

r i g h t s . These B a s i c L a w s - as i n t e r p r e t e d by t h e Supreme Court - conferred
u p o n c e r t a i n h u m a n r i g h t s a c o n s t i t u t i o n a l , s u p e r - s t a t u t o r y status. This essay
presents t h e r a m i f i c a t i o n s of t h i s " c o n s t i t u t i o n a l r e v o l u t i o n " f o r f r e e d o m of
religion.
A . Introduction
Legal and constitutional measures instituted at the establishment of the State of

Israel did not include the adoption of a written constitution or a bill of rights.
The Knesset's 1951 Harari Resolution called for "Basic Laws" to be enacted
and, at some time in the future, consolidated into a written constitution. While
some Basic Laws have been adopted, Israel has not consolidated them into a
constitution or a bill of rights. Until 1992, however, none of the Basic Laws
dealt with the issues of human rights or civil liberties; nor did any "ordinary"
law anchor freedom of religion in Israel.
1
Even prior to the enactment of Basic Law: Human Dignity and Liberty in
2
1992, freedom of religion was viewed as a fundamental principle of Israeli law,
although it was not secured by legislation or, a f o r t i o r i , by a constitutional
provision.
61

3
It is true that the third section of Israel's Declaration of Independence
prescribes, i n t e r a l i a , that the State of Israel "will guarantee freedom of religion,
conscience, language, education and culture." The Supreme Court ruled, however,
that the Declaration does not grant rights upon which the individual may rely in
the Courts or other state authorities. The Supreme Court held that "any legal
provision must be construed in conformity with the Declaration's guiding principles
and not in contradiction to them. Nevertheless, where there exists an express
statutory provision by the Knesset which leaves no room for doubt [that it
contradicts the guiding principles], that provision must be followed even though
4
it may be incompatible with the principles of the Declaration of Independence."
In effect, this ruling meant that without a constitutional provision securing freedom
of religion and conferring upon it a special status, the power of Israeli judges
was limited to quashing administrative decisions and secondary legislation that
were incompatible with this unwritten freedom. Israeli judges could not question
the validity of Knesset primary legislation violating this or other freedoms.
5
The enactment in 1992 of Basic Law: Human Dignity and Liberty and
6
Basic Law: Freedom of Occupation came to be known as the "constitutional
7
revolution." The Supreme Court opined that these two Basic Laws limit the
power of the Knesset to infringe upon protected rights. According to the prevalent
view, the Basic Laws thus profoundly transformed the normative status of human
rights in Israel.
The right to freedom of religion is not specifically mentioned in Basic Law:

Human Dignity and Liberty. This essay will examine whether the constitutional
revolution applies to this right and to others not specifically enumerated in the
Basic Law. It will also examine the relationship between freedom of religion
and the rights that are expressly protected by the Basic Laws, such as freedom of
8 9
occupation or the right to property. For example, through the protection of the
freedom of occupation or the right to property, protection for the freedom of
religion might also indirectly be granted. Rather than drawing general conclusions,
I will present several observations regarding the changes introduced by the
constitutional revolution regarding the freedom of religion.
62

B . The Basic Laws and their I n t e r p r e t a t i o n by the Supreme
10
Court
The normative change in the status of the human rights protected by Basic Law:
Human Dignity and Liberty is embodied in the "Limitation Clause" of Section 8
of the Basic Law, which provides: "There shall be no violation of ^rights under
this Basic Law except by a law befitting the values of the State of Israel, enacted
for a proper purpose and to an extent no greater than required, or by regulation
enacted by virtue of express authorization in such law."
A similar Limitation Clause is contained in Section 4 of Basic Law: Freedom

11
of Occupation. Yet neither Basic Law explicates the fate of a statute that
actually violates the rights protected by that Basic Law in contravention to the
terms of the Limitation Clause.
2
In U n i t e d M i z r a h i B a n k L t d . v. M i g d a l C o l l e c t i v e V i l l a g e ! the Supreme
Court held in an eight-to-one decision that a statute enacted by the Knesset - by
any majority whatsoever - that violates a right protected by Basic Law: Human
Dignity and Liberty without meeting the terms of Section 8 will be invalid. This
rule applies, however, only to statutes enacted after Basic Law: Human Dignity
13
and Liberty entered into force. The Court did not invoke this rule in the
M i z r a h i B a n k case. It did rely on the rule in the B u r e a u of I n v e s t m e n t M a n a g e r s
1 4
v. M i n i s t e r of F i n a n c e case, where for the first time since the establishment of
15
the State of Israel, 11 justices proclaimed a Knesset-enacted statute invalid.
If the expression "human dignity and liberty" includes the freedom of religion,
then according to the M i z r a h i B a n k and B u r e a u of I n v e s t m e n t M a n a g e r s rulings,
the right to freedom of religion would prevail over new Knesset statutes that
violate this freedom and do not befit the values of the State of Israel; are not
enacted for a proper purpose or violate the freedom to an extent greater than
required.
63

The importance of this revolutionary ruling is in the limits imposed on the
Knesset's freedom regarding the content of laws it may enact. The Legislature's
freedom of action is restrained further by the fact that human rights are protected
by a Basic Law. Following the M i z r a h i B a n k case, it seems that amendments to
a Basic Law can be made only explicitly and through another Basic Law. Moreover,
the provisions of Basic Law: Human Dignity and Liberty are not "entrenched,"
16
in that they do not prescribe that its amendment requires a certain majority.
C. Does Basic L a w : H u m a n Dignity and Liberty Protect Rights

N o t Specifically Enumerated?
As noted above, the Basic Laws do not make reference to freedom of religion or
17
to many other fundamental rights. Many of those freedoms were recognized as
18
fundamental rights in Court rulings prior to the enactment of the Basic Laws.
Nevertheless, the question remains whether the Basic Laws protect these rights
19
and freedoms anyway. Weighty arguments militate against the expansion of
the Basic Laws' protection to rights that are not specifically enumerated.
Not only were some rights (including freedom of religion) not mentioned in
Basic Law: Human Dignity and Liberty, but the Legislature in fact went to great
lengths to specify some other rights. Why would the Legislature have bothered
to enumerate certain rights if it meant to secure other, non-enumerated rights at
the same time? Logic seems to dictate that it would not, and that the list of rights
enumerated in Basic Law: Human Dignity and Liberty should be a closed,
exhaustive list. Moreover, certain human rights - mainly freedom of religion -
were intentionally not included in the Basic Law, due to objections raised by
religious parties over securing them in legislation. As a result, the promoters of
Basic Law: Human Dignity and Liberty chose to divide human rights into clusters
20
of rights, and thereby facilitate the protection of the rights to which no objection
21
had been raised. Indeed, case law contains judicial pronouncements objecting
to the extension of Basic law: Human Dignity and Liberty to include non-
22
enumerated rights.
64

According to another line of thought developed in legal literature - and, to
some extent, also in case law - the protection afforded by the Basic Law:
Human Dignity and Liberty does extend to non-enumerated rights. Proponents
of this approach rely on several arguments.
The stated purpose of Basic Law: Human Dignity and Liberty, as expressed
in Section 1A, is "To protect human dignity and liberty in order to anchor in a
Basic Law the values of the State of Israel as a Jewish and democratic state." It
has been argued that the term "human dignity and liberty" should be interpreted
broadly, so as to serve as a framework comprised of many specific rights, only
23
some of which are enumerated in Sections 2-7 of the Basic Law. According to
this view, the fact that certain rights were not expressly enumerated does not
preclude the inclusion of additional, non-enumerated rights that fall under the
24
rubric "human dignity and liberty."
According to another view, since the purpose of Basic Law: Human Dignity
and Liberty is to "anchor in a basic law the values of the State of Israel as a
25
Jewish and democratic state," the very values of the state must also be secured
by the Basic Law. Thus, both enumerated and non-enumerated values should be
26
afforded protection and granted constitutional normative status. Proponents of
this view note that case law preceding the enactment of the Basic Law recognized
freedom of religion and other rights as "fundamental principles."
27
The Basic Principles Clause of Basic Law: Human Dignity and Liberty
states that "Fundamental human rights in Israel are founded upon recognition of
the value of the human being, the sanctity of human life and the principle that all
persons are free. These rights shall be upheld in the spirit of the principles set
forth in the Declaration of the Establishment of the State of Israel." The wording
of this clause suggests that it is not limited to rights enumerated in the Basic
Law: Human Dignity and Liberty. Furthermore, the subject matter of the Basic
Principles Clause makes it enormously valuable in interpreting the provisions of
the Basic Law. It has therefore been suggested that the Basic Principles Clause
65

"may be an independent source for human rights beyond those that are expressly
28
enumerated in the Basic Laws."
Finally, proponents of this view claim that the reference to the Declaration
of Independence in Section 1 of Basic Law: Human Dignity and Liberty -
especially in light of the Basic Law's stated purpose - indicates that freedom of
religion and other non-enumerated rights are, in fact, protected by the Basic
29
Law. This reference may have conferred constitutional status upon the third
part of the Declaration and upon the fundamental rights it mentions, among
them freedom of religion. Indeed, in the M i z r a h i B a n k case, Justice D. Levine
opined that the Declaration of Independence may, "to a certain, proper extent,
30
serve as an independent source of human rights"; but this opinion did not
become part of the Court's binding ruling.
D . Does Basic L a w : H u m a n D i g n i t y and Liberty Protect

Freedom of Religion?
Whether or not Basic Law: Human Dignity and Liberty protects non-enumerated
rights is a matter of controversy that has yet to be settled by the judiciary. Even
if the judges who advocate extending the protection of the Basic Law to non-
enumerated rights were to prevail, the extension would not necessarily apply to
all non-enumerated rights. If the court holds that Basic Law: Human Dignity and
Liberty does protect certain non-enumerated rights, would freedom of religion
be one of these rights?
First, it must be said that so far, the Supreme Court has consistently refrained
from ruling expressly whether or not freedom of religion is protected by Basic
31
Law: Human Dignity and Liberty. A study of the case law reveals conflicting
statements by different judges, some implicit and other explicit. Other judges
have intentionally refrained from even raising the question.
66

The intention of the promoters of Basic Law: Human Dignity and Liberty
was not to mention freedom of religion lest they frustrate the enactment of the
Basic Law as a whole. In addition, the highly controversial nature of state-religion
relations in Israel requires that freedom of religion be accorded a super-statutory
normative status by an explicit act of the Legislature rather than by way of
judicial construction. Moreover, some believe that even if there is a link between
freedom of religion and "human dignity and liberty", the fact that freedom of
religion has been recognized in the past as an independent fundamental right
under Israeli law requires that this right be protected by a separate legislative
arrangement.
On the other hand, a broad and liberal interpretation of the term "human
dignity and liberty" may include freedom of religion as a derivative of an
individual's right to self-determination and self-fulfillment, both of which are
32
part of an individual's dignity and liberty. As noted earlier, the reference in
Section 1 of Basic Law: Human Dignity and Liberty to the Declaration of
Independence, which itself refers to "freedom of religion and conscience," can
be construed as extending the application of the Basic Law to apply to this
33 4
freedom. In M a n i n g v. The M i n i s t e r of J u s t i c e ? Justice Barak expressed in a
d i c t u m the opinion that freedom of religion, conscience and belief "draws its
vitality from the Declaration of Independence. It is derived from the democratic
character of the state.... It stems from the centrality of human dignity and liberty
35
in our legal system (see: Basic Law: Human Dignity and Liberty)." This d i c t u m
lends support to both arguments presented above, although it must be noted that
other judges in the same case refrained from discussing this question.
E . The Content of Freedom of R e l i g i o n i n L i g h t of the

Constitutional Revolution and its Relationship to Other
F u n d a m e n t a l Rights
As already mentioned, case law preceding the enactment of Basic Law: Human
Dignity and Liberty recognized freedom of religion as a fundamental right and
67

delineated its scope. Subsequent case law contains several High Court applications
based on freedom-of-religion arguments and on the argument that this freedom
is in fact protected by Basic Law: Human Dignity and Liberty. The decisions in
some of these applications are written in language that draws directly from the
terminology of the Basic Law. The judges who wrote these decisions, however,
refrained from ruling expressly that the Basic Law includes freedom of religion.
36
In L i o r H o r e v et a l . v. The Traffic S u p e r i n t e n d e n t et a/. the decision of the
Traffic Superintendent (the Minister of Transport) to close Bar Ilan Street in
Jerusalem to traffic on the Sabbath was discussed before seven judges. The
President of the Supreme Court balanced the secular public's freedom of movement
on one hand, with the religious lifestyle and feelings of the ultra-Orthodox
inhabitants of the neighborhood on the other. The President thought that
consideration of the religious feelings and lifestyle befits the values of the State
37
of Israel a« a "Jewish State." He also considered the purpose behind the Traffic
Superintendent's decision - protecting religious feelings and the religious
lifestyle - a "proper purpose" within the meaning of Section 8 of the Basic Law:
Human Dignity and Liberty, although that reasoning was secondary to the traffic-
related objective of the Superintendent's powers. The President held that closing
the street completely during the entirety of the Sabbath would violate excessively
the public's freedom of movement. He therefore ruled - and the majority of the
judges in the case concurred - that the street would be closed to traffic on the
Sabbath only at prayer times, providing that alternative routes remain open and
that emergency vehicles be allowed access to the street at all hours.
It should be noted that at an early stage of the proceedings, the Minister of

Transport complied with a recommendation made by the Supreme Court and
appointed a committee charged with devising "a social contract for settling
38
secular-religious relations in Jerusalem and outside it." This Tzameret Committee
failed to come up with a "social contract" acceptable to all parties concerned. Its
recommendations concerning Bar Ilan Street were that the street be closed to
traffic during prayer times "on the condition that arrangements be guaranteed for
the mobility of the secular sector according to its needs" within the framework
68

of the prevailing status q u o so there is "a possibility for regular, alternative
transport on the Sabbath in Jerusalem." The meaning of this and of other
recommendations of the Committee was the subject of fierce debate among
Committee Members after the publication of its report.
In this case the Court relied extensively on both the language and the
criteria of the Basic Law. It nevertheless refrained, as noted above, from ruling
explicitly that Basic Law: Human Dignity and Liberty extends to freedom of
religion. The result is that the content and scope of freedom of religion following
the enactment of the Basic Law are unknown. How would a ruling that the Basic
Law: Human Dignity and Liberty extends to freedom of religion affect the
content and scope of this freedom?
If the Supreme Court will give such a ruling, then the freedom of religion
would enjoy constitutional protection from Knesset statutes that violate it in
contravention of the terms of the Limitation Clause. This clause, however, does
not address the contents of freedom of religion, but rather the circumstances in
which it may be limited. Additionally, the tests developed in case law for
implementing the Limitation Clause draw from case law preceding the enactment
of Basic Law: Human Dignity and Liberty. Thus the contents and scope of this
freedom would seem to remain unchanged if the Basic Law were to be extended
to cover it.
Freedom of religion was not considered an absolute right prior to the

enactment of the Basic Law: Human Dignity and Liberty. Nor did the Basic
Law make it absolute. The terms under which this freedom may be limited are
specified in Section 8. Like all individual rights, freedom of religion may conflict
with the needs of the general public or with other interests, and therefore it may
39
be limited. Prior to the enactment of Basic Law: Human Dignity and Liberty,
conflicts such as these were settled by the Court drawing a balance between the
two competing values. Section 8 of the Basic Law provides a general formula
for balancing protected rights with other rights and interests. The Basic Law,
however, does not determine what is a "law befitting the values of the State of
69

Israel, enacted for a proper purpose, and to an extent no greater than required..."
which may derogate from rights protected by the Basic Law. The result is that
the Basic Law itself establishes no novel balance between competing rights and
interests.
A second possible consequence of extending the protection of the Basic

Law to freedom of religion is that the Basic Law will be construed as placing
freedom of religion within a contextual framework of values - both by way of
40 41
the Purpose Clause and by way of the Basic Principles Clause. Even if this is
the effect of the Basic Law, it is unlikely that the contents of freedom of religion
will change radically, since the vague wording of both clauses limits their possible
42
effects on the contents and scope of freedom of religion.
Existing case law describes freedom of religion as having several sources.

It may be that Basic Law: Human Dignity and Liberty will be one such source.
But case law does not suggest that freedom of religion stemming from Basic
Law: Human Dignity and Liberty is any different from freedom of religion
originating in the Declaration of Independence or the democratic nature of the
43
State of Israel.
A third possible consequence would be only indirect. Non-enumerated rights

could be protected indirectly by the Basic Law: Human Dignity and Liberty to
the extent that they coincide with rights enumerated in the Basic Law: Human
Dignity and Liberty and Basic Law: Freedom of Occupation. This issue was
44
raised in M e a t r a e l et a l . v. The Knesset. The applicants argued, i n t e r a l i a , that
the Importation of Frozen Meat Law-1994 violated not only their freedom of
occupation but also freedom of religion and conscience, which are, they argued,
part of "human dignity and liberty." In its ruling, the Court assumed, for the
purpose of the case before it, that freedom of conscience is secured in Basic
Law: Human Dignity and Liberty. President Barak held that "the violation of the
applicants' freedom of conscience, freedom of equality and the right to
property - provided that these rights were in fact violated - is a natural by-product
of the violation of their freedom of occupation. These are not independent violations
70

in their own right. They are derivative consequences that stem naturally from the
very violation of the freedom of occupation. The violations of the other rights
are secondary and insubstantial." The Court's conclusions were drawn on the
basis of the circumstances of this particular case; nevertheless, they demonstrate
the Court's inclination not to recognize indirect protection of fundamental rights.
If Basic Law: Human Dignity and Liberty does not protect freedom of religion,
than it cannot alter the contents and the scope of that freedom. This fundamental
right, secured by case law preceding the enactment of the Basic Law, remains
4 5
unchanged. As was held in D a y a n v. J e r u s a l e m D i s t r i c t C o m m i s s i o n e r of P o l i c e
the protection of certain rights in Basic Law: Human Dignity and Liberty does
not make other rights constitutionally inferior.
F. Observations on the Freedom of R e l i g i o n under the

Constitutional Revolution
The Court has yet to determine whether or not Basic Law: Human Dignity and
Liberty protects rights not enumerated in that Basic Law, and in particular,
freedom of religion. The absence of such a determination does not preclude -
and perhaps even compels - a discussion of the following question: did the
enactment of the Basic Law contribute significantly to the preservation of religious
freedom in Israel? The answer to this question is complex and, at times, transcends
the bounds of the legal discussion, as it involves moral, social and political
considerations.
Even if the Court holds that the Basic Law does not protect freedom of
religion, this freedom would not be adversely affected, because it previously
enjoyed the Court's 'regular' protection. As noted above, constitutional protection
over certain rights does not mean that those rights are normatively superior to
46
unprotected rights, such as freedom of religion. Whenever an enumerated right
conflicts with a non-enumerated right, the former will not prevail j u s t because it
is expressly mentioned in a Basic Law. The relationship between different rights,
71

in other words, remains the same as it was at the time the Basic Laws were
enacted.
Freedom of religion might have even been enhanced by the enactment of

the Basic Laws. If the Court does not extend the protection by the Basic Law to
47 48
this freedom either directly or indirectly, it may still consider the Basic
Principles Clause of the Basic Law: Human Dignity and Liberty or the reference
in the Basic Law to the Declaration of Independence as favoring the protection
of freedom of religion, albeit not as a constitutional, super-statutory protection.
If, on the other hand, the Court rules that Basic Law: Human Dignity and
Liberty does protect freedom of religion so that any statute that violates this
freedom without meeting the terms of the Limitation Clause may be declared
invalid, one may positively assert that freedom of religion has benefited from
the constitutional revolution. In this case, it will be harder for both the Executive
and the Legislature to infringe upon the freedom of religion. Moreover, extending
the protection of the Basic Law to freedom of religion would send a message to
both state authorities and the general public. This would seem to be a genuine
revolution, especially in light of cases dealing with human rights prior to the
enactment of the Basic Laws. These cases allowed freedom of religion and other
fundamental rights to be violated if the violation was permitted by Knesset law
or by express authorization in a law.
49
Would this really be a revolution, though? It is hard to tell. It was
demonstrated above that freedom of religion, like other fundamental rights and
freedoms, is never absolute. It may be legally derogated from pursuant to Section
8 of Basic Law: Human Dignity and Liberty. It may be balanced against other
50
rights and freedoms and against the needs of the general public. There is no
guarantee that the weight given to freedom of religion relative to other rights
would increase if it is protected under the Basic Law: Human Dignity and
Liberty. Court rulings to date indicate that the judges have no inclination to give
preference to freedom of religion. Thus we can assume that the scope of freedom
72

of religion will not change considerably in future Supreme Court cases, even if
it is afforded the full protection of the Basic Law.
Moreover, it is too early to assess the impact of the constitutional revolution

on freedom of religion. For example, the protection afforded by the Basic Law,
if it does extend to freedom of religion, apply only to new legislation. Existing
laws that violate those protections are still valid. The Basic Law itself also could
51
be altered, narrowed or repealed - despite the limitations on its amendment.
Case law suggests, as indicated above, that the content and scope of freedom of
religion have not changed following the enactment of Basic law: Human Dignity
and Liberty.
Seemingly, therefore, the main impact the constitutional revolution may

have on freedom of religion in Israel would be in the Court's power to annul
statutes that violate freedom of religion without meeting the terms of the Limitation
Clause - if the Basic Law will be held to protect freedom of religion. One
wonders, however, whether the court will be allowed to retain this power, even
if it is exercised with discretion, judiciously, seldom and in extreme circumstances
(and if this is the case, then the scope of the constitutional revolution would be
very limited indeed).
The fact that the Supreme Court judges have not as yet ruled whether or not
Basic Law: Human Dignity and Liberty extends to freedom of religion is not
coincidental. The question of the proper relation between religion and state
continues to be an acute problem in Israeli society. The difficulties in enacting
Basic Law: Human Dignity and Liberty reflect this controversy, and the Basic
Law itself constitutes a mixture of concessions and compromises. Basic Law:
Human Dignity and Liberty cannot be viewed as an ideological settlement between
religious values on the one hand and individual rights and freedoms in a democratic
state on the other. Rather, it represents a deferment of such a settlement of this
52
kind. No interpretation of the Basic Law, however liberal, can infer a separation
53
of religion and state. In this state of affairs, some of the Supreme Court Justices
will refuse to decide for the Legislature and society as a whole. Even if the
73

Court chooses to extend the Basic Law's protection to freedom of religion, it is
doubtful whether it will consider Basic Law: Human Dignity and Liberty as a
settlement of the religion-state conflict. It is such a settlement that proponents of
the extension of the Basic Law to protect freedom of religion are really after -
namely, the separation of religion and state.
What will happen if the Supreme Court decided to extend the application of
Basic Law: Human Dignity and Liberty to freedom of religion and to other
rights that the religious parties conceive of as affronts? Such an extension of
Basic Law: Human Dignity and Liberty - and of the Court's jurisdiction to annul
Knesset legislation - would reduce the power of the Knesset to pass laws that
encroach on human rights. Religious parties may join forces with legislators
who are concerned about the Knesset's loss of power in order to frustrate the
enactment of new laws protecting human rights. Such coalitions may seek to
limit the jurisdiction of the Supreme Court. They may try to take a greater role
in shaping its composition and ideological makeup. Actions in this direction
have already been attempted. Those who can block basic legislation protecting
54
one set of beliefs can also pass Basic Laws protecting another set of beliefs.
Such acts will further intensify existing public disputes and will thus undermine
the legitimacy of the Supreme Court and impair its ability to continue serving as
a watchdog of democracy and human rights in the State of Israel. The Supreme
Court alone cannot lead the constitutional revolution. In order to ensure the
protection of basic human rights it must have the active and open support of the
Legislature and the public it represents.
74

Notes
* I would like to thank Prof. Ruth Lapidoth for her valuable comment and assistance.
The views expressed herein as well as responsibility for any error or omission are,
however, my own.
1. Sefer Ha-Hukim, 25 March 1992; amended by the Basic Law: Human Dignity and
Liberty - Amendment, Sefer Ha-Hukim, Mar. 10, 1994. An unofficial translation
of Basic Law: Human Dignity and Liberty, as amended, appears in A. Barak, "The
Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and
Its Effect on Procedural and Substantive Criminal Law," International Conference
on R i g h t s of the Accused, Crime C o n t r o l and P r o t e c t i o n of Victims, 31, 1997,
Israel Law Review, 3, pp.21-23. The citations here are based on this translation.
2. See, for example, Peretz v. Kfar Shmaryahu, 16 P . D . 2101; A. Rubinstein and B.

th
Medina, Constitutional L a w of the State of Israel, 5 ed., Jerusalem and Tel Aviv:
Schoken, 1996, p.175, et seq. (hereafter Rubinstein and Medina).
3. Declaration of Establishment of the State of Israel, Official Gazette, 1, May 14,

1948 (hereinafter: "Declaration of Independence").
4. Rogozinsky v. The State of Israel, 26(1) P . D . 129.
5. Supra n. 1.
6. Sefer Ha-Hukim, 10 March 1994, which replaced the former Basic Law: Freedom
of Occupation-1992. See also infra, n.13.
7. A. Barak, "The Constitutional Revolution - Protected Fundamental Rights," Mishpat

UMimshal, 1992, A 9; M. Elon, "The Basic Laws: The Way They Were Enacted,
The Way They Will Be Interpreted - Whence and Whither?" Mehkarei Mishpat,
1996, p. 253; Y . Adrei, "Constitutional Revolution: Is It Indeed?" in Mishpat
Umimshal, C 453, 1996.
8. Specifically referred to in Basic Law: Freedom of Occupation.
9. Specifically referred to in Basic Law: Human Dignity and Liberty.
75

10. On the legislative history of the two Basic Laws, see Rubinstein and Medina,
supra n. 2, at p. 910 et seq.\ See also D. Kretzmer "The New Basic Laws on
Human Rights: A Mini Revolution in Israeli Constitutional Law?" Israel Law
Review, 26, 1992, p. 238.
11. But Section 8 of Basic Law: Freedom of Occupation allows the enactment of a
statute that violates the freedom of occupation, even if it does not meet the terms of
the Limitation Clause, in the case that the law is enacted by a majority of members
of Knesset and that it contains an explicit provision stipulating its validity irrespective
of the Basic Law. Basic Law: Human Dignity and Liberty does not contain a
similar provision.
12. United Mizrahi Bank Ltd. v. Migdal Collective Village, 49(4) P.D. 221.
13. Section 10 of Basic Law: Human Dignity and Liberty leaves intact laws that were
in existence at the time the Basic Law entered into force (25 March 1992). The
result is that these laws, even if they violate human dignity and liberty, are valid.
Nevertheless, they must be interpreted "in the spirit of the Basic Law." Section 10
of Basic Law: Freedom of Occupation provides that existing laws will remain in
force for two years from the time of the enactment of the Basic Law. The Knesset
will not have to revise existing legislation to conform to the basic law, but instead
must extend the period of validity of the existing legislation. Recently, the Knesset
extended this period until March 2002. Basic Law: Freedom of Occupation
(Amendment No. 2), Sefer Ha-Hukim, 1998, p. 178.
14. As yet unpublished, judgement was delivered 27 September 1997.
15. The case was based on Basic Law: Freedom of Occupation. There is no reason to
assume that it does not apply equally to Basic Law: Human Dignity and Liberty.
16. But see Section 7 of Basic Law: Freedom of Occupation, which provides that this
basic law can be amended only in a separate Basic Law enacted by a majority of
members of Knesset; See L. Schelef, "Qualified Majority in Constitutional Matters:
A Requirement Directed Not Only at the Knesset" Mishpatim, 28, 1987 p. 387.
17. The rights and freedoms mentioned in Basic Law: Human Dignity and Liberty are
the preservation of life, body and dignity (Section 2); the protection of property
(Section 3); the protection of life, body and dignity (Section 4); personal liberty
(Section 5); the right to enter and leave Israel (Section 6); and the right to privacy
76

(Section 7). Basic Law: Freedom of Occupation deals only with the freedom of
occupation.
18. The question whether or not it is proper or desired - from an ideological point of
view - for freedom of religion to be protected by the Basic Laws will not be
examined here, but see H. Sommer, "The Non-Enumerated Rights - the Scope of
the Constitutional Revolution," Mishpatim, 28, 1997, p. 257. Sommer expresses
the view that the basic law's protection should not be extended torightsnot specifically
enumerated. He cites reasons stemming from the Basic Law's legislative history
and language, appropriate legal policy and the future of the Constitutionalization
process in Israel.
19. See supra n. 2.
20. A process termed the "atomization" of human rights.
21. Rubinstein and Medina, supra n. 2, pp. 914, 918-919.
22. See the examples cited in Sommer, supra n. 18.
23. Supra n. 17.
24. Then Vice-President Barak in Vixelbaum v. The Minister of Defense, 47(2) P.D.
812; See also A. Barak, "Protected Human Rights: The Scope and the Limits,"
Mishpat UMimshal, A 253, 1993; For a similar view, see H. Cohn, "The Values of
the State of Israel: Reflection on Basic Law: Human Dignity and Liberty," HaPraklit
Jubilee, 19, 1994, (Hebrew).
25. The 19th volume of Iyunei Mishpat (the Tel Aviv University Law Review) was
dedicated to the exploration of this expression, which also appears in Section
5(a)(1) of the Law on Political Parties (Funding), 1992. See, inter a l i a , U. Rozen-Zvi,
"A Jewish and Democratic State: Spiritual Parenthood, Alienation and Symbiosis -
Can We Square the Circle?" Tel A v i v University Law Review, 19, 1995, p. 479; A.
Levontin, '"Jewish and Democratic' - Personal Reflections," Tel A v i v University
Law Review, 19, 1995, p. 19; A. Maoz, "The Values of a Jewish and Democratic
State," Tel A v i v University Law Review, 19, 1995, p. 547; R. Gavison, "A Jewish
and Democratic State - Political Identity, Ideology and Law," Tel A v i v University
Law Review, 19, 1995, p. 631; A. Feldman, "The Democratic State v. the Jewish
State - Space Without Place, Time Without Duration," p. 717; A. Kasher, "A
77

Jewish and Democratic State - Philosophical Outline," Tel A v i v University Law
Review, 19, 1995 p. 729.
26. Y. Karp, "Basic Law: Human Dignity and Liberty - A Biography of Power Struggles,"
Mishpat UMimshal, A 323, p. 347, 1993; But see Rubinstein and Medina, supra n.
2, pp. 947-948.
27. Section 1 of Basic Law: Human Dignity and Liberty.
28. Rubinstein and Medina, supra n. 2, p. 944.
29. See A. Barak, Interpretation in L a w , 3, Constitutional Interpretation, Jerusalem,

1994, p. 430 (Hebrew); Cohn, supra n. 24, p. 26; See also Maning v. the Minister
of J u s t i c e , 47(3) P. D. 282.
30. For criticism on this approach, see Rubinstein and Medina, supra n. 2, p. 945; and
see, in the context of the right to education, Friends of G.I.L.A.T. A s s o c i a t i o n v.
The Minister of E d u c a t i o n , 50(3) P.D. 2.
31. See, for example, Meatrael et a l . v. The Knesset et a i , 50(5) P.D. 15, where the
applicants argued that the Kosher Meat Importation Law violated their freedom of
religion and conscience, which was, as per the applicants, part of "human dignity
and liberty." The Court chose not to rule on this point, for reasons that cannot be
specified here.
32. A. Barak, "Human Dignity as a Constitutional Right," HaPraklit, 41, 1994, p. 271.
33. And see the judgement by Justice D. Levine in the Mizrahi Bank case, supra n. 12;
See also Cohn, supra n. 24, p. 38.
34. Supra n. 29; See also, Mona Jabarin v. the Minister of Education et a i , 48(5) P.D.
199, p. 203.
35. Ibid., p. 286
36. As yet unpublished, Takdin 97 (2), p. 421.
37. See Section 1A of Basic Law: Human Dignity and Liberty.
38. Report of the P u b l i c C o m m i t t e e f o r D e v i s i n g Recommendations Concerning a

Comprehensive Policy in Matters of Traffic on Sabbath Days on B a r Ilan St., in
and Outside Jerusalem, The State of Israel, 1996 (Hebrew).
78

39. This view, of course, predates the enactment of Basic Law: Human Dignity and
Liberty and Basic Law: Freedom of Occupation in its dealing with human rights,
which is why it will not be dealt with in detail here. It was applied in the Jabarin
case, supra n. 34, where the Vice-President Barak said, "It is unnecessary to note
that freedom of belief and religion is not absolute. It must be balanced against
other freedoms and liberties enjoyed by individuals. It must be balanced against
the needs of the general public."
40. Section 1A of the Basic Law: Human Dignity and Liberty.
41. Section 1 of the Basic Law: Human Dignity and Liberty.
42. See discussion infra.
43. See judgement by Justice Barak in the Maning case, text accompanying supra n.
29.
44. Supra n. 31.
45. P.D. 48(2) 465, per Justice S. Levine; See also Barak, supra n.29, p. 356.
46. Ibid.
47. By determining that Basic Law: Human Dignity and Liberty includes the freedom
of religion, and thus that violation of that freedom must meet the terms of Section
8.
48. By protecting this freedom incidentally when protecting enumerated fundamental

rights.
49. For a critique, see R. Gavison, The C o n s t i t u t i o n a l R e v o l u t i o n : A reality o r a

Self-Fulfdling Prophecy? The Israel Democracy Institute, Jerusalem, 1998 (Hebrew).
50. See the Jabarin case, supra n. 34.
51. A striking example how these limitations can be circumvented and overcome is the
Meatrael litigation, through its various stages, in connection with Basic Law:
Freedom of Occupation: Meatrael et al. v. The Minister of Trade and Industry et
a l . , 47(1) P.D. 521; Meatrael et a l . v. The Prime Minister et a l . , 47(5) P . D . 485;
Meatrael et al. v. the Minister of Trade and Industry et al., 48(2) P . D . 844.
79

52. On the deferment of settlements in Israel in connection with freedom of religion,
see Rozen Zvi, supra n.25.
53. On 26 January 1999, the Knesset voted down a private Bill seeking to enshrine
freedom of religion in a Basic Law. This Bill sought, i n t e r a l i a , to prohibit any
discrimination based on religion; it established that no right will be denied nor any
obligations imposed on religious grounds. It also recognized the right of any person
to marry and establish a family subject to no religious limitations. The Bill,
furthermore, would have compelled state authorities to take account of the interests
and the needs of the religious communities and different movements in the
maintenance of their way of life or the observance of the commands of their
respective religion - on the basis of equality as well as a proper balance of interests
with the general needs of the public; Ha'aretz, 27 January 1999, p.8A.
54. Note that on the very same day the Knesset rejected the Bill introducing Basic
Law: Freedom of religion, it enacted an amendment to the Jewish Religious Services
LawfConsolidated Version]-1971. This enactment is aimed at the exclusion of
Reform and Conservative Jews from serving as members of state-funded Religious
Councils. See Jewish Religious Services Law (Amendment No. 10)-1999. See also
Ha'aretz, 27 January 1999, p.8A. This enactment, the constitutionality of which is
still to be tested at the Supreme Court, is the Knesset's response to a series of
Supreme Court rulings holding that the exclusion of non-Orthodox Jews from
these posts was discriminatory and unlawful. See, for example, A n a t Hoffman et a l .
v. The Jerusalem Municipal Council et al., P.D. 48(1) 678.
80

IV. FREEDOM OF RELIGION AND THE STATUS OF
CHRISTIANS IN JERUSALEM 1967-1997
BY AMNON RAMON
A . Introduction
The Six-Day War and the momentous events that occurred in its wake gave rise
to deep fears among the local churches and Christian communities, and indeed
throughout Christendom. With Israel's capture of the Old City and its environs
in East Jerusalem, the Christian holy places and major centers of Christianity in
the Holy Land for the first time came under the control of a country identified
with Judaism - the defeated religion from which Christianity, the triumphant
faith and the spiritual heir of "Carnal Israel," had sprung. The fact that the
majority of Christians in Jerusalem were Palestinian-Arabs only compounded
the problem of the status of the Christian communities under Israeli rule.
Israeli control of the Christian and Islamic holy places was also a subject of
deep concern to the country's political leadership and to the architects of the
1967 war. On June 6, 1967, the war's second day, Israeli Defense Minister
Moshe Dayan looked down from his position on Mount Scopus at the spectacular
view of the Old City with its multitude of churches and mosques. Maj. Gen. U z i
Narkiss, the head of Israel's Central Command, urged him to order troops into
the Old City. Dayan's reply was surprising: "Absolutely not, what do we need
1
this whole Vatican for?"
The purpose of this article is to survey the status of and address freedom-
of-religion issues pertinent to the Christian minority in Jerusalem over the past
30 years. The article will focus on the delicate, complicated situation in which
81

the Christians find themselves - caught between an Israeli government and the
Muslim majority among whom they live, amidst the rise of the Palestinian
national movement and radical Islam. This delicate situation, which has shifted
according to political and diplomatic developments occurring in the region since
1967, has far-reaching influence on the positions taken by the heads of the
churches on issues concerning freedom of religion for the Christian minority in
Jerusalem.
B . The S i x - D a y War and its Ramifications
On June 5, 1967, the eve of the war, the Israeli government was undecided about
whether to capture the Old City. The cabinet was perturbed by the question of
the holy places and by the international ramifications of seizing the Old City.
Foreign Minister Abba Eban wanted to know whether the fighting would incur
damage on the holy places. Two other ministers, Moshe Haim Shapira and
Zalman Aranne, foresaw international complications that led them to consider
2
internationalizing the Old City after its capture. In later consultation that evening,
Prime Minister Levi Eshkol noted, "Even if we capture the Old City and the
3
West Bank, we will ultimately be compelled to leave them."
The fears expressed by the Prime Minister and others in 1967 echoed
apprehensions harbored in the early 1940s. Leaders of the Zionist movement
and the Yishuv - the pre-1948 Jewish community in Palestine - understood that
Jewish control of the holy places and the Old City would be unacceptable to
international public opinion. Theodore Herzl proposed the establishment of an
international regime in Jerusalem, while Chaim Weizmann in 1937 stated, "I
would not take the Old City [even] as a gift. There are too many complications
4
and difficulties associated with it." Given this background and the controversy
over Jerusalem's status in the wake of the U.N.'s partition resolution of November
1947, it is not surprising that on the eve of the 1967 War, ministers such as
Shapira and Aranne advocated the Old City's internationalization.
82

Indeed, as though in response to the cabinet's vacillations, on the following
day, June 6, the American ambassador informed Prime Minister Eshkol of the
5
Pope's request that Jerusalem be declared an international area. Twenty-four
hours later, on the morning of June 7, the Israel Defense Forces (IDF) surrounded
the Old City at Defense Minister Dayan's command. In order to minimize possible
6
damage to the holy places, the IDF captured the Old City. The troops were
ordered to refrain as much as possible from using heavy weapons and to keep
away from the Muslim shrines on the Temple Mount (Haramel-Sharif) and from
7
the Church of the Holy Sepulcher.
Defense Minister Dayan, who two days earlier had reservations about seizing
the Old City, informed the nation in a radio broadcast from the Western Wall
that the mission of liberating Jerusalem had been accomplished. The question of
the holy places was clearly uppermost in his mind: "We have returned to the
holiest of our sites and will never again be separated from it. To our Arab
neighbors, Israel extends the hand of peace. And to the peoples of all faiths, we
guarantee full freedom of worship and of religious rights. We have come not to
conquer the holy places of others nor to diminish by the slightest measure their
religious rights, but to ensure the unity of the city, and to live in it with others in
8
harmony."
Dayan, in his first declaration, articulated the principles of Israeli policy on

the holy places: Israel would rule the Old City and eternally control the holy
places but would respect fully the rights of the other religions. Israel• quickly
learned that the Christian holy sites could be dealt with more easily than the
Muslim sacred places. Israel had no claims on the Christian holy places. The
arrangements introduced at the Temple Mount in Jerusalem and at the Tomb of
the Patriarchs in Hebron, however, were intricate and complex as those sites are
sacred to both Judaism and Islam. It is little wonder that those sites became two
of the thorniest problems in the Arab-Israeli and Muslim-Jewish conflict.
Fearful of sharp reactions by the leaders of Christianity and Islam worldwide

to Israel's capture of the Old City and the holy places, Prime Minister Eshkol
83

moved quickly. On the afternoon of June 7, a few hours after Defense Minister
Dayan made his statement, he convened the heads of the Christian communities
and the chief rabbis. He read them a declaration formulated by the director-general
of the prime minister's office, Yaacov Herzog: "Be assured that no harm of any
kind will be allowed to befall the Holy Places. I have asked the Minister of
Religious Affairs to contact spiritual leaders in the Old City to ensure orderly
relations between them and our forces so that they may pursue their religious
and communal activities unhindered. At my insistence, he has given instructions
that arrangements at the Western Wall shall be determined by the chief rabbis of
Israel; those in places sacred to Moslems by a council of Moslem ecclesiastics;
and those in places sacred to Christians by a council of Christian religious
9
dignitaries."
The next day, Religious Affairs Minister Zerah Warhaftig announced that a
temporary authority had been appointed pursuant to the Prime Minister's
declaration, and that "detailed instructions for the faithful observance of the
principles [had been] enshrined in the Proclamation of Independence [of Israel,
with regard to the holy places]." Minister Warhaftig also said, "Within the next
few days, I will set up responsible councils of the religious leaders in order to
10
implement the legislation."
Prime Minister Eshkol and Minister Warhaftig worded their statements

differently than did earlier British and Jordanian leaders. The British proclamation
issued by General Allenby in Dec. 1917 stated that the holy sites of the three
religions would be held and maintained "according to the existing customs." A
similar statement by Jordan's King Abdallah in 1951 declared that the guardian
of the holy places would safeguard "their rights, their beliefs, their cults, and the
places of the prayers... within the limits of the status quo order." He continued
to say "that the communities, the mosques and the churches will be assured in
11
their respective rights."
This change in wording apparently was due to Israel's concern that mention
of the status quo might invoke the restrictive, humiliating regulations toward the
84

Jewish holy places that had existed during the Mandate period, particularly upon
the Western Wall. Minister Warhaftig's statement rested on the authority of
Israel's Declaration of Independence, which states that the Jewish,state "will
guarantee freedom of religion and conscience, of language, education and culture.
12
It will safeguard the holy places of all religions."
The declarations by the Prime Minister and the Minister of Religious Affairs
alike manifested Israel's desire to ensure for the Christian sects full religious
freedom and grant them considerable autonomy in administering to their holy
places. Israel's decision that a council of Christian clerics would determine
arrangements at the Christian holy sites indicates that the government was not,
at this stage, aware of the generations-long internecine struggles among the
Christian churches and communities over control of the holy places. Such a
situation was liable to prevent the cooperation essential for the joint administration
13
of the holy sites. Indeed, no such joint council was ever established.
Another step taken by Israel in an effort to allay the concerns of Christendom

was to invite the heads of the Christian churches and communities to meet with
Maj. Gen. Chaim Herzog, the IDF commander in the West Bank. The meeting
took place on June 8,1967, at military government headquarters in the Ambassador
Hotel in East Jerusalem. Maj. Gen. Herzog reiterated the statements made by
Prime Minister Eshkol and Minister Warhaftig. He also assured his interlocutors
that the military government would do its utmost to guarantee that no harm
would befall the sacred sites and to ensure the freedom of worship for adherents
of all creeds. Israel's approach regarding all the holy sites, Maj. Gen. Herzog
said, would be completely different from that of Jordan, which had done irreversible
damage to Jewish holy places. Maj. Gen. Herzog then introduced Akiva Sahar,
the newly appointed head a special IDF unit to guard the holy places by means
14
of a perimeter defense.
The Christian leaders' reactions to Maj. Gen. Herzog's remarks were highly
positive from the Israeli perspective. The Greek Orthodox Patriarch, Benedictus
I, who historically was the most important of the city's three resident patriarchs,
85

thanked the Maj. Gen. for the IDF's benevolent attitude toward the holy places
and said he was willing to cooperate with the Israeli authorities. The others
echoed his remarks. The Anglican Bishop, Maclnnes, commented, "It will be
recorded in the history books that Israeli soldiers fell because of Israel's effort to
15
prevent harm coming to the holy places." The Lutheran Bishop's verbal concern
for the fate of the Muslim religious leaders, reflected in his question, "Where are
16
our Muslim brothers?" was unique at the meeting. However, as will be seen,
that question was a clear harbinger of future developments. In the meantime,
Israeli policy, which sought to restore normalcy with all possible speed, enabled
the Church of the Holy Sepulcher to reopen for the faithful by Sunday, June 25,
17
1967.
The relatively low-key attitude taken by the heads of the Christian churches
in Jerusalem toward the city's new rulers (perhaps due in part to their shock at
the war's outcome) marked a pointed contrast from reaction elsewhere, beginning
with the Holy See. The Pope, losing no time, on June 7 called for Jerusalem to
be demilitarized and turned into a haven for the wounded and the defenseless.
Two days later, the Vatican placed on the public agenda the consideration of
internationalizing Jerusalem, a concept that had been dormant since the early
1950s. On June 26, as rumors mounted that Israel was about to annex the eastern
part of the city, the Pope declared, "The Holy City, Jerusalem, must remain for
all eternity that which it represents: a city of God, a free oasis of peace and
prayer, a meeting point of inspiration and harmony for all, [a city] possessing its
18
own standing and [an area] safeguarded by the international community." Cool
reactions calling for Israel's immediate withdrawal from the Old City were also
voiced by international Protestant organizations such as the Council of Churches
19
in Britain.
On June 27, 1967, Israel responded to international pressure by enacting

two laws. The first provided for the application of Israeli law, jurisdiction and
administration in East Jerusalem. The second enlarged the area of the city of
20
Jerusalem. In order to soften the impression created by this legislation and to
assuage international fears, a third law was rushed through the Knesset that
86

same day. Entitled "Protection of the Holy Places Law, 5727-1967," this law
21
remains the foundation of Israel's policy toward the holy sites.
The first article in this law states that the holy places shall be protected
from desecration, from any other violation and from anything likely to violate
either the freedom of access by the members of different religions to the places
sacred to them, or their feelings with regard to those places. The second article
provides for severe criminal sanctions against anyone caught desecrating or
violating a holy place (imprisonment of up to seven years), or against anyone
attempting to impede on the freedom of access to the holy sites or offend the
feelings of the adherents of the various faiths toward such sites (imprisonment
of up to five years).
The third article refers to previous legislation on the subject and asserts,
"This law shall add to, and not derogate from, any other law." This point
subsequently caused legal complications arising from the question of how far
the new law overrode earlier legislation. Of particular question was the British
Palestine (Holy Places) Order-in-Council of 1924, which authorized the executive
branch, rather than the judiciary branch, the ability to settle disputes at the holy
places.
The fourth article charges the minister of religious affairs with responsibility
for implementing the law. It states that the minister "may, after consultation with
or upon the proposal of representatives of the religions concerned, and with the
consent of the minister of justice, make regulations as to any matter relating to
such implementation."
The thrust of the law, then, was consistent with the declarations by Prime
Minister Eshkol and Minister Warhaftig in that it guaranteed access to the holy
places and protected them against desecration and against violation of the feelings
of those who held them sacred. It is conspicuous that the term "status quo" did
not appear in the wording of the legislation. Again, the reason for this deletion
was probably to avoid offending the rights of Jews at their holy sites, particularly
87

at the Western Wall. In addition, architects of the law may have felt that inserting
the phrase into the law could generate clashes at places sacred to more than one
religion or community, where the religious leaders are unable to agree on the
form of worship permitted at such places.
In comparison to the Eshkol and Warhaftig declarations, the law somewhat

constricts the role of the heads of the religious communities. Not they, but the
Israeli minister of religious affairs will decide, in consultation with representatives
of the relevant religions or sects, the arrangements at their holy sites. More than
30 years after the war, contentious and intractable problems still exist, including
the question of who the authorized representatives of the various religions are,
the obstacles at places held sacred by more than one religion, and the churches'
recoil at open cooperation with Israel. These problems have dissuaded the ministry
of religious affairs from promulgating regulations for the administration of the
Christian holy places.
On June 29, 1967, two days after Israel formally annexed East Jerusalem,
Defense Minister Dayan ordered the removal of the barriers that had divided the
two parts of the city since 1948 and permitted free movement by Arabs and
Jews throughout Jerusalem. Israelis streamed into the Old City and into the city
of Bethlehem, south of Jerusalem. Many visited Christian holy places and churches.
Inappropriate behavior by some Israelis, which gave rise to a number of incidents,
led the police and the religious affairs ministry, in coordination with the heads
of the Christian communities, to place signs at the holy sites warning against
22
immodest dress and offensive behavior at these places. Such signs are still
posted at the entry to the plaza in front of the Church of the Holy Sepulcher. In
Aug. 1967, a gold tiara and other jewels that had adorned a statue of Mary on
Golgotha in the Church of the Holy Sepulcher were stolen. Arab officials used
the theft and the behavior of Israeli visitors to condemn the Israeli authorities.
As a result of an intensive police investigation, the jewels were recovered within
two weeks. They were returned to the church in a festive ceremony, and the
23
thieves were sentenced to lengthy prison terms.
88

Following Israel's consolidation of rule in East Jerusalem, a thorough survey
was undertaken to determine the extent of damage that had been caused by the
war. It emerged that the Christian holy places and institutions had sustained only
very minor damage. None of the states quo sites (the Church of the Holy Sepulcher,
Deir a-Sultan, Mary's tomb or the Church of the Ascension on the Mount of
Olives) had been affected, though some damage had been done to several churches
in the Mount Zion area and to the Church of St. Anne near St. Stephen's Gate.
The large-scale damage done during the 1948 War to Christian institutions
that straddled the boundary between the two sections of the city, however, was
also plainly visible. Some Arab and church officials cited the devastation in
propaganda attacks on Israel. A few months after the war, the Israeli government
decided to pay reparations to the churches for all damage sustained between
1948 and 1967, regardless whether they were caused by Jordan or Israel. The
churches submitted their claims to an Israeli committee of experts. By the end of
1968, the panel had reached agreements with 15 different churches and church
bodies. Only the French government refused to submit an estimate or accept
reparations for damage done to the Church of St. Anne, which was in its
24
possession. By 1969, Israel had paid out six million Israeli pounds ($1.7
25
million). To avoid possible criticism on the part of international Christian
bodies, Israel abandoned its intention to retain land claimed by various Christian
groups around Mount Scopus, Beit Hanina, Atarot and the Notre Dame de
26
France monastery.
In addition to the reparations, the religious affairs ministry and the Jerusalem
municipality assisted in the renovation and rehabilitation of a number of churches
and Christian institutions in the Old City and its environs, including the Church
of the Holy Sepulcher, the Maronite center and the Syrian-Catholic center. In
the 1980s, extensive infrastructure work was done along the Via Dolorosa, and
the paving stones around the churches were laid out in the shape of a semicircle
27
for emphasis. The Israeli authorities offered support to Christian social clubs,
schools and charitable organizations that operated in the city. Most of them
89

rejected the aid. Various tax and customs exemptions were granted to most of
28
the churches and their leaders.
Thus, the rules that shaped freedom of religion for Christians under Israeli
rule were laid down in the first months following the 1967 war. Israel undertook
to maintain the well-being of the holy places (including payment of reparations
for Christian sites and institutions that were damaged in hostilities), to prevent
violations against the feelings of believers regarding the holy sites, and to guarantee
freedom of access to the sites.
Israel's desire to grant the Christian communities autonomy in the

administration of their holy places proved problematic because of the disputes
among the Christian communities and their ingrained mutual suspicion. The
Israeli authorities therefore decided to abide by the status quo, which left in
place the Ottoman f i r m a n (edict) of 1852 and its supplements. The various rights
acquired by different groups at the holy places during the nineteenth century and
in the British Mandate period thus continued to determine the rights of the
Christian communities at their sacred sites. Although the specifics of the status
quo were not enshrined in the declarations by Israeli leaders or in the Protection
of Holy Places Law, as noted above, Israel in practice sought to uphold the
status quo arrangements in accordance with the famous document issued by the
29
Mandatory official L . G . A . Cust. The only deviation from that policy occurred
at Easter in 1970. The government turned a blind eye while the Ethiopians
switched the locks on the entrance to a corridor leading from Deir a-Sultan to
the plaza of the Church of the Holy Sepulcher, despite the protest of the Copts,
30
who claimed possession of the area.
In places sacred to both Islam and Judaism (such as the Temple Mount and
the Tomb of the Patriarchs), Israel could not accept the principles of status quo
that had evolved during the mandate period, for they deprived Jews of their
rights. In contrast, the Israeli authorities found no difficulty in abiding by the
provisions of the Ottoman status quo with regard to the Christian holy places, as
these have no connection to the Jewish religion.
90

A major test of Israeli rule at the Christian holy places occurred at Christmas
1967. Despite threats by Palestinian organizations to launch attacks during the
festivities at Bethlehem, and despite a call by the Jordanian government to
boycott the celebrations, horse-mounted Israeli police escorted the procession of
the Latin Patriarch from Jerusalem to Bethlehem on Dec. 24. As the hour of
Midnight Mass approached, representatives of the new government in
Bethlehem - led by Maj. Gen. Uzi Narkiss, the Israeli commander in the West
Bank - took their places in the Church of the Nativity. The church was packed
with local residents and tourists, and the Mass was broadcast live around the
world by foreign television networks. Only one group was barred from attending
the service: Israeli Jews, whose entry was prohibited for fear they would displace
the local Christians and tourists "and contribute to the creation of unnecessary
31
tension."
Israel, then, took a largely sympathetic attitude toward the Christian churches
and communities in the first years after 1967. Faced with broad international
opposition to its annexation of East Jerusalem, Israel viewed the local and
international Christian organizations as a moderating element vis-a-vis Palestinian
nationalist groups. Israel also sought to prove to the Western world that Christian
holy places and communities could flourish under its rule. Under Jordanian rule,
various restrictions had been imposed on the Christian sects. Local and foreign
Christian groups needed special government approval to buy land. The activity
of Christian charitable organizations was supervised closely by Amman, as was
social and cultural activity within the Christian communities. The Jordanian
authorities even attempted to blur the religious character of schools run by the
Christian communities. Under Israeli rule, these restrictions were lifted. Similarly,
the hidden discrimination the Christians suffered as a religious minority under
the Hashemite Kingdom disappeared, as did harassment of Christian institutions
32
by radical Muslim circles. Israel's positive attitude toward the Christian
communities in the war's immediate aftermath was reflected in the July 3, 1967,
request made to the Israeli authorities by 550 dignitaries from Bethlehem (most
of them Christians) to annex their city to Israel. Bethlehem, they argued, had
91

always been closely connected with Jerusalem, and the unification of Jerusalem
33
should also encompass Bethlehem.
However, Israel soon discovered that the attitudes of the various Christian
communities toward the new rulers was complex, and that significant differences
in approach were discernible among them. Such differences stemmed primarily
from the character of the leadership in each Christian community and from the
relations they maintained with the Arab population. The Greek Orthodox and
Armenian churches displayed a positive approach toward the Israeli government,
and on several occasions thwarted initiatives for anti-Israeli resolutions by heads
of churches in Jerusalem. The (Catholic) Latin Patriarch and the Apostolic Delegate
in Jerusalem tried to maintain a neutral, cautious and formal stance toward the
Israeli authorities. The heads of the Greek-Catholic and Anglican churches (both
34
of which are considered Palestinian-Arab churches), the Coptic Archbishop,
35
and the leaders of the Franciscan Order often manifested hostility toward Israel.
The Holy See held numerous meetings with Israeli representatives, resulting
in a certain moderation of its attitude toward Israel and toward Israeli rule in
36
Jerusalem - though not, initially, in the establishment of diplomatic relations.
The established Protestant international bodies objected to Israeli rule in Jerusalem,
37
but fundamentalist Protestants took an approving attitude.
As in other spheres, the first months after the 1967 war were a formative •
period in terms of the development of Israeli policy toward the churches, the
Christian communities and the holy places, and toward freedom of religion for
Christians in Jerusalem. The patterns of relations that were formed between the
Israeli authorities and the Christian churches in this period held fast for about 20
years. No significant changes occurred until the outbreak of the Intifada - the
Palestinian uprising in the territories - at the end of 1987.
92

C. The I m p a c t of the Intifada
The Israeli government's sympathetic attitude toward the church was not matched
by preferential policy toward the local Christian population. No special benefits
accrued after 1967 to local Christians as compared with the Muslim majority in
such matters as family reunification, restoration of property or reparations for
38
war damages.
In 1967, as noted above, many Christians in Jerusalem and the West Bank
welcomed Israeli conquest. The Israeli presence, they believed, would restore
the balance of power and thus improve their status in the face of the growing
Islamic influence around them. The economic boom in East Jerusalem and the
West Bank in the first years after 1967 was particularly beneficial to the Christians,
39
most of whom belonged to the urban upper class.
A number of factors, however, increasingly induced most local Christians

to join in solidarity with Palestinian nationalism and the struggle against the
Israeli occupation. Those factors included an emerging resistance to Israeli rule,
the rise of Palestinian nationalism that finally sparked the Intifada, the absence
of a preferential Israeli policy toward the Christian population, and above all,
the fact that the local Christians were a religious minority whose status depended
heavily on the good will of the Muslim majority. These trends were countered
by a surge of Muslim fundamentalism within the Palestinian national movement,
the consequences of which, many Christians feared, would be directed also
against the Christian minority. Vandalism of Christian property and violence
against Christians by Muslims occurred throughout the Intifada and indeed never
have abated. The local Christian population in Jerusalem and the West Bank
thus found that while on one hand they do not receive significant support from
the Israeli government, on the other hand, many of them are perceived by the
majority Muslim population as a disloyal element, and in some cases, as
40
collaborators with the Israeli occupiers.
93

These p r o b l e m s , combined with the increasingly difficult economic situation
brought on by the Intifada, particularly in the tourism industry where Christians
are dominant, led increasing numbers of Christians to emigrate. The size of the
Christian community in Jerusalem had been in decline since the end of the
British Mandate in 1948 and throughout Jordanian rule, but the Intifada aggravated
the tendency. In 1990, some 8,000 to 10,000 Christians were living in Jerusalem,
representing 1.9 percent of the city's total population, according to church estimates.
41
In 1967, the population was 11,690, and in 1944 it was 29,350.
The growing identification of the local Christians with the Palestinian national
cause and, concomitantly, with the Intifada naturally affected the positions of
the leaders of the local Christian communities, who after 1967 underwent an
intensive process of Palestinization and Arabization. In the latter half of the
1970s, Arab bishops for the first time were appointed to head the local Anglican
and Lutheran churches. In Dec. 1987, an Arab clergyman (Michel Sabah) was
named to the important position of Latin Patriarch. For years before these
appointments, though, the Greek-Catholic Church was led by Arab clergy.
Eventually, only two of the important churches in Jerusalem remained headed
by non-Arabs: the Greek Orthodox Church, where clergy of Greek origin have
blocked almost completely the entry of Arabs into their ranks; and the Armenian
Church, which maintains its ethnic distinctiveness and does not admit non-
Armenians.
The Palestinization of the leadership of the Christian communities and the

Christian population's identification with the Intifada increased the involvement
of the heads of the churches in the Palestinian national struggle. At the initiative
of three leaders - Latin Patriarch Michel Sabbah, Archbishop Lutfi Laham of
the Greek-Catholic Church and Anglican Bishop Samir Kafity - the ceremonies
marking Christmas were substantially reduced in Dec. 1987. Also, some of the
traditional courtesy visits by officers of the military government to the leaders of
the communities were canceled. In Jan. 1988, the heads of the churches were
able to set their differences aside in order to issue a joint statement against
"Israeli injustice and suppression." The statement called on all Christians to join
94

in a day of prayer and fasting and to contribute generously to help alleviate the
suffering in Palestinian refugee camps. The declaration was to have been published
42
in the East Jerusalem press but was deleted by the Israeli military censor.
The Jan. 1988 declaration was the first in a series of similar statements by
the heads of the churches, who for the first time forged a united front in support
of the Palestinian national struggle and the condemnation of Israeli measures to
quell the Intifada. The declarations frequently were triggered by events that
outraged the Christian population in Jerusalem and the West Bank, such as the
inadvertent killing of a Christian child by Israeli troops during an incident in
Beit Hanina in July 1988, or the soldiers' pursuit of the murderers of two yeshiva
students, Eliahu Amadi and Shlomi Cohen, when they fled into the Church of
the Holy Sepulcher and the Dormition Church in 1988.
Such events revealed the trap in which the heads of the churches in Jerusalem
found themselves. Their Arab adherents and the Muslim majority demanded that
they identify with the victims of the Intifada (of 410 Palestinians killed in the
43
first year of the Intifada, five were Christians). At the same time, the Israeli
authorities warned them to desist from political activity and not to turn the
churches into havens for suspects and stone throwers (in some cases, stones
were stored in churches for use against Israeli soldiers). Some priests and monks
said they could do nothing in the face of such activity for fear the violence
44
would be turned against them. The church leaders constantly were put in the
position of having to prove to their Muslim neighbors that they supported the
Palestinian struggle - even while they were dependent on Israeli authorities on a
day-to-day basis for issuing and renewing visas, enforcing order during ceremonies
45
and processions, granting tax and customs exemptions, and so forth.
As Easter approached in Apr. 1989, nine heads of churches in Jerusalem

issued a sharply worded pronouncement against Israeli policy. Among the
signatories were the Greek Orthodox Patriarch and, for the first time, the Armenian
Patriarch, who until then had taken a neutral approach in the Arab-Israeli conflict.
The statement expressed identification with the suffering and distress of the
95

Palestinian people, whose basic rights had been usurped. The church leaders
asserted that they were "particularly concerned by the tragic and unnecessary
loss of Palestinian lives, especially among minors." They also deplored the mass
"administrative arrests" (detention without trial) of Palestinians, Israel's use of
collective punishment including the demolition of homes, the depravation of
46
elementary services to Palestinians and the closure of schools.
Two clauses in the statement referred directly to the question of freedom of

religion and access to the holy places. The signatories protested "the frequent
shooting incidents in the vicinity of the Holy Places" and demanded "that the
authorities respect the right of believers to enjoy free access to all places of
47
worship on the Holy Days of all religions."
Two additional episodes, which occurred in 1989 and 1990, heightened still
further the tension between the Israeli authorities and the Christian communities.
The first was the so-called "tax revolt" in the Christian town of Beit Sahour,
near Bethlehem, in the second half of 1989. After the residents of Beit Sahour
announced their refusal to pay taxes to the Israeli authorities, the army laid siege
to the town for 46 days and then, on Oct. 31, arrested 40 townspeople and
confiscated property worth $3 million in lieu of the tax payments. The heads of
the churches in Jerusalem issued a statement of solidarity with the town and
declared Oct. 29 a day of fasting and prayer. They also organized an unprecedented
demonstration by church leaders and consuls from the member-states of the
European Economic Community, but Israeli forces prevented them from entering
the town. The incident was widely reported by the international media, seriously
damaging Israel's image. In June 1990, Beit Sahour was awarded a prize by a
Danish peace foundation for presenting an example of a "non-violent resistance
opposing violent suppression," and some urged that the town be submitted as a
48
candidate for the Nobel Peace Prize.
The second episode was the entry of about 150 Jewish settlers into St.
John's Hospice in the Christian Quarter of the Old City, close to the Church of
the Holy Sepulcher, on Apr. 4, 1990, the eve of Good Friday. The settlers
96

renamed the building, with its 53 rooms, "Neot David." They claimed they were
the successors to Jewish residents who had lived in the Christian Quarter until
1936 and had been forced to flee by Arab attacks. Soon discovered, however,
was the fact that the right of protected tenancy in the building, which belonged
to the Greek Orthodox Patriarchate, had been purchased for $3.5 million from
protected tenant and Armenian merchant Martyros Matossian by a Panamanian
company fronting for Ateret Cohanim - a Jewish association whose declared
49
purpose the acquisition of properties in the Arab sections of Jerusalem. It was
then discovered that the purchase had been encouraged and supported by key
figures in the Israeli government such as Housing Minister Ariel Sharon, and
that his ministry had also underwritten 40 percent of the purchase price by
50
various means.
Jewish settlers' entry, on the eve of Easter, into another large - albeit not
holy - building belonging to the Greek Orthodox Church and located adjacent to
the Church of the Holy Sepulcher, triggered unrest in the Old City crowded with
pilgrims and tourists and sparked an international storm of protest. The Christian
churches united to express their dismay and shock. Israel, they said, had failed
to maintain the status quo at the holy places. If the situation were not redressed,
51
they warned, they would close the churches for a month in protest. The Greek
Orthodox Partriarch found himself in a particularly difficult situation, being
suspected by some Arabs of having been in collusion with the purchasers. To
refute such suspicions, the Patriarch declared that the occupation of the building
in the midst of religious festivities constituted an act of aggression against the
holy places and against the Patriarchate's property, and that the Patriarchate was
52
ready to refer the matter to the United Nations.
The Israeli government took the position that the hospice was not a holy
site and that Jews had the right to settle anywhere in the Old City as long as it
was done legally. The High Court of Justice addressed the issue in the wake of a
petition that questioned legal aspects of the purchase. Following several months
of deliberations, the court ordered the settlers to leave, but permitted a group of
20 of them to remain as a "maintenance crew" until a final decision was reached
97

by the lower legal institutions. Since then, the matter has been adjudicated in the
53
courts, but no final ruling has been given.
The protracted deliberations and the High Court's failure to issue a clear
eviction order resulted in more protests both locally and internationally. The
episode became a focus of national identification and induced a rare display of
cooperation and solidarity between the heads of the churches and the leadership
of the Muslim public - the Muslim Higher Council. The issue was perceived as
part of the Palestinian national cause, and as such, obligated national unity and
Muslim-Christian solidarity. One concrete expression of this approach was the
raising of Palestinian flags at the Church of the Holy Sepulcher for the first time.
The church leaders signed a statement condemning the settlement at the hospice
as a disruption of the solemn ceremonies in the Holy Sepulcher, as undermining
the autonomy and integrity of the Christian, Armenian, and Muslim quarters of
the Old City, and as violating their status and character. They called on the
international community to intervene and declared the closure of all the churches
in Jerusalem on Friday, Apr. 27, as a protest measure. In solidarity, the Muslim
Higher Council declared the closure of the Temple Mount (Haram al-Sharif) that
54
day.
The settlers' action and its support by the Israeli government gave rise to
strong protests in the international arena. A leader of the American Catholic
community, Cardinal O'Connor, termed the action "obscene" and warned that it
might undermine the good relations between the Jewish and Catholic communities
in the United States. Condemnations were also issued by the European Parliament
at Strasbourg, the British government, the International Lutheran Federation and
the World Council of Churches. In the wake of the affair, some international
bodies expressed open support for the Palestinian national aspirations. The episode
reinforced the Vatican's demand for international guarantees and for special
55
status to be granted to the Old City, and it induced the U.S. administration to
reduce its aid to Israel by the amount of the Housing Ministry's assistance to the
56
St. John's settlement. Overall, then, the event brought about rare cooperation
98

among the heads of the churches and the Muslim Higher Council, while briefly
returning the issue of the holy places to the international agenda.
Thus, a series of events and processes - the Palestinization of leaders of the

churches, the Intifada, and especially the tax revolt at Beit Sahour and the
settlement at St. John's Hospice - brought about a significant shift in the relations
between the churches and the Israeli government. In their wake, nearly all the
churches took a distinctly anti-Israeli and pro-Palestinian line. For the first time,
the heads of the churches were able to overcome the i l l will generated by their
internecine disputes and form a united front against Israel, while trying to win
over the international community. Israel's position was that its policy toward the
Christian churches and holy places had not changed, and that the church leaders
should fulfill their religious role and stay out of politics. To this the Christian
leaders replied that their duty was to take care of their communities, who shared
in the suffering of the Palestinian people. Archbishop Lutfi Laham, head of the
Greek-Catholic Church in Jerusalem, emphasized the clergy's obligation to defend
humanity, human dignity, the homeland and freedom. "Politics in this sense is a
57
national, human and religious duty," he explained. In other words, the church
leaders perceived themselves as responsible not only for religious life but also
for the safety and well-being of their flock. From this point of view, Archbishop
Laham's and Latin Patriarch Michel Sabbah's support for the Intifada, and
58
particularly for nonviolent resistance to Israeli occupation, was understandable.
Identification by the leaders of some churches with the Palestinian cause

was most apparent in a declaration issued by a joint council of Muslim and
Christian leaders that protested the establishment of an Israel-Vatican Commission
charged to examine future relations between the two. The statement was read in
front of the Apostolic Delegate in August 1992. The signatories, among them
the Mufti of Jerusalem, the Latin Patriarch, the Anglican Bishop and the Greek-
Catholic Archbishop, expressed concern that talks between Israel and the Vatican
would deal with the status of Jerusalem, which they considered "the capital of
the State of Palestine." They called on the Vatican to consider "historic Arab
sovereignty over the city," and they praised "the freedom of worship and
99

preservation of holy sites enjoyed over the centuries [that was] guaranteed by
[the] historical covenant of Calif Omar[, and which had been] derived from
tolerance of Islam and the teachings of the messenger of peace and love, Jesus
59
Christ." Nothing demonstrates more cogently the Christian minority's
dependence on the Muslim majority - and hence its inability to formulate an
independent position with respect to the Arab-Israeli and Muslim-Jewish
conflict - than their preference for Muslim rule in Jerusalem over any other
arrangement, as expressed in this declaration. Twenty five years after the 1967
war, therefore, the relations between the Israeli authorities and the Christian
churches had undergone a dramatic change.
D . Influence of the I s r a e l i - P a l e s t i n i a n Peace Process
The advert of negotiations between Israel and its neighbors in the wake of the
Madrid Conference of October 1991 produced no change in Israel's relations
with the Christian churches. In his sermon at the Christmas Mass in 1991, Latin
Patriarch Michel Sabbah reiterated his statement of opposition to Israeli rule
over the Palestinian people. He embarrassed the representatives of the Israeli
government who were present by disclosing that they had tried to censor the
sermon. As for the peace conference, the Latin Patriarch Sabbah said it had not
fomented any change in day-to-day life and that the situation in the territories
was incompatible with a dialogue of peace. The Israeli military had imposed a
weeks-long curfew on the city of Ramallah, north of Jerusalem, following the
murder of a Jewish settler, and this had affected the Christmas celebrations in
60
the city. The Patriarch concluded the sermon with a call for a just peace.
A new spirit swept the region two years later following the successes of the
Oslo "back channel" talks that led to the signing of the Declaration of Principles
(DoP) between Israel and the Palestine Liberation Organization (PLO) in
Washington (Sept. 13, 1993), and also led to the interim agreement on the Gaza
Strip and Jericho (May 4, 1994). That spirit also influenced the heads of the
churches and the Christian communities. On the declarative level, the church
100

leaders expressed support for the accords. Some representatives of the communities
(albeit not on the senior level) went to Tunis to congratulate P L O leader Yasser
Arafat on the signing of the DoP. In 1993, the Latin Patriarch attended for the
first time the traditional reception given by the President of Israel to mark the
Christmas season. His participation in the event signaled a revision of the Catholic
Church's attitude toward Israel, which found immediate expression in the signing
of a Fundamental Agreement between the Holy See and Israel on Dec. 30, 1993
(its significance is discussed below).
In their negotiations with Israel, the Palestinians consistently insisted on

their autonomous custodianship over the Christian communities and holy places.
In Oct. 1993, Palestinian pressure induced Israel's then-Foreign Minister Shimon
Peres to convey a letter to his Norwegian counterpart, Johan Jorgen Hoist,
stating that "the holy Christian and Muslim places are performing an essential
task for the Palestinian population." He added that Israel would not interfere
with their activities, and that "the fulfillment of this important mission is to be
61
encouraged."
A second illustration of this Palestinian approach was the Palestinians'

success in the 1994 interim accord in acquiring Israel's permission to visit, under
a Palestinian flag, the Christian baptismal site known as al Murtas on the Jordan
62
River (in area C) three times a year. Arafat had requested that the site be
included in the Jericho autonomous area, emphasizing its sanctity for Christians
and its importance as a pilgrimage site. Israel refused, and as a compromise, the
pilgrimage was permitted in a religious procession. Arafat's primary aim was to
enlarge the Jericho autonomous area, but he also sought to demonstrate unity
between Palestinian Christians and Muslims, to strengthen the status of the
Palestinian Authority (PA) and himself as its leader in the international arena,
and to score important points in the struggle over control of the holy places.
The PA's claim to custodianship of the Christian holy places was reflected
again in understandings that were reached, according to press reports in 1995,
between then-Minister Yossi Beilin (Labor) and Chairman Arafat's deputy,
101

Mahmoud Abbas (Abu Mazen), in informal talks on the resolution of the Arab-
Israeli conflict and the Jerusalem issue. The accord between them, which was
not accepted by either side, called for the Church of the Holy Sepulcher to be
transferred to Palestinian control without it being given extraterritorial status
(the Temple Mount, though, would have been given extraterritorial status under
63
exclusive Palestinian administration).
The P A attributes great importance to relations with the Christians - as an

instrument to reinforce Palestinian solidarity between Christians and Muslims
and to bolster the PA's standing in international public opinion. Israel seems to
favor a different approach. The three examples cited above indicate Israel's
readiness to show flexibility in the matter of the holy places and influence on the
Christian communities without always considering the diverse reactions by the
Christians toward such Israeli concessions or their international implications.
As negotiations between Israel and the Palestinians progressed, the leaders

of the churches in Jerusalem began to be concerned that the Christian issue
would be marginalized. A meeting of the heads of all the major churches held in
Jerusalem on Nov. 14, 1994, produced a memorandum entitled The Significance
64
of Jerusalem for Christians, which expressed that concern. The principal message
conveyed by the memorandum, which was signed by 12 church leaders, was
opposition to any exclusive rule in Jerusalem by one side that would fail to
respect the rights of other religions. To maintain the city's universal character,
including the Christian communities and their holy places, the authors of the
memorandum argued that a "Special Statute for Jerusalem" should be drawn up
by representatives of the three faiths and by the city's political leaders. The
statute would then receive international guarantees. Such a statute would ensure
that no one side would violate the rights of the others for political or security
reasons, and above all it would enshrine the principle of free access to the holy
65
places.
Another interesting section of the memorandum sets forth considerably

expanded "legitimate rights" of Christians in Jerusalem. In addition to the rights
102

of free access and freedom of worship, which are generally cited within the
framework of freedom of religion, the document mentions rights related to
ownership of property, custody and the continuation of rights that the churches
claim to have acquired through the ages. The document states explicitly that
rights already protected by the status quo at the holy places under the historic
f i r m a n (apparently that of 1852) and under other accords, must be recognized
and respected in the future. Other rights mentioned deal with pilgrimage: Jerusalem
should be open to every pilgrim; guarantees should be given for free movement
within the city; the right to uninterrupted prayer and worship should be respected;
66
and pilgrims should have the right to a lengthy stay in the city in decent lodgings.
A special clause addresses the social, cultural, political and national rights
of the local Christians. These include freedom of worship and of conscience as
individuals and as religious communities, and the "civil and historic rights" to
maintain the their institutions of education and higher learning, their medical
and charitable institutions, and the hospices of each community including their
67
staff.
Addressed to both Israel and the PLO, the memorandum thus greatly extends
the rights entailed in freedom of religion and seeks to ensure the status of
Christians by means of a special "statute" to be guaranteed by the international
community. Overall, this is very close to the Vatican's position regarding
Jerusalem.
The Christian leaders' opposition to exclusive unilateral rule in Jerusalem,

as indicated in the document, is very different from the declaration by the
church leaders and the Mufti in Aug. 1992, which mentioned favorably the
historic Arab sovereignty over the city and praised the freedom of worship and
safeguarding of the holy places under Islamic rule. This shift suggests a certain
moderation in the attitude of the church leaders toward Israel, and perhaps also
reflects anxiety over the PA's treatment of the Christians' rights. In other words,
the heads of the churches seemed to express mistrust in the ability of both
adversaries - both of whom claim the right to exclusive control over the Old
103

City - to the preservation of the rights of the Christians and to the actuation of
the vision of an open city for adherents of all faiths and nationalities. Hence the
idea of the statute and international guarantees.
As already suggested, the local Christian leaders' apprehension to the entry

of the new Palestinian factor into the structure of their relations with the Israeli
authorities can be sensed between the lines of the memorandum. Such
apprehensions existed at a number of levels:
1. What might be the Arafat government's attitude toward Christians? What

influence might the militant Islamic Hamas movement (which contains
anti-Christian elements) have in the new government? Might the restrictions
imposed by the Jordanians be reintroduced by the Palestinians - forcing
Christians to revert to their inferior status as a community "under the
protection of" Muslim rulers? The churches had become accustomed to
Israeli rule and had learned to maneuver quite well among the different
governmental authorities. Israeli power turned out to be limited in several
instances due to Israel's constant concern that measures against local
Christians would have adverse consequences in the international arena.
Such maneuverability might not be possible under Palestinian rule.
2. Ensuing political and economic instability might be harmful to the Christian

minority.
3. Freedom of movement and freedom of worship might be restricted due to

the division of control at different holy places (e.g. Israeli rule in Jerusalem,
Palestinian control in Bethlehem).
Indeed, in some cases these fears proved justified. On Sept. 28, 1995, Israel and
the Palestinians signed an interim agreement concerning the West Bank and the
Gaza Strip, following which Israel evacuated Bethlehem, the birthplace of Jesus.
On Christmas Eve that year, Chairman Arafat was enthusiastically welcomed in
Bethlehem. For the first time, the celebrations were held under Palestinian aegis,
104

led by Chairman Arafat. At the boundary of the Bethlehem zone, mounted
horsemen of the Palestinian police replaced horsemen from the Israeli police,
68
who had escorted the Latin Patriarch from Jerusalem to Bethlehem since 1967.
With hundreds of millions of faithful Christians around the world viewing

the broadcast of the Midnight Mass from the Church of the Nativity, the Latin
Patriarch said to Chairman Arafat, "You are blessed, and blessed is your decision
69
to come to Bethlehem in honor of the newborn infant."
Speeches delivered by the heads of the Christian communities heaped praise

on Chairman Arafat for his estimable deeds. Anglican Bishop Samir Kafa'iti was
apparently the first of the Christian speakers to describe Chairman Arafat as the
heir to Omar Ibn Khatib, the caliph who conquered Jerusalem and one of the
most revered figures in the Muslim tradition. Caliph Ibn Khatib also shaped the
"protectorate" relations between the Muslim government and the minority Jews
and Christians. The Greek Orthodox Patriarch held a festive dinner for the
Palestinian leader, while the Armenian Patriarch declared that he had long prayed
for this day, on which the dream of Israeli withdrawal and the return of control
70
to the Palestinians would be realized.
Chairman Arafat, for his part, emphasized the Muslim-Christian partnership

in building the Palestinian nation and lashed out against Israel's attempt to
71
foment enmity between Christian and Muslim Palestinians. Chairman Arafat's
concern about the Christian issue was also seen in his decision to guarantee a
place for a Christian candidate from Jerusalem in the elections for the Palestinian
Legislative Assembly.
Despite Chairman Arafat's reassurances, Muslim circles close to Hamas

continued to attack churches and the Christian communities in Jerusalem,
Bethlehem, and Ramallah. In the summer of 1994, for example, masked individuals
broke windows at the Deir Cremisan monastery and scrawled the slogan "Islam
72
is the solution" on the wall. In the Old City of Jerusalem, acts of violence
against local Christians, pilgrims, and tourists became commonplace, and thieves
105

broke into some of the city's major churches and monasteries. In Aug. 1997,
four people were wounded in Beit Sahour when Palestinian policemen opened
74
fire in an incident caused by Muslim-Christian tension.
The difficulties are compounded by limitations on entering into Jerusalem

imposed on the residents of the West Bank - Christians along with Muslims -
within the framework of a series of lengthy closures imposed on the territories
by Israel, usually following acts of terrorism inside Israel. The leaders of the
churches complain that the closures prevent free access to the holy places and
make it impossible for pilgrims to travel from Jerusalem to Bethlehem and other
75
nearby towns. The measure has ruinous consequences because of the economic
interdependence between Jerusalem and Bethlehem. Jobs have been lost in both
the regular labor market and in the tourist industry, and according to various
Christian publications, the ensuing severe economic straits have brought about
76
greater Christian emigration.
The first sign of Chairman Arafat's attitude toward the Christian holy places
was not encouraging. On June 5, 1997, officials of the "White" Russian church
were evicted from their monastery in Hebron, apparently because of pressure
from the "Red" Russian church and representatives of the Moscow government.
A similar attempt by the "Reds" to seize control of the Judaean Desert monastery
at Ain Farah, in Wadi Kelt, failed due to the intervention of the Israeli authorities.
Arafat apparently preferred the "Red" Russians over the "Whites" because his
short-term interests connected with aid from and pressure exerted by Russian
77
President Boris Yeltsin.
The situation that emerged in the wake of the 1995 interim agreement thus
seemed to fulfill the local Christians' gloomy predictions. They found themselves
torn between their desire to identify with the surging Palestinian nationalism that
led to the creation of the P A , and the brutal pressure wielded by Islamic
fundamentalists and, in some cases, by certain elements of the Palestinian police.
Matters were aggravated by Israeli-imposed closures, the split between Jerusalem
and Bethlehem (the latter now under P A control), and a fear of Palestinian
106

measures that would derogate from the churches' historic rights at the holy
places as did Chairman Arafat's action in Hebron.
The more the difficulties mounted and delays continued in the peace process,
and the more the economic situation in the territories deteriorated, the more
severe the situation of the Christian minority became. The result, according to
Catholic publications, was increasing emigration, particularly from Bethlehem
and Ramallah - a development that is turning the Christians of the Holy Land
78
into "another vanishing species."
Another consequence of the PA's determined entry into the arena is

competition between Israeli and Palestinian authorities over influence in the
church centers in Jerusalem. The official in charge of Christian affairs in the
Palestinian ministry of religious affairs, Greek Orthodox lawyer Ibrahim
Kandalafat, has established a ramified system of connections with church leaders
in Jerusalem whereby he effectively competes with Israeli government
representatives whenever he appears in behalf of the P A at functions and
ceremonies in Jerusalem.
E . The Effect of the Agreement Between I s r a e l and the

Holy See
After 1967, Israel and the Vatican held sporadic talks concerning arrangements
79
at the holy places and the possible establishment of diplomatic relations. Only
with the beginning of the Israeli-Palestinian peace process, however, did bilateral
negotiations between Israel and the Vatican go into high gear. Several factors
underlay the Dec. 30, 1993, signing of the Fundamental Agreement between
Israel and the Holy See. First was the need to consolidate the legal, economic,
and fiscal status of the Catholic Church and its personnel in the Holy Land.
Second was the ongoing process of reconciliation between the Catholic Church
and the Jewish people. Finally, there was the Holy See's desire to take an active
part in the negotiations on Jerusalem and the holy places.
107

For the Vatican, progress in the talks with Israel was intertwined with
progress in the peace process between Israel and the Palestinians. By taking this
approach, the Holy See hoped to avert criticism by the Arab states and safeguard
the Catholic communities' interests in the Muslim countries. At the same time,
the Holy See launched similar negotiations with Jordan and the PLO, establishing
80
diplomatic relations with the latter on Oct. 25, 1994.
In the Fundamental Agreement, Israel affirmed "its continuing commitment

to uphold and observe the human right to freedom of religion and conscience, as
set forth in the Universal Declaration of Human Rights and in other international
81
instruments to which it is a party" (Article 1.1). Israel also recognized "the
right of the Catholic Church to carry out its religious, moral, educational and
charitable functions, and to have its own institutions, and to train, appoint and
deploy its own personnel in the said institutions or for the said functions to these
82
ends" (Article 3.2, also Articles 6 and 9).
Article 4 addresses the issue of the holy places. Both sides affirmed their
"continuing commitment to maintain and respect the status quo in the Christian
Holy Places... and the respective rights of the Christian communities thereunder"
83
(Article 4.1). Some elaboration of what constitutes the holy places is provided
in Article 4.3, where "the State of Israel agrees with the Holy See on the
obligation of continuing respect for and protection of the character proper to
Catholic sacred places, such as churches, monasteries, convents, cemeteries and
84
the like."
This article is of considerable importance as it gives formal legal expression

to an obligation on both sides to respect the status quo. It also contains a first
official commitment by Israel to respect "Catholic sacred places," which constitute
many more than the seven holy sites in the Jerusalem-Bethlehem area that
formed the basis for the status quo arrangement in the Ottoman period.
In Article 5 of the Fundamental Agreement, the two sides undertook to

encourage Christian pilgrimage to the Holy Land. Israel also recognized "that
108

the right of the Catholic Church to freedom of expression in the carrying out of
its functions is exercised also through the Church's own communications media...
in harmony with the rights of the State in the field of communications media"
(Article 8).
After signing the agreement, the two sides set up legal and economic-fiscal
sub-commissions to complete the negotiations on those subjects. To date, the
legal committee has concluded its mission, and on Nov. 10, 1997, Israel and the
Holy See signed an agreement that consolidates the legal status of the Catholic
Church and its institutions. Israel committed itself to ensure "full effect in Israeli
law to the legal personality of the Catholic Church" and all the Catholic bodies
85
and institutions that operate in the state.
A detailed list of some 1,130 bodies is appended to the agreement, which

gives Israel the task of creating an official registry of church bodies to enable
the church institutions to conduct their legal and economic functions in an
orderly manner. The Israeli government approved the agreement, but its
implementation is conditional on appropriate legislation being enacted by the
Knesset. The intention behind the Israeli policy is to apply the principles laid
down in the agreements signed with the Holy See and the Catholic Church
(including the Nov. 1997 agreement) to the other churches as well, and thereby
to consolidate the legal statuses of all the recognized church organizations that
operate in Israel. In the meantime, the deliberations of the economic-fiscal
commissions are continuing.
Negotiations on a similar pact between the Holy See and the P L O and
representatives of the P A began with the establishment of a joint commission
86
between the sides in January 1998.
The agreements between Israel and the Vatican constitute an important

achievement for the Catholic Church, which gained de facto recognition as a
"legal personality" and acquired considerable autonomy in administering its
affairs in Israel. If the Knesset passes the appropriate legislation (in the wake of
109

the latest agreement), the legal status of the Catholic Church and its institutions
will for the first time be enshrined in legislation, thus reducing their dependence
on the Israeli bureaucracy. If the principles of the agreement can in fact be
extended to cover other churches as well, a major improvement may be expected
in the status of all the church bodies that operate in Israel.
At the political level, the documents exchanged between Israel and the
Holy See brought about a certain change of attitude on the part of some of the
heads of the local Catholic churches - particularly the Latin Patriarch and the
Greek-Catholic Archbishop - toward the Israeli authorities. Until Israel's signing
of the accords with the Vatican, the heads of these churches had been, as we
saw, among the fiercest critics of Israeli policy. Now their approach has moderated
somewhat. Since the agreements, however, relate to church bodies and do not
affect the status of local Christians - who consider themselves part of the Palestinian
people - no significant changes should be expected in the relationship between
Israel and the local Christian communities. The substance of the accords shows
a continuation of Israeli policy since 1967 to award preferential status to the
churches and the various Christian bodies that operate in the Holy Land, but not
to adopt any special policy toward local Christian adherents.
F. Conclusion
In the first years after the 1967 war, Israel took a largely positive attitude toward
the establishments of the Christian churches. Faced with extensive international
opposition to its annexation of East Jerusalem, Israel viewed the local and
international Christian churches and institutions as moderating elements vis-a-vis
Palestinian nationalism. In addition, Israel also sought to prove to the West that
the Christian communities and churches could flourish under its rule. Israel
pledged to preserve and protect the holy places (and even paid reparations for
damages sustained by Christian sites and institutions during belligerent hostilities),
to prevent offense to the feelings of believers regarding the holy places and to
guarantee freedom of access to those believers. Israel also adopted the status quo
110

arrangements that were in effect at the Christian holy sites (apart from not
intervening in the dispute over Deir a-Sultan). The restrictions imposed on the
Christian churches and institutions during the Jordanian period were revoked.
The hidden discrimination from which the Christians had suffered as a religious
minority also disappeared, as did harassment of Christian institutions by radical
Muslims. Israel's positive attitude was reciprocated by much of the Christian
population in the Jerusalem-Bethlehem area, as was witnessed by the request
from 550 Bethlehem dignitaries (most of them Christians) in July 1967 for their
city to be annexed to Israel.
A number of factors, however, led most local Christians to identify with

Palestinian nationalism and with the cause of ousting the Israeli presence via the
Intifada. Those included a growing resistance in the 1980s to the Israeli occupation,
surging Palestinian nationalism that eventually erupted into the Intifada, the
absence of an Israeli policy preferential to the local Christian population, and in
particular, the fact that the local Christians were a religious minority highly
dependent on the good will of the Muslim majority. The process of Palestinization
and Arabization of the church leaders, which reached its zenith in Dec. 1987
with the appointment of an Arab clergyman (Michel Sabbah) to the key position
of Latin Patriarch, resulted for the first time in a public display of opposition to
the Israeli occupation and of support for nonviolent resistance by most of the
heads of the churches. In an unprecedented move, they united to condemn
Israeli rule in the territories in a series of leaflets. A major complaint was that
the Israeli authorities were violating the freedom of religion of the local Christians,
particularly the principle of free access to the holy places in Jerusalem.
The episodes of the tax revolt in Beit Sahour and the seizure by Jewish
settlers of St. John's Hospice in the Christian Quarter of the Old City aggravated
further the relations between most of the Christian churches and the Israeli
authorities and led to heightened protest against Israeli policy and actions. The
high point of the protest actions was the churches' decision to close their doors
on Apr. 27, 1990, in reaction to the St. John's Hospice incident. As a result of
these and other events, the church leaders began to shape their role not only as
111

spiritual and religious leaders, but also as leaders with an obligation to care for
the safety and well-being of their flock. Solidarity with the Palestinian cause
was given extreme expression in a declaration issued in Aug. 1992 by church
leaders, led by clergymen of Arab origin (and together with the Mufti of Jerusalem),
that called on the Vatican not to ignore "the historic Arab sovereignty in the
city" and praised the freedom of worship and safeguarding of holy sites under
Islamic rule.
The official Israeli position continued to be grounded in the principles that

were articulated in 1967: Israel permits freedom of access to and worship at the
holy places of all religions and nationalities (more so than any other rulers of
Jerusalem), and calls on religious leaders not to engage in politics but to stay
strictly within the confines of their religious role. Israel did not adopt a preferential
policy toward the local Christian population as compared with its approach
toward the Muslim majority.
The success of the Oslo process and the signing of the first accords in
1993-1995 turned the Christian issue into a pawn for the two sides in their
negotiations. The Palestinians insisted on their custodianship of the Christian
communities and the holy places. This argument reached a peak with Chairman
Arafat's dramatic arrival in Bethlehem for the 1995 Christmas celebrations and
his attendance at the Midnight Mass in the Church of the Nativity. The P A
attributes great importance to the Christian connection - both as an instrument
to reinforce Palestinian solidarity between Christians and Muslims, and as a tool
to enhance the status of the P A in international public opinion. Israel showed
flexibility in the matter of the Holy Places (such as the Church of the Nativity)
and was willing to forgo its influence vis-a-vis the Christian communities without
always taking into consideration the range of Christian reactions to this policy
and the international ramifications.
As the Israeli-Palestinian negotiations proceeded, the leaders of the local

Christian communities began to be concerned that their cause would be
marginalized. The heads of the Christian communities drew up a memorandum
112

on Nov. 14, 1994, that expressed opposition to exclusive rule in Jerusalem by
any one side. They called for an assurance of the city's universal character,
including the status of the holy places and the Christians' "legitimate rights"
(which are interpreted very broadly in the document), by means of a "Special
Statute" to be formulated by representatives of the three religions and the various
political bodies in the city, with guarantees to be provided by the international
community. The document would seem to imply not only opposition to exclusive
Israeli rule in Jerusalem but also a fear of exclusive Palestinian control, in which
radical Muslim circles would wield influence and constrict Christian rights as
well as restrict the activity of their institutions. Attacks by Muslim circles on
Christians and on Christian churches and institutions around Jerusalem,
Bethlehem, and Ramallah have persisted since the Intifada. A comparative analysis
between the memorandum and the Aug. 1992 statement about "Arab sovereignty"
in the city shows modifications in the church leaders' positions in the wake of
the peace process.
The difficulties that occasionally arise in the peace process - terrorist attacks
and the closures imposed by Israel in their wake - compound the problems for
the local Christians (and indeed of the entire Palestinian population). Since Mar.
1993 the church leaders have repeatedly complained about the closures, which
deny local Christians who live outside Jerusalem access to the holy places inside
the city, and about the fact that Jerusalem is cut off from the Christian centers in
Bethlehem and Ramallah. Various church sources maintain that this situation
has intensified Christian emigration, particularly from Bethlehem and Ramallah.
There is growing concern among Christian authorities that their holy sites will
become museums. Israel's response is that Christian emigration is not a new
phenomenon but the continuation of a process that began with the conclusion of
the mandate period and in fact peaked under Jordanian rule. As for the closures,
Israel emphasizes that they are necessary security measures in the light of
Palestinian terrorism. Israel constantly stresses that under its rule, freedom of
access to and worship at the holy places has been maintained even during the
Intifada and the closures. From the demographic point of view, Israel cites an
113

increase in the Christian population inside the Green Line as compared with the
dire straits of the Christian minorities in the Islamic countries.
The upshot is that the situation for Christians in Jerusalem and the West
Bank following the Israeli-Palestinian Interim Agreement and the subsequent
difficulties in the peace process is extremely frustrating. They are caught between
conflicting forces: their desire, or sometimes their need, to identify with surging
Palestinian nationalism (in the wake of the PA's establishment), the harsh pressure
exerted by Hamas and other Islamic fundamentalist groups, and the constraints
imposed by Israel. The heads of the churches are doing their best to maneuver
and steer a reasonable course between the various forces, but their "war for
survival" is becoming increasingly difficult.
Just how difficult is strikingly illustrated by the Apr. 1997 episode in which
Islamisists expanded the Hanka mosque next to the Church of the Holy Sepulcher
at the expense of the Greek Orthodox Patriarchate and the Franciscans' Custodia
Terra Sancta. Seeking to redress their property rights, the leaders of the churches
appealed to Israeli Prime Minister Benjamin Netanyahu, to Chairman Arafat and
to King Hussein of Jordan to restore the status quo ante at the site. Despite the
efforts of all three sides to resolve the problem, however, at the time of this
writing, the expansion of the mosque at the expense of Christian property remains
87
a fact.
The accords between Israel and the Vatican constitute an important

achievement for the Catholic Church, which succeeded in consolidating its legal
status in Israel. It is difficult to envisage, however, how the agreements will
benefit individual local Christians, who are being worn down in the Israeli-
Palestinian and Jewish-Muslim conflict. Although Christian international public
opinion supports the cause of the local Christians and the Israel - Vatican accords,
the Christians in Jerusalem are increasingly becoming a secondary segment,
whose rights and ultimate fate are largely in the hands of the two major contestants
in the struggle for the Holy City of Jerusalem.
114

Notes
1. U. Narkiss, Ahat Yerushalayim, Tel Aviv: Am Oved, 1978, pp. 213-214; N . Shragai,
Har Hameriva, Jerusalem: Keter, 1995, pp. 18, 395 (note 21).
2. U. Benziman, Yerushalayim — Ir L e l o H o m a , Jerusalem and Tel Aviv: Schocken,

1973, pp. 15-16.
3. E. Haber, Hayom Tifrotz Milhama, Tel Aviv: Idanim, 1987, p. 231.
4. A. Elon, J e r u s a l e m , City of, London: Miror, Weidenfeld and Nicolson, 1989, pp.
239-240; Shragai, p. 19.
5. Haber, p. 231; Benziman, p. 99.
6. Benziman, pp. 19-20.
7. Haber, p. 233.
8. M . Dayan, Story ofMy Life, London: Sphere Books, 1978, p. 14.
9. Christian News f r o m Israel, July 1967, pp. 10-11; W. Zander, Israel and the Holy
Places of Christendom, London: Weidenfeld and Nicolson, 1971, p. 101.
10. Christian News f r o m Israel, July 1967, pp. 12-13; Zander, p. 102; M . Benvenisti,
Makom Shel E i s h , Tel Aviv, 1996, p. 221.
11. W. Zander, pp. 87-88; Benvenisti, p. 82.
12. Benvenisti, ibid.
13. Ibid.
14. Benziman, pp. 106-107
15. Ibid.
16. Ibid
17. M . Shashar, Milhemet Hayom H a s h e v i ' i , Tel Aviv: Sifriat Hapoalim, 1997, pp.
36-37.
18. M . Benvenisti, Mul Hahoma H a s e g u r a , Jerusalem: Weidenfeld and Nicholson,

1973, p. 166.
115

19. Y. Malachi, "The Christian Churches and the Six-Day War," Molad, new series, 1,
5-6, [Spring] 1968, pp. 571-583 (Hebrew).
20. "Law and Administration Ordinance (Amendment No. 11) Law 5727-1967," Laws
of the State of Israel, Authorized Translation into English, 21, 5727-1966/67, No.
449, p. 74; "Municipalities Ordinance (Amendment No. 6) Law 5727-1967," ibid.
21. Ibid., p. 75; Text reproduced in Ruth Lapidoth and Moshe Hirsch (eds.), The
A r a b - I s r a e l Conflict and its R e s o l u t i o n : Selected D o c u m e n t s , Dordrecht, The
Netherlands: Martinus Nijhoff Publishers, 1992, p. 132.
22. Zander, p. 104.
23. Benvenisti, Mul H a h o m a , pp. 170-171.
24. The Ottoman Sultan Abd al Majid gave the church to France as a gift following the
Crimean War (1853-1856).
25. Benvenisti, ibid., p. 164; S. P. Colbi, A History of the Christian Presence in the
Holy Land, Lanham, N.Y., London: University Press of America, 1988, p. 204.
26. Benziman, pp. 118-121.
27. Colbi, p. 205.
28. D. Tsimhoni, Christian Communities in Jerusalem and the West Bank Since 1 9 4 8 ,
London: Praeger, Westport, Ct., 1993, pp. 9-10 (hereafter: Tsimhoni, Christian
Communities).
29. L.G.A. Cust, The Status Quo in the Holy P l a c e s , Jerusalem: Ariel Publishing
House, 1980 (facsimile edition); Benziman, pp. 103-104.
30. Benziman, pp. 125-127.
31. U. Narkiss, Hayal shel Yerushalayim, Tel Aviv: Defense Ministry Publishing House,
1991, pp. 354-356; Shashar, p. 260.
32. Tsimhoni, Christian C o m m u n i t i e s , pp. 1-10; Idem, "The Christian Communities in

Jerusalem and the West Bank 1948-1967," The Middle East Review, 9, 1, Fall
1976, pp. 41-46.
33. Ma'arivi, September 16, 1968.
116

34. The local Arab community assumed growing influence in the Anglican Church
over the years, and in 1976 an Arab bishop was appointed to head the church.
35. Benziman, pp. 121-125, Benvenisti, Mul H a h o m a , pp. 172-174.
36. Benziman, pp. 108-121; Benvenisti, ibid., pp. 168-170; Israel and the Vatican
established diplomatic relations in 1994 (see below).
37. Malachi, ibid.; Y. Ariel, "The American Fundamentalists and Israel," in Halakha *
Lema'aseh: Zramin Fundamentalistim Lenokhah Ba'ayot Be'ezoreinu, Policy Paper,
32, Jerusalem: Leonard Davis Institute for International Studies, 1989 pp. 13-18.
38. Tsimhoni, Christian Communities, pp. 10-11.
39. Ibid., p. 13.
40. Ibid., pp. 182-183.
41. Ibid., pp. 20-31.

42. D. Tsimhoni, "The Question of the National Identity of the Christian Arabs in
Jerusalem and the West Bank," Studies in the R e v i v a l of Israel, Anthology o n
Issues of Z i o n i s m , the Yishuv and the State of I s r a e l , 3, Ben-Gurion Heritage
Center, Ben-Gurion University Publishing House, 1993, p. 472 (hereafter: Tsimhoni,
National Identity).
43. Tsimhoni, National Identity, p. 471.
44. D. Housen-Couriel and M. Hirsch, The Religious Status Quo in Jerusalem, Jerusalem:
Jerusalem Institute for Israel Studies, March 1990, unpublished, p. 77.
45. Ibid., pp. 72-73.
46. Ibid.
47. Ibid.
48. Tsimhoni, National Identity, p. 476.
49. S. Berkowitz, H a m a ' a m a d Hamishpati shel Hamekomot Hakedoshim

Biyerushalayim, Jerusalem: Jerusalem Institute for Israel Studies, 1997, p. 25.
50. Tsimhoni, ibid., p. 477.
117

51. Ibid.
52. Tsimhoni, Christian Communities, p. 177.
53. Tsimhoni, National Identity, p. 477; Berkowitz, p. 25.
54. Tsimhoni, Christian Communities, p. 178.
55. Tsimhoni, National Identity, pp. 478-479.
56. Amnon Ramon, Hagorem Hanotsri Veshe'elat Yerushalayim, Jerusalem: Jerusalem

Institute for Israel Studies, 1997, p. 9.
57. Tsimhoni, ibid., p. 474.
58. Ibid, pp. 472-474.
59. Statement of a Palestinian Delegation to the Apostolic Delegate in Jerusalem, Aug.

1992 (author's archive); Tsimhoni, Christian Communities, pp. 181-182.
60. Ha'aretz, Dec. 25, 1991; Tsimhoni, ibid., p. 171.
61. M . Klein, Yerushalayim B a m a s a Umatan Leshalom: Emdot A r a v i y o t , Jerusalem:

Jerusalem Institute for Israel Studies, 1995, p. 27.
62. G. Y. Bechor, "We Were Vigilant About Every Word and Every Comma," Ha'aretz,
Feb. 11, 1994.
63. Z. Schiff, "Teams Met for 20 Meetings in Israel and Europe," Ha'aretz, Feb. 22,
1994.
64. Memorandum: The Significance of Jerusalem f o r Christians, Nov. 14, 1994 (author's
archive).
65. Ibid., pp. 5-6
66. Ibid., p. 4
67. Ibid., p. 5
68. O. Nir, "First Christmas in Bethlehem Under Palestinian Rule Has 'Carnival
Atmosphere,'" Ha'aretz, Dec. 25, 1995.
69. D. Rubinstein, "Not Only Jesus Was Born in Bethlehem," Ha'aretz, Dec. 29, 1995.
118

70. Ibid.
71. D. Rubinstein, "What Angered Arafat," Ha'aretz, Feb. 2, 1996.
72. J. Algazy, "Waiting for Salvation from Heaven," Ha'aretz, Aug. 12, 1994.
73. S. Mula, "The Old City Station Doesn't Answer," Kol Ha'ir, June 7, 1996.
74. D. Rubinstein, "Anger in the Fields of Bethlehem," Ha'aretz, Aug. 27, 1997.
75. K. Abu Toameh, "Heads of Christian Churches in the City: Israel and PLO Ignore
Our Problem," Jerusalem, Dec. 2, 1994; Ha'aretz, Dec. 25, 1997; S. Sockol, "Arafat
Also Upholds the Status Quo," Ha'aretz, Aug. 27, 1997.
76. See, for example, the bulletin of the Franciscans' Holy Land Foundation, which is
devoted almost entirely to the closure issue: The Holy Land Foundation 1, 1997.
77. Ha'aretz, July 9, 1997; Author's interview with Mr. Uri Mor, director of the Christian
Communities Department, Ministry of Religious Affairs (Dec. 9, 1997).
78. Ibid.
79. Benziman, pp. 108-121.
80. Y. S. Minerbi, "Agreement with the Vatican: Goals Achieved and Problems Left
Unresolved," Gesher, 130, (Winter), 1998, p. 45.
81. Fundamental Agreement Between the Holy See and Israel 1 9 9 3 , International Legal
Materials, 33, 1993, p. 153 (1994).
82. Ibid.
83. Ibid.
84. Ibid.
85. A g r e e m e n t Between the State of Israel and the Holy See P u r s u a n t t o A r t i c l e 3.3 of
the Fundamental A g r e e m e n t Between Israel and the Holy See, Signed in Jerusalem
on Nov. 10, 1997, Article 2 (author's archive). The text of the agreement appears
on the official Internet site of the Israeli Foreign Ministry.
86. Vatican Information Service, Jan. 15, 1998.
119

87. N . Shragai, "The Churches in Jerusalem: The Waqf Annexed Land and Built
Illegally Next to the Church of the Holy Sepulcher," Ha'aretz, Apr. 13, 1997; N .
Shragai, "Dispute Over Whether to Intervene in Dispute Between Waqf and Churches
in Jerusalem," Ha'aretz, Apr. 25, 1997; N. Shragai, "Jordanian Delegation Formulates
Compromise in Dispute Between Waqf and Greek [Orthodox] Church in Jerusalem,"
Ha'aretz, June 26, 1997.
120

V . FREEDOM OF PILGRIMAGE TO
CHRISTIAN HOLY PLACES IN JERUSALEM
UNDER INTERNATIONAL LAW
1
BY MOSHE HIRSCH
A . Introduction
A major cause of the intensity of the dispute over the future of Jerusalem is the
city's sanctity for Judaism, Islam and Christianity. Jerusalem is the site of major
holy places for each of these religions. In Muslim tradition, the al-Aksa mosque
and the Dome of the Rock, situated on the Temple Mount, are holy places. For
Christians, places associated with the life and activities of Jesus within the city
are sacred. The Jewish people consider the entire city holy, in particular the
Temple Mount; hence the cardinal importance of pilgrimage to Jerusalem for all
three monotheistic world religions. It is not surprising, therefore, that the issue
of pilgrimage has been so contentious in past decades.
Sacred sites exist elsewhere as well (e.g., Mecca in Saudi Arabia), and
developments in transportation - particularly air travel - have greatly increased
the number of pilgrims visiting holy places in all parts of the world. Concomitantly,
the rules of international law pertaining to the various aspects of pilgrimage
have assumed new significance.
2
A distinction should be made between pilgrimage and access to holy places.
Pilgrimage, in the larger sense, includes exit from the country of origin, passage
through other countries, entry into the country where the sacred place is located,
and access to the holy site. In the narrow sense, pilgrimage refers only to access
to holy sites.
121

This article focuses on the freedom of pilgrimage in the narrow sense to
Christian holy places in Jerusalem. The legal right to that freedom will be
analyzed on two levels, first on the global level between Israel and other states,
and then on the bilateral level between Israel and the Holy See. The relationship
between the two levels will also be addressed. The analysis will extend to issues
involving the scope and limitation of freedom of pilgrimage.
B . Freedom of R e l i g i o n and Freedom of P i l g r i m a g e under

General International Law
The right to freedom of religion was one of the first rights to be formally
recognized by the movement for human rights that developed after the first
3
world war. Since then it has been included in almost all global and regional
4
instruments of human rights. Freedom of religion was enshrined in the 1948
5
Universal Declaration of Human Rights (hereafter the Universal Declaration)
and in the 1966 Covenant on Civil and Political Rights (hereafter the Covenant).
The Covenant is certainly one of the most important instruments in the sphere of
international human rights, and as of February 1998, 139 states including Israel
6
had acceded to the convention.
Article 18(1) of the Covenant provides that:
Everyone shall have the right to freedom of thought, conscience and religion.
This right shall include freedom to have or to adopt a religion or belief of
his choice, and freedom, either individually or in community with others
and in public or private, to manifest his religion or belief in worship,
7
observance, practice and teaching.
The Universal Declaration and the Covenant provide quite general statements
regarding freedom of religion. A more detailed list of specific rights deriving
from the general freedom appears in the 1981 Declaration on the Elimination of
A l l Forms of Intolerance and of Discrimination Based on Religion or Belief
122

(hereafter the 1981 Declaration). The 1981 Declaration, which was adopted by
the U N General Assembly by consensus, is not a binding treaty like the Covenant,
but is considered a guide for the interpretation of international norms defining
9
freedom of religion.
A preliminary question regarding pilgrimage is whether the internationally

recognized freedom of religion includes the right to pilgrimage. Neither the
Universal Declaration nor the Covenant mentions pilgrimage. Nor do the two
other detailed texts relevant to the interpretation of Article 18 of the Covenant
include an explicit reference to pilgrimage. Pilgrimage is not named in Article 6
of the 1981 Declaration that spells out the specific freedoms encompassed by
10
the general right to freedom of religion. The General Comment on Article 18
11
of the Covenant, issued in 1993 by the Human Rights Committee, provides a
detailed list of concrete acts included in the "freedom to manifest religion, " but
12
pilgrimage is not specified there, either.
The lists included in the 1981 Declaration and the 1993 General Comment
13
are not exhaustive, however. The lack of a formal, express recognition of the
right of pilgrimage in the above international instruments has led some scholars
14
to the conclusion that this right is not protected under international law. This
conclusion, it is submitted, is neither necessary nor desirable. These documents,
and particularly Article 18 of the Covenant, ensure the freedom to manifest a
religion. The crucial question, then, is whether pilgrimage constitutes a
manifestation of religion.
It is indisputable that pilgrimage is an essential aspect of many faiths, even

where it is not obligatory. Thus, where pilgrimage to a sacred site is an essential
part of a religion, as in Christianity, it should be protected as an act of manifestation
15
of religion under the Covenant and other relevant instruments. This is clearly
the case with regard to pilgrimage by Christians to the holy places in Jerusalem.
The above conclusion - that freedom of pilgrimage, where it constitutes an
essential element of a religion, forms part of the freedom of religion, and is
protected as such by international law - does not mean that it is an absolute
123

freedom. The Universal Declaration and the other international instruments that
define freedom of religion indicate that while the internal aspect of freedom of
religion is unconditionally protected, the external freedom to manifest a religion
16
may be restricted in certain cases. Article 18(3) of the Covenant provides that:
Freedom to manifest one's religion or beliefs may be subject only to such

limitations as are prescribed by law and are necessary to protect public
safety, order, health or morals, or the fundamental rights and freedoms of
17
others.
C. Freedom of P i l g r i m a g e under the F u n d a m e n t a l Agreement
Legal questions arising between Israel and the Holy See regarding the freedom
of pilgrimage may be answered by either general international law as discussed
above or by rules set forth in bilateral instruments. Under the provisions of the
18
1993 Fundamental Agreement between the Holy See and the State of Israel
(hereafter the Fundamental Agreement), both parties committed to observe the
human right to freedom of religion. The Fundamental Agreement does not,
however, provide a definition for the content of this important obligation. Instead,
it incorporates specific rules that were set out in other international instruments
of freedom of religion. Quite surprisingly, the parties' obligations regarding
freedom of religion are defined in separate provisions and are not necessarily
symmetric.
Israel's obligations in this regard are set out in Article 1(1) of the Fundamental
Agreement:
The State of Israel... affirms its continuing commitment to uphold and

observe the human right to freedom of religion and conscience, as set forth
in the Universal Declaration of Human Rights and in other international
instruments t o w h i c h i t i s a p a r t y , (emphasis added)
The Holy See's obligations are set out in Article 1 (2) of the Agreement:
124

The Holy See... affirms the Catholic Church's commitment to uphold the
human right to freedom of religion and conscience, as set forth in the
Universal Declaration of Human Rights and other international instruments
t o w h i c h i t is a p a r t y , (emphasis added)
From these provisions, it is clear that b o t h p a r t i e s are bound to protect freedom

of religion as provided for in the Universal Declaration of Human Rights. The
application of additional international rules, though, is contingent upon whether
a p a r t i c u l a r p a r t y is bound by a specific international instrument. Thus, Israel's
and the Holy See's duties with respect to freedom of religion are not necessarily
symmetric.
Israel has acceded to the Covenant and is a member of the United Nations
General Assembly that adopted the 1981 Declaration by consensus. The Holy
See, on the other hand, has not acceded to the Covenant and is not a member of
the United Nations. The legal result of the Fundamental Agreement is that Israel
is bound to observe freedom of religion v i s - a - v i s the Holy See in accordance
with the Universal Declaration and the Covenant, while the Holy See is bound
to observe this freedom v i s - a - v i s Israel in accordance with the Universal
Declaration only.
As to the above-mentioned question whether freedom of religion includes

freedom of pilgrimage, it is interesting to note that the Fundamental Agreement
contains a statement favoring Christian pilgrimage to the Holy Land, but stops
19
short of formally recognizing pilgrimage as a legal right. Still, as noted above,
freedom of pilgrimage forms part of the general freedom of religion as defined
in the Universal Declaration and the Covenant. It follows, then, that freedom of
pilgrimage is legally protected in the bilateral relations between the Holy See
and Israel.
The recognized limitations to freedom of religion discussed above apply

also to freedom of pilgrimage to Christian holy places in Jerusalem. A n additional
limitation on pilgrimage may arise from the Fundamental Agreement. Article
125

4(1) of this agreement binds both Israel and the Holy See to maintain and
20
respect the status q u o at the Christian holy places. A detailed description of
this status q u o exceeds the limits of this paper. Suffice it to state here that this
term refers to the preservation of the powers and rights of the various Christian
communities regarding certain holy places (e.g., access and worship at particular
sacred sites). In Jerusalem, the status q u o applies to the Church of the Holy
Sepulcher and its dependencies, the Convent of Deir as-Sultan, the Sanctuary of
21
the Ascension on the Mount of Olives and the Tomb of the Virgin.
The parties to the Fundamental Agreement apparently were aware that in

some cases there might be a contradiction between freedom of religion or the
right of pilgrimage on the one hand, and the duty to maintain the status q u o on
the other hand. That might be the case, for instance, where a status q u o arrangement
applying to a particular site provides that only the adherents of one religion or
denomination be allowed to pray at this site, to the exclusion of adherents of
other religions. In this regard, the Fundamental Agreement sets a rule of precedence
2
that gives express priority to the status q u o ? The result is that when an arrangement
covered by the current status quo is inconsistent with freedom of pilgrimage, the
obligation to maintain the status q u o prevails. Of course, this treaty rule binds
23
only the two parties to the Fundamental Agreement.
A possible exception to the above rule of precedence relates to the notion

of j u s cogens (peremptory norms) in international law. A peremptory norm is a
norm from which parties to an international treaty are not permitted to derogate.
24
An international agreement that conflicts with j u s cogens is void. Some scholars
are of the opinion that the duty to protect some basic human rights is a peremptory
25
norm of international law; but the question whether the freedom of religion
(including the freedom of pilgrimage) constitutes a peremptory norm is yet
26
unsettled in international law.
It is submitted that the rationale for the establishment of the human right to
freedom of religion on the international level, as well as recent developments in
international law, indicate that this freedom may have become a cogent norm of
126

international law. The principal reason for according international protection to
a particular human right is the recognition that this right should not be protected
solely by the domestic legal order of states. This reason also underlies the
growing acceptance of the e r g a omnes character of most or all international
27
human rights (and not only the fundamental ones). This special character implies
that states are not free to restrict the right to freedom of religion in a bilateral
treaty.
Furthermore, there is a growing trend in international law to attribute j u s

cogens status to additional human rights. This tendency has been manifested, for
instance, in the decisions of the Arbitration Commission established in 1991 by
the Conference of Yugoslavia. These decisions expressly recognize that minority
28
rights are of peremptory character. In addition, the special status of the right to
freedom of religion is evident in Article 4 of the 1966 Covenant, which provides
that this right is cannot be derogated from even in times of public emergency.
If the freedom of religion, including the freedom of pilgrimage, is considered

to be j u s cogens, no derogation will be permitted by parties to an international
agreement. If so, any status q u o arrangements that clash with the freedom of
pilgrimage would not be considered valid or legally binding. In such rare cases
of conflict between the status q u o arrangement and freedom of pilgrimage, the
rule of precedence set by the parties to the Fundamental Agreement would not
be applied, and the international freedom of pilgrimage would prevail.
D . The Controversy over Guidance of P i l g r i m s at the

Holy Places
Israel welcomes millions of tourists every year, and many of them visit Christian
Holy Places in Jerusalem. Generally, Israeli authorities respect the Christian
pilgrims' right to freedom of access to the Holy Places. This section analyses
one of the rare controversies between Israeli authorities and Christian pilgrims
that arose during 1978-1981 regarding guidance at holy places in Israel. The
127

dispute concerned Israel's policy requiring all tours in Israel to be guided by
29
licensed tour guides only. This requirement was not fully followed, and some
groups of Christian pilgrims to Israel were guided only by a member of the
clergy.
On one side, the Christian community in Israel explained that many Jewish-
Israeli guides lacked the necessary historical knowledge to guide such visits, and
30
that some of them did not even respect Christian religious feelings. On the
other side, Israeli tour guides complained that they were suffering economic
losses and urged the authorities to put a stop to these practices. In addition, there
were complaints that some guides from the clergy expressed anti-Israeli and
31
anti-Jewish opinions.
This discord among the Christian community in Israel, Israeli guides and
the Israeli authorities raised the question whether the licensing requirement was
consistent with freedom of pilgrimage to the holy places. The dispute was resolved
by an agreement arranged in July 1981. A press release issued the following
agreement:
The Representatives of the Government [of Israel] and of the Pastoral

Commission [for Pilgrimages of the Latin Patriarchate in Jerusalem] came
[to] the agreement that pilgrimages are religious activities and may be
freely assisted by spiritualleaders or amateurs.... [F]ollowing the letter of
Dr. Rössing, Director of the Department for Christian Affairs, July 2, 1981,
in which it is said, 'The Ministry of Commerce, Trade and Tourism
wholeheartedly accepts the view that pilgrim groups, because of their specific
religious and spiritual needs, be guided by tour leaders and priests in churches,
holy sites and every other place in the country where religious and spiritual
32
guidance is the primary object of the visit.. . .
33
This arrangement, reflected in the Tourist Services Regulations, was later
challenged by the Israeli Tour Guides Association in the Supreme Court, but
34
their petition was rejected. A n additional request by the tour guides to the
35
Minister of Tourism in August 1994 to change this policy was also rejected.
128

Fortunately, the dispute was resolved amicably, but the question regarding
the legality of the licensing requirement is still pending. The issue at stake is
whether a state requirement that only state-licensed tour guides may guide tourists
constitutes an infringement upon freedom of pilgrimage under international law.
It is clear that freedom of pilgrimage may be violated not only by an express
prohibition to visit holy places, but also by the imposition of restrictions upon
the freedom of access to such sites.
Generally, restrictions that impose heavy burdens upon pilgrims and are
likely to prevent numerous potential pilgrims from visiting holy places are
considered infringements upon the right of pilgrimage. A considerable entrance
fee at a holy place, for example, would not be consistent with the principle of
freedom of pilgrimage. Bearing this in mind, the question arose whether a state
requirement allowing only locally licensed tour guides to guide pilgrims at holy
sites violates the freedom of pilgrimage.
In light of the insignificant economic burden caused by this obligation, the

answer would seem to be negative. Insignificant burdens do not constitute an
36
infringement on the right of pilgrimage. The answer may be completely different
if a state not only requires every tour guide in its territory be equipped with a
local license, but also sets the condition that every pilgrim must be guided at the
holy places by a local tourist guide. The latter obligation would compel pilgrims
who have no wish to be assisted by a guide to hire a guide. Such an obligation
may also be considered a violation of the right of freedom of conscience, which
37
is also protected under international law.
E . Concluding Remarks
The numerous Christian holy places in Jerusalem have in the past been the
subjects of dispute among the government in charge of the city and other states.
This article clarifies several legal principles that operate in the sensitive realm of
pilgrimage to holy places. Bear in mind, though, that legal considerations are
129

only one set of factors, albeit important, that are taken into account by policymakers
considering alternative courses of action. The settlement of the dispute over
guidance at the holy places illustrates this •point.
This article argues that freedom of pilgrimage is protected by international

law as part of the well-established freedom of religion. Furthermore, as analyzed
above, there are good reasons to believe that freedom of pilgrimage constitutes a
peremptory norm of international law from which parties to an international
treaty are not allowed to derogate. This observation, if accepted, is bound to
restrict the application of the status q u o arrangements in the rare cases where a
clash between the latter arrangements and the cogent freedom of pilgrimage
would occur. This freedom, as we have seen, is not absolute and may be restricted
in certain situations. Limitations may be derived from global documents such as
the Universal Declarations and the Covenant, or from bilateral treaties such as
the Fundamental Agreement.
A major reason for the intensity of the disputes over the future of Jerusalem
are so intense is the sanctity of the city for three major religions, Judaism, Islam
and Christianity. That notwithstanding, the states and experts are in an almost
unanimous agreement that freedom of access to the holy places in Jerusalem
must be ensured for adherents of all religions in any future political solution for
38
the city. Still, the extreme sensitivity of the issue of pilgrimage is likely to
generate further disagreements regarding the scope of that freedom. International
legal norms clarified in this article are likely to play a significant role in such
disputes.
130

Notes
1. I am grateful to Prof. Ruth Lapidoth for her comments on an earlier draft of this
article. Thanks are also due to Mrs. Daniela Rothman for research assistance in the
early stages of the preparation of this article.
2. Pilgrimage is defined in the Oxford Dictionary of World R e l i g i o n s as "[t]he literal

or metaphorical movement to a condition or place of holiness or healing," and
exterior pilgrimage is defined there as "a journey to some place which is either
itself associated with the resources or goals of a religion, or which is the location
of objects which may assist the pilgrim - e.g., relics." Pilgrimage, The Oxford
Dictionary of World R e l i g i o n s , J. Bowker ed., Oxford: Oxford University Press,
1997, p. 752; On sociological and anthropological aspects of pilgrimage, see E.
Turner, Pilgrimage, The Encyclopedia of R e l i g i o n , 11, New York: Macmillan
Publishing Company, 1987, pp. 327-330.
3. On international activities regarding the freedom of religion prior to World War II,
see B. Dickson, The United Nations and Freedom of Religion, 44, International
and Comparative Law Quarterly, 1995, pp. 327, 330-333.
4. On the evolution of the freedom of religion in international law, see N. Lerner,

Religious Human Rights Under the United Nations, R e l i g i o u s Human R i g h t s in
Global Perspective: Legal Perspectives, 79, J. D. van der Vyver and J. Witte, eds.,
The Hague: Nijhoff Publishers, 1996; B. G. Tahzib, Freedom of R e l i g i o n o r Belief:
Ensuring Effective International Legal P r o t e c t i o n , The Hague, Nijhoff Publishers,
1996, pp. 63-189; J. Humphrey, Political and Related Rights, in Human Rights in
International L a w , 176, T. Meron ed, Oxford, 1985.
5. Article 18 of the Universal Declaration provides as follows: "Everyone has the

right to freedom of thought, conscience and religion; this right includes freedom to
change his religion or belief, and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief in teaching,
practice, worship and observance." Reprinted in A m e r i c a n Journal of International
Law-Supplement, 43, 1949, p. 127; On the status of the Universal Declaration in
general international law, see M. Hirsch, The Universal Declaration of Human
Rights: 40 Years Old, International Problems, 29, 1990, p. 49 (Hebrew).
131

6. See the text of the ratification, including a declaration and reservation, deposited
by Israel on Sept. 4, 1991, The Practice of Israel in International Law, Israel Law
Review, 25, 1992, pp. 559, 572.
7. UN Treaty Series, 3, p. 993, and International Legal Materials, 6, 1967, p. 360.

Article 18(2) provides that "no one shall be subject to coercion which would
impair his freedom to have or to adopt a religion or belief of his choice." On the
difference in the text between Article 18 of the Universal Declaration and Article
18 of the Covenant, and the reasons that motivated the change, see M. Hirsch,
Freedom of Proselytism under the Fundamental Agreement and International Law,
47, Catholic University L a w Review, 1998, p. 407.
8. International Legal Materials, 21,1982, p. 205. On the Declaration and its legislative
history, See N. Lerner, Toward a Draft Declaration against Religious Intolerance
and Discrimination, Israel Yearbook of Human R i g h t s , 11, 1981, p. 82; Tahzib,
supra pp. 155-165; D. J. Sullivan, Advancing the Freedom of Religion or Belief
Through the U N Declaration on the Elimination of Religious Intolerance and
Discrimination, A m e r i c a n Journal of International Law, 82, 1988, p. 487; N. Lerner,
The Final Text of the UN Declaration Against Intolerance and Discrimination
Based on Religious Belief, I s r a e l Y e a r b o o k of Human Rights, 12, 1982, p. 185; N.
Lerner, Group Rights and Discrimination in International Law, Nijhoff, Dordrecht,
1991, pp. 75-95; M. S. McDougal, H.D. Lasswell and L. Chen, Human Rights and
World P u b l i c Order, New York: Oceana, 1980, pp. 677-684; R. S. Clark, The
United Nations and Religious Freedom, 11, New York University J o u r n a l of
International Law and Policy, 1978, pp. 197, 210-214.
9. On the status of the Declaration in international law, see Tazhib, supra note 4, pp.
186-188; Sullivan, supra note 8, p. 488; Dickson, supra note 3, pp. 343-344; N.
Lerner, Religious Human Rights Under the United Nations, supra note 4, p. 114.
10. Article 6 of the 1981 Declaration lists the following freedoms that are included in
the freedom of religion: to worship, to establish charitable and humanitarian
institutions, to acquire and use materials related to rites of a religion, to write and
disseminate relevant publications, to teach the religion, to solicit and receive financial
contributions, to train and designate appropriate leaders, to observe days of rest
and celebrate holidays and ceremonies, and to establish communications with
individuals and communities at the national and international levels.
132

11. On the authority of the Human Rights Committee to make General Comment, and
on the legislative history of the 1993 Comment on Article 18, see Tahzib, supra
note 4, pp. 307-311.
12. Paragraph 4 of the General Comment provides that "[t]he freedom to manifest
religion or belief in worship, observance, practice and teaching encompasses a
broad range of acts. The concept of worship extends to ritual and ceremonial acts
giving direct expression to belief, as well as various practices integral to such acts,
including the building of places of worship, the use of ritual formulas and objects,
the display of symbols, and the observance of holidays and days of rest. The
observance and practice of religion or belief may include not only ceremonial acts,
but also such customs as the observance of dietary regulations, the wearing of
distinctive clothing or head covering, participation in rituals associated with certain
stages of life, and the use of a particular language customarily spoken by a group.
In addition, the practice and teaching of religion or belief includes acts integral to
the conduct of religious groups of their basic affairs, such as, inter a l i a , the freedom
to choose their religious leaders, priests and teachers, the freedom to establish
seminaries or religious schools and the freedom to prepare and distribute religious
texts or publications."; General Comment on Article 18 ICCPR, U N Doc.
CCPR/C/21/Rev.l/Add. 4, para. 2, 1993, reproduced also in H u m a n R i g h t s L a w
Journal, 15, 1994, p. 233.
13. See in this respect Article 6 of the 1981 Declaration in Lerner, Toward A Draft
Declaration, supra note 8, p. 94; and Paragraph 4 of the General Comment in
Tahzib, supra note 4, p. 322.
14. See e.g. G. Watson, Progress for Pilgrims? An Analysis of the Holy See-Israel
Fundamental Agreement, 47, Catholic University Law Review, 1998, pp. 497, 525.
15. A. Krishnaswami, Study of Discrimination in the Matter of Religious Rights and

Practice, New York University Journal of International L a w & P o l i t i c s , 11, 1978,
pp. 227, 247; W. Mason, Pilgrimage to Religious Shrines: An Essential Element in
the Human Right to Freedom of Thought, Conscience and Religion, Case Western
Reserve Journal of International Law, 25, 1993, pp. 638-639, 640-641; Y. Dinstein,
Freedom of Religion and the Protection of Religious Minorities, Israel Yearbook
on Human R i g h t s , 20, 1990, pp. 155, 161; C. Rump, Holy Places, Encyclopedia of
Public International L a w , 2, 2nd edition, North Holland, Amsterdam, 1995, p 865.
133

See also Article 5 of the Model Law on Freedom of Religion and Belief which
provides that "freedom of religion and belief includes the right of persons to
manifest their religion or belief, ... including, inter a l i a , the right... to have free
access to places of worship and places sacred to the religion or belief." D. Shelton
and A. Kiss, A Draft Model Law on Freedom of Religion, with Commentary,
R e l i g i o u s Human Rights in Global Perspective: Legal Perspectives, J. D. van der
Vyver and J. Witte, eds., The Hague: Nijhoff Publishers, 1996, pp. 559, 563.
16. Article 29(2) of the Universal Declaration provides as follows: "In the exercise of
his rights and freedoms, everyone shall be subject only to such limitations as are
determined by law solely for the purpose of securing due recognition and respect
for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society."; See also
Article 1(3) of the 1981 Declaration, supra note 8; Article 12(3) of the 1969
American Convention on Human Rights, A m e r i c a n Journal of International Law,
65, 1971, p. 679; Article 27 of the 1994 Arab Charter on Human Rights, Human
Rights L a w J o u r n a l , 18, p. 151; Article 9(2) of the 1950 European Convention for
the Protection of Human Rights and Fundamental Freedoms, United Nations Treaty
Series, 213, p. 221; and see on the limitations of the European Convention in J. E.
S. Fawcett, The Application of the European Convention on Human R i g h t s , Oxford:
Clarendon Press, 1987, p. 268; F. G. Jacobs and R. C. A. White, The European
Convention on Human R i g h t s , Oxford: Clarendon Press, 1996, pp. 211-221.
17. On this provision, see Paragraph 3 of the Human Rights Committee's General
Comment on Article 18 of the 1966 Covenant, supra note 12; On limitations to the
freedom of pilgrimage, see Mason, supra note 15, pp. 645-652; Watson, supra note
14, pp. 520-522; On the limitations to the general freedom of religion in Dinstein,
supra note 15, pp. 160-163; Sullivan, supra note 8, pp. 496-499.
18. The Fundamental Agreement between the Holy See and the State of Israel
International Legal Materials, 33, 1994, p. 153; On this agreement, see D. Perla,
The Practice of Israel in International Law, Israel Law Review, 28, 1994, p. 707; S.
Ferrari, The Fundamental Agreement between the Holy See and Israel and the
Conventions between States and the Church since the Vatican II Council, Catholic
University Law Review, 47, 1998, p. 385; D. A. Yaeger, The Fundamental Agreement
between the Holy See and the State of Israel: A New Legal Regime for Church -
State Relations, Catholic University Law Review, 47, 1998, p. 427; Comments on
134

the Fundamental Agreement between the Holy See and the State of Israel, Justice
(Journal of the Association of Jewish Lawyers), 24, June 1994.
19. Article V(l) of the Holy See - Israel Agreement provides as follows: "The Holy
See and... Israel recognize that both have an interest in favoring Christian pilgrimages
to the Holy Land. Whenever the need for coordination arises, the proper agencies
of the Church and of the State will consult and cooperate as required." Article V(2)
provides that "Israel and the Holy See express the hope that such pilgrimages will
provide an occasion for better understanding between the pilgrims and the people
and religions in Israel"; Supra note 18.
20. Art 4(1) of the Fundamental Agreement provides as follows: "The State of Israel
affirms its continuing commitment to maintain and respect the 'Status quo' in the
Christian Holy Places to which it applies and the respective rights of the Christian
communities thereunder. The Holy See affirms the Catholic Church's continuing
commitment to respect the aforementioned 'Status quo' and the said rights."
21. S. Berkovitz, The Legal Status of the Holy Places in Israel, Thesis submitted for
the degree of Ph.D. to the Hebrew University of Jerusalem, 1978; R. Lapidoth,
"Lexicon of Terms: The Holy Places," M . Hirsch, D. Housen-Couriel and R.
Lapidoth, Whither Jerusalem? Proposals and Positions Concerning the Future of
Jerusalem, 157, The Hague: Nijhoff Publishers, 1995; See also on the status quo in
the Christian holy places, W. Zander, On the Settlement of Disputes about Christian
Holy Places, Israel L a w Review, 8, 1973, p. 331; L. G. A. Cust, The Status Quo in
the Holy Places, 1929 (reproduced in 1980 by Ariel Publishing House, Jerusalem).
22. Article 4(2) of the Fundamental Agreement states that "The above [Article 4(1)]
shall apply notwithstanding an interpretation to the contrary of any Article in this
Fundamental Agreement." Fundamental Agreement, supra note 18.
23. This issue is emphasized by Article 13(2) of the Fundamental Agreement, supra
note 18.
24. Article 53 of the 1969 Vienna Convention on the Law of Treaties, International
Legal Materials, 8, 1969, p. 679.
25. See, e.g., M . S. McDougal, H. D. Lasswell and L. Chen, Human Rights and World
Public Order, New York: Oceana, 1980, p. 345; J. Frowein, "Jus Cogens," in
135

Encyclopedia of P u b l i c I n t e r n a t i o n a l L a w , 7, p. 327 (R. Bernhardt ed., North
Holland, Amsterdam, 1987).
26. See, e.g., L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law,
Helsinki: Finnish Lawyers' Publishing Company, 1988, p. 443.
27. See e.g. T. Meron, On a Hierarchy of International Human Rights, 80, A m e r i c a n

Journal of International L a w , 1, 1986, p. 12.
28. Opinion No. 1 of the Arbitration Commission, Conference on Yugoslavia, 92,

International Law Reports, 162, 1991, p. 165; See also Opinion No. 2, p. 168.
29. This policy was implemented by the addition of new provisions to the licenses
issued by the Ministry of Industry and Trade to travel agencies operating in Israel;
R. Mathes, "Forerunner to the Vatican - Israel Accord, Issues of Pilgrimage,"
paper submitted to the conference on the Fundamental Agreement between the
Holy See and Israel, Washington, D.C.: Catholic University, Third Anniversary
Perspective, April 8-9, 1997.1 am grateful to R. Mathes, Cultural Attache, Apostolic
Mission, Jerusalem, who kindly discussed with me various issues regarding this
controversy.
30. Interview held by D. Rothman with F. Arnaud, the Head of the Pastoral Commission
for Pilgrimages of the Latin Patriarchate in Jerusalem, on Mar. 21, 1997.
31. See, e.g., Moreshet D e r e c h , No. 13, April-May 1986, p. 41 (Hebrew); I. S. Minervi,
The Agreement with the Vatican: Accomplished Aims and Unresolved Problems,
Gesher, No. 130, 42, p. 48 (Hebrew).
32. Press release issued on July 5, 1981. I am grateful to F. Arnaud, the Head of the
Pastoral Commission for Pilgrimages of the Latin Patriarchate in Jerusalem, for
providing this document; On the negotiations leading to this agreement, see Mathes,
supra note 27.
33. Article 9c of the Tourists Services Regulations, Tour Guide, 1967, K. T. 1980;
5727 Kovetz Hatakanot 1156.
34. H. C. 441/87 The Israeli Association of Tourist Guides v. The Minister of Tourism,
41(4) P. D. 460.
136

35. See H. Shapiro, Baram rejects tour guides' demands that all pilgrims groups have
Israeli guides, Jerusalem Post, Aug. 31, 1994, p. 3.
36. Needless to say, complaints by pilgrims that some local guides do not duly respect
their religious feelings should be treated promptly and diligently by the relevant
authorities.
37. See Article 18 of the Universal Declaration, supra note 5; Article 18(1) of the 1966
Covenant, supra note 7; Article 1(1) of the 1981 Declaration, supra note 8.
38. Hirsch, Housen-Couriel and Lapidoth, supra note 21, p. 143.
137

ABOUT THE AUTHORS
Ruth Lapidoth is the Bessie and Michael Greenblatt Professor of International

Law at the Hebrew University of Jerusalem and a Senior Fellow at the Jerusalem
Institute for Israel Studies. She served as a member of Israel's delegation to the
U.N. General Assembly and as the legal advisor to the Ministry of Foreign
Affairs (1979-81). She has taught at various institutions in the United States and
Europe. Prof. Lapidoth is the author of several books and articles, among them
A u t o n o m y , 1997, and C o m m e n t a r y o n B a s i c L a w : J e r u s a l e m , C a p i t a l of I s r a e l ,
1999 (Hebrew). She is a member of the Permanent Court of Arbitration.
Ora Ahimeir has been the Director of the Jerusalem Institute for Israel Studies
since 1979. She served as the coordinator of the Prime Minister's Commission
on the Status of Women in Israel, and has edited and written a number of books
and publications, mainly on Jerusalem, cultural affairs and the status of women.
Chamman P. Shelach was a judge in the Jerusalem Magistrate Court until he

was killed with his wife and daughter by an Egyptian soldier in Ras Burka,
Sinai, in 1985.
Rotem Giladi is an international lawyer and a former member of the Israeli

delegation at the Israeli-Palestinian Interim Agreement talks. He is an L L . M .
candidate at the Hebrew University of Jerusalem as well as a researcher at the
Jerusalem Institute for Israel Studies. Giladi regularly contributes a section on
the practice of Israel in international law to the I s r a e l L a w Review.
Amnon Ramon is a researcher at the Jerusalem Institute for Israel Studies and
at Yad Yitzhak Ben-Zvi. He received his master's degree in history from the
Hebrew University in Jerusalem, and his areas of study are the history of Jerusalem
in the modern era, Christians and Christianity in Jerusalem. Published a number
of articles on Jerusalem and a book R e h a v i a - a N e i g b o r h o o d i n J e r u s a l e m ,
1998.
138

Moshe Hirsch is a lecturer in the Faculty of Law and the Department of
International Relations at the Hebrew University of Jerusalem, and a researcher
at the Jerusalem Institute for Israel Studies. He has published several books and
was awarded several prizes for excellence in research and studies. Edited (with
Ruth Lapidoth): The A r a b - I s r a e l Conflict a n d its R e s o l u t i o n : Selected Documents,
1993, The J e r u s a l e m Q u e s t i o n a n d i t s R e s o l u t i o n : Selected D o c u m e n t s , 1994,
W h i t h e r J e r u s a l e m ?, 1995.
139

THE JERUSALEM INSTITUTE FOR ISRAEL STUDIES
The Jerusalem Institute for Israel Studies is an independent, nonprofit academic

institution, established in 1978.
The Institute engages in policy studies relating to the economy and society in general,
and to contemporary Jerusalem in particular, as well as conducting studies on the
peace process. The emphasis in the projects is on their applied aspects and on
recommendations geared to policy formulation. The Institute devotes considerable
efforts to elucidating problems which decision makers and policy implementers are
currently addressing or will address in the future.
The Institute's main research clusters are:
a. The peace process

b. Jerusalem
c. National, urban and regional planning
d. Social policy

Research Series No 85
Hay Elyachar House

20 Radak Street, Jerusalem 92186
Tel: 02-5630175, Fax: 02-5639814
Email: machon@jiis.org.il

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