Interview With Father David Jaeger
Some consider Jewish-Vatican relations to be in a moment of crisis, but according to one expert on the matter, negotiations are not at all at a standstill.
Father David Maria Jaeger, Franciscan friar of the Custody of the Holy Land and a professor of canon law in Rome, is a renowned expert on Church-State legal relations in the Holy Land. For over 30 years, he has studied the “question of Jerusalem” at the level of international law.
In this interview with ZENIT, Father Jaeger explains the complex journey that the Holy See and Israel have undertaken after the signing of the Fundamental Agreement of 1993.
ZENIT: Benedict XVI returned last week to the topic of the Middle East, confirming Israel’s right to exist and to enjoy peace, and the equal right of the Palestinian people to a sovereign homeland, to live in dignity in addition to being able to move freely. “I would also like to request the support of everyone for the protection of the identity and sacred character of Jerusalem, and of its cultural and religious heritage, which is of universal value,” the Pontiff added. Father Jaeger, how can the sacred character of this city be protected?
Father Jaeger: Toward the end of the last decade, more precisely in 1999, a “working group” put together by several European governments, studied (among other things) a project of Christian origin, which provided to this end a multilateral treaty. Several states traditionally interested in the Holy Land would have adhered to this treaty, in addition to Israel and the established Palestinian State. It was called “The Jerusalem and Environs Multilateral Treaty.” The treaty would have created a respective multilateral organization, which would have been called “The Jerusalem and Environs Multilateral Treaty Organization.”
The fundamental values that such a treaty and related organization would have safeguarded would, hence, have been essentially the same successively proclaimed in the Preamble of the “Basic Agreement” between the Holy See and the PLO, the organization that represents the Palestinian people on the international plane. Essentially it would guarantee: liberty of conscience and religion for all; the legal equality of the three great monotheistic religions, of their institutions and of their followers; respect for the particular character of the city of Jerusalem and its environs; likewise it would safeguard the Holy Places and the legal regime called “status quo” which applies to some of them.
For what my opinion is worth, I believe that such a multilateral treaty, backed by a proper organization, could truly be the best way and should have no difficulty in being embraced both by the Israelis and by the Palestinians, in addition to the international community, because it is to the advantage of all.
ZENIT: There is still no solution between Israel and the Holy See regarding the Fundamental Agreement of 1993. The negotiations for the implementations of the points regarding the Church’s fiscal regime and the questions of property came to a standstill precisely on the Holy Places. What are the real issues that for 17 years have impeded the solution of the controversy?
Father Jaeger: As is known, the Fundamental Agreement was signed on Dec. 30, 1993, and came into force March 10, 1994. It was followed by the agreement on the recognition of the civil effects of ecclesiastical legal personality, signed on Nov. 10, 1997, which came into force on Feb. 3, 1999. Still lacking is the enactment of the agreements in Israel’s internal legislation, which means that they both certainly have value on the level of international law, but difficulties would inevitably be found in having them enforced by the Israeli courts.
It is known moreover that the negotiations on the implementation of Article 10.2 of the Fundamental Agreement, with a comprehensive agreement on all the fiscal and property issues pending between the Church and State, were opened on March 11, 1999. The
Insofar as the detailed contents of the work, the Bilateral Commission — the “vehicle” or “place” of the negotiations — generally does not give out information, in part because such information would be meaningless: It would be altogether useless to say that there was “agreement” on this or that question, because in negotiations of this nature the principle stands “nothing is agreed until everything is agreed.”
In this way, among other things, the rights are protected better on which the Parties rely. It is evident, in fact, that until the hoped for agreement is concluded, the Church will not give up, and will not even put in question, the rights acquired before the creation of the state (in 1948), and which the state has many times and in so many ways promised to observe.
ZENIT: Given the failure to reach such an agreement, at the end of the plenary session of the Bilateral Working Commission between the Holy See and Israel — which met in December in the Vatican — the head of the Israeli delegation, Daniel Alayon, vice-minister of Foreign Affairs, spoke of a “crisis” in the negotiations and of a “step backward” so much so that “all the conclusions reached before the meeting were in fact annulled.” What does this mean and what, therefore, is the situation today?
Father Jaeger: We cannot speak of a “failure to reach such an agreement” because in any case it was an interlocutory meeting, simply another stage of negotiations. No informed person — even only generically — thought that that would be the conclusive meeting!
Insofar as the alleged statements attributed by an Israeli daily to the vice minister, it was immediately evident that they were for internal use and consumption, to calm the fundamentalist circles that, not informed of the facts, feared some pact with “the Vatican,” which would have been contrary to that which they held to be principles and interests of the Jewish State.
Anyone present at the start of the work of the Holy See-Israel Bilateral Commission in 1992 is able to attest that there was a sort of “gentlemen’s agreement”: that every now and then one or another party would perceive the need to make some public statement to satisfy its own “political” needs, without thereby influencing the bilateral relationship. Then again, there were also public statements on the Israeli side of a very different sort. The well-known rabbi David Rosen, already an important member of the Israeli delegation to the negotiations — precisely in the “constituent” phase — asserted, in a very recent interview, published in the English online version of the most influential Israeli daily HaAretz, on Jan. 17 [the day of the Holy Father’s visit to the Great Synagogue of Rome] that Israel — in his words — has not been faithful to the pacts of 1993, in not having yet agreed to confirm as a whole all the rights acquired by the Church in fiscal matters, as on the other hand Israel had promised to do — he says — when diplomatic relations with the Holy See were established (already in 1994).
ZENIT: Daniel Alayon still confirmed a clear “interest to dialogue” with the Holy See, above all on topics such as “anti-Semitism, terrorism, Muslim fundamentalism.” In what way can the Church help Israel in relation to such phenomena?
Father Jaeger: The reciprocal commitment of “appropriate cooperation in combatting all forms of anti-Semitism and all kinds of racism and of religious intolerance ” is inscribed in the Fundamental Agreement (1993) itself, in Article 2.1, and, in fact, Catholics and Jews everywhere are united in this peaceful struggle. Similarly, the same Agreement, in Article 11.1, contains this declaration of the respective commitment of the two Parties: “The Holy See and the State of Israel declare their respective commitment to the promotion of the peaceful resolution of conflicts among States and nations, excluding violence and terror from international life.”
ZENIT: For Jerusalem, you have recently put on the table the idea of an “internationally recognized special statute,” holding that Israel and Palestine are not competent to decide on Jerusalem, until the United Nations has verified respect for the objectives indicated by the international community. Why does the Holy See still today hold that this is the best solution for Jerusalem?
Father Jaeger: It is not in the least “my” idea that Israelis and Palestinians cannot decide at present on Jerusalem, either separately or even jointly. Instead, this is the condition of the territory according to international law, as manifested objectively, among other things, by the constant presence in Jerusalem of General Consulates of “corpus separatum,” never accredited to any state, but eloquent witnesses of the situation de iure, unchanged since the U.N. Resolution (181 of Nov. 29, 1947, the same one which authorized the creation of the Jewish State and of the yet future Palestinian State), which destined Jerusalem to international administration, as the “place” of rights and legitimate interests that belong to large world communities and that do not come simply from the two bordering nations.
Now, in the context of the search for a comprehensive resolution to the situations in the Holy Land that are not at present in conformity with international law, it is evident that also — and first of all — the condition of the territory of Jerusalem must be regulated. The many declarations in this regard from the Holy See over the course of the decades, make one think — and this certainly is an interpretation of mine as a jurist — that Israelis and Palestinians should adhere to a multilateral treaty — perhaps more or less like the plan described above — which guarantees the universal values represented in Jerusalem, so that consequently, with the endorsement of the United Nations, the Israelis and the Palestinians may be authorized to decide, through a bilateral peace treaty, on the territory itself. The Palestinians seem to be already committed to agree to such a path, or at least this would be my reading of the Preamble of the Basic Agreement which they signed with the Holy See on Feb. 15, 2000. Hence, there should be no reason why Israel cannot also accept it, if it should be invited concretely to do so. In fact, it would be in favor of all and against no one, a classic “win-win” [situation], where, that is, all parties “win,” as is said in the world of business.
ZENIT: A special statute for the city implies — as you yourself have reminded — the coming into force of an international legal instrument that would control an Israeli-Palestinian bilateral agreement. Specifically, how do you think such an instrument can safeguard the Status Quo regime of the Holy Places? How should it work?
Father Jaeger: This, in fact, would be the easiest part of such an “internationally guaranteed special statute” for Jerusalem and its environs, especially if it follows the lines of the above-mentioned draft of the Multilateral Treaty with the respective organization to make it work.
In fact, the “status quo” legal regime in force for specific Holy Places provides for the pro tempore civil government to watch over its regular observance, being in charge of security and public order in those particular Holy Places. Thus, in addition to the re-confirmation in the treaty of the international legal force of this legal regime, it would be for the respective multilateral organization to assume these secular burdens through its own personnel, equipped also with the necessary powers to maintain public order.
Thus these few but very important Holy Places (think of the Holy Sepulcher of Jerusalem) would be removed from the interests and political calculations of the local states or of any individual state.