With a full agenda agreed upon, the bilateral commission was announced on July 29, 1992, and the serious work of negotiation began.
The Holy See’s representatives made three decisions at the outset of the negotiation, which their Israeli counterparts accepted. The first was to begin by seeking a shorter agreement on broad norms and general principles, rather than a comprehensive Church-state treaty or concordat. With that shorter agreement in place, further negotiations could take place on practical legal, financial, and property issues. It was anticipated that this first agreement on principles would carry with it an interim degree of diplomatic relations, which the Holy See assumed had begun de facto with the formation of the bilateral commission. At the outset, neither side expected that full diplomatic relations were achievable in the short term, but there were a variety of arrangements that could be way stations en route to full diplomatic exchange at the ambassadorial level.
The second decision was to divide the work of negotiation between a “plenary level,” led by the deputy foreign ministers of both parties, and an “experts level,” where most of the detailed work would be done. Plenary meetings would only be called to ratify results achieved at the experts level, or to settle questions the experts couldn’t resolve. The expert-level meetings would be led on the Holy See’s side by Archbishop Montezemolo and his delegation. Ambassador Gilboa and his successors would lead the Israeli experts team.
The third decision was to seek reciprocity in meeting sites, in order to establish experientially that these were negotiations on the international plane between two subjects of international law. It was agreed that the plenary meetings would shift between the Vatican and Israel, while the experts’ meetings, which would all be held in Jerusalem to save on expenses, would shift between the Israeli foreign ministry and a Catholic institution, which in practice was usually the Ratisbonne Institute.
The negotiation at the experts’ level began with a week-long meeting on November 2, 1992. One of the first things that had to be done was to clarify for the Israeli team who their negotiating partners were, and what they represented.
The Israeli diplomats had some idea of the “Holy See” as a subject of international law, and knew that the “Holy See” is usually referred to, in shorthand, as “the Vatican,” as is Vatican City State. But there was confusion over the fact that the Holy See is not identical with Vatican City State. According to diplomatic custom and international law, the Holy See is the international legal embodiment of the ministry of the Bishop of Rome as universal pastor of the Catholic Church. The independence of the Vatican City micro-state helps guarantee the independence of the Holy See as a sovereign actor in world affairs. Still, other states exchange ambassadors with the Holy See, not Vatican City State, and the Holy See, not “the Vatican,” participates in international legal and political organizations like the United Nations and its affiliated agencies. The Holy See, not Vatican City State, was Israel’s negotiating counterpart.52
As if this were not enough to sort out, the laws of the Ottoman Empire and the states that succeeded it (like Israel) had no provision for something called “the Catholic Church.” The only legal entities were the local leaders of various local Christian Churches—Armenian, Latin-rite Catholic, Greek Catholic, Greek Orthodox, Maronite, Melkite, and so on. Israeli law did not recognize an organic entity called “the Catholic Church” as having legal personality, and thus being a subject of law.
The two problems intermeshed when the question for the Israelis became, “What is the relationship of this entity called ‘the Catholic Church’ to our negotiating partner, the ‘Holy See’?” A treaty or agreement would be made with the “Holy See.” But what did that have to do with “the Catholic Church” or with the various Catholic entities in Israel? It was explained that the Holy See wasn’t present to talk about itself, but to talk about the legal position of the Catholic Church in Israel. The Holy See didn’t have interests of its own that it was trying to secure by legal agreement. And if the negotiation couldn’t talk about “the Catholic Church,” there really wasn’t anything to talk about. After what amounted to a crash course in sacramental theology, ecclesiology, canon law, and international legal history, the Israelis finally agreed to talk about “the Catholic Church.” But doubts remained, and would threaten the negotiation again at the final hour.
The Back Channel
By September 1993, the Fundamental Agreement was slowly taking shape. But the experts’ meetings had been difficult, several legal technicalities remained to be settled, and so did the question of diplomatic relations. Both sides now had to confront what David Jaeger later called “the quiddity of the whole thing.” Given the radical changes in the Middle East since the Gulf War and the fact that Israel was negotiating diplomatic relations with Arab states like Morocco, Tunisia, Oman, and Qatar, the government of Prime Minister Yitzhak Rabin, which had taken office in July 1992, decided that it could settle for nothing less than full diplomatic relations with the Holy See. Israel now wanted to accelerate the process and make the Fundamental Agreement the occasion to move quickly to full diplomatic relations. This concern was communicated to what an Israeli diplomat later described as “the highest level” in the Vatican. The Holy See delegation was thinking along parallel lines. Phasing in diplomatic relations would seem to diminish the genuine accomplishments of the Fundamental Agreement, which were giving the Catholic Church the kind of legal status in Israel that it enjoyed elsewhere. Hesitance about full diplomatic relations, it was also thought, would reinforce those elements in Israeli political and bureaucratic circles that continued to insist that the Holy See could never establish full diplomatic relations with a sovereign Jewish state for theological reasons. It was not clear, however, that the Holy See delegation’s view was shared at all levels of the Vatican Secretariat of State. Sensing, rightly or wrongly, that there was foot dragging in the Vatican, the Israelis made it clear that the negotiation for the Fundamental Agreement—including full diplomatic relations—had to be completed by the end of 1993 or everything on “the menu” would have to be reexamined.
At this crucial juncture, a back-channel negotiation brought the Fundamental Agreement to a successful conclusion.
The back channel was the work of Father David Jaeger and Shlomo Gur, a forty-three-year-old career Israeli diplomat then assigned to the office of Deputy Foreign Minister Yosi Beilin. The back channel had first been opened during the difficult experts-level negotiations between late December 1992 and early January 1993. Gur got a call from an Israeli journalist, who said that an Italian journalist friend needed a contact within the negotiations. Gur agreed, and the Italian journalist turned out to be the Rome correspondent of the Milan daily Corriere della Sera, an old friend of David Jaeger. Gur then got a call, at home, from Jaeger, who said that he, too, would like to talk to Gur. The two agreed to meet at the Jerusalem Plaza hotel, where Jaeger appeared, for the first and only time in the back-channel negotiation, in a Roman collar.
The two men, Israelis of the same generation but of strikingly different experiences, hit it off personally, and a freewheeling, open, and blunt conversation ensued. They met, according to their recollections, some twelve to fifteen times more in the fall of 1993, usually in the lobby of the Jerusalem Hilton. Both now laugh at subsequent press speculation about secret flights to European capitals. They trusted each other completely and their trust was vindicated: there were no leaks. Nor was there any posturing as they talked frankly, exchanging ideas and finally drafts of a complete Fundamental Agreement.
Neither delegation to the experts’ meetings knew about the back channel. Gur and Jaeger would reach agreement on an issue, then communicate it to their principals in Jerusalem and Rome: Yosi Beilin and Foreign Minister Shimon Peres for the Israelis, Monsignor Gatti, Monsignor Celli, Archbishop Jean-Louis Tauran (the Vatican “foreign minister”), and Cardinal Angelo Sodano, the Secretary of State, for the Holy See. The Israeli delegation to the experts’ meetings knew th
at Gur had a Holy See interlocutor. They didn’t know it was David Jaeger, who was sitting across from them at the negotiating table. The Holy See delegation was unaware of the back channel, whose confidentiality the principals were determined to protect. In October, in the middle of the back-channel negotiation, Beilin and Tauran met in New York in an emergency, private session to resolve a crucial, deal-breaking issue that Gur and Jaeger had identified. Beilin was so concerned to keep the negotiation going through the back channel that, having reached agreement with Tauran, he resolved the matter on his own authority, saying that he would square things with Peres later.
The Jaeger-Gur back channel worked because of the trust between Shlomo Gur and David Jaeger, the good relationship that had been established between Claudio Celli and Yosi Beilin (the formal heads of the plenary-level meetings of the bilateral commission), and the commitment of Luigi Gatti to achieving an agreement that met the Holy See’s longstanding concerns. When the back channel produced a complete draft Fundamental Agreement acceptable to the principals, another crucial factor entered into play: the professional discipline of both sides’ diplomatic services. When the heads of the experts-level delegations were informed by their principals that agreement had been reached in a back channel, both Archbishop Montezemolo and Ambassador Eitan Margalit accepted the process without demur.53
The Jaeger-Gur back channel was a classic negotiation of its sort, authoritative but noncommittal, as Gur later described it. Issues were resolved without the kind of feints common in negotiations. Proposals could be floated and discussed without fear of compromising a position downstream. Nothing was official until the principals had agreed. If they didn’t, it would be as if nothing had happened, officially. It seems unlikely, and perhaps even impossible, that the Fundamental Agreement between the Holy See and Israel would have been achieved without it.
Endgame
In December 1993, it remained to bring the negotiation to a final, successful conclusion and close the deal.
The last substantive point to be thrashed out brought both parties back to the question of what constituted “the Catholic Church” for the purposes of the Fundamental Agreement. The Israelis wanted to define “the Catholic Church” as the several local Churches of different rites existing on its territory. David Jaeger, as he later put it, was “absolutely opposed” to locking in any definition that reduced the meaning of “the Catholic Church” in Israel to the currently existing institutional expressions of Catholicism. Other Eastern rites might want to establish a presence in the Holy Land. New educational, charitable, or pastoral institutions might be formed. In any case, from a theological point of view, “the Catholic Church” was more than an enumeration of presently existing institutions, and Jaeger was determined that the Fundamental Agreement should reflect that.
The issue was resolved by a final back-channel negotiation between Jaeger and Shlomo Gur, after which the experts-level negotiators finally agreed, amid considerable wrangling and with the aid of legal opinions Jaeger had gotten from Israeli and American friends, to insert the phrase “inter alia” [among other things] into the agreement’s text, which finally defined “the Catholic Church” and “the Church” as “including, inter alia, its Communities and institutions.” At the same time, and as part of the back channel’s final, comprehensive package, the Israelis agreed to insert “inter alia” into the agreement’s definition of “the State of Israel” and “the State,” so that these entities were jointly understood to include all institutions established by law in Israel (including the Municipality of Jerusalem, for example), and not simply the central government.
During the entire negotiation, John Paul had insisted on keeping the local Eastern-rite Catholic and Orthodox leaders informed, and Archbishop Jean-Louis Tauran had briefed various Arab governments about the process. At the very end, Cardinal Sodano, who was responsible for making the final recommendation to the Pope, decided on a further consultation with a special commission of six cardinals, including Cardinals Ratzinger, Casaroli, Laghi, and Silvestrini. Briefed beforehand on the negotiation, and in some instances lobbied by men involved in the process, the cardinals’ commission unanimously recommended acceptance of the draft Fundamental Agreement, with some minor retouches that caused no problems for the Israeli negotiators.
Finally, the Holy See sent a formal query to the Latin-rite patriarch of Jerusalem, Michel Sabbah, and to two Eastern-rite Catholic patriarchs.54 The query took the form of two questions: Is the Fundamental Agreement something to be done in itself? Should it be done now? The answers came back: Do it, and do it now.
At last, on December 10, 1993, the Fundamental Agreement was initialed by Archbishop Montezemolo and Ambassador Margalit at the Israeli Foreign Ministry. Settling the arrangements for the formal signing ceremony became another negotiation. The Israelis wanted to sign in Rome, for maximum media exposure. The Holy See replied that the only diplomatic agreements it signed in Rome were with Italy, and that the custom was to sign in the country of destination. An appropriately Solomonic decision was finally devised. The plenary commission would be reconvened to approve and sign the agreement, and according to the principle of reciprocity there would be two meetings—a meeting in Rome on December 29 to approve the Fundamental Agreement formally, and a meeting on December 30 in Jerusalem to sign it. Since he was the Vatican chairman of the plenary commission, Monsignor Claudio Celli, rather than Archbishop Montezemolo, signed for the Holy See. Celli came equipped to the historic event with a personal letter of authorization from John Paul II, a break from the custom of a Vatican diplomat’s authorizing letter coming from the Cardinal Secretary of State. The Pope was determined that the Fundamental Agreement be signed in the most solemn way possible, invoking all the authority of his office.
Aftermath
More than a year and a half of intense negotiation had produced a concise document. Its distinctive preamble sets the Fundamental Agreement in the appropriate historical and theological context, beginning with a mutual recognition of “the singular character and universal significance of the Holy Land” and acknowledging “the unique nature of the relationship between the Catholic Church and the Jewish people,” including their recent “process of reconciliation and growth in mutual understanding.” In Article 1, both parties recommit themselves to “upholding” the universal “human right to freedom of religion and conscience,” which the State of Israel also commits itself to “observe,” that is, as a precise legal obligation.55 Article 2 pledges “cooperation in combating all forms of anti-Semitism and all kinds of racism and of religious intolerance” a second paragraph in the article reiterates the Holy See’s “condemnation of hatred, persecution and all other manifestations of anti-Semitism directed against the Jewish people and individual Jews, anywhere, at any time, and by anyone.” In addition to the religious freedom obligation in Article 1, Articles 3, 10, and 12 constitute the core of the Fundamental Agreement, by establishing a structure for follow-on negotiations to give legal meaning to Israel’s recognition of “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 for the said functions to these ends.” Article 14 commits both parties to prepare for full diplomatic relations, which would come into being at the ambassadorial level when the Fundamental Agreement had entered into force—in practice, in the next several months.56
The standard diplomatic formula at the end of the Fundamental Agreement—“Signed in Jerusalem, this thirtieth day of the month of December, in the year 1993, which corresponds to the sixteenth day of the month of Tevet, in the year 5754”—was, in this instance, a reminder of what Shlomo Gur had felt during the negotiations: that he and his secular Israeli colleagues, as well as their Holy See counterparts, “were carrying two thousand years of Jewish-Christian history, very complicated, on our backs.”
That history, and its contemporary expres
sion in the Holy Land, could not be overcome by the simple fact of a completed agreement. Confusions continued about precisely what the State of Israel had entered into an agreement with. At dinner the night of the formal signing in Jerusalem, Foreign Minister Peres indicated that he thought the agreement was with another small state, Vatican City. More seriously, the Fundamental Agreement was not happily accepted by the local Catholic leaders, despite their responses to the query posed by the Secretariat of State just before the agreement was completed.
On the day after the signing, members of the Holy See delegation met with local Catholic prelates to explain the agreement in further detail and to lay out what was foreseen in the next set of negotiations about the Church’s legal “personality,” property, and so forth. The local churchmen were quite critical, often disguising their own complaints about the agreement by attributing them to “the people” or “what the people are saying.” When they were reminded of the Pope’s personal involvement in making the final decision after examining the agreement in detail, there was silence. Then one of them said, “We respect the Holy Father, but the Holy See must also respect the people.” It was a response that did not augur an easy course in the future.57
The Holy See was neither well-prepared nor well-staffed for the follow-on negotiations, whose successful completion was essential to making Catholicism present to Israeli society as it had never been before. Budget-driven decisions to place the Holy See’s nunciature in Old Jaffa rather than in northern Tel Aviv and to limit its staff made it difficult for the Holy See’s representatives to engage in an ongoing, sustained way with the elite of Israeli society and their diplomatic counterparts from other nations. The decision to use untrained, inexperienced negotiators from the local Churches in the follow-on negotiations slowed their progress. So did the fact that some Israeli bureaucrats and politicians remained as recalcitrant as some local churchmen. Ignorance about the Church, a pervasive Israeli secularity (exemplified by Yosi Beilin’s comment to Claudio Celli at their first meeting, that he, Beilin, had never really thought about the question of Jerusalem having a religious dimension before), and typical bureaucratic sluggishness dragged out the follow-on negotiating process. It took almost four years to complete the first and most crucial text, the “Legal Personality Agreement” for Catholic institutions in Israel, which was signed on November 10, 1997.58
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