The New Struggle for the Scrolls: Will They Go to the Palestinians?

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Will the Dead Sea Scrolls and the ruins of Qumran, adjacent to the caves where the scrolls were found, be given to the Palestinians? As the Israelis and Palestinians struggle slowly and painfully toward some kind of accommodation that eventually will almost certainly involve the creation of a Palestinian state, the future of the scrolls and the settlement associated with them is emerging as another thorny issue.

Several things are clear. Qumran is in the West Bank. So are the 11 caves where the scrolls were discovered between 1947 and 1956. And before 1967, Qumran was in an area controlled by Jordan.

Just as clear is the fact that the scrolls are Jewish religious documents and include more than two hundred Biblical manuscripts—parts of every book of the Hebrew Bible except Esther and the Song of Songs.

The Palestinians have already stated that they want both the scrolls and the site, one of the most popular tourist attractions in Israel and the West Bank. Whether Qumran will ultimately be part of the state of Israel or the state of Palestine will be a matter of negotiation between the parties. So will the question of who gets the scrolls, but this question will be negotiated against a background of international law. The Palestinians will be relying on the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and on the Protocol attached to that Convention.

It is clear that archaeological artifacts are cultural property, as broadly defined in the Convention. The parties to the Convention agree “to prevent the exportation, from a territory occupied by it during an armed conflict, of cultural property.” The parties also agree “to return, at the close of hostilities, to the competent authorities of the territory previously occupied, cultural property which is in its territory, if such property has been exported in contravention of [the above provision]. Such property shall never be retained as war booty.”

The Palestinians argue that these provisions require Israel to return the scrolls to them.

The Palestinians also rely on the “Sinai precedent.” Egypt and Israel signed a peace treaty in 1978. Several years later, Egypt requested the return of all artifacts excavated in the Sinai during the Israeli occupation, relying on the 1954 Hague Convention and its Protocol. The artifacts included some rare storage jars covered with inscriptions and ink drawings from the ninth to eighth centuries B.C.E. (the First Temple period), excavated by Israeli archaeologist Ze’ev Meshel at Kuntillet ‘Ajrud, just a few miles inside the Egyptian border. These artifacts were especially dear to Israel because they relate directly to Jewish history, particularly its religious history. The inscriptions refer to Yahweh, the ineffable personal name of the Israelite God. Blasphemously, the inscriptions also suggest that Yahweh had a consort—Asherah! The crude paintings on the vessels help explain the inscriptions. The inscriptions and paintings have been the subject of endless debate, much of it in these pages.^a

In addition, a large stone bowl from Kuntillet ‘Ajrud bears an inscription in Hebrew, “[Belonging] to Obadyo son of Adnah, blessed be he of Yahweh.”

In 1993, Israel agreed to return everything excavated in the Sinai during their 16-year 050occupation (from 1967 to 1983), including the artifacts from Kuntillet ‘Ajrud. Many scholars were harshly critical of the Israeli negotiating team for giving up these precious records of Israelite religious history without getting anything in return. The defenders of the agreement say they had no choice under the 1954 Hague Convention and its Protocol. The Israeli negotiators, it is said, in fact requested that 24 artifacts, including those from Kuntillet ‘Ajrud, be allowed to remain on exhibit in Jerusalem as a permanent loan, but the Egyptians refused this request. So Israel simply handed them over. The artifacts were delivered to Egypt in 1994 and have not been seen since. Unfortunately, the paintings and inscriptions are extremely fragile, hazy and indistinct. Their conservation is a matter of the highest priority. According to one unconfirmed report, the Kuntillet ‘Ajrud artifacts will be exhibited in a soon-to-be-opened museum in El Arish, about 80 miles east of the Suez Canal on the Mediterranean coast.

Given the 1954 Hague Convention and Protocol and the Sinai precedent, will Israel have any alternative to giving up the scrolls?

The answer is yes, if the Palestinians agree. The 1993 agreement between Egypt and Israel regarding the return of the Sinai artifacts does not even mention the 1954 Hague Convention and Protocol, illustrating that the parties can agree to anything they want. The Palestinians may allow Israel to keep the scrolls in exchange for some other quid pro quo.

The Israelis say they also have a good legal case. The West Bank is different from the Sinai, they say. Until 1967, the Sinai was part of Egypt. Israel occupied the acknowledged land of another state. Not so with the West Bank. Until 1948, the West Bank was part of the Palestine Mandate administered by Great Britain. It was occupied by Jordan during Israel’s War of Independence. In 1950 Jordan annexed it, but this was recognized only by Great Britain and Pakistan. Indeed, the annexation was vehemently opposed by the other Arab states. Moreover, in 1988 Jordan’s King Hussein renounced all claims to the West Bank and relinquished all legal and administrative ties to it.

Who the West Bank “belonged to” between 1967 and the present may be unclear, but it is clear that it did not belong to a Palestinian state. There was no such state. In addition, the 1954 Hague Convention and Protocol applies only to contracting parties. Israel and Egypt (as well as Jordan and Syria) are called High Contracting Parties. The West Bank obviously is not (nor is the emergent state of Palestine). The Convention and Protocol covers only hostilities between High Contracting States—or, at most, states. At the time of the discovery of the scrolls, the caves were not in a recognized state.

If this seems technical, the Israelis have another argument.¹ The Hague Convention takes a universal approach that is inadequate for this situation. It fails to address the nebulous political status of the West Bank at the time of the discovery and gives no explicit consideration to the cultural or religious significance of artifacts, a consideration that is crucial here. Given the clear historical connection between these artifacts and the Jewish people, and given the vague status of the West Bank then and now, perhaps the Hague Convention should be set aside. We can look to more general concepts of international law to determine how questions of cultural and religious provenance can be considered when deciding the fate of such important ancient artifacts.

Some experts, according to Professor Talia Einhorn, senior research fellow of T.M.C. Asser Instituut for Private and Public Law, in the Hague, have “suggested that, at least as regards the return of illegally exported objects, the State addressed should be allowed to decline return thereof so long as the requesting State cannot guarantee that the object will be well preserved and maintained after its return.”² Given the history of animosity between Palestinians and Israelis, can the Israelis feel confident that the Palestinians will adequately care for and conserve the scrolls? Or perhaps they will become, in Professor Einhorn’s words, “a target to hostile rather than protective action at worst, or just suffer from neglect due to lack of positive interest in [them] … Even peace treaties do not seem to remove all hostilities. There are yet significant parts of the population that oppose the peace process.” Israelis point to the Jewish holy sites that the Palestinians have desecrated in the past as evidence that the Palestinians cannot be trusted to protect Jewish cultural artifacts.^b

But there are other factors in addition to the doubts over whether a Palestinian state will properly care for the scrolls. Acknowledging that it may be difficult to draw hard and fast lines, Professor Einhorn argues that consideration should also be given to which state has a stronger cultural link to the object:

Do [the artifacts] form part of the cultural heritage of its people? Which state is capable of and willing to preserve the objects, and would undertake the effort to make them the subject of study and appreciation? Who carried out the excavations, documented them, and published the studies? Geographic proximity is another factor. The closer the objects are to the current borders of the state claiming them, the stronger the claim. The status of the borders should also be taken into account: to what extent and in what manner have they been settled under public international law between the states competing for the findings?³

Recognition of claims by particular ethnic groups to artifacts reflecting their particular cultural heritage has been growing in recent years. In several cases, artifacts have been returned to the ethnic groups that created them—for example, in 1971 Denmark returned to Iceland 55 crates of Icelandic manuscripts long held in Denmark.⁴ If such ethnic groups are entitled to the return of objects of their cultural patrimony, how much more so would the retention of such objects be justified?

As one noted authority has stated, “Cultural property is most important to the people who created it or for whom it was created or whose particular identity and history it is bound up with.”⁵ In the case of the Dead Sea Scrolls, there can be no question that that is the Jews.

As a prominent British scholar has explained, “Every single object has its own particular history, its own peculiar circumstances of acquisition, and the merits of each case must be weighed. These merits should obviously include such factors as the capacity of the home country to house, protect, study and display any material that is returned, just as much as the gratification of national pride or the soothing of national injury for political or sentimental reasons.”⁶

In short, in the case of the Dead Sea Scrolls a number of factors must be considered. They weigh heavily in favor of Israel’s retaining the scrolls as a unique reflection of its cultural and religious patrimony.

Will the Dead Sea Scrolls and the ruins of Qumran, adjacent to the caves where the scrolls were found, be given to the Palestinians? As the Israelis and Palestinians struggle slowly and painfully toward some kind of accommodation that eventually will almost certainly involve the creation of a Palestinian state, the future of the scrolls and the settlement associated with them is emerging as another thorny issue. Several things are clear. Qumran is in the West Bank. So are the 11 caves where the scrolls were discovered between 1947 and 1956. And before 1967, Qumran was in an area […]