LA CONTUMACIA, LA JURISDICCION SUPRANACIONAL Y LOS DELITOS CONTRA LA HUMANIDAD

99_{F.4. ff21-23, Despatch N.6341 of 26 July 1922 from Cardinal Gasparri to Monsignor Cerretti.}

100_{F.4. ff.24-31, despatch No.6352 of 31 July 1922 from Cardinal Gasparri and attached Memorandum}

representations from the Greek Orthodox Patriarch of Jerusalem, Damianos I.101 Count de Salis explained to Gasparri the meaning of the provisions of article 14, and that “in spite of the procedure which His Majesty’s Government had been forced to adopt, there was no intention of going back on the policy already outlined”. Cardinal Gasparri then discussed the composition of the Commission and the suitability of Monsieur Van den Heuvel as a member. He wondered “whether something along the lines of his original proposal, a commission chosen from amongst the consuls at Jerusalem, might not be better, [though] it would have to be laid down that the consuls were acting, so to speak, in a judicial capacity and not sitting as representatives of the interests of the country to which they belonged”.102 Gasparri’s expressed view at this time was “that the Vatican had obtained what it wanted” from the negotiation process.103

The very complexity of the situation posed by the question of the Holy Places was highlighted by the British Foreign Office response to French submission regarding the Holy Places on 5 August 1922. This response noted that the status quo must be maintained; and that, when considering the complexity of issues surrounding the Holy Places, it would be difficult to transfer to representatives of foreign governments some form of international authority over the Holy Places when the Mandatory Power had the responsibility for overseeing and enforcing the existing rights in regard to those places within Palestine.104 Discernable in this, yet again, is the growing realisation of the intractability of satisfying all the parties about the membership and scope of the proposed Holy Places Commission and the need to ensure the maintenance of the status quo.

Cardinal Gasparri clearly reflected further on the need for the Holy See to press for a different approach to the Holy Places Commission along the lines recently discussed

101_{G.1.1.33. FO 371/7786 Registry No. E 7947/178/65 Telegram of 9 August 1922 from Patriarch}

Damianos to British Foreign Secretary.

102

G.1.1.33. FO 371/7786 Registry No. E 7971/178/65 Despatch No. 112 of 4 August 1922 from Count

de Salis to the Earl of Balfour. See also ibid, Registry No. E 8319/178/65 Letter of 21 August 1922 from Colonial Secretary to Foreign Secretary about the further unfolding of the imbroglio over the Holy Places Commission.

103 _{Minerbi, ibid, 192.}

104_{F.4.ff.89-96, Italian translation of British Foreign Office Despatch No. E.7055/78/65 of 5 August}

with Count de Salis. On 18 August 1922 the Holy See suggested to Count de Salis the following proposal:

(1). The Commission for the Holy See [sic, clearly meaning Holy Places] should be of a permanent character; (2) The principal Catholic nations hould be represented; notably Belgium, France, Italy, Spain and Brazil; (3) The members should reside in Palestine; it might be composed of the consuls of the Powers represented. But whatever the composition, points (1) and (2) should be borne in mind. The Commission should be under an international organisation, such as the Council of the League of Nations and should not be allowed to raise discussion on rights already acquired by the Catholics which have been peacefully enjoyed, even under the Turks.105

Inherent in this proposal was the importance of preserving the status quo, an outcome which was now seen as paramount by the Holy See in relation to the Holy Places.

In fact on that date Cardinal Gasparri submitted directly to the Secretary General of the League of Nations a Memorandum which reflected what had just been put informally to de Salis in Rome. This Memorandum stressed that the proposed Holy Places Commission “cannot be authorised to question any rights already acquired by Catholics over the Holy Places, rights which they were allowed to enjoy unmolested even under Turkish rule”.106 The status quo was becoming the Holy See’s non- negotiable goal. A submission to the League at this time from the Greek Orthodox Patriarch Damianos of Jerusalem also stressed the importance of maintaining the status quo, which had the advantage of being “recognised by all and confirmed by

105_{G.1.1.33. FO 371/7786 Registry No. E 8343/178/65 Despatch No. 118 of 18 August 1922 from}

Count de Salis to Marquess Curzon.

106

G.1.1.33. FO 371/7786 Registry No. E 8706/178/65 Note by the Secretary-General of the League of

Nations of 24 August 1922 on the Commission on the Holy Places, Annex 4, Letter from Cardinal Gasparri of 18 August 1922 to the Secretary General of the League and attached Memorandum. See

G.1.1.33. FO 371/7786 Note by the Secretary-General, League of Nations, of 1 September 1922 and

Enclosure in No. 1, Memorandum by the British Representative of 31 August 1922 on the proposed composition and operations of the Holy Places Commission. F.5. ff.16-17, Memorandum of the Holy See of 15 August 1922; F.8. ff. 4-6,Memorandum, and F.8. f.3, letter of 18 August 1922 from Cardinal Gasparri to the Secretary of the League of Nations submitting the Holy See’s Memorandum; G.1.6.4.

CO 733/31, ff. 411-412, Despatch No. 118 of 18 August 1922 from Count de Salis to Marquess Curzon briefing him on the 15 August 1922 Memorandum of the Holy See.

international treaties”.107 One may see the moving towards some form of consensus between the Catholic and Orthodox Churches about the centrality of the status quo to resolution of the Holy Places issue.

The Holy See now continued to oppose British proposals for the composition and operation of the Holy Places Commission submitted to the League by Lord Balfour on 31 August 1922.108 Shortly after Britain took official possession of the Palestine Mandate on 11 September 1922,109 Count de Salis had an audience with Pope Pius XI who said that he:

feared that the proposals [for the constitution of the Holy Places Commission] were not acceptable, insisting on the fact that most of the Holy Places were beyond dispute the possession of the Catholic Church which would find itself outvoted in the commission in matters which concerned interests to which the highest importance was attached [stating further that] he did not wish to make a public protest, but was afraid he might find himself obliged to do so.110

Count de Salis then met with Cardinal Gasparri who indicated that the Holy See was “considering what to do”, but “thought of making an appeal to the justice of the British Government who hardly seemed to realize the importance which the Catholic Church attached to the rights it had enjoyed for so many centuries, even under the

107

F.8. ff.50-51 at f.50r, Telegram from the [Greek Orthodox] Patriarch of Jerusalem to the Secretary General, Jerusalem, 10 August 1922, Annex 1 to the Note by the Secretary of the League of Nations of 24 August 1922 on the Commission on the Holy Places.

108

F.5. ff.88-97, Note from the Secretary General of the League of Nations of 1 September 1922 and