Rachel’s Tomb detainees released

Sunday, August 24, 2014, 13:19 On Friday, August 22 shortly before the onset of Shabbat the two minors under administrative order banning them from entering Yehuda and Shomron who were detained at Rachel’s Tomb were released from remand. The two were detained on Thursday, August 21 on a claim that by entering the site they had violated the order issued by GOC Central Command Major General Nitzan Alon.
Despite the youths’ claim that they reasoned that Rachel’s Tomb was part of Jerusalem and not located in the Yehuda/Shomron region, the police filed an indictment against them for violating the administrative order by “being in and praying in the prayer section of Rachel’s Tomb”.
The police requested releasing the detainees on condition of banning them from entering Yehuda and Shomron until the end of proceedings, including after the administrative order is no longer in effect, and posting bail. However Jerusalem Magistrate Court Judge Mohamad Haj Yahya released them without bail. Judge Yahya ruled that the youth probation service would be summoned to give an expert opinion on their case in order to examine extending their administrative orders until the end of proceedings against them.
During the deliberation Honenu attorney Naftali Wertzberger, who is representing the two detainees, pleaded that Rachel’s Tomb is located in the area handled by the Jerusalem Municipality. Wertzberger explained that the sanitation services are handled by the Municipality of Jerusalem and that the tomb is considered located in the “Jerusalem Envelope” area (Otef Yerushalayim). The judge decided not to enter the politically complex issue and the matter is expected to become clear during the trial. Wertzberger explains that additionally there must be an intent to violate a legal order, which there is not in this case. The minors went in good faith to pray at Rachel’s Tomb with the thought that they were not violating the order.
An unusual legal issue arose when Wertzberger brought the holy sites ordinances from the time of the British Mandate – the Holy Places Order in Council of 1924 – concerning the prohibition against detaining someone for praying at a holy site. In the indictment it is written that the youths are charged with “praying in the prayer section of Rachel’s Tomb”, which is in opposition to ordinances which have been in effect for 90 years since they were legislated.
“The youths were at Rachel’s Tomb in good faith, thinking that it was considered part of Jerusalem,” said Wertzberger.