People have been fighting over these religious texts for more than 60 years. And as the Palestinian Authority tries to keep an exhibition of them from coming to Canada, Patrick Martin explores the explosive question of just who is the rightful owner

BETHLEHEM — From his cobbler shop on Star Street in Bethlehem, Khalil Iskander Shahin could see down the road 200 metres to the Church of the Nativity, one of the oldest churches in the world and believed to mark the site where Jesus Christ was born.

But what the shoemaker, known simply as Kando, could not have foreseen was the impact that would be caused by three Bedouin tribesmen who entered his shop one day in April, 1947. They came with old parchment and papyrus scrolls found by one of their tribesmen, a goatherd, in a cave over the barren hills due east of Bethlehem, at a place called Qumran, just northwest of the Dead Sea.

These Dead Sea scrolls turned out to include the earliest written sources of the Bible's Old Testament and they would be heralded as a unique insight into the foundations of Christianity, as a key to understanding rabbinical Judaism, and as proof of Jews' claim to the land of Israel.

As the Royal Ontario Museum in Toronto prepares to host an exhibition of parts of 16 of these scrolls, the Palestinian Authority, expected to rule over the area where the scrolls were found, is calling on the government of Canada to bar the exhibition. The Palestinians say the scrolls are part of their cultural heritage and they want them back.

A segment of the Dead Sea scrolls. The Royal Ontario Museum says its exhibition, opening in June, is one of the most important shows in the museum's history.

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A segment of the Dead Sea scrolls. The Royal Ontario Museum says its exhibition, opening in June, is one of the most important shows in the museum's history. (Canadian Press/Courtesy of the Israel Antiquities Authority)

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But on that day in the shoemaker's shop 62 years ago, all that mattered was what price these old things might bring.

Kando, whose Assyrian father had fled the massacres in Turkey during the First World War, was more than just a cobbler: He sold antiques and had inherited the good taste of a Turk and the business sense of a Syrian. He and a friend reportedly bought the seven scrolls for £28, a little more than $100 at the time. They took four of them to the head of their Syriac Orthodox Church in Jerusalem, Archbishop Athanasius Yeshue Samuel.

It was Archbishop Samuel who was widely credited with bringing the Dead Sea scrolls to the attention of the world, but the story is far more intriguing than that. "He stole them," one of Kando's grandsons said just this week. "He didn't pay anything for them."

Indeed, while the archbishop was taking months to have the scrolls evaluated, Kando and his friend found another party interested in them - Jewish archeologist Eleazer Sukenik of Hebrew University in Jerusalem. In November, 1947, Prof. Sukenik took the three other scrolls home for a closer inspection before agreeing to buy them. It is said that while he was examining them, news came of the historic United Nations agreement to partition Palestine into two states - one for the Arabs, one for the Jews.

Prof. Sukenik saw the scrolls, written mostly in Hebrew, as evidence that Jews were in the area 2,000 years before. He bought them for his university, and the Dead Sea scrolls have been entwined with the creation of the state of Israel ever since.

As fighting between Arabs and Jews broke out in Palestine early in 1948, Archbishop Samuel took the four scrolls he held to Beirut, and from there to the United States, where he hoped to sell them, reportedly to raise money for the Palestinian refugees then pouring out of Israel.

Six years later, the scrolls were sold for $250,000. The buyer was Yigal Yadin, an Israeli whose father was none other than Prof. Sukenik, the archeologist at Hebrew University. Mr. Yadin had the scrolls shipped back to his father in Jerusalem.

Now, Israel possessed all the scrolls from the 1947 discovery.

Meanwhile, others also had been busy. When the smoke of the 1948-49 war had cleared, Jordan occupied the west bank of the Jordan River, all the way to the eastern part of Jerusalem, and including Bethlehem and the Dead Sea region, and its army declared the area around Qumran a closed military zone. Bedouin were offered rewards for any scrolls they found, and Jordan's chief archeologist enlisted a team to search the hills for more caves.

From 1949 to 1956, 10 more sites were found that yielded more scrolls and thousands of fragments. The discoveries, usually made by Bedouin, were brought by Kando to the Palestine Archeological Museum in east Jerusalem, now known as the Rockefeller Museum.

For the next decade, an international team of specialists would work to reassemble those fragments and uncover the stories they held, while across town, and over the

ceasefire line, at the Israel Museum, Israeli specialists would try to determine the meaning of the scrolls they possessed. The two groups never spoke to each other.

The majority of scholars in both camps believed the scrolls were the library of an ascetic Jewish sect called the Essenes, described by first-century historian Josephus in The Jewish War as living in the Qumran area. The scrolls had been hidden in caves, it was believed, to hide them from the Romans.

In 1965, the Israel Museum opened its Shrine of the Book, testimony to Israel's claim to the Jewish homeland. In the dimly lit subterranean temple, which evokes images of the caves of Qumran, one lengthy scroll is exhibited as a kind of giant Torah, complete with a wooden crown, and the room's circular pottery-like roof suggests the lid of a jar in which the scroll was found. Israelis and visitors alike file through the shrine every day.

Then, in 1967, came the motherlode of scrolls for the Israelis.

Their victory in the Six-Day War delivered the West Bank and east Jerusalem into Israeli hands. Along with that came the Rockefeller Museum and the scrolls it contained. Israel quickly passed legislation to annex east Jerusalem; the scrolls, previously considered Jordanian, were now Israeli.

Overlooked at the time were the Palestinians, although 30 years later their claim to the West Bank was largely recognized by Israel in the Oslo Accords. The Palestinian state is still in the making, but its leaders insist that they have a right to the antique treasures of their territory and have long protested against Israel's removal of so many of them.

In its appeal to the Canadian government to take action, the Palestinian Authority argues that all the scrolls were found in what is recognized as Palestinian territory and that Israel acquired them illegally - the people who "sold" them some of the scrolls had no right to do so, and Israel's acquisition of the others through its "annexation" of east Jerusalem is not accepted.

For its part, Israel notes that the discovery of the first seven scrolls occurred during the British Mandate of Palestine and that the scrolls were in private hands before Jordan's occupation of the West Bank and before the state of Israel even existed.

"There is no question that Israel's purchase of the scrolls was perfectly legal," says Alan Baker, a former legal adviser to Israel's Foreign Ministry who drafted the basic agreement between Israel and any countries seeking to exhibit the scrolls. "The scrolls were processed - catalogued, preserved, etc. - in the Israel Museum. They are Israeli."

Not so fast, says Nazmi Ju'beh, director of the Centre for Architectural Conservation in Ramallah, who argues that Mandate laws apply to the initial transactions between the Bedouin and the Bethlehem shoemaker. The 1929 Law of Palestinian Archeology states that no one shall have any right to antiquities they find, "and any person to whom such antiquity is transferred shall have no right or property therein."

"That remained the basic law of Jordan and Israel," Dr. Ju'beh says. In short, the cobbler and the archbishop didn't have title to the scrolls to convey to the Israelis, he says.

When it comes to scrolls acquired in 1967, Israel's claim is based on two other factors. The first is annexation of Jerusalem, which put the Rockefeller Museum's scrolls into Israel's hands.

The trouble is, as Mr. Baker acknowledged, most countries, including Canada, do not accept the validity of that annexation.

Secondly, in order to avoid such objections to ownership, Israel argues it is acting as the "custodian" of the scrolls. This is the term carefully used by Pnina Shor, head of the conservation department in the Israel Antiquities Authority. "We are the custodians of the Dead Sea scrolls," she says. "As such, we have a right to exhibit them and to conserve them."

Not in another country, say Palestinian authorities, at least not according to the 1954 Convention for the Protection of Cultural Property, to which both Israel and Canada are signatories.

It requires that a party to the convention "undertakes to prevent the exportation, from a territory occupied by it during an armed conflict, of cultural property" such as the scrolls. That means, Palestinian authorities say, that Israel cannot send them to Canada or anywhere else.

Furthermore, they say, the convention also calls on signatories such as Canada that receive such cultural property to take the property "into its custody" until it can be properly discharged.

"We call on Canada to meet its obligations under the 1954 Convention," says Hamdan Taha, director of the Palestinian Authority's Department of Antiquities and Cultural Heritage.

William Thorsell, director and chief executive officer of the ROM, said this week that he is consulting legal experts and government officials to determine if there is any basis for the Palestinian claim.

The issue may rest on the definition of "exportation" used in the 1954 Convention.

Israel argues that the short-term, temporary exhibition of scrolls in another country does not constitute "exportation" as meant in the convention, and that all the scrolls in its possession are part of Jewish heritage.

"There is no doubt these are Jewish texts," says Rachel Elior, a specialist on the scrolls and chair of the department of Jewish thought at Hebrew University. "Even those found during the Jordanian period are Jewish; part of the national heritage of the Jewish people.

"As such, they are not Palestinian," Dr. Elior insists.

Dr. Ju'beh, the Palestinian expert, acknowledges the scrolls are Jewish, but he argues that they also are part of Palestinian heritage "just as ancient Roman and Byzantine ruins comprise part of our history."

"No one would claim that Roman ruins found in Israel should be sent to Rome," he says. "They are properly displayed where they were found. The same applies to the scrolls found in Qumran, in Palestinian territory."

"Even if you accept Israel's argument as 'custodian' of the scrolls," one Palestinian authority says, "allowing them to mount these shows and export their narrative precludes the Palestinian narrative being told."

Patrick Martin is The Globe and Mail's Middle East correspondent

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