Give me shelter

For Palestinian gunmen, the Church of the Holy Nativity offers more than a physical refuge. Sanctuary law may be history, but it exists in spirit, writes Penny Lewis

Do churches really provide sanctuary? This is a question many observers might ask in the wake of the protracted siege at the Church of the Holy Nativity, in Bethlehem. Together with Jerusalem's Wailing Wall and the Dome of the Rock Mosque this is one of the Holy Land's most revered sites. It is unsurprising that the siege has attracted the attention of diverse religious denominations. This awkward factor has undoubtedly stayed Israel's military hand in its pursuit of the armed Palestinian fighters seeking refuge inside. Storming the church is not a viable option. How this military operation will end may be uncertain; what is clear is the international flak that would fly were the church to be damaged.

Also ambiguous are the objectives of the gunmen in entering the building. Were they invoking holy sanctuary of some kind or was it just strategic shelter behind robust stone walls? It is a widely held belief in this country that churches provide a safe haven from arrest or persecution, likewise embassies. But is this fact or folklore?

Christian sanctuaries were first recognised by Roman law in the fourth century. Justinian restricted the privilege to those who had not committed serious crimes while Canon Law permitted limited protection even to those guilty of violent crimes. The right to shelter attached to the sanctified place rather than individuals, and was therefore open to all faiths.

The concept was firmly established by the Middle Ages. It was understood that criminals could flee to "consecrated soil". In order to invoke protection one needed only to enter the church or touch symbolic items. Paul Morris is an ecclesiastical law specialist from Winckworth Sherwood, and Registrar and Bishop's Legal Secretary for the Diocese of London and Southwark. "The sanctuary knocker on the north door of Durham Cathedral is a vivid reminder of the former law of sanctuary – a precursor of the present law of asylum and diplomatic immunity," says Morris. He explains that according to folklore even criminals needed merely to touch the door knocker to reach safety.

One important qualification that must have made sanctuary less appealing at the time was that refuge only lasted 40 days, after which the fugitive could surrender and face trial, or flee to another church or, in the case of felonies agree to a coroner being summoned to whom he was expected to confess and take an "oath of abjuration". This meant that the runaway was expelled from the country and had his belongings confiscated. The ultimate penalty for non-compliance with banishment orders was death. Moreover, if someone refused to take the oath they could face starvation until they changed their mind.

The prerogative of sanctuary was officially abolished by statute in 1624 although some vestiges lingered on for civil processes. Nevertheless, the academic view expressed by Teresa Sutton, a solicitor and lecturer in law at the University of Sussex, in an article entitled "Modern Sanctuary", is that the right disappeared from secular law in the 17th century. Significantly, she notes that it survived in limited form "in the Canon Law of the Roman Catholic Church until 1983". The Canon Law Code of 1917 said that "a church enjoys the right of asylum, so that guilty persons who take refuge in it must not be taken from it, except in the case of necessity, without the consent of the ordinary, or at least the rector of the church". When the code was reprinted in 1983 this passage was omitted.

According to the Home Office: "Churches, mosques, etc, are no different to other premises. Pace (the Police and Criminal Evidence Act) applies. If a police officer has applied for a search warrant on specific grounds and has reasonable grounds to believe that a serious arrestable offence has been committed, they can use the warrant to enter the premises." However, the legacy of this remains in that even now police are reluctant to enter certain areas without permission. Morris agrees that the right to take refuge from the police in Church of England premises is no longer a legal matter. However, "church buildings are still regarded with some deference and respect, and even today the authorities may be reluctant to remove a person taking refuge in a church".

There has been a spate of sanctuary claims in Britain since 1985 following a resurgence of the so-called "Sanctuary Movement" in the US where many churches took in refugees from Central America. Mirroring the American experience, evidence here suggests that the most recent incidents also involve asylum seekers, not criminals. Morris recalls the high-profile case involving a Sri Lankan refugee, Viraj Mendis, who took refuge in a church in Manchester in 1986 after a deportation order had been made against him. After a couple of weeks, he was forcibly removed from the church by police and immigration officers and deported.

Significantly, it is the principles of sanctuary that underpin rules governing asylum and diplomatic immunity. Foreign embassies effect the position of territory belonging to whichever state is occupying them. The most graphic illustration occurred in the murder of PC Yvonne Fletcher in April 1984. She was killed by a bullet shot from the windows of the Libyan embassy. The culprit was neither identified nor released to the custody of the British authorities.

The barrister Charles Mynors from 2 Harcourt Buildings confirms that while "the rules governing embassies and foreign governments with a presence here are that they are subject to the same laws as everyone else there are enforcement issues". He points out that "the law on diplomatic premises in the UK is contained in the Diplomatic Privileges Act 1964. This enshrined in domestic law the provisions of the Vienna Convention on Diplomatic Relations." Article 22(1) states that the "premises of the mission shall be inviolable. The agents of the receiving state may not enter them, except with the consent of the mission". Mynors says that "this means in practice that no one may enter the buildings or land used for the purpose of a foreign embassy or high commission, without consent. And that applies to anyone from a casual visitor or a policeman intent on finding and arresting a person suspected of being a terrorist."

Back in the Middle East, the Israeli government considers itself to be at war. Accordingly, it has pursued a military campaign. It could cite examples of other conflicts in which holy places have been destroyed, not least during the Blitz. Accordingly, there is historical precedent to suggest that Israel would be within its rights to continue pursuit of acknowledged armed assailants within the Bethlehem church. Nevertheless, with the constant glare of television cameras on them it is unlikely that the occupation of the church by the Palestinian gunmen will be disturbed by military intervention. It remains to be seen whether negotiations can successfully draw this episode to a peaceful conclusion.