Eighty-five years of efforts to resolve the issues of Jerusalem sovereignty.
For the past 85 years, the international community, the representatives of the Zionist movement and, later, the State of Israel, the representatives of the Arab world and, especially, the Palestinians, have been engaged in attempts to find ways to make the City of Jerusalem a city of peace. Over this period, more than 65 plans have been tabled for discussions.1 Many people claim that the failure to resolve the issue of Jerusalem is what led to the breakdown of negotiations between Israel and the Palestinian Authority. The latest Palestinian uprising is named the al-Aqsa Intifada after the central role that the Holy Places have played in the latest round of the Israeli-Arab conflict.
The central focus of the tens of plans proposed for resolving the Jerusalem issue was mainly placed on the issue of sovereignty: who owns Jerusalem and who has the right to control the city? The latest breakdown in negotiations between Ehud Barak and Yasser Arafat focused more on the question of the control and sovereignty over the Holy Places, or more specifically over the Temple Mount/Haram al-Sharif, than over the general question of sovereignty.
The most important chapter in negotiating Jerusalem occurred during the period of 1993-2001. The Oslo Declaration of Principles of September 13, 1993, led to agreement between Israel and the PLO that the issue of Jerusalem would be determined in final-status negotiations among other final-status issues. The positions of the Israelis and of the Palestinians on the Jerusalem question remained rather stagnant from 1993 until the final stages of the negotiations in mid-2000.
These positions can be summarized as follows:
Israel: All of Jerusalem, West and East, is Israel’s eternal, undivided capital. All of Jerusalem must remain under Israeli sovereignty forever.
PLO: All of East Jerusalem (the area beyond the Green Line) is the capital of the Palestinian state. All of the territories of East Jerusalem must be under Palestinian sovereignty forever. This includes the Jewish “neighborhoods” in East Jerusalem.
These positions were voiced over and over again by Yasser Arafat and by each Israeli prime minister since the beginning of the Oslo process (Rabin, Peres, Netanyahu, and Barak). Even prior to the Camp David summit in the summer of 2000, Ehud Barak restated the Israeli position: “Jerusalem will not be divided, we will protect the Holiness of Israel,” as he termed Jerusalem. Arafat, likewise, reiterated the Palestinian position: “We will raise our flag from the walls, the mosques and the churches of Jerusalem.”
Searching for Models
Many of the pre-negotiations and Track II work that was conducted over the Oslo years aimed at breaking the seemingly non-negotiable nature of the question over sovereignty. Many “creative” models were suggested including Joint Sovereignty, Shared Sovereignty, Divine Sovereignty, No Sovereignty, to name a few. Some of the best minds and creative thinkers of Israelis and Palestinians searching for peace, authored papers, presented plans, and tried to market their ideas. Always, the officials and their representatives from both sides came back to their starting positions: sovereignty over Jerusalem cannot be divided.
There were those who spoke about the inability to manage a city under separate municipal governments. To answer these claims, municipal government experts were called upon to propose technical and legal solutions. These included joint commissions, privatization of services, creation of neighborhood councils, joint municipal government, umbrella councils, rotating mayors and deputy mayors, etc.
Others claimed that even if sovereignty is divided, the city must have one legal regime. These people also claimed that it was in the interest of all of Jerusalem residents and businesses that the regime be the Israeli one, because of it being more developed, more reliable and less corrupt. Here international lawyers were brought in to offer their creative interpretations of international law and, in particular, on the waning importance and the changing nature of the concept of sovereignty.
Some raised security issues as the focus, and then the security and police experts were brought in to design various regimes for security, public order and criminal law. The experts proposed joint police forces, separate forces with joint commands, joint patrols, joint checkpoints, hot pursuits across the city’s complicated network of neighborhoods and roads. There was no lack of other ideas like fences, walls and a sophisticated high-tech network of closed-circuit television cameras.
There were those who raised the question of whether or not Jerusalem should be an open city or a closed city. If Jerusalem is open, then there are no borders between Israel and Palestine, but is it at all possible to seal off Jerusalem from the rest of Israel and Palestine? Here suggestions were raised including passport stations on the external borders, mobile spot checkpoints within the city, a passport station on the west outside of the city. Others claimed that without accepting the principle of an open city, there would be no peace. And there were those who claimed that if Jerusalem were left to be an open city, there would be no security.
The Clinton Principles
Until Camp David and until the presentation of the Clinton principles for Jerusalem — “What is Jewish to Israel and what is Arab to the Palestinians” — there was no real progress ever in any of the formal negotiations, the pre-negotiations or informal Track II processes. The Clinton principles put to paper the basic truth that sovereignty is linked to territory and that the sides must agree to the legal division of the territory. Once there seemed to be acceptance of the Clinton principles by both sides, the central question became focused on the heart — the Temple Mount/Haram al-Sharif.
In the end, the various experts found and proposed possible technical solutions to all of the problems, save the religious one. The Israeli side extended the definition of the religious problem by talking about the “Holy Basin” including all of the Old City, the Ophel, the City of David and the Mount of Olives. The Israelis, with American support, spoke of the development of a special regime for this area, without ever reaching into any agreement with the Palestinians on an acceptable definition of this “special regime.” The Israeli negotiators, under Barak’s direct instructions, were told to avoid the possibility of Palestinian sovereignty over the Holy Basin, preferring to create a joint regime of Israeli-Palestinian sovereignty and control over this area.
The Palestinian negotiators remained adamant in their demand that this area be placed under Palestinian sovereignty. The Israeli negotiators believed that under the Clinton principles, the Palestinians had conceded that the Western Wall (Kotel) and the Jewish Quarter would be under Israeli sovereignty. The Palestinians, however, talked about Israeli “control” and not Israeli “sovereignty,” without defining what that means. An argument ensued between the sides on the actual definition of the Kotel — is it the open area where Jews pray today, as the Palestinians claimed, or is it the entire Western Wall of the Temple Mount/Haram al-Sharif compound, as the Israelis claimed? This issue was never resolved.
The Religious Dimension
To complicate matters more, Jewish legal opinion suggested that a place for Jewish prayer could be constructed in the northern part of the Temple Mount. At the end of these internal Jewish deliberations, the prevailing Halachic opinion remained that Jews should not enter the Temple Mount.
At Camp David, in an apparent move to preempt Israeli public objection to dividing sovereignty in Jerusalem and, especially, relinquishing Israeli sovereignty over the Temple Mount (not to the Palestinians, but to some kind of international and/or Islamic body), Barak instructed the Israeli team to make Israeli concessions here conditional on Palestinian acceptance of the construction of an area for Jewish prayer on the Temple Mount. This was the first breaking point that led to the failure of the Camp David summit.
The introduction of the religious dimension of the Jerusalem conflict meant, almost automatically, a radicalization of positions and an inability to reach agreement. Several years ago, King Hussein had suggested that sovereignty of the Temple Mount/Haram al-Sharif be placed in the hands of God. This seemed like a logical outcome in the indivisibility of theological beliefs. Each side could claim that “their God” held sovereignty. The Israelis would also agree to the status quo whereby the Islamic Waqf maintained effective control on the Mount, on the condition that the Waqf refrained from building and digging, and that some kind of international force guaranteed the security of the Jewish prayers below at the Kotel.
Each Side’s Worse Fears
The opportunity for agreement on the Divine Sovereignty concept seems to have been compromised and demised at Camp David by an American modification that included what was termed “horizontal and vertical elements of sovereignty.” Here, apparently, they added that there would be a concept of Divine Sovereignty over the space above, Palestinian sovereignty horizontally — meaning on the Haram al-Sharif itself — and Israeli sovereignty vertically, or underneath the Haram. This ridiculous proposal only served to magnify the already suspicious response regarding the vague concept of Divine Sovereignty. Each side’s worst fears were embellished: the Israelis already feared Palestinian control on top that would allow them to prevent the Jews from conducting peaceful Jewish prayer at the Kotel. The Palestinians have always believed that the Israelis have been digging underneath al-Aqsa for years and eventually they would achieve their goal of making the Holy Mosque collapse. In the end, Arafat believed that the concept of Divine Sovereignty was part of an Israeli-American conspiracy designed by Israelis together with what he called “Albright’s Jews” — the American peace process team. The possibility of accepting the concept of Divine Sovereignty over the Temple Mount/Haram al-Sharif disappeared almost as quickly as it was presented.
Barak was willing to consider some alternative sovereignty over the Temple Mount/Haram al-Sharif, even calling for United Nations involvement, which was a great surprise. Upon his return from Camp David, he once again restated, over and over again, that he “would not agree to sign any agreement that would turn sovereignty on the Temple Mount over to the Palestinians.” After Camp David, Arafat restated, over and over again, that the only acceptable plan for the Haram al-Sharif could only be full Palestinian sovereignty. And once again the sides were deadlocked on this issue.
As the negotiations seemed to be getting more and more serious, both sides convened forums of experts to help work out the details for Jerusalem’s future. The experts on both sides, although never meeting formally together, did exchange views amongst themselves. Many had been involved for the past decade in the Track II working groups and discussions held under various auspices such as IPCRI — the Israel/Palestine Center for Research and Information — the American Academy of Arts and Sciences, the ECF — Economic Cooperation Foundation — the Jerusalem Institute for Israel Studies, Orient House, the Truman Institute, the Palestine-Israel Journal, and more. These efforts began in the early months of the first Intifada in 1988 and intensified over the past several years. The work conducted by the experts’ committees was perhaps the most intensive and most detailed work undertaken to date. Maps were drawn, municipal models were deliberated in detail, infrastructure needs and developments were planned, security arrangements were analyzed with various alternatives proposed. With the work of these committees being based on the Clinton principles enabled both teams of experts to take the planning of Jerusalem’s future to places that had never been seen before. As a member of the experts committee from the Israeli side, I can state with full confidence that we had never been closer to agreement.
Today, both the Bush administration and the Sharon government have declared that the Clinton principles are null and void. There is no doubt in my mind that some day, when the two sides are more ready for agreement, we will return to those principles and they will once again serve as the base for any future agreement. Until that time, what remains to be done is for the two expert committees to meet together and to put together a shared paper mapping out Jerusalem’s possible future.
Gershon is an advisor to Israeli, Palestinian and International Prime Ministers on the Middle East Peace Process and the founder and director of IPCRI, the Israeli-Palestinian Public Policy Institute. He was the initiator and negotiator of the secret back channel between Israel and Hamas for the release of 1,027 prisoners – mainly Palestinians and Arab-Israelis of which 280 were sentenced to life in prison for planning and perpetrating various attacks against Jewish targets that resulted in the killing of 569 Israelis in exchange for one Israeli soldier, Gilad Schalit. Gershon is actively involved in research and advocacy concerning topics such as social policy, environmental security, political strategy, peace education, economics, culture and in the development of affordable solar projects with the goal of providing clean electricity for 50 million people by 2020.
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