Models of Sovereignty And the Question of

Jerusalem: Towards A Comprehensive Perspective

Professor Manuel Hassassian

Bethlehem University

I- INTRODUCTION: Preliminary Remarks On the Essence of the Conflict.

As the sage would say, "the key to vision becoming reality is gradual progress, starting from what is possible and expanding the horizons of possibility". It is no secret however, that finding ways to satisfy the needs of the major communities (Palestinians and Israelis) living in Jerusalem is among the formidable challenges to achieving a comprehensive peace.

Maximalists tend to nurture zero-sum conflicts, however, the intentions of this challenging intellectual exercise over the future of Jerusalem should embody as well incorporate working solutions to an enigma without a solution.

The Palestinian-Israeli and Arab conflict in all its dimensions is realized, symbolized and condensed in Jerusalem, blessed with a heritage of religious, political and military history and caused by the divergent, discordant, and conflicting claims to the City's future. One cannot foresee a neat solution to the question of Jerusalem because the reality of Jerusalem is distorted, vague and not neat. Therefore, the solution in itself should be an evolving process to achieve its objective.

Almost three decades ago, Israeli forces occupied the West Bank, including Arab East Jerusalem and the Gaza Strip. Contrary to international law and UN resolutions prohibiting any change in the status of Jerusalem pending negotiations, Israel annexed East Jerusalem and declared the "Unified" city its capital. In fact, Israel spared no moment in implementing its policies which have marginalized the Palestinians and "Judaized" their surroundings. Israel has achieved its objective by employing planning and property Laws to reshape and mold Jerusalem into an Israeli Jewish capital.

Fundamental to this strategy is Israel's policy of settlements construction for Jews, while limiting construction and had use for Palestinians. Such policy, in fact aims at preventing any possibility of the restoration of Arab sovereignty by limiting Palestinians to scattered neighborhoods surrounded by a belt of settlements. Furthermore, restrictions on Palestinians economic development and residency Laws banning non-Jerusalem Palestinians from living in the city are other key aspects of the strategy.

By confiscation of land in East Jerusalem, Israel took control of strategic and ideologically significant sites and created large settlement blocks to strengthen its control demographically.

The ultimate goal of such policies is to create a unified Israeli city where the Green Line between West Jerusalem and occupied East Jerusalem is almost invisible. It is clear, that Israel is unilaterally predetermining the outcome of any future negotiations on the status of the city. Without sovereignty and political control over East Jerusalem, Palestinians will continue to be unable to shape their city through planning and economic development, or to preserve East Jerusalem's Arab identity.

There is no doubt that the status of Jerusalem is considered to be the most intractable issues in the Arab-Israeli conflict, for it is highly emotional, controversial and intricate. Therefore, one should consider the psychological factor that shapes basically, the polarized attitudes, cognitions and perceptions of both communities. Bearing this in mind, one should be conscious of the various sensitivities evoked in the realm of the discussions over the future status of Jerusalem. It is evident however, that successive Israeli governments had maintained a systematic and consistent position vis-a-vis "Unified Jerusalem", with some minor cosmetic concessions for the sake of Political expediency. And the overall impressions accumulated by any alert political observer, that the best strategy for Israel is to keep the status quo and not consider any new arrangements that could Jeopardize its overall total control of the city and its environs. That's why, the constant postponement of any discussion over Jerusalem has been done under the pretext of being a highly emotional and sensitive issue, while creeping annexation of the remnants of the city is paving the way to a non-negotiation situation over the status of Jerusalem.

On the other hand, Palestinians being not en par with the Israelis at almost every level, would like to see pressures coming from the international Community in bolstering their position towards the recapturing of Arab East Jerusalem through UN resolutions, Geneva Conventions and International law, that considered any change in the status of Jerusalem as inadmissible. All measures which have altered, or purported to alter, the demographic geographic, historical and legal character of Jerusalem are null and void and must be rescinded forthwith.

This position by the Palestinians is considered by the Israelis as extreme, irrational and non-starter. This paper will shed lights on the problem and share some common grounds for future negotiations over Jerusalem. The intention is purely based on academic parameters and does not reflect and official position. Several scenarios on sovereignty will be construed for intellectual debate as well as an eye-opener to policy-makers, negotiators and public officials.-

II- Background And Arguments For The Palestinian Position

Israel has unjustly occupied Arab territory and therefore does not deserve land sites control of Jerusalem. United Jerusalem is not recognized internationally as the capital of Israel, and no party recognizes Israeli claims to Jerusalem, as evidenced by UN resolution 181. Israel maintains control by military force without legitimacy or legality. Therefore, Israelis have no legal right to this territory. The contested Jewish control of Jerusalem has lasted for almost three decades. The Muslims controlled Jerusalem for thirteen centuries. The Palestinians have a much stronger historical claim to the land. Occupation after war is only legal if it is temporary, and Israeli occupation has not been temporary. The current occupation of East Jerusalem is illegal and the Palestinians have a right to self-determination there.

There is a sovereignty vacuum but not a legal vacuum. UN resolution 181 intended two states with self-determination, a Jewish state and an Arab State, with Jerusalem under an international trusteeship.

Arab East Jerusalem is considered by the Palestinians as the capital of their future political entity and the center of their lives. The national Palestinian institutions are located in Jerusalem, and Palestinians have the right to build wherever they own land. It is unacceptable that the Israeli Jerusalem municipality prevents Arab from building inside the municipal borders. East Jerusalem was a totally Arab city from 1948 until occupation in 1967.

The religious arguments are not less emphatic in the attitudes and rationale of the Palestinians. For Muslims, (400 million Arabs and 600 million non-Arab Muslims in 60 countries all over the World), Jerusalem is al-Quds al-Sharif, that is, "The Holy City". It is one of Islam's three most holy places, along with Mecca and Medina. The al-Aqsa mosque, and the Dome of the Rock, mark the spot from which the Prophet Muhammad ascended to heaven. The whole area, referred to in Jewish tradition as the Temple Mount, encompasses almost 40 acres, or one fifth of the Old City within the original Walls.

On the other hand, Christians have been present in the Old City of Jerusalem since the Apostles built the first churches there soon after the Crucifixion and Resurrection of Jesus Christ. However, the historical presence of both Christians and Muslims in the Old City is also reflected in the fact that out of its total surface of 927 dunums, Christians owns 420 dunums and Muslims own 405 dunums. Jewish propand public property are, respectively, 40 dunums and 62 dunums. In other words, Muslims and Christians own a total of 99% of the land in the Old City.

It is important to note, that Palestinians, Muslims and Christians alike to utterly acknowledge and respect the Jewish religious feelings and emotions attached to Jerusalem, for the yearning to be in Jerusalem has always been part of the Jewish identity. There was no time in which the memory of Jerusalem was not central in the worship and hope of the Jewish people.

It is not the purpose of this paper to pursue the historic justifications as to the claimants of the land, however, to use such historic antecedents might lay the ground work for a negotiated settlement over the issue of Jerusalem.

III The Concept of Sovereignty And Its Relevance to Jerusalem

One of the main difficulties in negotiating Jerusalem is the question of sovereignty. It is explicit, that the issue of sovereignty is a potential obstacle to the resolution of the Jerusalem question.

Today, sovereignty represents a status in international law, namely that of a "direct subject" of international law. As such, States are independent and equal. Moreover, it means the State is independent, within its territorial Jurisdiction, from the executive, legislative or judicial Jurisdiction of a foreign state and from a foreign law.

In Jerusalem, the main problem is the disempowerment of the Palestinians as a national community, and the incremental loss of their socio-political and economic as well as their cultural foothold in Jerusalem. The sovereignty issue overshadows everything else.

Communication between the two sides breaks down because there is no agreement over the basics; to whom does Jerusalem and its Land belong?

Considered as one of the politically most delicate, disputed and conflict-prone issues, the question of Jerusalem's status has long been evaded, in order not to impede the negotiating process between the Palestinians and the Israelis.

For both Israelis and Palestinians, the City of Jerusalem has become a symbol of their existence as a nation. However, what distinguished Jews from Arabs in multidimensional, and comprises differences in nationality, religion, language, and a host of related cultural aspects ranging from social norms to political conducts. And in defining their attitudes, both Palestinians and Israelis are determined to preserve their own distinct identity. At the same time, neither side acts to change the personal identity of members of the other group.

It is only the "Jewish" or "Arab" character of the city as a whole which is subject to contention. In fact, antagonistic positions are basically expressed in terms of mutual non-recognition. Palestinians categorically deny the legitimacy of Israeli rule over East Jerusalem. Israelis deny Palestinians the right of collective self-determination. Thus, the major bone of contention relates to territory and control- in terms of absolute sovereignty. However, by virtue of its dominant position, Israel spares no effort in creating facts: legal territorial, demographic and economic. Israeli policies in Arab East Jerusalem are uncompromising. While the Palestinians strategy mainly consists in preserving its own separate institutions and of non-cooperation with the Israeli authorities and the Jewish sector wherever this implies explicit recognition of Israeli rules. It is worth mentioning, that a number of model solutions for Jerusalem have over the years been developed. These are all variations on the theme of sovereignty, and can be subdivided in several categories, with possible combinations:

1. Exclusive Israeli sovereignty over the whole of Jerusalem (i.e. the continuation of the Status Quo.)

2. Split sovereignty with a return to the pre-June 1967 Status Quo Ante.

3. Scattered sovereignty, with Israel ruling Jerusalem neighborhoods with a Jewish majority, and the Palestinians ruling neighborhoods with an Arab majority; this can take either the form of one super-municipality, with decentralization towards boroughs; or of two, closely cooperating municipalities.

4. Joint sovereignty with Israel and the Palestinians ruling one United Jerusalem municipality in equality or parity.

One should admit that the issue of Jerusalem is first and foremost a political issue, not religious, ethnic or cultural one, and political problems require political solutions.

Therefore, further elaborations on the above categories of sovereignty should be made.

Split sovereignty Option requires the formation of two municipalities (Palestinian and Israeli). Such kind of sovereignty can be scattered geographically, and does not require contiguous autonomous areas. This is in many respects a demographic solution of Sovereignty.

On the other hand, Joint sovereignty is the creation of one municipality with parity and equality, demographically and geographically between Palestinians and Israelis. This single municipality would require either expanding the boundaries of Jerusalem to bring a greater number of Palestinians to reach a balance, or reducing the size of Jerusalem in order to achieve the same outcome. Jerusalem cannot remain within the same boundaries and have an equitable, equal municipality. This joint sovereignty approach, with its single municipality, is theoretically very inticing, but it requires a political climate which is non-existent under the present political realities and conditions. Israel should create more conducive conditions in order for such options materialize.

Shared Sovereignty is a mixed option that takes the contents of the preceding two and tries to build on it an overall approach. It fosters integration and acknowledges divergence at the same time.

Each person in the city, in the light of the above options, will be a citizen of a sovereign state, either Palestine or Israel. Simultaneously, they will also be citizens of Jerusalem, that would necessitate common grounds that will expedite cooperation, integration necessary for political separation. The International Community has adamantly portrayed non-acceptance to Israel 's unilateral solution to the issue of Jerusalem. In fact, it looks forwards to bilaterally agreed-upon arrangements, with an element of internationalization. Therefore, the joint sovereignty/condominium approach is more conducive if linked to an overall solution to the Palestine Problem, a two-State and one-city solution. Should this solution come about, there will be a new Arab State of Palestine including the West Bank. Jerusalem would be a sort of "corpus separatum" containing citizens of two states. There would be an Israeli mayor with functional authority over Israeli citizens and a Palestinian mayor with functional authority over Palestinian citizens. However, administration of the city would ideally be shared through joint commission. Each community would have its own courts and legal system for its own ethnic group. Jerusalem, thus would be jointly owned and governed, but with dual administrative and legal arrangements.

IV. Prerequisites For Negotiating The Issues Of Jerusalem

There is no doubt, that flexibility and subtle bargaining will be required to find a solution for the issue of Jerusalem. Third party intervention might be useful in expediting the peace process, as well as acting as a catalyst for ice-breaking. However, a prerequisite for making Jerusalem negotiable, is to agree on the definition of the problem. In reality, there is no consensus between Israelis and Palestinians on what is at stake, and what would be the future status of Jerusalem. Israel officially refuses to consider East Jerusalem as part of the West Bank and as occupied territory, contrary to the Palestinian position, which perceives that there is no difference in the occupational status of East Jerusalem and other Occupied territories.

Sovereignty in East Jerusalem is an integral part of Palestinian' self-determination. In the context of a two-state solution, anything short of Palestinian Sovereignty in Jerusalem will be unacceptable. To facilitate the above objective, ending the settlement policy is a prime concern that be addressed. In any case, for the Palestinians, sovereignty over East Jerusalem is the bottom line for any possible compromise, however, this does not necessarily exclude cooperation with a Jewish municipal administration on common concerns as public space, housing, transportation, water, sanitation, Land Zoning, health, environment, and so on.

Interestingly, Professor Walid Khalidi of Harvard University has initiated a ten point proposal for the solution of Jerusalem, that I would like to reiterate here:

1. East Jerusalem would be the capital of Palestine, with its own municipality in the extended municipal 1967 borders; West Jerusalem would be the capital of Israel.

2. The borders between West and East Jerusalem would follow the 1967 lines, but be open both ways - " sovereignty without walls" - subject to agreed security arrangements.

3. The Jewish Quarter in the Old city, the Wailing Wall plaza, and the Jewish cemetery on the Mount of Olives would have extraterritoriality.

4. An agreed of Jewish residents of East Jerusalem would remain, as Israeli citizens, with their own boroughs within the Palestinian municipality of East Jerusalem.

5. Each religion would be in exclusive charge of its own holy places and institutions, but an interecclesiastical council with a rotating chairmanship would promote interfaith harmony.

6. Central structures with rotating chairmanships would exist at both an inter ministerial and an inter municipal level to address political and infrastructural issues respectively between East and West Jerusalem.

7. Land requisitioned by Israel but not built upon in East Jerusalem would revert to Palestinian hands.

8. The choice of compensation or return would be accorded Palestinian Jerusalemites.

9. Jewish colonies outside the extended 1967 municipal borders would be addressed in final status negotiations on settlements in the West Bank.

10. There would be an agreed transitional period.

The Current Israeli official position concerning Jerusalem was best exemplified in the guidelines of the Likud government, published after the victory of Netanyahu, that stated the following :

1. Jerusalem, the capital of Israel, is one city, whole and undivided, and will remain forever, under Israel's sovereignty.

2. Freedom of worship and access to the holy places will be guaranteed to members of all faiths.

3. The Government will thwart any attempt to undermine the unity of Jerusalem, and will prevent any action which is counter to Israel's exclusive sovereignty over the city.

4. The Government of Israel, through its ministries and through the Jerusalem Municipality, will allocate special resources to speed up building, improve municipal services for Jewish, Arab and other residents, and to reinforce the social and economic status of the Jerusalem metropolitan area.

The "National Agreement" drafted by Yossi Beilin, Labor, and Michael Eitan, Likud, regarding the negotiations on the permanent settlement with the Palestinians, was publicized on 22 January 1997 and stipulated for Jerusalem the following:

1. Jerusalem, the capital of Israel, with its existing municipal borders, will be a single unified city within sovereign Israel.

2. The Palestinians will recognize Jerusalem as the capital of Israel and Israel will recognize the government center of the Palestinian entity which will be within the borders of the entity and outside the existing municipal borders of Jerusalem.

3. Muslim and Christian holy places in Jerusalem will be granted special status.

4. Within the framework of the municipal government the Palestinian residents of Arab neighborhoods in Jerusalem will receive a status that will allow them to share in the responsibility of the administration of their lives in the city.

These two divergent views representing the over-all Israeli spectrum, are considered by the Palestinians as non-starters for negotiations. At the outset, it is explicit that Israel's maximalist position in safeguarding the status quo, is loggerheads with Palestinian aspirations and self-determination. However, it is not inconceivable that searching for common grounds at the interim level would facilitate the final outcome of negotiations in the context of sovereignty. I would identify with the basic pre-conditions that will set up the final composition of sovereignty.

V. Towards Setting the Tone for Resolving the Issue of Jerusalem

Several steps should be considered in order to set the pace for final negotiations on Jerusalem. Palestinians have deep conviction that unless Israel changes or reverses its decisions, and policy-structures vis-a-vis Arab East Jerusalem, it will be very difficult to embark on the process of negotiations. The sensitivities involved and the psychological barriers impede the process and create stumbling blocks that will not be conducive to an ambiance of dialogue. Hence, it will be of utmost importance that negotiations should deal within the functional aspects of the problem that eventually would lead to the solving of the enigma. Of course, several areas could be identified among which, planning and development, Residency Status, taxation and property law.

Other issues also could be considered as an integral part of the overall solution like, security, municipal boundaries, accessibility to religious sites, municipal affairs and coordination, utilities (water, electricity, sewage, infrastructure), confiscated properties/Lands, economic imbalance, environment and the list could be elaborative. I don't claim to be an expert in these fields to set the mechanisms for plausible solutions, however, Palestinians and Israelis alike do believe that the Jerusalem of today, under Israeli rule, is practically speaking a divided city. Since the Intifada, the city had been further divided by boundaries of fear. The removal of the boundaries of fear is an essential condition for the real unification of the city through integration and yet separation.

In conclusion, this paper attempted humbly in laying down the adversarial positions as well as the search for common grounds. However, it did not lay down a strategy for negotiations but outlined the parameters of discordance and convergence a for the ultimate pursuit of achieving a workable negotiation on the most intractable issue i.e. Jerusalem. One cannot be over ambitious because of the dictate of real politics, and yet cannot always compromise on principles. This reminds us of Aristotle's golden mean, for which we have to aspire in resolving our conflict.