Sharing the City of Peace

Hertzl's vision of sharing what can never be relinquished meets Arafat's proposal for Jerusalem as the capital of two states with no Berlin Wall, argues John Whitbeck

There will never be a durable peace in the Middle East without a settlement of the Israeli-Palestinian conflict acceptable both to most Israelis and to most Palestinians. That is a fact. There will also never be a lasting settlement of the Israeli-Palestinian conflict without a solution to the status of Jerusalem acceptable both to most Israelis and to most Palestinians. That is also a fact.
While it is widely assumed that no such solution exists, there is one solution which has a real chance of being acceptable both to most Israelis and to most Palestinians.

When Israelis and Palestinians speak about Jerusalem, they are not simply establishing negotiating positions. Jerusalem commands too tight a grip on hearts and minds. Their repeated and virtually unanimous positions must be taken seriously. If one accepts that no Israeli government could ever accept a redivision of Jerusalem, and if one accepts that no Palestinian leadership could ever accept a permanent status solution which gave the Palestinian state (and, through it, the Arab and Muslim worlds) no share of sovereignty in Jerusalem, then only one solution is conceivable -- joint sovereignty over an undivided city.

In the context of a two-state solution, Jerusalem could form an undivided part of both states, constitute the capital of both states and be administered by local district councils, to which as many aspects of municipal governance as possible would be devolved, and an umbrella municipal council, which would coordinate only those major matters which needed to be dealt with efficiently at a city-wide level. In the proper terminology of international law, Jerusalem would be a "condominium" of Israel and Palestine.

Condominiums, while rare, are not without precedent. Chandigarh is the joint undivided capital of two neighbouring Indian states. For half a century prior to its independence in 1956, Sudan was a condominium of Britain and Egypt, officially named "Anglo-Egyptian Sudan". For more than 70 years, the Pacific nation of Vanuatu (formerly the New Hebrides Condominium) was under the joint undivided sovereignty of Britain and France. For more than 700 years, until a 1993 constitutional revision, the Principality of Andorra was under the joint undivided sovereignty of French and Spanish "co- princes". In 1999, the arbitrator appointed by the International Court of Justice ruled that the contested Bosnian municipality of Brcko should be a condominium shared by Bosnia's Serb Republic and Muslim-Croat Federation, with its own local administration.

In seeking a solution to the status of Jerusalem, it is essential to distinguish between sovereignty and municipal administration. While municipal administration involves numerous practical questions, sovereignty over Jerusalem is fundamentally a symbolic, psychological and virtually theological question.

Assigning sovereignty over an undivided city both to Israel and to Palestine should satisfy to the maximum degree possible the symbolic and psychological needs of both Israelis and Palestinians. It could also generate profound positive psychological benefits for the quality of "life after peace" by requiring in spirit and in practice a sharing of the city and cooperation with "the other" rather than a new partitioning of the city and mere toleration of "the other" or the continuing domination of one people over another, with all the poisonous frictions that such domination inevitably provokes.

There is a widespread misconception among Israelis that, under the status quo, Israel possesses sovereignty over expanded East Jerusalem. It does not. It possesses administrative control. A country can acquire administrative control by force of arms. It can acquire sovereignty only with the consent of the international community. Israel has possessed and exercised administrative control over expanded East Jerusalem for four decades. To this day, not one of the world's other 194 sovereign states has recognised its claim to sovereignty. Furthermore, Israel's purported annexation of expanded East Jerusalem has been declared null and void and "Jerusalem" has been explicitly included among the occupied territories in a long series of unanimous or near-unanimous UN Security Council and General Assembly Resolutions.

Israel could retain administrative control over expanded East Jerusalem indefinitely. That is a question of military strength and political will. However, it is most unlikely that it will ever acquire sovereignty over expanded East Jerusalem unless it agrees to a permanent solution to the status of Jerusalem based on joint undivided sovereignty over the entire city. That is a question of law. Indeed, since the right of a country to declare any part of its territory to be its capital is not contested, the universal refusal to recognise even West Jerusalem as Israel's capital and the maintenance of all embassies to Israel in Tel Aviv (Costa Rica and El Salvador having recently moved their embassies -- the only ones in Jerusalem -- to Tel Aviv) is striking evidence of the refusal of the international community, pending an agreed permanent solution to the status of Jerusalem, to concede that any part of the city is Israel's sovereign territory.

A clearer understanding of what the legal status quo regarding Jerusalem really is could make Israeli public opinion less reflexively resistant to contemplating any modification of that status quo in return for peace.

Israelis concerned about their future might well look back at the vision for Jerusalem of Theodor Hertzl, the founding father of Zionism: "we'll simply extraterritorialise Jerusalem, which will then belong to nobody and yet to everybody, the holy place common to the adherents of all faiths, the great condominium of culture and morality." Hertzl's dream of a Jewish state was wildly impractical at the time, but it existed half a century later. Whether its people ever enjoy peace and security may well depend on whether they can grasp the visionary practicality of Hertzl's own recognition that what neither people of the Holy Land could ever relinquish or renounce must therefore be shared.

President Yasser Arafat clearly recognised this principle when, in a speech delivered at Harvard University in 1995, he asked: "Why not Jerusalem as the capital of two states, with no Berlin Wall? United, open, co-existence, living together." The audience rose for a standing ovation.

If Hertzl and Arafat could agree on the potential of the "condominium" solution, shouldn't this potential key to peace be explored and developed by those who still believe that peace is possible and who recognise that it is urgent?

* The writer is an international lawyer who writes frequently on the Israeli- Palestinian conflict.

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