Jerusalem: A Condominium Solution

John V. Whitbeck is an international lawyer based in Paris who writes frequently on the Israeli–Palestinian peace process. His “Two States, One Holy Land” framework for peace was the subject of a three-day conference of twenty-four Israelis and Palestinians held in Cairo in 1993.

Throughout the lifetime of the United Nations, no issue has occupied more of its time, generated more General Assembly and Security Council resolutions, yet provoked more Security Council vetoes, than the “Question of Palestine”.

 

The General Assembly resolutions were adopted with overwhelming majorities. Those of the Security Council were defied with impunity, while its vetoes served only to frustrate the will of the international community.

 

The United Nations’ preoccupation with Palestine is no accident. By adopting General Assembly Resolution 181 of 1947, which recommended partitioning Palestine into two states, one Arab and one Jewish, with Jerusalem “internationalised”, the United Nations assumed responsibility both for the success of the Zionist dream and its catastrophic consequences for the Palestinian people. It has not shirked this responsibility, and those UN organs which are not subject to the veto have acted in a consistently principled and honourable, if not always effective, way.

 

In December 1999, in what has become an annual ritual, the 188-member General Assembly adopted twenty pro-Palestinian resolutions. The negative votes ranged from none to three when Israel and the United States were joined by either the Marshall Islands or Micronesia, two “freely associated states” of the United States whose claims to sovereign status are, by the standards of conventional international law, on shakier ground than that of the State of Palestine. Perhaps even more strikingly, on only four of the twenty resolutions did the number of abstentions exceed three. The resolution affirming the right of the Palestinian people to self-determination was adopted by a vote of 156–2 with only one abstention.

 

Many UN agencies and positions specifically linked to the Palestinian problem have been created over the years. The UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), established by a General Assembly resolution in December 1949 to provide humanitarian assistance and emergency relief services for the dispossessed and homeless Palestinian refugees from the 1948 war, recently marked the fiftieth anniversary of its “temporary” mission. It still employs tens of thousands and has a budget in the range of $350 million. In addition, for over twenty years, the Programme of Assistance to the Palestinian People of the UN Development Programme has provided assistance to Palestinians in the occupied Palestinian territories.

 

The United Nations also has a Division of Public Information on the Question of Palestine and a Committee on the Exercise of the Inalienable Rights of the Palestinian people, which in March 2000 brought together more than 240 delegates, diplomats, foreign aid representatives and journalists for a three-day conference in Hanoi. There is also the amply titled “United Nations Special Co-ordinator for the Middle East Peace Process and Special Representative of the Secretary-General to the Palestine Liberation Organisation and the Palestinian Authority”, a position currently held by Ambassador Terje Roed-Larsen, the distinguished Norwegian diplomat who helped to facilitate the Oslo process. Since 1978, the United Nations has observed 29 November as the International Day of Solidarity with the Palestinian People to commemorate the anniversary of UN General Assembly Resolution 181 of 1947. More substantively, on 7 July 2024 the General Assembly, by a vote of 124–4, upgraded Palestine’s representation at the United Nations to a unique and unprecedented level, conferring upon Palestine additional rights and privileges of participation that had traditionally been exclusive to member states.

 

Will the Question of Palestine, like the poor, always be with us, both at the United Nations and in the Middle East? Or might the key to a durable peace with some measure of justice be within reach, with the United Nations in a position not simply to reaffirm, year after year, what is right and just, but also to help make it happen?

 

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, one which, as the September 2000 deadline for reaching a permanent status agreement approaches, is increasingly difficult (and dangerous) for anyone to ignore.

 

It is still widely assumed that no such solution exists. As a result, doubts, distrust and even despair are still widespread on both sides. Many people have no faith in the current “peace process” and no desire to become involved and help it succeed because they see at the end of the road a great immovable boulder named “Jerusalem” which they believe condemns any “peace process” to ultimate and inevitable failure.

 

Nothing is more likely to revive a constructive confidence in the eventual success of the “peace process”, and to accelerate the essential moral, spiritual and psychological transformation towards a co-operative, rather than a confrontational, view of the future of the Middle East, than a prompt recognition that a solution to the status of Jerusalem does exist. Fortunately, there is one solution which has a real chance of being acceptable to most Israelis and Palestinians.

 

When Israelis and Palestinians speak about Jerusalem, they are not simply laying out negotiating positions. Jerusalem has too tight a grip on hearts and minds. Their repeated and, within each community, virtually unanimous positions must be taken seriously. One must accept that no Israeli government could ever accept a redivision of Jerusalem and 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. In this stalemate 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, be the capital of both states and be administered by an umbrella municipal council and local district councils. In the proper terminology of international law, the city would be a “condominium” of Israel and Palestine.

Joint Sovereignty

Joint undivided sovereignty, while rare, is not without precedent. Chandigarh is the joint undivided capital of two neighbouring Indian states, Haryana and Punjab. 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 seventy years, the Pacific nation of Vanuatu (formerly the New Hebrides Condominium) was under the joint undivided sovereignty of Britain and France, with each resident free to choose whether to be subject to British laws or French laws. For more than seven hundred years until 1993, the Principality of Andorra was under the joint undivided sovereignty of French and Spanish “co-princes” (who since 1607 have been the head of the French state and the Bishop of Seo de Urgel). In recent years Andorra’s administration has been entrusted to an elected general council, and since a constitutional revision in 1993 the co-princes have served as co-heads of state of a conventionally sovereign UN member state rather than as joint sovereigns. In March 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 its Muslim–Croat Federation, with its own local administration.

 

As a joint capital, Jerusalem could have Israeli government offices principally in its western sector, Palestinian government offices principally in its eastern sector and municipal offices in both. A system of districts or French-style arrondissements could bring municipal administration closer to the different communities in the city, including the ultra-orthodox Jewish community. To the extent that either state wished to control persons or goods entering it from the other state, this could be done at the points of exit from, rather than the points of entry to, Jerusalem. In a context of peace, particularly one coupled with economic union, the need for such controls would be minimal.

 

In a sense, Jerusalem can be viewed as a cake which could be sliced either vertically or horizontally. Either way, the Palestinians would get a share of the cake, but, while most Israelis could never voluntarily swallow a vertical slice, they might just be able to swallow a horizontal slice. Indeed, by doing so, Israel would finally achieve international recognition of Jerusalem as its capital.

 

Jerusalem is both a municipality on the ground and a symbol in hearts and minds. Undivided but shared in this way, Jerusalem could be a symbol of reconciliation and hope for Jews, Muslims, Christians and the world as a whole. Furthermore, since a city needs no army but only police, Jerusalem could also be fully demilitarised, finally becoming the “City of Peace” which all three religions have long proclaimed it to be.

 

Among peace-oriented Israelis and Palestinians there is a broad consensus that, in any permanent status solution, Jerusalem should remain physically undivided. However, there is no consensus on how the problem of sovereignty should be solved. That issue remains almost too hot to handle. Indeed, it is a bit like death: everyone knows that it is at the end of the road, but virtually no one wants to talk about it because virtually no one can see any solution or happy ending.

 

The issue of sovereignty over Jerusalem is such an emotional one, and the consensus within each community behind its own uncompromising position is (or is at least proclaimed and perceived to be) so nearly universal, that there is no incentive for those directly engaged within the communities to stick their necks out by proposing any original or unorthodox ideas on the subject. Even today, Israelis or Palestinians who sought publicly to promote a compromise solution to the issue of sovereignty over Jerusalem which they honestly believed could be acceptable to the other side would risk being castigated as traitors or heretics by the vocal majority of their compatriots or co-religionists.

 

When the Israeli Moshe Amirav and the Palestinian Hanna Siniora published their courageous and thoughtful joint article entitled “Jerusalem: Resolving the Unresolvable”¹ during the winter of 1991–2, they did not shy away from making controversial proposals. Most notably, they called for parity between Israelis and Palestinians in all aspects of civil, political and religious life in the city, for a fourfold expansion of the area within the municipal boundaries so as to equalise the size of the two communities and for strict “immigration” controls to maintain this demographic balance. However, so as to make their ideas appear non-threatening to Israelis, even they did not dare to address directly the question of sovereignty, but sought instead to make it manageable by breaking it down into its various components and tackling each one separately.

 

“Joint undivided sovereignty” is a concept which even highly intelligent people are often unable to comprehend. Perhaps, paradoxically, it is too simple to be easily understood. While sovereignty is commonly viewed as the state-level equivalent of title or ownership, joint undivided ownership of land or a house (between husband and wife or, through inheritance, among distant cousins) is scarcely uncommon. Such joint undivided ownership is clear as a matter of law and comprehensible as a matter of practice. It is up to the joint owners to determine how their common property is to be administered.

Devolution of Authority

In seeking a solution to the status of Jerusalem, it is therefore essential to distinguish between sovereignty and municipal administration. Questions of municipal administration, including the division of authorities between an umbrella municipal council and local district councils, exist for any sizable city, regardless of questions of sovereignty. In Jerusalem’s case, it would clearly be desirable, employing the European Union’s principle of “subsidiarity”, to devolve as many aspects of municipal governance as possible to the district council level, reserving to the umbrella municipal council those major matters which can only be administered efficiently at a city-wide level. London is a good example of how potentially very few matters need overseeing by a city-wide council. May 2000 sees the election of a new Greater London Authority and a mayor, but London continued to function quite efficiently with only local district councils and with no umbrella municipal council after the Greater London Council was abolished in 1986. As there are currently no integrated neighbourhoods in Jerusalem, to ensure at the district council level that Israelis are subject to Israeli administration, and Palestinians to Palestinian administration, would present no practical problems.

 

If the devolution of authority to the district council level was broad and deep, the potentially inflammatory issue of the percentage representations of the two communities on the umbrella municipal council would be much less problematic. If elected district councils named their own representatives to the umbrella municipal council, a more technocratic and less demagogic style of municipal government might be possible. If the percentage representations of the two communities, through their respective municipal districts, on the umbrella municipal council were fixed at an agreed level and made impervious to subsequent demographic changes within the municipal boundaries, the issue of post-peace “immigration” of Israelis and Palestinians into Jerusalem would become a non-issue. As a result, the purely political motivation for building more Jewish residential districts in expanded East Jerusalem, or for expanding the current municipal boundaries even further to incorporate additional Jewish population centres, would evaporate.

 

While municipal administration involves numerous practical issues, sovereignty over Jerusalem is fundamentally a symbolic, psychological and virtually theological question. It has to be recognised that symbolism, psychology and theology are extraordinarily important in connection with Jerusalem, more so than with any other city on earth. An “internationalisation” of the city, with neither Israel nor Palestine possessing sovereignty, was recommended by UN General Assembly Resolution 181 of 1947. This recommendation has never been revoked and continues to enjoy significant international support and moral authority. However, “internationalisation” would serve no useful symbolic or psychological purpose for those most directly involved and thus cannot be a realistic option today.

 

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 produce profound psychological benefits for the quality of “life after peace” by requiring in spirit and practice a sharing of the city and co-operation 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 which such a domination inevitably provokes.

 

One of the strengths and beauties of joint undivided sovereignty, and a potential advantage in making it acceptable to both peoples and to their leaderships, is that it would not require either Israel or Palestine to renounce sovereignty over any territory over which it has asserted sovereignty. The State of Palestine asserts sovereignty only over those Palestinian lands conquered and occupied by Israel in 1967. Of those lands, the State of Israel asserts sovereignty only over expanded East Jerusalem. Under a condominium solution, in the only place where current sovereignty claims overlap, sovereignty would overlap and be shared. To repeat, neither Israel nor Palestine would have to renounce sovereignty over any territory over which it has asserted sovereignty. Potentially intractable negotiations over where to draw international borders through and even within Jerusalem would be wholly precluded, since the city would not be divided but shared.

 

Israelis should ask themselves what, if anything, they would actually be giving up in accepting joint undivided sovereignty over Jerusalem. Approximately 70 per cent of the city’s residents are now Israelis, and Palestinian residents already have the right to vote in municipal elections. That would not change. Put most simply, all Israel would have to do is say this: “United Jerusalem, within the expanded boundaries which we have unilaterally established, is the eternal capital of Israel…but, in order to make peace possible, we accept that it is also the capital of Palestine.” That’s all. While today only Costa Rica and El Salvador even recognise West Jerusalem as Israel’s capital, and no country recognises Israeli sovereignty over East Jerusalem, if Israel adopted such a position and implemented it with Palestinian consent, virtually all countries would promptly recognise united Jerusalem as Israel’s capital. Embassies would move there. Is this really so awful and unthinkable for Israelis? Is this really impossible?

Israel and Jerusalem

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.

 

When Iraq conquered Kuwait, it asserted sovereignty over it. No other country recognised that claim. For the next seven months, Iraq’s position in Kuwait—effective administrative control coupled with an unrecognised claim to sovereignty—was, as a matter of international law, effectively indistinguishable from Israel’s position in expanded East Jerusalem today. (Until the recent referendum on integration or independence, Indonesia’s position in East Timor was similar, as is Morocco’s position in Western Sahara, where a similar referendum, first scheduled by the United Nations to be held in 1991, keeps receding like a mirage.) Israel has possessed and exercised administrative control over expanded East Jerusalem for more than three decades. To this day, not one of the world’s other 192 sovereign states has recognised its claim to sovereignty.

 

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 sovereign territory to be its capital is not contested, the refusal of virtually all countries to recognise West Jerusalem as Israel’s capital, and the maintenance of virtually all embassies—even the American embassy—in Tel Aviv, are striking evidence of the international community’s refusal to concede that any part of the city is Israel’s sovereign territory.

 

A vivid example of the firm and unequivocal position of the international community is provided by UN General Assembly Resolution 53/37, adopted on 2 December 2024 by a vote of 149–1 (with the United States abstaining, as it did again in December 1999). The resolution declares that the “General Assembly ... Determines that the decision of Israel to impose its laws, jurisdiction and administration on the Holy City of Jerusalem is illegal and therefore null and void and has no validity whatsoever”. In May 1996, the world’s view of the legal status of Jerusalem was concisely summarised by then British Foreign Secretary Malcolm Rifkind: “Britain made clear many years ago, as did the international community, that it considered Israel to be in military occupation of East Jerusalem and to have only de facto authority over West Jerusalem.”

 

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

 

It is clear that joint undivided sovereignty is not the first choice of either Israelis or Palestinians. Exclusive Israeli sovereignty over the whole city would clearly be the first choice of most Israelis, but this is equally clearly unacceptable not only to Palestinians but also to the Arab and Muslim countries with which Israel wishes to have normal diplomatic and economic relations. They would accept any permanent status terms which the Palestinians might accept bar that one. Significant segments of the international community beyond the Arab and Muslim worlds would also oppose exclusive Israeli sovereignty. The Basic Agreement signed at the Vatican on 15 February this year between the Holy See and the Palestine Liberation Organisation is noteworthy in this regard. It declares that “an equitable solution for the issue of Jerusalem, based on international resolutions, is fundamental for a just and lasting peace in the Middle East, and that unilateral decisions and actions altering the specific character and status of Jerusalem are morally and legally unacceptable”. It also calls for “a special statute for Jerusalem, internationally guaranteed, which should safeguard”, among other things, “the equality before the law of the three monotheistic religions and their institutions and followers in the City”.

 

A division of sovereignty and a redivision of administrative control strictly in accordance with the pre-1967 border—and hence in accordance with international law and UN Security Council Resolution 242 of 1967—would clearly be the first choice of most Palestinians. However, given the presence of the Western Wall, enormous Jewish settlements and even a slight Israeli population majority in expanded East Jerusalem, this is equally clearly inconceivable from the Israeli standpoint. While expanded East Jerusalem is effectively indistinguishable from the other occupied territories as a matter of international law, it is most certainly distinguishable and distinguished as a matter of Israeli domestic law and, most importantly, in Israeli public perception.

A Best Second Choice

These irreconcilable “first choice options” must, logically, be discarded by all who truly wish to achieve peace. Such people should be searching now for a mutually acceptable “best second choice”. If one accepts the two premises that no Israeli government could ever accept a redivision of Jerusalem and that no Palestinian leadership, nor the Arab and Muslim worlds, could ever accept a permanent status solution which gave the Palestinian state no share of sovereignty in Jerusalem, then, as a matter of pure logic, joint undivided sovereignty is the only possible second choice if peace is to be achieved. However, even if the first premise were untrue (there being no reason to believe that the second premise might be) and a division of sovereignty in Jerusalem could be agreed upon, joint undivided sovereignty might still be the best possible second choice for both Israelis and Palestinians.

 

Any solution to the status of Jerusalem, like any solution to the Israeli–Palestinian conflict as a whole, must have two characteristics if it is to produce a durable peace. It must be workable, and it must, at least in some measure, be inspirational. If a potential solution is technically workable but fails to inspire hearts and minds, it is unlikely to succeed. If a potential solution inspires hearts and minds but is unworkable on the ground, it too is unlikely to succeed.

 

The most obvious question regarding joint undivided sovereignty is, “What law would apply?” The question tends to be posed on the assumption that it is unanswerable and that the condominium solution for Jerusalem, notwithstanding its inspirational aspects, would be unworkable in practice. In fact, there is not just one potentially workable answer to this question but several.

 

One approach would be for Jerusalem to have its own distinct body of laws, neither wholly Israeli nor wholly Palestinian, and applicable within its boundaries to all who are present there. There is an appealing surface simplicity to this approach, which would have been virtually unavoidable had the city been “internationalised” pursuant to the United Nations’ 1947 partition formula. However, in practice, such a body of laws could only be based on those currently in force in the city as subsequently modified by the umbrella municipal council or, perhaps, by agreement between the Israeli and Palestinian states. Consequently, Jerusalem’s laws would, for the foreseeable future, be virtually indistinguishable from Israel’s laws. Joint undivided sovereignty would be drained of most of its content in Palestinian eyes and the umbrella municipal council, best kept technocratic, could become highly politicised. While the “Jerusalem law” approach could be workable, there are better approaches.

 

A second approach would be to apply Israeli law in every Israeli-majority district as fully as if that district were an integral part of Israel alone and to apply Palestinian law in every Palestinian-majority district as fully as if that district were an integral part of Palestine alone. This is the approach called for in the “scattered sovereignty” model developed in recent years by the Israel/Palestine Center for Research and Information (IPCRI) in Jerusalem. International borders would be drawn around every currently existing village, neighbourhood or settlement in expanded East Jerusalem and each of them put under the exclusive sovereignty of one of the two states. This would require both Israel and Palestine to renounce sovereignty over territory they have claimed as theirs. This approach would be entirely appropriate if a “scattered sovereignty” model were implemented and would even be potentially workable if a condominium solution were implemented. However, it is conceptually inconsistent with the uplifting vision of a single undivided city serving as the capital of both states, would produce practical results undesirable to both peoples and would tend to solidify indefinitely the pervasive segregation of the city’s existing neighbourhoods.

 

A third approach, more supple and subtle, is the most promising. Rather than seeking to establish a distinct body of laws for Jerusalem or providing a purely territorial basis for determining whether Israeli or Palestinian law applies, one can envision a more flexible system in which the law applicable in any specific instance would depend on the subject matter, the parties involved and the municipal district in which the issue or dispute arises.

Legal Flexibility

Legal experts negotiating in good faith, while keeping in mind three broad areas of law (civil, criminal and personal) and two potential bases for jurisdiction (personal and territorial), should be fully capable of agreeing upon appropriate choices of applicable law and jurisdiction based on objective, non-discriminatory and results-oriented criteria. Their task would be to agree upon those situations to be controlled by the personal/national element, those by the territorial element, those by an agreed “tiebreaker” and those by a possible “mixed court”.

 

A few examples should help to clarify how such a flexible legal system would work. Both sides might well agree that the personal/national element should control all personal law matters such as marriage, divorce and inheritance, with Israeli law applicable to Israelis and Palestinian law applicable to Palestinians regardless of the municipal district in which they live. They might also agree that the territorial element should control matters relating to property, with the prevailing law of the municipal district where the property is located being applicable, regardless of the citizenships of the parties involved.

 

In the area of contractual disputes, it might be agreed that Israeli law should apply to disputes between Israelis and Palestinian law to disputes between Palestinians. The territorial element could serve as a “tiebreaker” in any contractual dispute between an Israeli Jerusalemite and a Palestinian Jerusalemite where there was no explicit “choice of law” clause in a written contract. It might also be agreed that the territorial element should control cases of theft, with the accused thief being deemed to have made his own effective “choice of law”.

 

The most difficult and highly charged situation would probably involve a murder within the municipal boundaries of Jerusalem. There would almost certainly be agreement that, if both victim and suspect were Israeli, Israeli law should apply even if the crime occurred in a Palestinian-majority district and that, if both victim and suspect were Palestinian, Palestinian law should apply even if the crime occurred in an Israeli-majority district. If victim and suspect were of different citizenships, a “tiebreaker” would be needed. It is not certain that a territorial “tiebreaker” would be acceptable to both sides or, indeed, to either side. It is possible that it could be agreed that the law of the suspect’s citizenship or the law of the victim’s citizenship should apply. It is also possible that no “tiebreaker” could be agreed upon for cases of murder and perhaps for some other difficult and highly charged situations as well.

 

The last resort would be a “mixed court”, composed of one Israeli judge, one Palestinian judge and one international judge accepted in advance by both governments. There is a history of “mixed courts” operating in diverse places (including the New Hebrides Condominium) and in difficult circumstances during the nineteenth and twentieth centuries, dispensing a reasonable degree of justice. Ideally, they would not be needed in Jerusalem. However, if in one or more instances no objective criteria could be agreed upon for determining whose law and jurisdiction would apply, then “mixed courts” would be the alternative to no solution at all.

 

The results-oriented balancing process necessary to agree upon such a legal structure for a Jerusalem equitably shared by both peoples and their states may seem complicated at first glance. However, the practical results in the lives of Jerusalem’s residents would almost certainly be better than under a more rigid system, and the fluidity of such a legal system would itself emphasise the unique nature of Jerusalem as the undivided capital of two sovereign states. Agreeing upon the relevant practical criteria would be infinitely easier than rolling aside the symbolic and psychological boulder of the issue of sovereignty. The condominium solution is workable.

Implications

The condominium solution has the advantage of being consistent with both the letter and spirit of the formal American position on Jerusalem, which urges that the city should remain undivided and that its permanent status should be determined through negotiations between Israelis and Palestinians. Up to a point, it is even consistent with the letter (if not the spirit) of the long-standing formal Israeli position, as restated by the late Prime Minister Yitzhak Rabin during a joint press conference with President Bill Clinton of the United States in Jerusalem on 27 October 1994: “Jerusalem must remain united under the sovereignty of Israel.” Whether a “united” or “undivided” Jerusalem could be shared under the sovereignty of Israel and Palestine has not yet been formally addressed, although the word “exclusive” has recently entered Israeli political discourse in apparent anticipation of such a possibility.

 

The condominium solution is further from the traditional Palestinian position with its steadfast reliance on “international legitimacy”, international law and UN resolutions. With an exceptionally weak hand to play in terms of military strength and power politics, Palestinians have long drawn comfort from their certainty that international law is on their side—and it is on their side, overwhelmingly so. Indeed, the “maximalist” Palestinian negotiating position is nothing more nor less than full compliance with international law and relevant UN resolutions. However, the decisions to enter into the 1993 Declaration of Principles and its various follow-up agreements reflect a mature acceptance of the brutal truth that a strong position under international law does not alone ensure even the slightest measure of justice. Agreeing not to insist on their strong position under international law with respect to expanded East Jerusalem, and to share sovereignty in the only part of the former Palestine Mandate where current sovereignty claims overlap (as well as in West Jerusalem), may be the practical price which Palestinians must pay for sovereignty over, all other Palestinian lands conquered and occupied in 1967.

 

Indeed, since mid-1995, President Yasser Arafat and other members of the Palestinian leadership have given increasingly clear indications that they are susceptible to the charms and practical merits of the condominium solution and favourably disposed toward it. Faisal Husseini, in charge of the “Jerusalem file” for the Palestinian leadership, has stated that during permanent status talks “we will insist that the negotiations cover all of Jerusalem [including West Jerusalem occupied by Israel in 1948] and not only East Jerusalem”. In a speech at Harvard University’s Kennedy School of Government in October 1995, President Arafat asked, “Why not Jerusalem as the capital of two states, with no Berlin wall? United, open, coexistence, living together.” The audience rose for a standing ovation.

Jerusalem the Key

Realistically, there are only three possible endings to the search for Israeli–Palestinian peace: (1) Israel and Palestine agree on a way to divide Jerusalem, and peace is achieved on that basis; (2) Israel and Palestine agree to share an undivided Jerusalem, and peace is achieved on that basis; or (3) Israel and Palestine fail to agree on Jerusalem’s status, and there is no peace. All the major Israeli political parties, as well as Prime Minister Ehud Barak personally, have ruled out dividing Jerusalem in the most categorical conceivable terms. In November 1997, even the ruling council of the Meretz Party, ostensibly the most left-wing and peace-oriented of the predominantly Jewish parties in the Knesset, decisively rejected a motion backing divided sovereignty in a physically undivided Jerusalem.

 

That leaves only the second and third choices—sharing and no peace—a sobering reality which should, logically, stimulate interest among peaceseekers in exploring the potential of the condominium solution and in trying to convince Israeli public opinion that the Holy City (as well as the Holy Land) can be shared, that a winner-take-all approach produces only losers, that both Israelis and Palestinians must be winners or both will continue to be losers and that there is a common destination at which both peoples would be satisfied to arrive, living together in peace.

 

A century after the First Zionist Congress was held in 1897 and half a century after Israel was established in 1948, Israelis concerned about their future might well look back at the vision for Jerusalem of Theodor Herzl, 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.” Herzl’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 Herzl’s own recognition that what neither people of the Holy Land could ever relinquish or renounce must therefore be shared.

 

If Israelis and Palestinians can agree—and soon—that a mutually acceptable solution for the status of Jerusalem does exist, all the other pieces in the delicate peace puzzle could still fall into place and the actual achievement of a durable Middle East peace would at once become possible. Without a mutually acceptable solution for the status of Jerusalem, everything will fall apart. That cannot be permitted to happen.

 

Could the United Nations help? Perhaps it is not too late to return to where it all began: UN General Assembly Resolution 181 of 1947 and its recommendation that Jerusalem be “internationalised”, with neither the Arab state nor the Jewish state possessing sovereignty. This recommendation recognised the fact, still true today, that peace can never be achieved on the basis of the exclusive sovereignty of either people of the Holy Land over Jerusalem. Perhaps it is not too late for the General Assembly to adapt that recommendation and appeal to Israel and Palestine to share sovereignty over a united Jerusalem as the one and indivisible capital of the two sovereign states. Such a Jerusalem would be a symbol of a new era of genuine reconciliation, co-operation and friendship. Perhaps it is not too late for a happy ending.

Endnotes

1. Working Paper Series no. 16 (winter 1991/2) of the Israeli–Palestinian Peace Research Project, published by the Israel/Palestine Center for Research and Information, Jerusalem [www.ipcri.org/]. Also published in International Spectator 27, no. 3 (July–September 1992), pp. 3–24.