When Israeli Prime Minister Yitzhak Rabin signed the Washington Declaration, the precursor to the Israeli-Jordanian peace treaty, with King Hussein of Jordan on July 25, he characterized it as "a major step on the road to peace." In one critical respect, it risked being a major step backward. There are references in the Washington Declaration to Jordan's "special" and "historic" role in administering Jerusalem's Muslim holy shrines, to which Israel undertook to give "high priority" when permanent-status negotiations take place (inserted in the declaration at Mr. Rabin's initiative, as he subsequently admitted). These references would have made sense only in the context of maintaining the current situation regarding sovereignty and administrative control in the city. It is precisely that situation which constitutes the principal obstacle on the road to peace.
Jordan's announcement on November 1 that it will transfer its responsibilities with respect to Jerusalem's Muslim holy shrines to the Palestinians upon the conclusion of an Israeli-Palestinian agreement on the city's permanent status constituted a belated but extremely welcome recognition of this reality.
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 is increasingly difficult (and dangerous) for anyone to ignore.
It is still widely assumed that no such solution exists. This has led Israel to insist that the status of Jerusalem should not even be discussed until all the lesser problems of Israeli Palestinian relations have been resolved, at which point, perhaps, some previously unimaginable solution may miraculously appear. While, according to the Declaration of Principles, permanent-status negotiations are to commence "as soon as possible" but not later than May 4, 19%, and Jerusalem is explicitly one of the "remaining issues" to be covered during those negotiations, the Declaration of Principles is ambiguous as to whether all of the "remaining issues" are to be discussed at once. Absent a major change of heart, Israel can be expected to refuse to commence permanent-status negotiations until the spring of 19% and to maintain its refusal to discuss Jerusalem until the very end of the five-year "interim period."
Israel ceaselessly strives to change the "facts on the ground" in Jerusalem in its favor. This notably includes the government's efforts to hobble existing Palestinian institutions in the city and the Likud-led attempt to expand the municipal boundaries to incorporate Maaleh Adumim, a West Bank settlement of 35,000 Israelis several kilometers east of Jerusalem. Palestinians understandably fear that Israel's true intention is to create a fait accompli by 1999, permitting Israel to stonewall on Jerusalem in the expectation (or hope) that the Palestinians would by then have no choice but to bear the unbearable. When Israel's Deputy Defense Minister Mordechai Gur stated on July 6, in response to a parliamentary question, that "We recognize the vital interest in unifying Maaleh Adumim with Jerusalem," that "I can tell you we want to" and that only ''the credibility in our relations with the United States in general and the president in particular" was restraining the government from doing so, Palestinians could only be confirmed in this fear.
In these circumstances, doubts, distrust and even despair are still widespread on both sides notwithstanding the long-delayed commencement of Israel’s withdrawal from the occupied territories and the first steps toward "early empowerment" throughout the West Bank. Many people on both sides have no faith in the current "peace process" and no desire to become involved in it and to try to 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 restore the faltering momentum toward peace and to accelerate the essential moral, spiritual and psychological transformation toward a cooperative, 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 both to most Israelis and to most 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 virtually unanimous positions must be taken seriously. If one accepts, as one must, that no Israeli government could ever accept a redivision of Jerusalem, and if one accepts, as one must, that no Palestinian leadership could ever accept a permanent-status solution that gave the Palestinian State (and, through it, the Arab and Islamic 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, 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 undivided sovereignty, while rare, is not without precedent. Chandigarh is the joint undivided capital of two Indian states. For more than 70 years, the entire Pacific nation of Vanuatu (formerly the New Hebrides Condominium) was under the joint undivided sovereignty of Britain and France. For more than 700 years, the Principality of Andorra has been under the joint sovereignty of French and Spanish individuals (currently the president of France and the bishop of Seo de Urgel) while its administration is entrusted to an elected General Council.
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 ultraorthodox Jewish community). To the extent that either state wished to control persons or goods passing into 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 their 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 be fully demilitarized, finally becoming the "city of peace" that 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 settlement, Jerusalem should remain physically undivided. However, there is no consensus on how the problem of sovereignty should be solved. "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 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.
In seeking a solution to the status of Jerusalem, it is 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 any 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 only those major matters which can only be administered efficiently at a city-wide level (potentially very few matters, since London has continued to function with only local district councils and no umbrella municipal council since Prime Minister Margaret Thatcher abolished the Greater London Council). Since there are currently no integrated neighborhoods in Jerusalem, assuring that Israelis are subject to Israeli administration, and Palestinians to Palestinian administration, at the district council level 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 (whatever that level might be) 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 and the purely political motivation for building more Jewish residential districts in expanded East Jerusalem or expanding the current municipal boundaries even further to incorporate additional Jewish population centers would evaporate.
While municipal administration involves numerous practical questions, sovereignty over Jerusalem is fundamentally a symbolic, psychological and virtually theological question. Symbolism, psychology and theology are extraordinarily important in connection with Jerusalem (more so than with any other city on earth), but it is important to recognize that this is the nature of the question. An "internationalization" of the city, with neither Israel nor Palestine possessing sovereignty, was recommended in 1947 by U.N. General Assembly Resolution 181. This recommendation has never been revoked and continues to enjoy significant international support and moral authority. However, "internationalization" 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 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 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 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 completely avoided, 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. Roughly 70 percent 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, El Salvador and Zaire even recognize West Jerusalem as Israel's capital, and no country recognizes Israeli sovereignty over East Jerusalem, if Israel adopted such a position and implemented it with Palestinian consent, virtually all countries would promptly recognize united Jerusalem as Israel's capital. Embassies would move there. ls this really so awful and unthinkable for Israelis? Is this really impossible?
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, Saddam Hussein asserted sovereignty over it. No other country recognized that claim. For the next seven months, Iraq's position in Kuwait effective administrative control coupled with an unrecognized claim to sovereignty-was, as a matter of international law, indistinguishable from Israel's position in expanded East Jerusalem today. (Indonesia's position in East Timor and Morocco's position in Western Sahara are similar.) Israel has possessed and exercised administrative control over expanded East Jerusalem for more than 27 years. To this day, not one of the world's other 192 sovereign states has recognized 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 United Nations resolutions, most recently Security Council Resolution 904 condemning the Hebron mosque massacre. 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 along the lines set forth above. 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 recognize West Jerusalem as Israel's capital and the maintenance of virtually all embassies in 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, 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 Islamic countries with which Israel wishes to have normal diplomatic and economic relations and which would accept any permanent-status terms that the Palestinians might accept except that one, as well as to significant segments of the international community beyond the Arab and Islamic worlds. A division of sovereignty and a redivision of administrative control strictly in accordance with the pre-1967 border (and hence with international law and U.N. Security Council Resolution 242) would clearly be the first choice of most Palestinians, but, particularly in light of the presence of the Western Wall, enormous new Jewish residential districts 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.)
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 (and certainly not the Arab and Islamic worlds) could ever accept a permanent-status solution that 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 ever to be achieved. However, even if the first premise were untrue (there being no reason to believe that the second premise might be untrue) 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. In thinking both about Jerusalem and about the Israeli-Palestinian conflict as a whole, all who truly wish to achieve peace should be searching for solutions which are both workable and inspirational.
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 "internationalized" pursuant to the United Nations' 1947 partition formula. However, as a practical matter, 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 (draining joint undivided sovereignty of most of its content in Palestinian eyes), while the umbrella municipal council, best kept technocratic, could become highly politicized. 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 though that district were an integral part of Israel alone and to apply Palestinian law in every Palestinian-majority district as fully as though 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, which would draw international borders around every currently existing village, neighborhood or settlement in expanded East Jerusalem and put each of them under the exclusive sovereignty of one of the two states (thereby requiring both Israel and Palestine to renounce sovereignty over territory over which they have asserted sovereignty). 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 which both peoples would consider undesirable and would tend to lock in indefinitely the pervasive segregation of the city's existing neighborhoods.
A third approach, more supple and subtle, is the most promising one. 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 pursuant to 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 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, results-oriented criteria. Their task would be to agree upon those situations in which the personal/national element would control, those in which the territorial element would control, those in which an agreed "tiebreaker" would decide and those (if any) in which resort to a "mixed court" would be necessary.
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 in all personal law matters (most notably 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 in 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 to any dispute.
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, with the territorial element serving 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 in 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 and 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 be applicable, 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 citizens would almost certainly be better than under a more rigid system, and the fluidity of such a legal system would itself emphasize 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 a workable solution.
The "condominium" solution is also consistent with both the letter and the 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. It is even consistent (up to a point) with the letter (if not the spirit) of the formal Israeli position, as restated by Yitzhak Rabin during his joint press conference with President Bill Clinton in Jerusalem on October 27: "Jerusalem must remain united under the sovereignty of Israel." Whether a united Jerusalem could be shared under the sovereignty of Israel and Palestine has not yet been formally addressed. However, the absence of the word "exclusive" from the official Israeli formulation may be taken as an encouraging sign.
The "condominium" solution is further from the traditional Palestinian position with its steadfast reliance on "international legitimacy.'' 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. However, the decisions to enter into the Declaration of Principles and its 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 may be the practical price which Palestinians must pay for successfully asserting Palestine's strong position under international law and Palestinian sovereignty with respect to all other Palestinian lands conquered and occupied in 1967. Indeed, in an interview with the BBC on July 3, Yasser Arafat suggested that Israelis and Palestinians should share Jerusalem as the joint capital of their two states. thereby hinting at a more flexible state of mind which could, in time, be susceptible to the charms and practical merits of the "condominium" solution.
While no prominent Israeli or Palestinian has yet chosen to advocate the "condominium" solution publicly, one prominent American has done so. In the concluding "recommendations" of his book The Passionate Attachment, published in 1992, the late George Ball, former undersecretary of state and ambassador to the United Nations, wrote: "our leaders should not overlook the need to establish a united Jerusalem under control of an Arab-Israeli condominium. Nor should they neglect to make that united Jerusalem available to serve as the capital of both Israel and a new Palestinian state." Mr. Ball was a man of principles and courage with a habit (sometimes discomforting for others) of stating clearly what he believed and, with respect to difficult issues, of being right well ahead of others. Perhaps this will be one final example of his clairvoyance.
If Israelis and Palestinians can agree (even if only silently for the moment) that a mutually acceptable solution for the status of Jerusalem does exist, all the other pieces in the delicate peace puzzle should fall into place. Without a mutually acceptable solution for the status of Jerusalem, everything will fall apart. That cannot be permitted to happen.
The road to "interim self-rule" may start in Gaza and Jericho, but the road to peace starts in Jerusalem. The time to think and talk about Jerusalem is now.