Gershon Baskin, Ph.D.*
(May 2000)

It should now be quite clear to everyone that the all of the creative proposals presented so far on the future of Jerusalem will not bring the hoped for breakthrough towards an Israeli-Palestinian peace treaty. The suggestion of “Divine Sovereignty” has been rejected by Arafat following the warm embrace of the State Department’s Peace Team (Albright’s Jews – in the words of the Palestinians) and following support for this idea by senior Israeli officials.  Apparently Arafat has understood that with the support of Dennis Ross and Barak, that it must be an Israeli trick that is meant to leave real control over the Temple Mount and East Jerusalem in Israeli hands. Arafat will never accept a solution for sovereignty in Jerusalem that is not absolutly clear to Israel, to the world, and especially the Arab world, that he is the sole ruler of Sacred Jerusalem – Al Quds al Sharif. This does not mean that Arafat will not compromise in the end, however; that compromise will not be one which will enable any Israeli control whatsoever over and around the sacred places of Islam and Christianity.

If this is the case, there are those who would say “Keeping the Temple Mount is more important than having a peace treaty”. But for those who understand that even now we do not have control of the Temple Mount and that control of the Temple Mount is not essential because Jewish Law prohibits us from rebuilding the Templ; then it would seem that a real peace treaty is preferable than our current symbolic control of the Temple Mount. It is therefore essential to properly examine the most important elements of the Jerusalem issue and put the symbols on the side thereby allowing us to concentrate on what are really the vital elements of the issue - “non-negotiables” for us.

I would describe these essential “non-negotiables” as the following:

  1. Israeli sovereignty over the Western Wall of the Temple Mount (the Kotel) and the entrance to the Western Wall compound
  2. Israeli sovereignty over the Jewish Quarter of the Old City
  3. Israeli sovereignty over the Israeli neighborhoods of East Jerusalem that were constructed after 1967 (such as Ramot, Ramat Eshkol, French Hill, East Talpiot, Gilo, etc.)
  4. Security arrangements and mechanism guaranteeing the security of Israelis in all parts of the city
  5. A guarantee that the City will remain open, in other words free unrestricted movement for all in all parts of the city
  6. Clear agreement upon limitations on Palestinian building and digging on the Temple Mount

These are the elements that are vital to Israeli interests, everything else is much less significant. An agreement that would promise to Israel these vital interests will be the best agreement attainable. Arafat is likely to demand shrinking this list of Israeli demands, however, in my assessment, through pressure and Israeli steadfastness, it is possible for Israel to get an agreement with all of these elements at its core.

What would such an agreement look like? First, Israel must agree to the applicability in Jerusalem of UN Resolution 242.  Everything begins from the 1967 borders. This is a principle that Arafat will not compromise on even one millimeter because for Arafat the entire Oslo peace process is predicated on this.  Any Palestinian compromise will come only after Israel recognizes Palestinian sovereignty in all of the areas conquered by Israel in 1967 and then the Palestinian compromise will be taken as decisions of a sovereign State and not as has been throughout the Oslo process whereby the strong side exerted its pressure upon the weaker. Arafat is not willing to “play” the role that he has played until now because we are no longer dealing with interim arrangements.  This is the “end game”; the rules are different than those that have controlled Israeli-Palestinian Authority relations since Oslo.

Israel has made a huge perceptual error throughout the past years in thinking that the Palestinians would make “painful” compromises in the final status negotiations.  The many advisors and experts on Arab affairs that have guided the past Israeli governments and Prime Ministers apparently forgot to truly examine what the Palestinians really meant when they talked about over and over again that the June 4, 1967 borders would be the final status borders between Israel and Palestine and that all of East Jerusalem would be the sovereign capital of the Palestinian State. It seems that the wishful thinking of Israeli leaders, politicians and security advisors has prevented them from being able to understand that the Palestinians really meant what they have been saying. The Palestinian position is based on their belief that they already made their “painful” compromise in Oslo when they gave up 78% of historic Palestine in their recognition of the sovereignty of Israel over the 1948 boundaries and in recognition that from that point on Palestine means the West Bank, Gaza and East Jerusalem. The Palestinians have been saying this for years, and Israel has refused to hear it. By now we should have come to realize that they were saying what they meant.

What could an Israeli-Palestinian agreement on Jerusalem look like? After understanding that without Israeli recognition of 242 there will not be an agreement, it is then possible to examine what Arafat would be willing to do as the sovereign power over the territories, including East Jerusalem. It is not possible, of course, to grant him sovereignty and then to wait for him to make his compromises. This has to be part and parcel of the negotiations.

The first paragraph of the agreement on Jerusalem therefore must state that the two sides recognize the applicability of UN Resolution 242 on East Jerusalem. The boundaries of Palestinian East Jerusalem will be the boundaries of June 4, 1967.  The second paragraph will say that there are no physical boundaries in Jerusalem, East or West, and that there will be freedom of movement for all throughout the entire city.  In this way Jerusalem will remain open, united and undivided (it is so difficult to give up our mantras – and here there is no need to).

Next the two sides will agree that as the sovereign power in East Jerusalem, the Palestinians agree to relinquish their sovereignty over the Western Wall and the entrance to the Western Wall, the Jewish Quarter of the Old City and the Israeli neighborhoods in East Jerusalem.  The agreement will state that the Temple Mount (the Haram al Sharif) will continue to be under the control of the Muslim Waqf and that the Waqf agrees not to build any buildings on the Mount or to engage in any digging under the mount, unless mutually agreed to with Israel.  Furthermore, it is possible to agree that the area directly above the Western Wall will be a “no congregation” area in order to meet Israeli demands for security against stoning the Western Wall compound.

There will also be a paragraph, which says that a council of elected representatives from all four quarters will manage the Old City and that the Old City will be a tax-free zone.  Both sides will pass the legislation of a “Basic Law” that promises freedom of access and movement to the Holy Places and Sites, freedom of worship and the protection of Holy Places and sites.

This kind of agreement could be called “Scattered Sovereignty”.  I do not believe in joint sovereignty because sovereignty is linked to territory and sovereignty, jurisdiction and the application of law must be clear and easily understood in order for it to work.  Joint sovereignty is much too vague, easily misunderstood and demands the kind of good-will and cooperation that does not exist between Israelis and Palestinians. Sovereignty must be “taken for granted”  - it must be 100% clear where my sovereignty begins and ends and where the other side’s sovereignty begins and ends.

The criminal law of the State of Israel will be in force where Israel has sovereignty and the criminal law of Palestinian will be in force where Palestine has sovereignty. An Israeli criminal who commits a crime in Beit Hanina (in Palestinian Jerusalem) for example, will be brought to trial in a Palestinian court under Palestinian law and a Palestinian criminal who commits a crime in Ramot (Israeli Jerusalem) for example, will be brought to trial in Israel under Israeli law.  It is possible to agree that prison sentences will be served in each side’s national prison – so that Israeli criminals will be in Israeli prisons and vice versa, according to the terms of the sentence of each court’s decision and rules.

With regard to commercial law, all commerce and contracts will be determined by the place of conducting the business, or according to the terms of the contract.  It is possible to establish mechanisms for alternatives dispute resolution in cross-border business disputes as part of the Israeli-Palestinian agreement and not necessarily related only to Jerusalem.

It is clearly understood that the need for real security cooperation between the sides has to be clearly spelled out in the agreement and translated into reality on the ground, but since this is not the main subject of this article I won’t elaborate. There will be special security needs in Jerusalem that will require special treatment and it is even possible to imagine the creation of a special joint force of Israeli and Palestinian police under a joint command that would function in and around sensitive areas and certain border communities.

Municipal governments would be established and run as each side desires within their own areas of sovereignty. The two municipalities will have to create joint mechanisms for the coordination of infrastructure – roads, electricity, telephone, sewages, waste removal and management, water, environment protection, etc. These elements can be delineated in agreements and afterwards guaranteed through legislation.

There is no assurance that the ideas presented here would be accepted by Barak and Arafat. In my assessment, however, both sides could live with this kind of agreement and that this kind of agreement would bring about peace.  This is, in my opinion, the real price of peace – whether or not the sides are willing to pay this price will have to be determined by Barak and Arafat themselves.

  • Dr. Gershon Baskin is the co-director of IPCRI, the Israel/Palestine Center for Research and Information (