No. 447 8 Shvat 5761 / 1 February 2001
Since its independence in 1948, and indeed even in prior times, Israel’s rights to sovereignty in Jerusalem have been firmly grounded in history and international law. The aftermath of the 1967 Six-Day War only reinforced the strength of Israel’s claims. Seven years after the implementation of the 1993 Oslo Agreements, Prime Minister Ehud Barak became the first Israeli prime minister to consider re-dividing Jerusalem in response to an American proposal at the July 2000 Camp David Summit. The December 2000 Clinton Plan attempted to codify Barak’s possible concessions on Jerusalem. Yet they proved to be insufficient for PLO Chairman Yasser Arafat, leading to a breakdown in the peace process and an outburst of Palestinian violence with regional implications. At least the failed Clinton Plan did not bind future Israeli governments or U.S. administrations, leaving open the possibility of new diplomatic alternatives. Only by avoiding premature negotiation over an unbridgeable issue such as Jerusalem can the U.S., Israel, and the Palestinians stabilize the volatile situation that has emerged and restore hope that a political process can be resumed in the future.
A Jewish Majority in Jerusalem for 150 Years
Israel’s international legal position in Jerusalem emanates from the Palestine Mandate, by which the League of Nations, the source of international legitimacy prior to the United Nations, recognized “the historic connection of the Jewish people with Palestine” and called for “the establishment in Palestine of a national home for the Jewish people.” The Mandate did not deal with Jerusalem separately from the rest of Palestine. While the Ottoman Empire had ruled Jerusalem from 1517 to 1917, Turkey renounced its rights to sovereignty in all of Palestine in August 1920 in the Treaty of Sevres. Moreover, the Covenant of the League of Nations established that the Mandates were no longer under the sovereignty of the states that formerly governed them.
Even prior to the League of Nations Mandate, the Jewish people established an overwhelming majority in Jerusalem; by 1914, there were 45,000 Jews in Jerusalem out of a total population of 65,000.1 Indeed, over a half-century earlier when the Jewish population of Jerusalem first constituted a clear majority in the city after centuries, a British visitor to Jerusalem noted: “Although we are much in the habit of regarding Jerusalem as a Muslim city, the Muslims do not actually constitute more than one-third of the entire population.”2 The Jewish presence had spread to beyond the overcrowded Jewish Quarter itself: into the Muslim Quarter, and outside of the city walls even before the Muslim population, in Mishkenot Sha’ananim (1855-1860), Me’a Sha’arim (1875), Kiryat Neemana (1875) across from the Damascus Gate, and Kfar Shiloah (Silwan) (1884).3 Jerusalem’s demographics, and the spread of its Jewish population to all parts of the city, were consistant with the League of Nations’ determination to include the Holy City in the Jewish national home.
Traditional Israeli Policy on Jerusalem
Despite the fact that the League of Nations was formally terminated in April 1946, the rights of the Jewish people in Palestine (and in Jerusalem particularly) were preserved by the successor organization to the League of Nations, the United Nations, through Article 80 of the UN Charter. According to Article 80, the existing rights of states, peoples, “or the terms of existing international instruments” were protected. True, the UN General Assembly subsequently voted in November 1947, according to Resolution 181, to create an internationalized corpus separatum for the Jerusalem area, but, like all General Assembly resolutions, this was only a recommendation rather than an internationally legally binding instrument like the League of Nations’ Mandate for Palestine.
Resolution 181 presented a painful dilemma to the leadership of the Zionist movement. While offering UN support for the idea of a Jewish state, it required internationalization of Jerusalem, the center of Jewish historical aspirations. However, while the Zionist movement accepted Resolution 181 and the corpus separatum for Jerusalem that it contained, at least this was not a permanent concession of Jerusalem. According to Resolution 181, the special international regime for the city was to “remain in force in the first instance for a period of ten years.”
Moreover, the resolution stipulated that at that time, “the residents of the City shall be free to express by means of a referendum their wishes as to possible modification of the regime of the City.” Finally, in 1947, the Jewish population constituted two-thirds of Jerusalem’s population. Thus, Jerusalem could well be incorporated into the Jewish state in the future. In any case, the leadership of the Zionist movement at the time knew that the Arab world, including the Palestinian Arabs, firmly rejected the Partition Plan.
The invasion of Arab armies into the nascent State of Israel in May 1948 made the corpus separatum for Jerusalem a dead letter. The Jewish population was expelled from the Old City when it fell, over fifty synagogues were destroyed or desecrated, and Jewish access to the Western Wall was prevented. After the siege and invasion of western Jerusalem was broken only by the efforts of the Israel Defense Forces (and not the UN) during Israel’s War of Independence, Israel’s first prime minister, David Ben-Gurion, declared in the Knesset on December 3, 1949, after the war’s end: “we can no longer regard the UN Resolution of the 29th of November as having any moral force. After the UN failed to implement its own resolution, we regard the resolution of the 29th of November concerning Jerusalem to be null and void.” Ben-Gurion made Jerusalem Israel’s capital in 1950.
Israeli Legal Rights in Jerusalem After the Six-Day War
The specific circumstances of the Six-Day War along the Jordanian front, in fact, strengthened Israel’s postwar claims in Jerusalem. In the weeks leading up to the conflict, the focus of the Middle East crisis had been along Israel’s southern front where Egypt had closed off Israeli shipping through the Straits of Tiran and moved the Egyptian army to the Israeli-Egyptian border. While hostilities with Egypt began early in the morning on June 5, 1967, with the first wave of Israeli air attacks on Egyptian air bases at 7:45 a.m., Israel did not initially take any action whatsoever against Jordan. Nonetheless, Jordanian artillery opened fire on western Jerusalem by 10:00 a.m., hitting both residential and commercial centers.
Already Jordan had massed most of its army (9 out of 12 brigades) along strategic positions in the West Bank and had given permission to Iraq to move an expeditionary army across Jordanian territory toward Israel. Within an hour Prime Minister Levi Eshkol sent a message to King Hussein through General Odd Bull, the commander of the UN Truce Supervision Organization (UNTSO), that Israel would not move against Jordan if Jordan would “not open hostilities.” As Foreign Minister Abba Eban noted, “we decided to give King Hussein an ultimate chance to turn back.” Jordanian attacks only intensified, including the movement of armor and infantry; forward Iraqi formations had reached the Jordan River. Israel only moved against Jordan at 12:45 p.m. on June 5 after Jerusalem had clearly come under attack.
With the liberation of the Old City of Jerusalem as a result of the Six-Day War, the Eshkol government, with the backing of the Knesset, extended Israeli law, jurisdiction, and administration to the eastern part of Jerusalem on June 27, 1967. New municipal boundaries were created that included strategic points in the West Bank which had been exploited by Jordanian artillery.
Before the international community, Israel argued that it had not actually “annexed” East Jerusalem. Clearly, this was done in order to assuage states that firmly opposed unilateral Israeli acts after the war. But, according to Israel’s Supreme Court, the eastern section of Jerusalem had in fact become an integral part of the State of Israel. The Supreme Court did not have to take into account diplomatic considerations in its ruling, but rather legal realities. Palestinian Arabs in East Jerusalem were not forced to acquire Israeli citizenship or surrender their Jordanian passports, but did have the right to apply for and receive Israeli citizenship.
Considering that Jordan’s position in Jerusalem had resulted from its 1948 invasion of the city, which was defined by the UN Secretary-General at the time as an act of “aggression,” while Israel’s standing in Jerusalem resulted from a war of self-defense, Israel could claim that it had a superior title to unified Jerusalem. This line of argument was largely consistent with the analysis of major international legal experts like State Department Legal Advisor Stephen Schwebel, who would later head the International Court of Justice in The Hague. Schwebel indeed argued in 1970 that “Israel has better title in the territory of what was Palestine, including the whole of Jerusalem (emphasis added), than do Jordan and Egypt.4 Indeed, the UN Security Council refused to agree to a Soviet initiative on June 14, 1967, to have Israel branded as the aggressor in the Six-Day War. The situations of Jordan in 1948 and Israel in 1967 thus stood in stark contrast.
In fact, UN Security Council Resolution 242 of November 1967 did not even mention Jerusalem and did not insist on a full withdrawal to the pre-1967 lines in the resolution’s operative language (only a withdrawal from “territories” to “secure and recognized boundaries”). True, Resolution 242 contains “the inadmissibility of the acquisition of territory by war” in its preamble, but this language did not preclude changes in the pre-1967 lines that would result in “secure boundaries,” as stipulated in the operative language of the resolution.5 This dovetailed with Israeli legal claims to parts of the territories that it captured, including Jerusalem.
Despite Israel’s new legal position in East Jerusalem, the Eshkol government did not interfere with the administration of the Muslim holy sites on the Temple Mount by the East Jerusalem Waqf, whose officials continued to be appointed by Jordan. While confirming Israel’s political sovereignty over the entire city, Eshkol announced before a group of religious leaders that “it is our intention to place the international administration and organization of the Holy Places in the hands of the respective religious leaders.”6
The Oslo Agreement’s Impact on the Jerusalem Question
The September 1993 Declaration of Principles between Israel and the PLO – the Oslo Agreement – represented a fundamental change in this past policy, for Israel’s willingness to negotiate the Jerusalem issue was not narrowly circumscribed, as it had been, to just the religious dimension. Yet Prime Minister Yitzhak Rabin himself remained firm on retaining Israeli sovereignty over all of Jerusalem; he told a group of Tel Aviv schoolchildren on June 27, 1995: “If they told us that peace is the price of giving up on a united Jerusalem under Israeli sovereignty, my reply would be ‘let’s do without peace.’”7 Rabin’s preference should be understood against the backdrop of his strong position on Jerusalem as a whole. Rabin was born in Jerusalem; during the 1948 War of Independence, he commanded the Harel Brigade that was responsible for keeping the Jerusalem corridor open for Israeli convoys. Finally, he was chief of staff of the Israel Defense Forces in 1967 when Jerusalem was re-united.
The next major development in Jerusalem policy under the Rabin government was the secret Stockholm channel on permanent status, run by Deputy Foreign Minister Yossi Beilin and Arafat’s deputy, Abu Mazen. Their joint paper, reached on October 30, 1995, proposed a Palestinian capital in the village of Abu Dis, which was technically beyond Jerusalem’s municipal boundary (yet within the Jordanian county of Jerusalem), but it did not grant any Palestinian recognition of Israeli sovereignty in East Jerusalem, whose final status would be determined in subsequent negotiations.
Arafat was only willing to call the paper “a basis for further negotiations,” which reflected the Palestinian view of the paper as only a draft of negotiations in progress. Subsequently, Abu Mazen claimed, in discussions with this author, that he never agreed to the document. Nevertheless, the myth persisted that Abu Dis was an acceptable substitute for Jerusalem from the Palestinian perspective, misleading many Israelis to overestimate the extent to which the issue of Jerusalem was soluble.
The Netanyahu government sought to re-fortify Israel’s position in Jerusalem. Israel’s 1994 commitment to Jordan as custodian of the mosques and the continuity of the Washington Declaration was reconfirmed. The closure of Palestinian Authority institutions in Jerusalem was a precondition for the first Netanyahu-Arafat summit in 1996. Yasser Arafat, in fact, closed the offices upon which Netanyahu had insisted. At the time of the signing of the Hebron Protocol, on January 15, 1997, Israel received a commitment from Chairman Arafat to close remaining Palestinian Authority offices in Jerusalem (Note for the Record, Palestinian responsibilities – Article 4), and further movement on Oslo was conditioned to the implementation of Palestinian obligations on the basis of reciprocity.
In accordance with its rights under Oslo that provided Israel with jurisdiction in Jerusalem, the Netanyahu government decided to construct a new Jerusalem neighborhood at Har Homa and approved a new Jerusalem-Tel Aviv Highway (Route 45) north of the Jerusalem corridor. Finally, it refused to acquiesce to international pressure, including a direct appeal by the Clinton administration, to close an ancient Hasmonean tunnel in the Old City, one end of which was opened in September 1996. Arafat at the time incited widespread riots in the West Bank and Gaza, claiming that Israel was digging a tunnel under the Islamic mosques on the Temple Mount. The tunnel, in fact, was more than 2,000 years old and ran parallel to the Temple Mount, and not underneath it.
The Barak Government’s Shift on Jerusalem
The July 11-24, 2000, Camp David Summit was the first serious official negotiation between Israel and the Palestinians over Jerusalem. It was also the first time since 1967 that an Israeli prime minister was willing to consider, albeit conditionally, specific proposals for re-dividing Jerusalem. Prime Minister Ehud Barak was elected in May 1999, having committed himself to keeping Jerusalem united.
As late as May 2000, he declared on Jerusalem Day: “Only those who do not understand the depth of the total emotional bond of the Jewish people to Jerusalem, only those who are completely estranged from the vision of the nation, from the poetry of that nation’s life, from its faith and from the hope it has cherished for generations – only persons in that category could possibly entertain the thought that the State of Israel would actually concede even a part of Jerusalem.”
Barak’s violation of these sort of commitments led to the collapse of his parliamentary coalition and his standing in Israeli public opinion. Additionally, Barak dropped reciprocity from the Oslo process. Just before the convening of Camp David, Interior Minister Natan Sharansky and other ministers of the Barak government in fact resigned, representing three coalition partners (Yisrael B’Aliyah, Shas, and Mafdal), leaving Barak with a minority government. Just after the summit, they were joined by Foreign Minister David Levy.
Most commentators attributed the Camp David summit’s failure to the differences between the parties over Jerusalem, although wide gaps remained over every major issue that was on the negotiating agenda. Nevertheless, Samuel “Sandy” Berger, President Clinton’s assistant for national security affairs, insisted that the parties refused to move forward on other Israeli-Palestinian issues before knowing whether their differences over Jerusalem could be resolved.8 In this sense, Camp David was also a diplomatic test of whether the positions of the parties to the Arab-Israel conflict over the issue of Jerusalem could, in fact, be bridged.
The diplomacy over Jerusalem at Camp David was designed so that the parties could consider ideas for solutions without binding themselves to the negotiating record of the talks. At the end of the summit, President Clinton specifically explained that the Camp David summit was guided by the principle that “nothing is agreed until everything is agreed.” Thus even if the Israeli delegation found one point of a proposal to be acceptable, Israel did not make any firm commitment by expressing approval of the idea or by not rejecting it out of hand. The entire discussion of issues at Camp David was hypothetical, depending on Palestinian agreement on other matters.
Second, very little at Camp David was put in writing. Instead, the ideas raised in the summit were oral. Israeli position papers were not shared with other delegations but rather kept within the Israeli delegation.9 This served as a further protection against any discussion of proposals as constituting a binding commitment that would later be raised in a future negotiation. Finally, most of the ideas about Jerusalem were raised by the U.S.; Barak tried to keep his direct contact with Arafat to a bare minimum.
Thus, the Jerusalem negotiations at Camp David had three aspects: they were hypothetical (pending agreement in other areas), oral, and conducted through a third party. Together these attributes made Camp David more of a “brainstorming” session than a formal negotiation in which the parties move from paragraph to paragraph until they reach complete agreement. Capturing the dynamics of the summit, Arafat’s deputy, Abu Mazen, recalled “in Camp David…the Israelis and Americans were releasing test-balloons regarding solutions to the Jersualem issues.”10 These very same attributes characterized the Israeli-Syrian negotiations in 1994-96, leading the Clinton administration to conclude that negotiations, under such conditions, could not bind either party. President Clinton himself stated on July 25: “under the operating rules that nothing is agreed until everything is agreed, they are, of course, not bound by any proposal discussed at the summit.”
Barak himself sought to clarify the status of what transpired at Camp David as follows: “Ideas, views and even positions which were raised in the course of the summit are invalid as opening positions in the resumption of negotiations, when they resume. They are null and void” (emphasis added). Realistically, despite the strong legal ground that Barak stood upon, he would have to contend with the possibility that the Palestinians would not be willing to forget the extent of Israel’s concessions on Jerusalem at Camp David. The PLO could well follow the Syrian model in negotiations and insist that negotiations resume “from where they left off.”
However, members of Barak’s government did not act as though the Camp David proposals were removed from the negotiating table. Acting Foreign Minister Shlomo Ben-Ami told President Mubarak on August 24: “We are not going back to square one” as he sought to enlist Egyptian help in coming up with a new diplomatic formula for the Old City of Jerusalem. Ben-Ami explained that Israel was interested in setting down in writing a “paper to express what the parties understand is the product of Camp David on some core issues.”11 Thus, Barak’s negotiating record at Camp David did not legally bind future Israeli governments, but as a matter of policy, he seemed prepared to continue to view Camp David as a basis for future negotiations.
Jerusalem at Camp David
Despite its loose diplomatic style, Camp David was predicated on the assumption, particularly among Israelis and Americans, that the gaps in the positions between the parties on all the issues, particularly Jerusalem, were indeed bridgeable. While the proposals at Camp David were, for the most part, oral, nonetheless, it is possible to discern clear U.S. and Israeli formulae that were considered during the talks. That the Palestinians were not prepared to float a compromise plan of their own is indicative of the fact that they were far less optimistic that the gap over Jerusalem could be bridged. Under such conditions, the Palestinian team was either itself not prepared to compromise or assessed that any flexibility it offered would be “pocketed” by the U.S. and Israel.
The discussions over Jerusalem went through several stages during Camp David. Originally, the Israeli team did not envisage significant Israeli concessions in the core area of Jerusalem, in and around the Old City. Israel had informally floated a trial balloon of conceding only outer neighborhoods, like Shu’afat and Beit Hanina. But in the discussions between Israelis and Palestinians held in Stockholm in the month prior to Camp David, the Israeli team had no mandate to discuss Jerusalem.12 Just before Camp David, Ben-Ami, in fact, suggested postponing the Jerusalem issue for two years, but Arafat refused.13
Even this early stage of Israeli informal concessions would have posed a difficult problem for many Jerusalem residents; those living in the Jewish neighborhoods of Neve Yaakov and Pisgat Ze’ev would have found themselves surrounded by areas of Palestinian sovereignty as their neighborhoods would have become virtual Israeli enclaves within Palestinian-controlled Jerusalem. The Palestinians did not find these kinds of proposals to be at all forthcoming in any case: thus Akram Hanieh noted generally about Israel’s various Jerusalem proposals: “Israel was keen on getting rid of the Arab residents of Jerusalem while keeping Palestinian land.”14
First U.S. Proposals for Dividing Jerusalem
The real Camp David negotiations over Jerusalem came in the form of U.S. proposals to the parties. The American bridging paper initially contained the following elements:
Palestinian sovereignty in the Muslim and Christian Quarters of the Old City.
Israeli sovereignty over the Jewish and Armenian Quarters.
The Temple Mount area was to remain under Israeli sovereignty with a new concept of “custodianship” for the Palestinians which would be formally granted to them by the UN Security Council and Morocco. There was a second American proposal put forward as well for the Temple Mount. The Palestinians, according to Abu ‘Ala, understood this second proposal to mean that sovereignty would be divided “vertically and horizontally”: the Palestinians would control everything above the ground, while Israel would have sovereignty over everything underneath the ground. The U.S. was willing to entertain an Israeli request for a Jewish place of prayer on the Temple Mount itself. Arafat would obtain a headquarters, or a “sovereign presidential compound” (according to one version), inside the Waqf compound on the Temple Mount, access to which would be assured without any Israeli checkpoints through a tunnel, bridge, or a special road from Abu Dis.15
The outer Palestinian neighborhoods like Shuafat and Beit Hanina in east Jerusalem would be put under Palestinian sovereignty, while the inner neighborhoods like Sheikh Jarah, the area of Salah ad-Din Street, Wadi Joz, Silwan, and Ras al-Amud, around the Old City, would only be under functional Palestinian control within the framework of Israeli sovereignty. The Palestinians understood this to mean local self-rule in these areas.
Prime Minister Ehud Barak did not accept the U.S. proposals straight out, but was willing to consider them as a basis for negotiation, if Yasser Arafat would do the same.16 Thus, while Barak did not legally bind the State of Israel by formally accepting the Clinton proposals, by not rejecting them out of hand he placed himself in a position of being the first Israeli prime minister since 1967 to be politically willing to divide Jerusalem. Barak, however, made clear that he insisted on preserving Israeli sovereignty over the Temple Mount.17 This conditional approach by Barak essentially placed the burden of acceptance or refusal of the proposals on the Palestinians; that President Clinton considered Barak’s response as adequate, without pushing any further for an unconditional Israeli acceptance, prior to turning to Arafat, meant that Washington, in some sense, helped Israel avoid any responsibility for Camp David’s failure.
Acting Foreign Minister Shlomo Ben Ami articulated a vision for the Old City that was very different from the U.S. proposals: “a special regime in the Old City is what we should try to build. Since we have a two-kilometer square, this is the Old City and full of holy sites – Muslim, Christian, Jewish – populations that mingle in the Jewish quarter, you have Jews in the Muslim Quarter. You have Jews and Muslims in the Armenian Quarter. Half of it is Jewish. So to divide sovereignty in such a limited space is ridiculous.”18 Clearly, Barak’s willingness “to consider” U.S. proposals did not mean that the Israeli government accepted them.
The Barak government continued to seek new formulae for resolving the Jerusalem issue, after Camp David, as well. These efforts included proposals for “Divine sovereignty” as a solution to the Temple Mount. Despite U.S. and Egyptian mediation efforts in these post-Camp David negotiations, none of these proposals managed to close the gap between Israel and the PLO.
Palestinian Reactions to Camp David
Yasser Arafat rejected the U.S. proposals for Jerusalem. He argued before President Clinton that no Palestinian could concede Jerusalem, and more specifically he insisted upon the Arab interpretation of UN Security Council Resolution 242: “I want a peace based on the implementation of Resolution 242, as it was implemented on the Egyptian and Jordanian fronts. The Resolution must be implemented in full on the Palestinian territories….Why did you not ask Egypt during Camp David ’78 to give up an inch of Sinai?” Arafat also used Islamic argumentation before American negotiators: “Jerusalem is not a Palestinian city only, it is an Arab, Islamic and Christian one. If I am going to take a decision on Jerusalem, I have to consult with the Sunnis and the Shiites and all Arab countries.”
Arafat’s post-summit comments on the negotiations revealed the bottom line of the Palestinian position on Jerusalem: the PLO’s demands for sovereignty “not only refer to the Church of the Holy Sepulchre and the Temple Mount mosques, and the Armenian quarter, but it is Jerusalem in its entirety, entirety, entirety.”19 Arafat’s claims extended to the Western Wall: “The British Mandate administration stated as early as 1929 that the Western Wall is the Al-Buraq Wall and that it is considered a Muslim religious endowment (waqf) to which Palestinians hold historic rights.”20 Arafat repeated his claim to the Western Wall, to which he would give the Jews access, during an interview with NHK, the Japanese News Agency, in Tokyo after the Camp David Summit: “I have offered them free access to pray at the Western Wall…they will have an open corridor to reach the Western Wall.”21
This was also the position of Faisal Husseini who indicated that the Palestinians wanted full control of all four quarters of the Old City, but would allow “some sort of arrangement” with Israel regarding the Jewish Quarter and the Western Wall.22 The Palestinian Authority Mufti, Sheikh Ikrima Sabri, reinforced this point about Palestinian ownership of the Western Wall: “Arafat can tell them (the Israelis): ‘Give me sovereignty over Jerusalem, and I will make it possible for you to reach the Al-Buraq Wall and pray there. I promise you freedom of worship.’ [However] granting free access to the Wall does not mean that the Wall will belong to them. The Wall is ours.”23
These sorts of Palestinian assertions were widespread. Even more moderate voices adhered to this position. Palestinian Legislative Council member Ziad Abu Ziad stated: “My comment to you was that the (international) committee determined that the wall was part of the mosque and was thus Waqf property.”24 Hasan Asfour, one of the key Palestinian negotiators who accompanied the Oslo process since 1993, also stated: “With regard to the Al-Buraq Wall, which the Jews call the Wailing Wall, the Israelis were told that the Palestinians do not object to free worship by Jews at this site. But, the Israelis must realize that this is a Palestinian concession. They should not view this as a right. It is a Palestinian concession. This is so because the British-Jewish agreement of 1929 gave Jews the right to worship there based on the premise that the Al-Buraq Wall is an Islamic waqf.”25
Abu Mazen used the same argumentation: “[W]e agreed that they could pray next to the Wall, without acknowledging any Israeli sovereignty over it. We relied on the resolution of Britain’s 1929 Shaw Commission. The Commission acknowledged that the Wall belongs to the Muslim Waqf, while the Jews are allowed to pray by it as long as they do not use the Shofar.”
Abu Mazen also rejected the subsequent proposals for Divine sovereignty over the Temple Mount.26 Speaking on Palestinian television, Abu Mazen was very clear on this point: “We don’t agree to UN sovereignty in Jerusalem or Islamic sovereignty. Sovereignty can only be Palestinian. There is no place for dividing sovereignty and there is even no place for Divine sovereignty. Any agreement requires recognition of our sovereignty.”27
In the aftermath of Camp David there was also evidence that the Palestinians retained residual claims to the western side of Jerusalem, as well. Birzeit University conducted a public opinion poll during November 2000 on the issue of Jerusalem and the peace process. When asked “if East Jerusalem comes under Palestinian sovereignty, will you accept Israeli sovereignty over West Jerusalem?,” 74.3 percent of respondents replied in the negative (21.1 percent said yes, while 4.6 percent were not sure).28 Reflecting this view, Faisal Husseini proposed his own modified post-Camp David proposals for the “land swap” concept raised at the summit. Instead of agreeing to Israeli annexation of Jewish neighborhoods in East Jerusalem on the basis of a land swap with Israeli territory in the Negev, Husseini insisted that the land swap be made on the basis of exchanging East Jerusalem Jewish neighborhoods for land in West Jerusalem that was occupied by Palestinians prior to 1948.29
The Palestinian position on Jerusalem was not always identical to that of all Arab and Islamic states, which stressed Islamic holy sites more than the strict implementation of UN Security Council Resolution 242 or the line of June 4, 1967. For example, after a meeting of the Jerusalem Committee of the Islamic Conference, Egyptian President Husni Mubarak told Le Figaro: “I think the Western Wall adjacent to the Haram can be left to the Israelis along with the Jewish Quarter.” The Palestinians disagreed and tried diplomatically to explain the differences between Egyptian and Palestinian policy on Jerusalem; they clarified that Mubarak did not negate their demand for full sovereignty over all of East Jerusalem, but only reiterated Arafat’s offer of free access to the Western Wall.30 This disagreement highlighted the Palestinian demand for sovereignty over the Jewish Quarter and the Western Wall.
The Palestinians Initiate the Al-Aqsa Intifada
The results of the Camp David summit posed a serious problem for Yasser Arafat. Barak’s conditional acceptance of the Clinton proposals juxtaposed against Arafat’s total rejection of the American plan created a strong impression in the international community that the Palestinians were responsible for the failure of Camp David. As a result, as Arafat, after Camp David, sought international support for a unilateral declaration of a Palestinian state, he discovered that major powers in the international system, including France, were not prepared to assure him that they would recognize a unilaterally declared Palestinian state. Realizing the need to reverse international sympathy away from Israel, back to the Palestinians, the Palestinian Authority began preparing for a renewal of violence against Israel, which would put supposedly unarmed civilians against armed Israeli soldiers – like the Intifada of 1987.
While foreign commentators associated the outbreak of what the Palestinians called the Al-Aqsa Intifada with the visit of Likud Party Chairman MK Ariel Sharon to the Temple Mount on September 28, 2000, the Palestinians have clearly linked the outbreak of the violence to preparations made weeks earlier. Thus, the Palestinian Minister of Communications, Imad Al-Falouji, stated in the official Palestinian Authority daily, Al-Ayyam, on December 5, 2000, that plans for the outbreak of the current Intifada began the moment the Palestinian delegation returned from Camp David, at the request of Yasser Arafat. Arafat’s advisor for strategic affairs, Hani al-Hassan, who was also a member of the PLO Central Committee, admitted: “The present Intifada enabled the Palestinians to change the old rules of the game, and thwarted Barak’s attempt to place responsibility for the stalemate in the peace process [on the Palestinians].”31
Already in August 2000, the Palestinian Justice Minister, Freih Abu Middein, confided to another Palestinian Authority daily, Al-Hayat Al-Jadida, that “violence is near and the Palestinian people are willing to sacrifice even 5,000 casualties.32 Clearly, leading Palestinian officials were expressing their awareness that some kind of major public disorders were about to erupt. The Palestinian Authority Police Commander echoed this awareness as well, stating: “The Palestinian Police will be leading together with all other noble sons of the Palestinian people, when the hour of confrontation arrives.”33 This was stated at least six weeks before Sharon’s Temple Mount visit. The actual outburst began a day earlier when an Israeli soldier was killed by a roadside bomb at Netzarim junction, in the Gaza Strip, followed by an attack by a Palestinian police officer on his Israeli counterpart during their joint patrol in Kalkilya.
The outbreak of the Al-Aqsa Intifada should have frozen the post-Camp David negotiations over Jerusalem. After all, fundamental assumptions of the entire Oslo process, that had begun in 1993, were put in doubt. Under Oslo, Jewish holy sites had begun to be transferred to Palestinian territorial jurisdiction. Yet at the outset of the riots, Jewish holy sites came under assault: the Western Wall became the target of rock throwing mobs who hurled stones from the Temple Mount, in the presence of Palestinian Authority religious and security officials. In Nablus, Joseph’s Tomb came under repeated gunfire and was eventually sacked and burned by Palestinian mobs; Palestinian authorities made preparations to convert the tomb into a mosque. At the Jerusalem-Bethlehem border, Rachel’s Tomb came under repeated Palestinian sniper attack. Finally, the ancient Shalom al Yisrael synagogue in Jericho was burned by Palestinians as well.
On the security level, the Al-Aqsa Intifada exposed further basic weaknesses in the original Oslo arrangements. Since the implementation of Oslo II in early 1996, Gilo had been the only population center inside of municipal Jerusalem which was a few hundred meters (and hence within automatic rifle range) from Area A, where the Palestinians exercised exclusive security control (and hence excluded an Israeli security presence). Exploiting their immunity from Israeli ground movements, Palestinian units, chiefly belonging to the Fatah Tanzim militia, regularly opened fire on Gilo from positions in Beit Jalla during the Al-Aqsa Intifada. Israel responded with counter-fire from Gilo to Beit Jalla, but did not patrol or set up its own positions in Beit Jalla to prevent the town’s infiltration by Tanzim snipers.
A similar situation could have evolved from Abu Dis toward the Mount of Olives and the Old City. In May 2000, the Barak government authorized the transfer of Abu Dis from Area B status to Area A; it nonetheless made the transfer conditional upon the disarming of the Tanzim, which the Palestinian Authority failed to implement. Thus, the Israel Defense Forces retained their freedom of action in Abu Dis, unlike the situation in Beit Jalla.
The Clinton Plan for Jerusalem
These experiences did not alter the determination of the Barak government to go forward with its post-Camp David diplomacy, including consideration of new American proposals for Jerusalem that were more forthcoming for the Palestinians than what was proposed at Camp David. On December 23, 2000, President Clinton met with Israeli and Palestinian negotiators in the White House and read aloud the new American plan for Jerusalem. Just like at Camp David, Clinton did not present his proposals in writing. Significantly, according to notes taken by Giddi Grinstein, who worked for Israeli negotiator Gilad Sher, the oral presentation made by Clinton was to be regarded as “the ideas of the President.” And if the ideas were not accepted, Clinton stated, “they are not just off the table; they go with the President as he leaves office.”34 Clinton’s proposals could be summarized as follows:
Division of Sovereignty in Jerusalem
The “general principle” put forward was that “Arab areas are Palestinian and Jewish areas are Israeli.” This principle of assigning sovereignty was to be applied to the Old City, as well. Clinton urged both sides “to create maximal contiguity.” This new Clinton proposal was even more favorable to the PLO than the earlier Camp David ideas, since it transferred Palestinian residential areas in the inner neighborhoods around the Old City to full Palestinian sovereignty instead of just giving the Palestinians functional powers in the framework of Israeli sovereignty.
The Clinton proposals contained several alternative solutions for the Temple Mount:
Palestinian sovereignty over the Temple Mount and Israeli sovereignty over the Western Wall “and the space sacred to Judaism of which it is a part,” or Israeli sovereignty over the Western Wall “and the Holy of Holies of which it is a part.” This proposal would also contain a firm commitment by both sides not to excavate beneath the Temple Mount or behind the Western Wall.
Palestinian sovereignty over the Temple Mount and Israeli sovereignty over the Western Wall and “shared functional sovereignty over the issue of excavation,” requiring the mutual consent of the parties before any excavation could take place. This second alternative eliminates the idea of Israeli subterranean sovereignty on the Temple Mount that was advanced at Camp David.
Clinton’s final summary of his Jerusalem proposal was presented publicly in his parting address to the Israel Policy Forum on January 7, 2001: “First, Jerusalem shall be an open and undivided city, with assured freedom of access and worship for all. It should encompass the internationally recognized capitals of two states, Israel and Palestine. Second, what is Arab should be Palestinian, for why would Israel want to govern, in perpetuity, the lives of hundreds and thousands of Palestinians? Third, what is Jewish should be Israeli. That would give rise to a Jewish Jerusalem larger and more vibrant than any in history.”
Neither Israel nor the Palestinians fully accepted the Clinton Plan; indeed, the Palestinian position was closer to outright rejection. The Israeli cabinet conditioned its acceptance of the proposals upon their acceptance by the PLO; moreover, the Israeli government prepared a list of reservations regarding the details of the Clinton Plan. No less significant was the reaction of the heads of Israel’s security establishment. The Chief of Staff of the Israel Defense Forces, Lt. General Shaul Mofaz, severely criticized the Clinton Plan as a virtual disaster for Israel, before the Israeli cabinet: “The Clinton bridging proposal is inconsistent with Israel’s security interests and, if it will be accepted, it will threaten the security of the state.”35 With respect to its Jerusalem component, Mofaz added: “The proposed plan will turn Jewish neighborhoods in Jerusalem into enclaves within Palestinian sovereignty that will be difficult to defend.”36 Avi Dichter, the head of Israel’s General Security Services (GSS), was concerned about how the Clinton Plan would address the problem of terrorism in light of the situation that had emerged whereby Palestinian security services, that were supposed to fight terrorism, were now engaged in terrorism themselves.
The Palestinians had their own forceful argumentation against the Clinton Plan that they presented in the form of a letter from Arafat to Clinton:
We seek, through this letter, to explain why the latest American proposals, that were presented without any clarifications, do not meet the required conditions for a lasting peace. In their present form, the American proposals may lead to the following: 1) partitioning the Palestinian state into three different cantons connected by roads either for Jews only or for Arab [sic] only. These roads will also divide the cantons which may jeopardize the viability of this state; 2) partitioning Palestinian Jerusalem into several islands detached from one another as well as from the Palestinian state [emphasis added]; 3) forcing the Palestinians to concede the refugees’ right of return.37
The Palestinian critique of the Clinton Plan included the formulae proposed for the Temple Mount: “it seems that the American proposal recognizes, in essence, the Israeli sovereignty underneath the Haram (al-Sharif), since it implies that Israel has the right to excavate behind the Wall (which is the same area underneath the Haram), but it voluntarily concede [sic] this right.”38 Implicit in this Palestinian objection is a residual claim to the Western Wall, itself, which the PLO leadership, in fact, voiced after Camp David. Clearly, the Palestinians were concerned that Israeli sovereignty over the Wall would lead to Israeli sovereignty behind the Wall and hence subterranean Israeli sovereignty under the Temple Mount plaza. This would be consistent with the PLO claim, according to the 1930 Shaw Commission from the period of the British Mandate, that the Western Wall is an integral part of the Temple Mount.
Lessons for the Future
It is important to carefully analyze the failure of the Camp David diplomacy over Jerusalem in order to draw lessons for future diplomatic initiatives, especially by Israel or the U.S.:
1. Unbridgeable Gaps Between Israel and the Palestinians
Despite the unprecedented concessions offered by Prime Minister Ehud Barak regarding Jerusalem, especially in comparison with every preceding Israeli prime minister since 1967, the PLO did not offer any corresponding readiness to compromise on territorial matters. Generally, Yasser Arafat insisted on receiving 100 percent of the West Bank (including East Jerusalem) and the Gaza Strip. He was only willing to concede land in these territories if he received equivalent compensation, in terms of a land swap, from unpopulated territories inside of pre-1967 Israel, like the Halutza area of the Negev.
It was not even clear whether the land swap concept, based on the Halutza area, could be applied to Jerusalem at all. Official Palestinian statements indicated little or no willingness to compromise on land inside the Old City of Jerusalem; residual Palestinian claims to sovereignty in the Jewish Quarter and even with respect to the Western Wall were repeatedly voiced in the post-Camp David period. There were also Palestinian voices that sought special land swaps for Jerusalem, utilizing land in the western side of the city in exchange for Israeli populated areas in East Jerusalem. Finally, while Barak was willing to forgo exclusive Israeli sovereignty over the Temple Mount, albeit stipulating that he would not accept exclusive Palestinian sovereignty, the PLO would accept no alternatives to Palestinian sovereignty, period.
Moreover, Barak’s readiness to consider American proposals for the re-division of Jerusalem were not even acceptable to the general Israeli public. Thus, even if the PLO unconditionally had accepted the Clinton Plan, which it did not, it is far from clear that the plan would be approved in a national referendum of Israelis. The heads of the Israeli security establishment viewed the Clinton Plan as dangerous. Israel’s chief rabbis ruled that Israel must retain its own sovereignty over the Temple Mount. Additionally, it is important to recall that the Al-Aqsa Intifada actually began when a Palestinian police officer shot and killed his Israeli counterpart in a joint patrol in Kalkilya; Israeli readiness to experiment with joint patrols in the sensitive Old City of Jerusalem was limited, at best. The deteriorating security situation, including Palestinian sniper attacks on Jewish neighborhoods in Jerusalem and assaults on holy sites, only reinforced the view that Jerusalem must remain united, under Israeli sovereignty and effective control.
2. The Non-Binding Nature of the Camp David and Post-Camp David Discussions
In international legal terms, the only diplomatic activity that can legally bind the State of Israel is a signed international agreement that is ratified, in accordance with past Israeli practice, by the Knesset. Nonetheless, in the past there have been efforts, at least, to politically bind the State of Israel to the negotiating record of even failed peace talks. In 1996, for example, Syria insisted on resuming negotiations with Israel “from the point where negotiations broke off,” ignoring the change in Israeli government policy that transpired after the May 1996 elections; both the U.S. and Israel rejected this Syrian policy in September 1996. A similar Palestinian effort cannot be ruled out in the future that would be intended to lock in the concessions of the Barak government to the Camp David negotiating record without committing the PLO to any corresponding concessions.
Yet the entire pattern of Camp David diplomacy was designed to preclude this sort of diplomatic course of action. As noted above, President Clinton himself summarized the negotiations on July 25 by re-stating the guiding rule of the summit, that “nothing is agreed until everything is agreed.” Thus, there could be no locking-in of Israeli concessions on Jerusalem without locking in concessions in every field: borders, refugees, security arrangements, etc. For that reason, Clinton concluded in a public declaration that the parties were “not bound by my proposal at the summit.”
Even in the post-Camp David diplomacy, these principles were preserved. Thus, when the Clinton Plan was presented to Israeli and Palestinian negotiators on December 23, President Clinton himself stated that these were his ideas and that “they go with the President as he leaves office.” The U.S. Peace Coordinator, Dennis Ross, repeated this principle in an interview on January 19, 2001: “The President’s ideas leave [the White House] with the President.”39 Thus, Ross concluded that “the new administration is not obligated in any way, shape, or form by these ideas.” In summary, neither the Camp David summit nor the failed Clinton Plan obligated, legally or politically, successive U.S. or Israeli governments in the future.
3. The Cost of Failed Negotiations
Both the U.S. and Israel incorrectly assumed that the diplomatic gap between Israel and the PLO over the subject of Jerusalem could be bridged. It could be asserted that at least the real positions of the parties are now known and that nothing was lost in trying to reach a final peace settlement that included a resolution of Israeli-Palestinian differences over Jerusalem. However, this kind of assertion would be wrong.
The failed negotiations over Jerusalem led to violence that the Palestinians intentionally chose to call the Al-Aqsa Intifada, for good reasons. Since 1929, the struggle over Jerusalem has always been a convenient vehicle for mobilizing the Palestinian populace, as well as the Arab and Islamic worlds, more generally. This has been especially true of any struggle over the Temple Mount. A failed negotiation over Jerusalem can thus potentially convert an Israeli-Palestinian national struggle over land and boundaries into an inter-religious struggle with region-wide implications.
Both Israel and the U.S. paid a price for this development. Egypt recalled its ambassador from Israel as a result of the Al-Aqsa Intifada, while Jordan failed to send its ambassador back to Israel. Israeli relations with North Africa and the Gulf states were frozen. U.S. officials discerned a deepening rage in large parts of the Arab world, that even led to demonstrations in places like Oman and Saudi Arabia, where political activism in the streets was previously very limited. It is probable that while the compromises on Jerusalem in the Clinton Plan that were demanded of Israel were unacceptable to most Israelis, nonetheless, the American compromises demanded of the PLO were not popular in the Arab world, either.
There are two courses of action that should be pursued by Israel and the U.S. in the period ahead. First, it is clear that a completed final status negotiation between Israel and the Palestinians is premature at this time. Israel and the PLO would be better advised to focus on areas where they can reach agreement: meaning a new, long-term, interim understanding that sets aside the explosive issue of Jerusalem for the future.
The new Bush administration, which is interested in restoring U.S. relations in the Gulf, in part, in order to better deal with Iraq, can become deeply engaged in the issue of Jerusalem, like the Clinton administration. But such involvement could easily lead to demands for a policy of “linkage” in many Arabian Gulf states: the price for a more robust containment bloc against Iraq might become linked to impossible Israeli concessions on Jerusalem that cannot be delivered.
A better approach would entail creating a “firewall” between the Israeli-Palestinian negotiations and the Gulf, by keeping the issues in both sub-regions of the Middle East apart. During the last year of the Reagan administration, the U.S. Navy substantially enhanced its presence in the Persian Gulf as its ships convoyed re-flagged Kuwaiti tankers. At just about this time the first Palestinian Intifada broke out, yet the Gulf states did not make their own protection by U.S. forces dependent on the Palestinian issue. This model is still relevant for 2001. The question of Jerusalem should not be tied to the overall bilateral relations between the U.S. and each of its Arab partners. In exchange, Arab states should not be pressured by the U.S. to approve specific proposals in Israeli-Palestinian negotiations or to provide political cover for concessions that the U.S. or Israel may ask of the Palestinians.
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- “In 1845, more than a half century before the first Zionist Congress set out the territorial aims of political Zionism, the Prussian Consul General in Jerusalem, Dr. Schultze, estimated that there were 7,120 Jews, 5,000 Muslims, and 3,390 Christians in the city. From that moment, the Jews were to remain the largest single religious community. Their numerical dominance increased, despite periods of first Turkish and then British restrictions on their entry into Palestine. Two years after Dr. Schultze’s estimate, a British visitor, Dr. John Kitto, wrote in his book, Modern Jerusalem: ‘Although we are much in the habit of regarding Jerusalem as a Muslim city, the Moslems do not actually constitute more than one-third of the entire population.’
- On April 15, 1854, the New York Daily Tribune ran an article that declared: ‘The sedentary population of Jerusalem numbers about 15,500 souls, of whom 4,000 are Musulmans and 8,000 Jews.’ The author of the article was Karl Marx.
- In the last decade of the nineteenth century, the influx (of) Ashkenazi Jews, especially from Tsarist Russia, raised the Jewish population to more than 28,000 in 1896. At the same time the Christian Arabs and the Muslim Arabs each numbered less than 9,000….By 1914 the Jewish population had reached 45,000 out of 65,000. Only the coming of the First World War halted the continuing demographic dominance of the Jews, many of whom were expelled to Egypt or deported to Turkey.”
- (All of the above are from Martin Gilbert, “Jerusalem: A Tale of One City,” The New Republic, November 14, 1994. A French source, Father Abbe J.J. Bourasse, estimated in the late 1850s that the Jewish population in Jerusalem numbered 7,000 out of a total population of 15,000 (5,000 Muslims and 2,500 Christians). See David S. Landes, “Palestine before the Zionists,” Commentary, vol. 61, no. 2 (February 1976):51.
- Ruth Kark and Michal Oren-Nordheim, Jerusalem and Its Environs: Quarters, Neighborhoods, Villages, 1800-1948 (Jerusalem: Academon, 1995) (Hebrew), p. 103. At one point about 1,000 Jews lived in the Muslim Quarter of the Old City; they began to purchase houses in the Muslim Quarter in the 1860s, but after the riots of 1929, all but a few found it impossible to live there. See Nadav Shragai, The Temple Mount Conflict (Jerusalem: Keter Publishers, 1995), pp. 190-191 (Hebrew).
- Stephen Schwebel, “What Weight to Conquest,” American Journal of International Law 64 (1970):346-347.
- Julius Stone, “Israel, the United Nations and International Law: Memorandum of Law by Julius Stone,” in John Norton Moore, ed., The Arab-Israel Conflict, Volume IV, The Search for Peace (1975-1988) (Princeton: Princeton University Press, 1991), pp. 816-817.
- Cited in Yehuda Blum, The Juridical Status of Jerusalem (Jerusalem: Leonard Davis Institute, 1974), p. 31.
- Agence France Presse, June 27, 1995.
- Interview with Charlie Rose on the Middle East Peace Talks, July 27, 2000.
- Haaretz, July 28, 2000.
- Al-Hayat (London-Beirut), November 23-24, 2000, translated by MEMRI, November 28, 2000.
- Jerusalem Post, August 25, 2000.
- Haaretz, July 28, 2000.
- Jerusalem Post, August 4, 2000, and Newsweek, November 27, 2000.
- Undated manuscript of English translation of Akram Hanieh combined newspaper articles.
- Haaretz, July 28, 2000; and Yotam Feldner, “The Formulae for a Settlement in Jerusalem,” MEMRI, September 13, 2000.
- Haaretz, July 28, 2000.
- Hanieh manuscript.
- Interview with Charlie Rose, September 12, 2000.
- Al-Hayat Al-Jadida, July 28, 2000, translated by MEMRI, August 4, 2000.
- Al-Hayat, July 27, 2000, translated by MEMRI, August 4, 2000.
- Japanese News Agency, NHK, August 15, 2000, cited by MEMRI, August 28, 2000.
- Jerusalem Post, September 13, 2000.
- Kul Al-Arab, August 16, 2000, translated by MEMRI, August 28, 2000.
- Interview with Ziad Abu Ziad, December 31, 2000, http://www.imra.org.il.
- Voice of Palestine, September 17, 2000.
- Al-Hayat (London-Beirut), November 23-24, 2000, translated by MEMRI, November 28, 2000.
- Cited in Haaretz, October 20, 2000.
- Birzeit University Development Studies Program, “The Palestinian Intifada and the Peace Process,” November 6-8, 2000. http://www.birzeit.edu.
- “East Jerusalem and the Holy Places at the Camp David Summit,” August 28, 2000. MEMRI Special Dispatch.
- Yotam Feldner, “The Formulae for a Settlement in Jerusalem,” MEMRI, Report 40, September 13, 2000.
- Al-Ayyam, October 12, 2000, MEMRI.
- Al-Hayat Al-Jadida, August 24, 2000, MEMRI.
- Al-Hayat Al-Jadida, August 11, 2000, MEMRI.
- New York Times, January 6, 2001.
- Yediot Ahronot, December 29, 2000.
- Maariv, December 29, 2000.
- “Arafat’s Letter of Reservations to President Clinton,” January 3, 2001, MEMRI.
- Jerusalem Post, January 19, 2001.
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Dore Gold is President of the Jerusalem Center for Public Affairs. Previously, he served as Israel’s Ambassador to the United Nations (1997-1999). This study was prepared with the assistance of Rachel Siegal.