Is Jerusalem really negotiable?

Former Foreign Ministry official Alan Baker takes on the complex history of negotiations about Jerusalem.

By YONAH JEREMY BOB
Dome of the Rock 370 (photo credit: REUTERS)
Dome of the Rock 370
(photo credit: REUTERS)
In an investigation of international affairs regarding Jerusalem, former top Foreign Ministry lawyer Alan Baker, in a recently published piece, unravels the nuanced history of the legal and negotiating aspects revolving around the city.
In his “Is Jerusalem really negotiable?” article – published in February by the Jerusalem Center for Public Affairs, where Baker is the director of the Institute for Contemporary Affairs – Baker analyzed the “challenge, with a view to determining why a resolution of the Jerusalem question has defied all past negotiators, raising serious questions about the possibility of reaching an agreement between the parties.”
He started the legal and negotiating context with the 1917 Balfour Declaration and noted that amidst concerns that it had granted the Jewish people control of all holy places, Dr. Chaim Weizmann had reached an agreement with Emir Faisal in 1919 that “the Mohammedan holy places shall be under Mohammedan control.”
Either in contrast or complimentarily, the 1922 British Mandate envisioned the holy places of Jerusalem as having a “separate, international administration.” Although initially accepted by Israel, the failed 1947 UN Partition Plan’s Jerusalem provisions – which had envisioned the city as a separate, sovereign international entity – was rejected by former prime minister David Ben-Gurion in December 1949.
According to Baker, Ben-Gurion told the Knesset that the internationalization of Jerusalem was “null and void” after the UN “did not lift a finger” when Israel was invaded by its neighbors. At most, he was open to international supervision of the holy places.
Baker added that between 1952 and 1967, the UN did not address Jordan’s violations of international commitments to freedom of access to holy sites pursuant to the 1949 Armistice Agreement.
In contrast to Jordanian handling of the issue, on June 27, 1967, following Israel’s taking control and annexation of Jerusalem, the Knesset enacted the Protection of the Holy Places Law, providing for “freedom of access” to all, and granted practical administration of Muslim holy places to Jordan.
The international community has never recognized the annexation and – despite Israel’s greater granting of access than Jordan and the UN’s silence during most of Jordanian rule of Jerusalem – it has consistently attacked Israel for its annexation more than it had attacked Jordan, said Baker.
While UN Resolution 242, the primary international legal basis for handling most issues stemming from the Israeli-Arab conflict, puts forth an overall principle of undefined to-be-negotiated withdrawals by Israel in return for secured borders, international leaders have continued to give Jerusalem special treatment.
In his article, Baker noted that during the 1978 Egypt-Israel peace negotiations, then-US president Jimmy Carter told Jordan’s King Hussein that Jerusalem must be handled differently than the rest of the West Bank and that “whatever solution is agreed upon should preserve Jerusalem as a physically undivided city.” Next, Baker noted that when Israel signed the Oslo Agreements in 1993, it had agreed for the first time since 1967 to make Jerusalem an issue for future negotiations.
He then reviewed numerous peace plans dealing with Jerusalem from 1988-2010.
In 1988, historian Walid Khalidi proposed west Jerusalem as Israel’s capital and east Jerusalem as that of Palestine with extraterritorial status and access to the Jewish holy places, and a Grand Ecumenical Council formed to represent the three monotheistic faiths.
In 2000, former US president Bill Clinton proposed Palestinian sovereignty over “the Haram” - an Arabic reference to the Temple Mount – and Israeli sovereignty over the Western Wall and other areas sacred to Judaism, with commitments not to excavate in those areas or to excavate only by mutual agreement.
A 2010 working group of academics recommended international involvement but with neither side legally relinquishing sovereignty.
A consistent issue through the history of talks about Jerusalem is the determination of the negotiating parties themselves.
Baker concluded that even with so many creative solutions, the same unsolved problems could still plague expected negotiations and that any agreement will require not only a resolution on paper, but an acceptance by both sides of historical connection and rights.


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