Zionist leaders of the Jewish community at the time of the British mandate preferred to live in Tel Aviv rather than in Jerusalem; all but a few of their rival leaders in the Palestinian movement lived in Jerusalem. This fact, too, affects what is happening today. One of the recurring obstacles to negotiations between Israel and the Palestinians has been Israel’s demand that the Jordanian-Palestinian delegation to the conference should not include Arab representatives from East Jerusalem. The Shamir government claims that all of Jerusalem is part of the State of Israel and that allowing Palestinians from Jerusalem to take part in the delegation to the peace conference will undermine the legitimacy of Israel’s annexation ofthe eastern part of the city. Israel has long claimed that residents of East Jerusalem are Jordanian citizens tolerated by Israel; now it is not willing to accept them even in a Jordanian delegation to the conference.
Israel’s argument against the participation of East Jerusalem representatives is a matter of principle, but it is also an attempt to prevent Faisal Husseini, the leader who represents the mainstream of the PLO on the West Bank, from taking part in talks. Husseini is the scion of a family whose members have been Arab leaders since the middle of the seventeenth century. His great-grandfather, Salim Effendi, was the mayor of Jerusalem under the Turkish regime, while his grandfather, Musa Kazim, was its mayor under the British mandate. While Musa Kazim was mayor, the members of the great Jerusalem families became the Arab spokesmen for all of Palestine.
The great Jerusalem families take pride in descending from the family of the Prophet, but in fact they became rich and politically strong mainly under the Turkish regime in the nineteenth century. Some of them acquired both their riches and their power from being tax collectors and officials throughout the Ottoman Empire. Husseini’s grandfather was one of the first to state the Arab position against the Zionist settlement of Palestine, but he was willing to speak to the Zionists, and all the more so to the British. The radicals in the Husseini family were Kazim’s cousin, the notorious Grand Mufti of Jerusalem, and Kazim’s son—Faisal’s father—Abd el-Kader el-Husseini. The Grand Mufti, Haj Amin el-Husseini, was mainly responsible for changing the Palestinian position from one that relied on the British for help in opposing the Jewish community to one relying on Hitler’s Germany.
This turn toward Nazi Germany was a fateful political and moral mistake for the Palestinians, and Arafat’s recent support for Saddam Hussein reminds one of it. But other nationalist movements turned to Hitler in the hope that he would secure them national independence. A faction of the Jewish underground, one of whose commanders was Yitzhak Shamir, tried, at the beginning of the war, to make a deal in which Jews would acquire a state, which would then support Germany. However, Shamir’s underground group was on the fringe of the Jewish community, and the Nazis were not interested in it. The Mufti, on the other hand, was the dominant Palestinian leader, and the Nazis were very interested in making a deal with him.
Faisal Husseini’s father, Abd el-Kader el-Husseini, was the greatly admired commander of the armed Palestinian Arabs, apparently the only leader capable of organizing their war effort in 1948. He was killed in a battle on the road to Jerusalem in April of that year, and his death was one of the important factors leading to the disintegration of the Palestinian military opposition. Faisal Husseini inherited his grandfather’s politics—combining antagonism to the Zionists with attempts to speak to the Americans (the heirs to the British in the region) and to the Israelis. Other members of the great Jerusalem families lost some of their standing among the Palestinian public; and some of the Hebron families who moved to Jerusalem during the twentieth century have become more important to the economic life of the city. But Faisal Husseini, as the son of a national hero and the member of a family strongly identified with Jerusalem, is a symbol no less important in Shamir’s eyes than in the eyes of the Palestinians. And Shamir, in addition to his fear of speaking to the Palestinians at all, does not want any Palestinian at the negotiating table who symbolizes Jerusalem.
Still, while Husseini was not at the negotiating table at the Madrid talks, he is a member of the PLO-sponsored committee advising the Palestinian negotiators, who respect him as a natural leader of Palestinians now under Israeli occupation. If they do discuss Jerusalem, what specifically will they be talking about?
One solution, which is little discussed, but is actually being carried out, is that of Ariel Sharon. He wants to push the Arabs out of Jerusalem by taking over buildings and land, mainly in the Muslim quarter (where Sharon himself has moved) and in the area near the Mount of Olives. Such a policy has paradoxically become easier to put into effect since the intifada. The Palestinians, after the misfortune that befell them when they abandoned their villages in 1948 and became refugees, adopted a strategy of clinging to their land (sumud), which involved a considerable degree ofcollaboration with the Israeli government—a government which has often been willing to buy a degree of calm at the price of leaving things more or less as they are. The intifada is partly a revolt against any sort of collaboration with the Israeli government.3 This leads to a weakening of the Palestinians’ ability to hold onto their land, since they cannot, for example, get building permits or work permits and in general are less able to pull strings with the Israeli authorities.
Another solution is Teddy Kollek’s “Ottoman” solution, which Israel can be expected to put forward in any negotiations about Jerusalem, if they ever take place. All of Jerusalem would remain under absolute Israeli sovereignty. The municipality and the central government would guarantee to provide services to all parts of the city, Jewish and non-Jewish, without discriminating against the Arabs. The non-Jewish residents would be given broad autonomy in cultural and religious affairs, and perhaps even a special status in the places that are holy to Islam. The Israelis would guarantee that their life in the Arab parts of the city would go on undisturbed.
As for Palestinians who follow the main political tendency represented by Husseini, they will demand a return to the 1967 borders, even in Jerusalem, with the parts of the city that were under Jordanian control on June 4, 1967 returned to Arab hands. This means that East Jerusalem would be under Palestinian sovereignty. Some Palestinians, of course, reject any division of sovereignty over Jerusalem, and some reject any division of sovereignty over Palestine as a whole, while a good many reject any negotiations with the Israelis. But among the Palestinians who have a plausible claim to representing the majority, some seem willing to accept the idea of one city within which there is a divided sovereignty.
Finally, there is the solution that I am advocating—joint sovereignty over Jerusalem, with Jerusalem remaining one city that could be the home of two capitals, that of Israel and that of Palestine. The apparent simplicity of this formulation clearly contains hidden dangers, but it seems to me workable. As far as I know, however, it has no precedent. There are cities with a special extraterritorial status, such as the Vatican, and in modern history there have been free cities such as Danzig; but no city I know of has had joint sovereignty.
What sort of legal system would the city have? Let’s say two robbers, one Israeli and one Palestinian, are caught breaking into a local bank in Jerusalem. Would they be brought before the same or different judges; and would the same law be applied to each of them? To whom could they bring their appeal and who could pardon them?
Such questions suggest that the solution of one city with divided sovereignty is much simpler than the notion of one city with joint sovereignty. Under divided sovereignty, if the bank robbery took place on the Israeli side of the city then both suspects would be tried according to Israeli law; if on the Palestinian side, they would both be tried under Palestinian law. For municipal matters, on the other hand, there would be a joint city council, and the city’s administrative laws would be those drawn up and accepted by this council. Why not accept the simple solution of divided sovereignty over the city rather than the complex solution of joint sovereignty?
Joint sovereignty is preferable, however, because it provides the strongest guarantee that the city will not once more be divided. In the case of divided sovereignty a conflict in the city is more likely to deteriorate into a physical separation of the city into two parts, much as Berlin was divided by the wall. An agreement on joint sovereignty would explicitly exclude redivision of the city. It is well to remember, moreover, that in East Jerusalem—the part which was under Arab sovereignty until 1967—there are now 120,000 Jews; they will not accept Palestinian sovereignty and a Palestinian legal system. Even an Israeli government willing to freeze settlements, and discourage further settlements on the West Bank, would not force them out.4
What of the inevitable conflict between different legal systems that would arise under joint sovereignty? A breach of contract between two people belonging to two different legal systems (say, British and French) poses the problem of who should try the case and according to which law. This is a relatively simple matter, and international contracts usually include paragraphs determining what should be done insuch cases. The problems that might arise with respect to conflicts of law in a Jerusalem under joint sovereignty are obviously extremely complicated, but they do not seem to be beyond solution. For example, one should distinguish between the question of which court would try offenders in Jerusalem and the question of which legal system would be used for the trial. It is entirely possible that the same court with the same judges could try cases using different legal systems when appropriate.
Judges from the British House of Lords under the Empire served as the supreme court of appeals for the crimes committed, say, in Australia or Palestine. As such they were required to consider each case according to the laws prevailing in each of the countries of the Empire. The flexibility of the House of Lords depended on affinities among the legal systems prevailing throughout the Empire. In Jerusalem as well, the possibility of settling difficulties would depend in part on the affinities between the Israeli and the Palestinian legal systems.
The problem of the conflict of law might be eased if each resident were to be tried according to his or her personal status within the system he or she belongs to. The idea of personal status would continue with respect to martial law among Israel and its neighbors as an inheritance from the Turkish Empire. An Israeli Muslim would be tried in matters of marriage and divorce in a Muslim court according to Muslim law, while a religious Jew would be tried by a rabbinic court according to Jewish law. This idea of personal status could be adapted for the residents of Jerusalem, although I would hope that it would not be applied along the lines of the religious communities, as is now the case in Israel.
It is very likely that a solution of the sort I am suggesting would require, in the last analysis, granting Jerusalem special status, so that it would have its own laws, which would be agreed upon by the parliaments of the two states and would be part of the laws of each one of them. But far more difficult to solve than such legal problems are the political and psychological ones. “How can you expect,” I will be asked, “that after all the intense hatred, suspicion, and rivalry that has existed between the Jews and the Arabs in Jerusalem, they will be able to live within a political system that requires such complex cooperation?” One step that might make this cooperation easier is the old idea of governing the city by boroughs. Each borough would be largely autonomous in determining its character and its leaders. This would protect the national and religious communities in the city. Such an arrangement could be important for the Christian communities and the ultra-Orthodox Jewish communities, as well as for the Muslim Arabs. Thus the solution I suggest for Jerusalem is built upon legitimate separation no less than general cooperation under joint sovereignty.
The psychological problem is how to turn the burning hatred of today into “Platonic hatred,” that is, into an idea of hatred emptied of its emotion. The principle that should be kept in mind is that political steps must lead to psychological reconciliation, rather than vice versa. When, as a result of the Madrid conference, the stone-throwing youth of the intifada felt there was some political hope, they approached Israeli soldiers and offered them olive branches of peace. If political negotiations had been delayed until such a gesture had been made, they might never have taken place.
The Jerusalem of today, under Israeli rule, is practically speaking a divided city. Since the intifada began the city has been divided by boundaries of fear. Jews simply do not enter some districts and Arabs are wary about entering others. Joint sovereignty might be able to truly unite Jerusalem for the first time. The removal of the boundaries of fear is a condition for the real unification of the city.
Useful information and analysis on how this collaboration worked in Jerusalem can be found in Living Together Separately by Michael Romann and Alex Weingrod (Princeton University Press, 1991). Of special interest is the account of how Arab headmen acted as mediators between the city's Arab population and the political and municipal authorities.↩
In their thoughtful new book No Trumpets, No Drums, Mark Heller and Sari Nusseibeh put forward a proposal for Jerusalem's future that is similar to the one I advocate here. (The book is reviewed in this issue on page 20.) The one matter on which we differ, however, might turn out to be crucial. They too envisage Jerusalem as one city, with a municipal government elected jointly by Jews and Arabs. But they also envisage a city demarcated by "imaginary sovereignty lines." They speak of "Israel's" Jerusalem and "Palestine's" Jerusalem. By imaginary lines they presumably mean boundaries that would have no effect on the city's daily life; but to have sovereignty lines, even imaginary ones, means that each party can in principle impose its will in times of tension, and thus turn imaginary lines into solid walls. Imaginary sovereignty lines could be used as exit lines. My suggestion of shared sovereignty is intended to block that exit.↩
An Exchange on Jerusalem March 5, 1992
Useful information and analysis on how this collaboration worked in Jerusalem can be found in Living Together Separately by Michael Romann and Alex Weingrod (Princeton University Press, 1991). Of special interest is the account of how Arab headmen acted as mediators between the city’s Arab population and the political and municipal authorities.↩
In their thoughtful new book No Trumpets, No Drums, Mark Heller and Sari Nusseibeh put forward a proposal for Jerusalem’s future that is similar to the one I advocate here. (The book is reviewed in this issue on page 20.) The one matter on which we differ, however, might turn out to be crucial. They too envisage Jerusalem as one city, with a municipal government elected jointly by Jews and Arabs. But they also envisage a city demarcated by “imaginary sovereignty lines.” They speak of “Israel’s” Jerusalem and “Palestine’s” Jerusalem. By imaginary lines they presumably mean boundaries that would have no effect on the city’s daily life; but to have sovereignty lines, even imaginary ones, means that each party can in principle impose its will in times of tension, and thus turn imaginary lines into solid walls. Imaginary sovereignty lines could be used as exit lines. My suggestion of shared sovereignty is intended to block that exit.↩