On 21 June the Israeli government formally adopted a plan to extend the boundaries of Jerusalem. Two days earlier the US State Department had labelled the plan "extremely provocative" and "unfathomable". Treating the US with the contempt that until recently it had reserved for the rest of the world, Binyamin Netanyahu dismissed such criticisms as ridiculous and went ahead.
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. This 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. This too is a fact, one which, particularly after the breakdown in Israeli-Palestinian relations caused by Israel's decision in March 1997 to begin constructing the huge Har Homa settlement in expanded East Jerusalem, is increasingly difficult (and dangerous) for anyone to ignore.
While it is widely assumed that no such solution exists, 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 establishing negotiating positions. Jerusalem commands 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 which 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, constitute the capital of both states and be administered by an umbrella municipal council and local district councils. In the proper terminology of international law, Jerusalem would be a "condominium" of Israel and Palestine.
Condominiums, while rare, are not without precedent. Chandigarh is the joint undivided capital of two neighbouring Indian states. For half a century prior to its independence in 1956, Sudan was a condominium of Britain and Egypt, officially named "Anglo-Egyptian Sudan". For more than 70 years, the New Hebrides Condominium was under the joint undivided sovereignty of Britain and France. For more than 700 years, until a 1993 constitutional revision, the Principality of Andorra was under the joint undivided sovereignty of French and Spanish "co-princes".
In a sense, Jerusalem can be viewed as a cake that could be sliced either vertically or horizontally. Either way, the Palestinians would get a 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.
"Joint undivided sovereignty" is a concept 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 in practice. Joint owners must determine how their common property is administered.
In seeking a solution to the status of Jerusalem, it is essential to distinguish between sovereignty and municipal administration. 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 recognise that this is the nature of the question.
Assigning sovereignty over an undivided city both to Israel and to Palestine should satisfy to the maximum the symbolic and psychological needs of both Israelis and Palestinians. It could also generate 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 friction that such domination inevitably provokes.
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.
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 territory to be its capital is not contested, the refusal of virtually all countries to recognise 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 vivid example of the firm and unequivocal position of the international community is provided in the UN General Assembly Resolution 52/53, adopted on 9 December, 1997 by a vote of 148-1, in which "The General Assembly... determines that the decision of Israel to impose its laws, jurisdiction and administration on the Holy City of Jerusalem is illegal and therefore null and void and has no validity whatsoever." In May 1996, the world's view of the legal status of Jerusalem was concisely summarised by then British Foreign Secretary Malcolm Rifkind: "Britain made clear many years ago, as did the international community, that it considered Israel to be in military occupation of East Jerusalem and to have only de facto authority over West Jerusalem."
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.
Realistically, there are only three alternative endings to the search for Israeli-Palestinian peace: (1) Israel and Palestine agree on a basis for dividing Jerusalem, and peace is achieved on that basis; (2) Israel and Palestine agree to share an undivided Jerusalem, and peace is achieved on that basis; or (3) Israel and Palestine fail to agree on Jerusalem's status, and there is no peace. Prime Minister Binyamin Netanyahu and his political allies have ruled out dividing Jerusalem in the most categorical terms, and the Labour Party, whether in power or in opposition, has promised no greater flexibility toward the possibility of dividing the city.
That leaves only the second and third alternatives -- a sobering reality which should, logically, stimulate interest among peace-seekers in exploring the potential of the "condominium" solution and in trying to convince the Israeli public that the Holy City so central to the lives of both Israelis and Palestinians (as well as to believers in the three great monotheistic religions) can be shared, that a winner-take-all approach produces only losers and that both Israelis and Palestinians must be winners or both will continue to be losers.
A century after the First Zionist Congress was held in 1897 and half a century after Israel was established in 1948, Israelis concerned about their future might well look back at the vision for Jerusalem of Theodor Herzl, the founding father of Zionism: "We'll simply extra territorialise Jerusalem, which will then belong to nobody and yet to everybody, the holy place common to the adherents of all faiths. The great condominium of culture and morality." Herzl's dream of a Jewish state was wildly impractical at the time, but it existed half a century later. Whether its people ever enjoy peace and security may well depend on whether they can grasp the visionary practicality of Herzl's own recognition that what neither people of the Holy Land could ever relinquish or renounce must therefore be shared.
If Israelis and Palestinians can agree -- and soon -- that a mutually acceptable solution for the status of Jerusalem does exist, all the other pieces in the delicate peace puzzle could still 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 have started in Gaza and Jericho and been extended to other West Bank cities, but any road to peace must start in Jerusalem.
*The writer is an international lawyer who writes frequently on the Israeli-Palestinian peace process.
