The Sovereign Battle over a Sovereign Jerusalem!

by Dr Harry Hagopian, LL.D
Doctor in Public International Law
September 2000

Al-Quds! Yerushalaim! Jerusalem! It is the Holy City, a city of two peoples and three religions! This is the emotive cry that comes out daily from the mouths of politicians, religious leaders, academicians, analysts, lobbying parties and interest groups. It is almost a rallying call which reflects the centrality of Jerusalem in the lives of countless peoples the world over. But it also underscores the different viewpoints held by those who are involved in the relentless attempts to find a political solution to this universal city. Indeed, many suggestions and different interpretations abound, some more serious than others!

And with this quest for a solution to Jerusalem, the term ‘sovereignty’ has also become the buzz word in many circles. So much so that an uninformed person can perhaps be excused for thinking that everything to do with the 52-year old Palestinian-Israeli conflict has been neatly resolved and packaged, and that the sole outstanding discord between Palestinians and Israelis today centres squarely on the future of this fateful city! True, much headway has been achieved over the past few weeks and months, but there are other issues - not least that of refugees and their right of return - that still beg for equitable and lasting answers.

Nonetheless, and given the various commentaries that crop up about Jerusalem on a daily basis, I would like to focus here and now on this seemingly intractable problem.  And to do that, I would like to disassemble its component parts. In the words of the Roman jurist Rovanes, I shall attempt to ‘be bold enough to come up with a bold solution to a bold problem’.

If I were to adopt a purist approach to the political problem of Jerusalem, relying exclusively on the precepts of International law, United Nations Security Council Resolutions and international legitimacy, I would have no hesitation in providing an unequivocal answer. The whole of East Jerusalem is territory occupied by Israel in June 1967. No country, or federation of countries, has ever acknowledged any other interpretation on the status of this city. Every member of the United Nations - with one or two largely insignificant exceptions - has refused to deviate from the line that this is occupied territory, and that UNSC resolutions 242 and 338 as well as the Fourth Geneva Convention apply fully. Foreign embassies are situated outside Jerusalem, and the foreign consuls in Jerusalem do not even get the exequatur from Israel. As such, any irenic initiative could simply emphasise that the proper solution would entail a withdrawal by Israel from occupied territories, and that a future Palestinian state need be perched on this whole land mass with East Jerusalem as its capital.

And mind you, I am neither being a nationalist nor trying to be a patriot here! I am simply reflecting the general consensus of the whole international world comity.  And as an Armenian Jerusalemite Christian, I would also subscribe to this thesis.

However, life is rarely that straightforward since human beings have an uncanny propensity to weave tangled webs for themselves! Indeed, the Palestinian-Israeli conflict has produced a rich set of demographic realities on the ground that can neither be circumvented nor ignored easily. Jerusalem is one such illustration, and more particularly that part of the old city of Jerusalem within the walls which has become the focus of the whole world. This is a small parcel of land that is barely bigger than 900 dunams.  It is home to the four Muslim, Christian, Jewish and Armenian quarters. It enshrines most of the holy places that are near and dear to the faithful from the Christian, Muslim and Jewish faith communities. This one square kilometre of disputed land (or perhaps two square kilometres if I were to add the Mount of Olives to it) houses around 33,000 inhabitants. According to one set of statistics, 23,500 Muslims live on 461 dunams of land, 6,500 Christians (including Armenians) live on 318 dumans of land (the Christian quarter consists of 192 dunams and the Armenian quarter consists of 126 dunams), and 2,500 Jews live on 122 dunams of land.  And this small plot of Jerusalem, rich in its religious history, represents now the biggest challenge to the Palestinian and Israeli peace-makers.

And the problem is axiomatic! Israel insists that it has the right to exercise sovereignty over this whole patch of land, whereas the Palestinians - supported by the Arab and Muslim worlds - insist that they themselves are entitled to acquire sovereignty over it. And given the geography of the old city, any final status agreement over it with its competing sovereignties would inevitably impact the scores of major Christian holy places as much as the Haram al-Sharif (the Muslim Noble Sanctuary) and the Western Wall that also fall within its walls.
 

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But is there no possible egress from this stand-off? Can no creative solution be found to translate the dynamics of power, as much as win-lose or lose-lose equations, into win-win ones for both peoples?  I believe there is - even if my suggestion were to appear impractical or facile at first glance!  However, let me start off by introducing a note of caution that convoluted discussions over different forms of sovereignty - whether divided, scattered, functional or limited - could well become counter-productive.  For one, such vague phraseologies that lack much solid legal footing or practical grounding tend to confuse the issue.  Worse, they could render even more hazardous the task of concluding a peaceable solution.

But what is our understanding of sovereignty - supreme power in the legal vernacular - as it stands today? There is no doubt in my mind that the whole concept of sovereignty has undergone tremendous change and evolution in the last one hundred years. Developed in the 16th century by Jean Bodin, it was meant to devise a system which would allow the king complete authority over the areas he ruled at the time. Later, Thomas Hobbes chiselled this concept further and expanded it into a theory that wielded absolute control with an absolutist approach.  Otherwise said, the state had absolute power over all things. Sovereignty was transmuted into an instrument that served national mythologies. It became a shibboleth for control.

However, the concept of sovereignty has lost much of its rigid and absolutist definitions over the years. If one looks at many parts of the developed world - notably the European Union - one concludes that the assumption of inflexible borders between nation-states is fast disappearing. Gradual democratisation has led to gradual decentralisation too.  So, is it possible to adopt a concept for the old city of Jerusalem that would purge sovereignty of its sacred aura and adapt instead a solution that would comply with its makeup?

I believe that International law and case law have come a long way toward suggesting creative solutions whereby people could live together without reaching an agreement over, or even addressing the issue, of sovereignty. The case of the New Hebrides / Vanuatu islands in the Pacific Ocean put paid to the idea that sharing sovereignty is an easy solution. On the contrary, it could be quite messy!  But in the South Pole case in 1995, and in the earlier case of the Falkland Islands in 1983 between Britain and Argentina, it was proven that it is possible after all to live together without reaching an agreement on the matter of sovereignty. In other words, those cases support the contention that it is quite possible to ‘suspend’ any decision on sovereignty until a later stage and instead install in place a series of administrative measures that would run the daily life of the people.  Or else, it is equally possible to ‘divest’ sovereignty from the decision-making process and focus instead on those mechanisms that make a place work - such as fundamental freedoms, municipal arrangements or tourism.  Otherwise said, any such decision would remove the emotional pain of ‘conceding’, ‘losing’ or ‘compromising’ on the abstract concept of ‘absolute ownership’ and would tackle instead the ‘practical’ issues that are of concern to all residents.

I believe that the old city of Jerusalem could be a welcome host to such an idea, more so because of its intense religious significance to the adherents of all three monotheistic religions. After all, what distinguishes the old city of Jerusalem from countless other cities dotted across the world is that it represents a sacred space to so many holy shrines. A shift in emphasis and realism over the Old City - with its holy places - is necessary today. In fact, the ‘vacuum theory’ in International law - as elaborated by the likes of Professor Steven Weijsczik - expounds the possibility of overstepping sovereignty in places where there is competition over the application of such an absolutist concept. What this variant implies in essence is that any two parties put aside (suspend temporarily or divest permanently) the concept of sovereignty as the focus of their negotiations and look rather to the possibility of setting up a council that would provide the administrative system and regulatory measures necessary to govern a particular area.

What does this mean for the old city of Jerusalem in concrete terms?  It means that Jerusalem would remain an open city. The Palestinians would control the Muslim, Christian and Armenian quarters that are demographically and ethnically appurtenant to them, whereas Israel would retain control over the Jewish quarter. The practical consequence of such a set-up is that the city will no longer be divided or partitioned, but that the Christian and Muslim shrines would fall collectively under Palestinian control, whereas the Western Wall under Israeli control. Since there exist established and recognised procedures of governance in all those places - not least the Status Quo agreement for the Christian shrines - both parties would end up exercising ‘de facto’ sovereignty but will not insist upon any absolutist ‘de jure’ enforcement of their rights.

Such a ‘vacuum theory’ becomes even more relevant when one considers that the Jerusalem of two square kilometres would then acquire a special statute for itself which would be enforced through a panel of international guarantors drawn both from the three local faith communities as well as from international institutions - notably the United Nations. Jerusalem would become stricto sensu a spiritual capital, no longer a political capital. It would belong to all the residents of the old city, and they can relate to each other as much as to its other neighbourhoods, in harmony.
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Can the parties achieve such a breakthrough?  With difficulty, but yes! However, this can only happen if both Palestinians and Israelis disinvest themselves of absolutist solutions and become willing partners in a more pragmatic solution. I admit that this scenario is far from being an easy one.  After all, sovereignty is a reassuring concept: it provides certainty and gives the Palestinians - by far the aggrieved and dispossessed party - a sense of recuperative dignity. However, I started off my thesis by postulating that we must consider win-win solutions rather that maintain redundant ideologies which prey on peoples’ weaknesses and insecurities. Can good will galvanise both parties’ efforts to help them tailor a solution that will extricate us from this political morass?  Can we nurture a sense of belonging in Palestinians and Israelis alike that no longer talks in mutually exclusive terms but accepts an inclusive framework for the future?

As men and women of faith, let us not forget that we must always be advocates of justice but also tools of reconciliation. Whatever our particular tradition, religion teaches us one very basic truth: that all human blood flows red and that if you are cut, you will bleed just as surely as I do!  What better homage can we pay our Maker than by doubling our efforts toward such a consensus and fulfilling God’s wish for peace?   When writing about the future glory of Jerusalem, did the prophet Isaiah not describe “the walls of Jerusalem Salvation and its gates Praise”  (Is 60:18)?
 

© HH @ September 2000