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Jerusalem Letter / Viewpoints

No. 469   17 Tevet 5762 / 1 January 2002

ARMISTICE IN JERUSALEM ONCE AGAIN?

Raphael Israeli


Reminders of the Armistice / Lessons of the Armistice Regime / The Consequences of Re-division / Israel's Legal Rights in Jerusalem / Oslo and Jerusalem / Key Issues for Resolution / Lessons and Solutions

Reminders of the Armistice

Since the 1967 Six-Day War and the reunification of Jerusalem, new Israeli neighborhoods have grown as satellite towns all around the core of the city beyond the old demarcation line. Mount Scopus, now connected to the city by a major network of highways, has been rebuilt into a mammoth fortress-campus which accommodates Hebrew University and the Hadassah Hospital. New roads and highways crisscross the city, linking its new neighborhoods. What was once a formidable array of military positions and fortifications has turned into sprawling housing projects. Free access to the holy places of all faiths has been made available to all. New museums, shopping malls, entertainment centers, and places of worship have sprouted everywhere. Finally, the population more than doubled between 1967 and 1997 from just under 300,000 in both parts of the formerly divided city to more than 600,000 within its current unified municipal boundaries.

There remains, however, an atmosphere of temporariness hovering over the city. There are still far too many security personnel patrolling the streets or peeking into your bag when you enter a public establishment. There are still two separate and very different cities coexisting side by side, rather than one unified municipal and socio-cultural system. A north-south highway was built where the old demarcation line used to run, ironically emphasizing the divide. Western Jerusalem remains predominantly Jewish and Western, while eastern Jerusalem remains prevailingly Arab, Muslim, and oriental.

The memories of the armistice are also present by virtue of the many landmarks from that period: the city wall and the towering Notre Dame, once formidable military positions which had spurted out fire and death during the years of the armistice. The legendary Ammunition and French Hills in the north, or Government House in the south, once no man's land or military positions, have now turned into parks, new neighborhoods, or war memorials.


Lessons of the Armistice Regime

As negotiations between Israel and the Palestinians have looked toward a permanent settlement of the Jerusalem issue, several models have been invoked, such as internationalization, London-style boroughs under joint sovereignty, one unified city with a special status for the holy places of all religions, various modes of functional division, or a return to something approximating the divided city under armistice of the years 1947-67, when East Jerusalem was ruled by Jordan and West Jerusalem by Israel. That regime, which was supervised by the United Nations, hardly constituted a modus vivendi that both sides could live with. The city was partitioned by barbed wire and dominated by military positions and fortifications, and by occasional outbursts of fire and violence, which made the threat to the daily life of its citizens omnipresent.

That regime was also asymmetric in the sense that while for Israel, West Jerusalem was its capital, East Jerusalem remained for the Jordanians a backwater border town. West Jerusalem was modern, thriving with political and cultural activity, relatively wealthy and steadily growing, while East Jerusalem was a sleepy, large village, underdeveloped and neglected.

The talks on the permanent status of Jerusalem have narrowed to two contending approaches: the Israelis want to keep the city unified in its present urban boundaries, while the Palestinians claim the eastern part of the city as their sovereign capital. It has become universally accepted that any agreed solution those two parties would subscribe to will become the normative one. For the first time, no one else demands direct or indirect rule over the city or parts thereof, even though claims for specific prerogatives regarding the holy places have been voiced by church, consular, Islamic, UN, and international circles.

While any bilateral settlement between the parties will be tempted to look at the armistice regime as a precedent to learn from, the armistice model is in fact a negative one that must be discarded as a viable option in view of its dismal failure. Indeed, a number of lessons and conclusions present themselves from the experience of the armistice period:

  • Interim arrangements like the 1949 Israel-Jordan armistice are useless unless they lead to an agreed, gradual, and clear timetable of steps towards a final accord. Leaving important clauses open for further negotiation, such as Article VIII on Jerusalem, which guaranteed access to Jewish holy places and humanitarian institutions in East Jerusalem but was never implemented, is a recipe for future trouble.

  • Agreements must be hammered out by the parties concerned without outside interference. Experience has shown that intermediaries are inclined to develop interests of their own, and instead of facilitating agreement they may at times aggravate existing disagreements.

  • Kissinger-style "constructive ambiguity" in agreements may be disastrous in the final analysis. The problem is not to find the right wording for an agreement, but to avoid double meanings and multiple interpretations that generate crises of expectations when the parties end up with something different from what they understood, or are misled by assurances given to them. No matter how agreeable the wording of clauses may sound initially, the day of reckoning comes when formulae adopted at the negotiating table come to be applied in the real world and the parties discover or suspect that they were double-crossed.

  • Divided cities are not viable in the long run because the division cutting through roads, communications, water and electricity grids, and the very landscape of the city remain as a negative reminder that things could be different and more normal. In other settings, such as Berlin or Belfast, the scar in the middle of the city, which partitioned the same people and culture into two halves, was crueler on the human level. In divided Jerusalem, like in Nicosia, except for small groups that had been evacuated during the 1948 War, the partition went also along national, religious, ethnic, and linguistic lines, which made the alienation between its halves less cruel but present all the same.

  • Where borders are drawn or defined, great care must be taken to avoid any vagueness, misinterpretation, or faulty marking. To be respected, borders must be policed and clearly delineated. Authority to police borders and supervise peace along them must be delegated to local commanders who know each other, meet with each other, and are accessible to each other. Otherwise, when minor incidents are reported to higher authority, they tend to get distorted and exaggerated, and by the time the top leadership begins to deal with them, they acquire an importance of their own and become much more difficult to settle.

  • Under Arab/Islamic rule, free access to the holy places in Jerusalem cannot be guaranteed. While local Muslims under the armistice generally enjoyed freedom of worship in the Aqsa Mosque and its adjoining shrines, the Muslims of Israel were denied entry to those holy places throughout the armistice period. Israeli Christians were allowed into Bethlehem on Christmas, but Jews were totally excluded from the Temple Mount, the Western Wall, and other parts of Jordanian-controlled Jerusalem, despite Article VIII of the armistice that had provided differently. The issue is one of tolerance on a basis of equality and sharing instead of exclusion and arrogance of power. In the view of Moslems, Jews have no rights on the Temple Mount and therefore they have neither claim nor right of entry to any part of the entire complex, and that view was always enforced when Muslims were in control of Jerusalem.

  • During the period of the armistice neither the United Nations nor any of the Great Powers sought to facilitate daily life in Jerusalem except for their own employees or nationals. They interested themselves in the functioning of the armistice regime only to the extent that it served their interests. In no case did they seek permanent arrangements to replace the armistice, nor did they call Jordan to task for disrupting the functioning of the armistice regime by paralyzing the main provisions of Article VIII. No permanent members of the UN Security Council complained about Jordanian behavior in Jerusalem with respect to limitations on Jewish or Christian rights in the Old City.

  • Jerusalem under armistice seemed everybody's concern and everybody knew better than the Israelis and the Jordanians what should be done there, what the parties' interests in it were, and what their Jerusalem policy ought to be. Seldom in the history of international relations have so many proffered so much gratuitous advice on so many issues in so limited a territory and with so little effect as the Great Powers and the UN did in relation to Jerusalem. Never before has the capital city of any sovereign country been the subject of such blatant intervention on the part of just about everybody, and never before has the sovereign government of any nation been so attentive and so sensitive about what others had to say with regard to the affairs of its capital city.


The Consequences of Re-division

Short of re-dividing the city and exposing it once again to the agonies of the armistice period, are there other ways of solving this quandary? Does the solution of the Jerusalem issue hinge upon a resolution of all the pending Arab-Israeli points of contention, or is it, as Pope John Paul II sees it, the starting point for negotiating a settlement of the entire conflict?

The Oslo accords of 1993 relegated the issue of Jerusalem -- along with other difficult aspects of the conflict -- to the final phase of the Oslo process. This assumed that confidence-building through settling minor issues would have generated enough good will to produce agreed solutions for this more difficult problem. Experience thus far has shown, on the contrary, that every step in the implementation of the Oslo accords has led to new tensions, generated new accusations, and produced new expectations likely to make negotiations over Jerusalem harder, not easier.

There is a wide convergence in Israeli public opinion against the repartition of Jerusalem, that has probably only increased in the aftermath of Arafat's October 2000 intifada. Israel's unequivocal stand in this sense is backed not only by historical claims and the clear reality of Israeli predominance in the city, but also by the negative experience of the armistice years. If Jerusalem were to be re-divided, or eastern Jerusalem to revert to Arab rule in a context of peace, one ought to be aware of the possible consequences:

  • West Jerusalem under Israel will be prosperous, free, open, and thriving; the Arab-controlled east would be backward, poor, overcrowded, and neglected (compare East and West Berlin). The deprived and unemployed population of the east, just like those in the cities already ceded to the Palestinian Authority, will infiltrate illegally into Israel with the connivance of the Palestinian Authority to seek work, at best, and for criminal activity, at worst. For a re-divided Jerusalem will be without the Ulbricht Wall which prevented the same situation from developing in Berlin. Indeed, Jerusalem would become a gaping hole in any separation scheme; Palestinians would pour through Jerusalem into pre-1967 Israel, exercising their self-proclaimed "right of return" even in the absence of any Israeli acquiescence in this matter.

  • Palestinian crime within western Jerusalem will increase dramatically due to the proximity of the two parts of the city and the great attraction of the more modern and affluent Israeli part. Car thefts, house and business robberies, document counterfeiting, manslaughter, rape, smuggling, and drugs will flood into western Jerusalem. This is already the situation to a great extent, but at least the Israeli police can investigate and lay their hands on the perpetrators. If the criminals were free to turn east Jerusalem into a haven like in Ramallah and Nablus today, there is no certainty that the Palestinian police will be able or willing to curtail this flow, and in any case will be able to loosen or tighten their control on crime according to the fortunes of the relations between the parties.

  • There might exist a renewed threat to Jewish freedom of access to holy places, especially the Western Wall. The Mount of Olives might again be desecrated once under Palestinian sovereignty, and Jews may no longer be permitted to bury their dead there. Even if those freedoms were guaranteed by agreement, there is no way to assure that the fate of that agreement would be any better than the defunct Article VIII of the armistice, if effective Israeli rule is not ensured. Palestinian-controlled parts of Jerusalem would become a magnet for armed fundamentalist intervention by Palestinian groups like Hamas or Islamic Jihad or by external powers, like Iran. Since the Palestinian Authority did not demonstrate any willingness to counter their activity in Gaza and West Bank cities during the Oslo years, it is doubtful that Palestinian security services would stand up to the fundamentalist challenge.

  • The great archaeological excavations carried out during the past 30 years, which uncovered the ancient Jewish past of Jerusalem, will be obliterated as part of a complete Arabization and Islamization of that part of the city. There is likely to be an accelerated erosion of the Christian presence in the city, similar to what occurred in Bethlehem during the years of Palestinian Authority rule.

  • The Hebrew University on Mount Scopus, and the Hadassah Hospital, the most important medical center in eastern Jerusalem, will have to close their gates once again. Even if their existence as an enclave in an Arab environment and free access there were guaranteed, their operation at the mercy of a foreign government would become untenable.

  • East Jerusalem under the Palestinian Authority might become a permanent strategic and security threat to Israel's capital city. Indeed, one or two kilometers from the Israeli Knesset and government offices, Palestinian soldiers would be allowed to take up positions from which to threaten daily life in the city, as in the days of armistice. Israel would have to assume there would be Palestinian violations of the demilitarization provisions in any Final Status arrangement that granted the Palestinians sovereignty in Jerusalem. Israel could expect the deployment of Palestinian mortars and automatic weapons in East Jerusalem, following the pattern that Israel has experienced in the period of its Interim Accord with the PLO, in places like Beit Jallah.


Israel's Legal Rights in Jerusalem

It is hard to imagine that Israelis would accept a reversion to that kind of situation. To make sure that they would not have to face such a possibility, Israel enacted the Basic Law: Jerusalem in July 1980, mandating that undivided Jerusalem must remain the sovereign capital of Israel. This was complementary to the law enacted in June 1967 which applied the Israeli legal and administrative system to East Jerusalem, thereby placing it under Israeli sovereignty as part and parcel of the rest of Israel.

It was not an act of annexation because Israel did not regard itself as an occupying power in any part of Jerusalem, nor had it ever recognized Transjordan's occupation of Palestinian territory in 1948, East Jerusalem included, as a rightful expansion of sovereignty.1 Of course, there are other points of view advanced by Arab and some Western, even Israeli, jurists,2 but the practical absorption of the city occurred at a time when only Israel had a lawful claim to Jerusalem. The reasons behind this step were partly drawn from the lessons of the armistice experience.

In introducing the relevant legislation to the Knesset on 27 June 1967, Israel's Minister of Justice explained its purpose:

The Israel Defence Forces have liberated from foreign yoke considerable areas of the Land of Israel...which have now been under the control of the Israel Defence Forces for more than a fortnight....The position of the State of Israel was based from the start on the principle that the law, the jurisdiction and administration of the State apply to all those parts of the Land of Israel which are de facto under the State's control....It was the view of the government -- and this view conformed with the requirements of international law -- that in addition to the control by the Israeli Defence Forces of these territories, there is required also an open act of sovereignty on the part of Israel to make Israel law applicable to them....It is for this reason that the government saw fit to introduce the bill, which I now submit to the Knesset.3

Thus, in the same way that the armistice boundaries of 1949 were not determined by the United Nations (whose partition resolution was rejected by the Arabs) but rather by war, in Jerusalem, too, the armistice lines were of no validity the moment that Jordanian forces revoked the armistice and went on the attack on 5 June 1967. Hence, the new territorial division in Jerusalem and the introduction of Israeli law and administration into eastern Jerusalem were fully valid.

In 1949, western Jerusalem and its corridor to the coastal plain, as well as other parts of the country which fell outside the partition boundaries of what was to be a Jewish state, automatically became Israeli territory as a result of the Arab rejection of partition and their subsequent attack on the Jewish areas of Palestine. In the very same way, the Jordanian attack on 5 June 1967 made legal the takeover by Israel of Jordanian-held territories which were not part of recognized sovereign Jordanian land.4 The entire international community, with the exception of Great Britain and Pakistan, had never recognized Jordanian sovereignty over the territories occupied by Jordan's army in the war of 1948-49 beyond Jordan's national territory.

In August 1988, King Hussein of Jordan announced publicly that he was renouncing his country's claims to territories west of the Jordan River. He did so, it is believed, out of fear that Palestinian anti-Israel rioting and violence, which were then rife and well publicized in many countries (the so-called intifada), might spill over into his country. Thus, of the existing sovereign entities which may have claim to Jerusalem, only Israel remained.


Oslo and Jerusalem

The Oslo Accords signed between Israel and the Palestinians in 1993 opened new vistas for claims and counterclaims inasmuch as Israel agreed to discuss the question of Jerusalem as part of the permanent status of territories lost by Jordan to Israel in 1967. The Palestinian position is clear: the Oslo Accords open the way for the establishment of a Palestinian state with Jerusalem as its capital. Israel opposes these ambitions and -- apart from the abortive proposals advanced by Prime Minister Ehud Barak at Camp David in summer 2000 without governmental, legislative, or popular support -- has made it abundantly clear that Jerusalem will remain united under Israeli sovereignty. In due course the signatories of the Oslo Accords are to negotiate a final agreement concerning the conditions and modalities of their coexistence within the boundaries of Mandatory Palestine, including Jerusalem.

Arafat often refers to Jerusalem as "al-Quds a-Sharif" (Jerusalem the Noble), or "al-Quds al-'arabiyya" (Arab Jerusalem), the former signifying the whole of Jerusalem and the latter normally meaning East Jerusalem, the part of the city claimed by the Palestinians as their capital. On Christmas Eve 1995 in Bethlehem, that was handed over to his rule, Arafat declared Christ to be Palestinian, implying his aspiration to become the curator of the holy places of both Christianity and Islam in Jerusalem. His intentions were picked up by the Greek Orthodox Patriarch of Jerusalem, who declared on that occasion: "Here is the successor of Sophronius welcoming the successor of 'Umar ibn-al-Khattab!"5 The reference was to the submission of the Byzantine Patriarch of Jerusalem in 638 to the second Caliph of Islam, Umar ibn-al-Khattab (634-644), who conquered Jerusalem and put an end to many centuries of Christian rule. Obviously, by staging that rather comic piece of absurdity, Arafat wanted to suggest that history had come full circle, except that it was done in Bethlehem, not Jerusalem, and the historical parallel fell flat on its face.


Key Issues for Resolution

What has to be sought in Jerusalem under Israeli sovereignty, therefore, is the resolution of two major issues: the modalities of rule over the Arabs who live in Jerusalem, and the regime that will govern universal access to all religious holy places, of all faiths, in the united city.

In the municipal government arena, many suggestions have been floated to divide greater Jerusalem into boroughs like London, or arrondissements like Paris, which would enable neighborhood administrations, Arab or Jewish, to manage their daily affairs, while an elected umbrella municipality will continue to govern the metropolitan services common to all: transportation, water, sewage, etc. Other views suggest that the present situation of one unified administration would respond to all needs if only the Arabs would vote in the elections and send their representatives to the city council. However, due to the Palestinian refusal to acquiesce to the present state of affairs -- a united city under Israeli rule -- it seems unlikely that they would consent to either of these suggestions prior to a comprehensive, permanent peace accord.

The question of the holy places remains separate from the issue of sovereignty. Exactly as the Israeli Ministry of Education has decided not to enforce the Israeli curriculum in Arab schools of East Jerusalem but to allow them to follow the Jordanian curriculum, Israel can do the same with the holy places without renouncing one iota of sovereignty. Israeli authorities will seek to maintain the status quo dating from Ottoman times,6 but at the same time seeking to maintain equality between the various communities when their religious traditions are in conflict, and to allow all disputes to be settled by courts of law. Israel's law of 1967, guaranteeing the protection of and free access to the holy places, is the expression of the firm intent of the Israeli government to both maintain current territorial sovereignty throughout the city, and to eliminate the discrimination against Jews that the old status quo had entailed.


Lessons and Solutions

After the 1967 war, the UN Security Council adopted Resolution 242, which froze new cease-fire lines on the ground to replace the defunct armistice lines, while also making it clear that the new situation was temporary pending the outcome of peace negotiations. This created a substitute for the armistice regime which was to lead not back to the prewar status quo but to new peace arrangements.

In their insistence that East Jerusalem be their capital, the Palestinians are seeking to invoke the boundary that had divided the city during the years of armistice as a reference point for reapportioning the territory of the city. The old armistice line remains the only ever agreed upon demarcation line between Israel and any Arab authority in Jerusalem, even though it was traced from the start "without prejudice to future territorial settlements or boundary lines or to claims of either party."7 This means that if the Palestinians come to the conclusion that they cannot otherwise extract what they want from Israel in the context of the permanent settlement negotiations, they are likely to revive the old notion of the demarcation line and demand that it be the basis for the negotiations.

Should any effort at re-division arise, however, and whatever solution is adopted by agreement, some steps must be taken to ensure that the city remains livable:

  1. The presence of armed forces must be seriously curtailed, and peace maintained by police forces of the parties acting in unison, or at least closely collaborating between themselves by joint patrols, direct communication lines between the commanders, and an emergency mechanism to defuse dangerous situations.

  2. The three monotheistic religions must be given jurisdiction over their holy places, but with clear understandings and arrangements regarding shared holy places (like the Temple Mount or the Holy Sepulchre), coordination of visitors, and limitations on access to the sites, with a view to fairly assigning rights to all claimants.

  3. No UN or other international body should be apportioned the task of supervising borders or overseeing the holy places, in view of the dismal performance of the Armistice Commission during the armistice regime, and the total paralysis of the Special Committee that was due to deal with Article VIII.

  4. In view of the mounting wave of religious fundamentalism, which had in the past heightened the tension between the parties and excluded certain claimants from their rights to access their holy places, it is imperative that the rules of supervision governing the holy places be drawn up by diplomats and clergymen jointly.

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Notes

1. See O. Ahimeir, ed., Jerusalem-Aspects of Law (Jerusalem, 1983) (in English and Hebrew), especially the articles by Y. Bar-Sela and Y. Englard.

2. Sarah Kaminker, "Building Restrictions in East Jerusalem," Journal of Palestine Studies, vol. xxvi, no. 4 (Summer 1997); and Kate Maguire, "The Israelisation of Jerusalem," Arab Papers (London: Arab Research Center, 1989).

3. Israel's Parliamentary Records, vol. 49, p. 2420 (Hebrew), cited by Yehuda Blum, "The Juridical Status of East Jerusalem," in Ahimeir, ed., op. cit., p. xxiv.

4. Ruth Lapidoth and Moshe Hirsch, Jerusalem-Political and Legal Aspects (Jerusalem: Jerusalem Institute for Israel Studies, 1994), p. 5.

5. The story was widely covered and reported by both the Palestinian and Israeli media, written and electronic.

6. See Y. Englard, op. cit., p. iv.

7. Article II of the Armistice Agreement.

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Raphael Israeli is a Fellow of the Jerusalem Center for Public Affairs and a professor of Islamic and Middle Eastern Studies at Hebrew University, Jerusalem. He served as an IDF officer dealing with the armistice in the 1960s. He is the author of numerous books and articles including Fundamentalist Islam and Israel: Essays in Interpretation (JCPA and University Press of America, 1993), and Muslim Fundamentalism in Israel (Brasseys', 1993). This Jerusalem Viewpoints is based on material from his forthcoming book, Jerusalem Divided: The Armistice Regime (1947-1967) (London: Frank Cass, 2002).


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