The Legal and Political Background
by Ruth Lapidoth
JUSTICE (No. 3, Autumn 1994)
Published by The International Association of Jewish Lawyers and Jurists.
Professor Ruth Lapidoth is a Professor of International Law at the Hebrew University of Jerusalem. This article is based on the Introduction to: R. Lapidoth and M. Hirsch, eds., The Jerusalem Question and its Resolution: Selected Documents (Dordrecht, Nijhoff, in collaboration with the Jerusalem Institute of Israel Studies, 1994.)
At least in three respects Jerusalem differs from most other places: the city is holy to adherents of three religions, it is the subject of conflicting national claims by two peoples, and its population is heterogeneous to a considerable degree. These characteristics require some elaboration.
In the city one finds Holy Places of Christianity, since according to Christian tradition Jesus lived and was active in various locations in Jerusalem. Under the Islamic tradition, the al-Aksa Mosque and the Dome of the Rock situated on the Temple Mount are Holy Places, and for the Jewish people the whole city is holy, in particular the Old City.
It has been argued that some of the events which are associated by the various religions with Jerusalem could not, from an historical point of view, have actually occurred. However, where religious faith is concerned, historical accuracy is not relevant and it is sufficient that many people believe that a certain event took place. Religious belief in the sanctity of certain sites in Jerusalem has been exploited by various States and institutions in order to achieve political goals.
As for the national aspect, united Jerusalem is the capital of the State of Israel, but the Palestinians also have claims on the city, at least the eastern part thereof, and seek to make it their capital.
Turning to the heterogeneous nature of the population, it is sufficient to stroll through the streets of the city to realize that it indeed consists of a mosaic of many and various peoples. Thus, for example, adherents of some forty different Christian communities live in Jerusalem.
These three features have a considerable influence on the character and the development of the city.
A Historical and Legal Survey
Jerusalem has a long and turbulent history. From 1517 onwards the city, together with the whole of Palestine, was under Ottoman rule. Jerusalem was never the capital of any Arab State. Since 1830 it has had a Jewish majority — at first merely a relative majority, but subsequently an absolute one.
The Holy Places in the city have often been a matter for dispute. In the 19th century there was bitter controversy when certain European countries extended their protection over the various Christian churches in Palestine, and over their Holy Places. Some of the Powers also established consulates in Jerusalem (France, Britain, Russia, Prussia, Austria, Sardinia, Spain and the United States). For the purpose of regulating the status of the various churches at the Holy Places, the Ottoman government published a number of firmans, the most important being that of 1852. This firman dealt with certain Holy Places and determined the powers and rights of the various Churches in those places. This arrangement was generally known as the ‘status quo’, and has been applied to the Church of the Holy Sepulchre and its dependencies, the Convent of Deir al-Sultan, the Sanctuary of the Ascension (on the Mount of Olives), the Tomb of the Virgin Mary (near Gethsemane) in Jerusalem as well as the Church of the Nativity, the Milk Grotto and the Shepherds’ Field near Bethlehem.
After the Crimean War, the status quo received international recognition by the Treaty of Paris of 1856 and was reconfirmed by the European Powers at the Congress of Berlin in 1878. In Article 62 of the Treaty of Berlin the term ‘status quo’ was used for the first time, in the following provision: "[I]t is well understood that no changes can be made in the status quo of the Holy Places." During the period of the British Mandate the principle of the status quo was extended also to the Western Wall (also known as the Wailing Wall) and Rachel’s Tomb.
The Balfour Declaration of 1917, by which Great Britain promised to assist in the establishment in Palestine of a national home for the Jewish people, did not explicitly refer to Jerusalem, nor did the Terms of the Mandate of 23rd July, 1922, which defined the powers and responsibilities of Great Britain as a Mandatory Power in Palestine. However, the Terms of the Mandate did deal with the question of the Holy Places. In Articles 13-15 it was provided that the Mandatory was responsible for the Holy Places and that it was bound to preserve existing rights in those places as well as ensure free access and worship, subject to requirements of public order and decorum. Moreover, Great Britain was requested to establish a special Commission which would "study, define and determine" the various rights and claims in connection with the Holy Places. This Commission was to be appointed with the approval of the Council of the League of Nations. In fact, the Commission was never set up, since the States concerned could not reach agreement as to its composition or powers. Shortly after the Mandate came into force, Britain provided in the Palestine (Holy Places) Order in Council of 1924 that matters concerning the Holy Places were not within the jurisdiction of the courts, but should be handled by the British High Commissioner.
During the time of the Mandate, the seat of the High Commissioner was in Jerusalem.
In 1947, after the Second World War, Great Britain requested the General Assembly of the U.N. to consider the Palestinian question. The General Assembly appointed a special committee — the United Nations Special Committee on Palestine or UNSCOP — to investigate the matter, and following the recommendation of the majority of the Committee, the General Assembly adopted on the 29th November, 1947 its famous resolution on the future government of Palestine (Resolution 181 (II)). Part III of the resolution dealt with the City of Jerusalem. The General Assembly recommended the establishment of a corpus separatum (a separate entity) which would be under a special international regime and be administered by the U.N. through the Trusteeship Council and a Governor to be appointed by it. Powers of local government and administration were to be conferred on the local autonomous units that existed in the area. The city was to be demilitarized and neutral. For the purpose of maintaining internal order and especially for the protection of the Holy Places, a special police force consisting of members to be recruited outside Palestine was to be established. Legislative powers were to be conferred on a Legislative Council to be elected by the residents of the city on the basis of proportional representation. The U.N. Governor would have the power to veto laws inconsistent with the Statute of the city as well as the power to promulgate temporary ordinances in case the Legislative Council failed to fulfill its function. The city was also supposed to maintain a judiciary system.
In the economic sphere, the city was to have been united with the Jewish and Arab States which the General Assembly had recommended to set up. Residents of both States were to be guaranteed freedom to enter the city and the right to reside therein. It was intended to grant the citizenship of Jerusalem to all the residents of the city except for those who did not wish to have it. The resolution secured human rights in the city, including an education system in the Hebrew and Arabic languages. The Holy Places were to be preserved and protected, and continued respect for existing rights was provided for (i.e., preservation of the status quo). Similarly, freedom of access and worship subject to the requirements of public order and decorum was assured. In the absence of agreement between the different religious communities, the Governor was authorized to carry out urgent repairs in the Holy Places. Likewise, it was provided that taxes on Holy Places would not be increased. In addition to his powers and functions with regard to Jerusalem, the Governor was also to have authority to settle disputes between different religious communities anywhere in Palestine.
The special regime for Jerusalem was to have been in effect at the first stage for ten years, after which it was to have been re-examined by the Trusteeship Council of the U.N. in view of experience gained. Moreover, the residents were promised that they would be able to express, through a referendum, their wishes as to possible modifications of the regime of the city.
The special entity of Jerusalem was to have included Bethlehem in the south, Ein Kerem in the west, Abu Dis in the east, and Shu’fat in the north.
The resolution of the General Assembly received the consent of the national leadership of the Jewish community of Palestine but was categorically rejected by the Arabs, who immediately started attacking Jewish towns and villages, including the Jewish areas of Jerusalem.
On 14th May, 1948, when the British Mandate over Palestine drew to its end, representatives of the Jewish Community in Palestine proclaimed the establishment of the State of Israel. The Declaration of the Establishment of the State does not mention Jerusalem, but it foresees that Israel "will safeguard the Holy Places of all religions". Immediately after the establishment of the State, the armies of five Arab States invaded Israel. In the Jerusalem region the armies of Jordan (or Transjordan, as it was then called) and Egypt were operating. The battle for Jerusalem was a fierce one, partly because at a certain stage the Jewish areas were cut off from the coastal plain. The battle for the Old City ended with the surrender of the Jewish Quarter to the forces of the Jordanian Arab League.
Even before the fighting had died down, a special agreement was concluded under the auspices of the U.N. between Jordan and Israel regarding Mount Scopus. During the fighting that area had remained a Jewish enclave within the areas conquered by the Jordanian army. In that agreement the parties agreed to neutralize the Jewish enclave as well as the adjoining area of the Augusta Victoria hospital which was under Jordanian control, and to assign these areas to U.N. protection. Moreover, it was provided that Jewish civilian police should be allowed to guard the humanitarian institutions on the Mount (the Hadassah Hospital and the Hebrew University) and that the guards would be replaced from time to time by means of a convoy escorted by the U.N., which would be allowed to traverse the zone under Jordanian control.
When the fighting ended, Jordanian forces were in control of the eastern parts of the city, whereas the western sector was under Israeli control. In November of 1948, a truce came into force throughout the city, and at the beginning of 1949 an armistice agreement was concluded between Israel and Jordan. Among other matters, it was agreed that a special committee would be established in order to formulate agreed plans inter alia on matters on which agreement in principle already existed, including free access to the Holy Places and the reopening of the cultural and humanitarian institutions on Mount Scopus (Article 8), but these commitments were not honoured by Jordan. Furthermore, the Jordanians demolished most of the Jewish Quarter of the Old City with its synagogues, and also destroyed a number of gravestones in the Jewish cemetery on the Mount of Olives.
The application of Israeli law to the western sector of Jerusalem was ensured by proclamations made by the Minister of Defence in 1948 and by the Areas of Jurisdiction and Powers Ordinance, 1948. That ordinance provided that the law in force in the State of Israel should also apply to any part of Palestine which the Minister of Defence would designate by Proclamation to be under occupation of the Israel Defence Forces.
The Armistice Agreement established a Mixed Armistice Commission (Article 11), with the participation of Jordan, Israel and a U.N. representative. This Commission dealt from time to time with matters concerning Jerusalem. Among other matters, it was agreed to partition the "civilian zone" — i.e., the zone in which the former High Commissioner’s residence was situated (and which was previously a demilitarized zone between the lines). Moreover, the Commission dealt with the occupation by civilians of certain buildings within the no-man’s land (the area between the lines to which access was prohibited). Although that occupation was illegal (under Article 4(3)), the Commission affirmed that the occupants of those buildings should receive municipal services from Jordan or Israel, as the case may be.
At the end of 1949, following on the renewed debate on Jerusalem in the General Assembly of the U.N., Israel’s Prime Minister David Ben-Gurion announced in the Knesset that Jerusalem was an inseparable part of the State of Israel and its eternal capital; this position was approved by the Knesset.
In 1950 a conference of dignitaries from the areas conquered by Jordan in 1948 was convened in Jericho, and following their resolution the King of Jordan proclaimed the annexation of the West Bank and Jerusalem to his kingdom. This act was recognized by only two states — Great Britain and Pakistan, and Great Britain added a reservation that the recognition did not apply to Jerusalem. The members of the Arab League expressed their opposition to these measures.
In the U.N. there were a number of debates on the future of Jerusalem during the years 1948-1952, and the Trusteeship Council drew up a draft statute for the city, but from 1952 until the Six-Day War in 1967 no significant discussions took place on the subject.
Apparently, foreign states were not prepared to recognize Jordanian or Israeli rule over the respective zones of the city under their control. Thus, for example, the foreign consuls in the city refused to apply to Jordan or Israel (as the case may be) for the grant of exequatur, i.e., permission to carry out their functions in the city. The refusal to recognize Israeli rule over the western sector of the city was apparent, for example, in the 1952 case of the Heirs of Shababo et aliter v. Roger Heilen, the Consulate General of Belgium and the Consul General of Belgium in Jerusalem: The driver of the Belgian Consulate had been involved in a fatal road accident that caused the death of Mr. Shababo. The latter’s relatives sued the driver, the Consulate and the Consul General and claimed damages. The incident was the subject of four judgments of the Jerusalem District Court. Of particular interest is the first deliberation (not published), where the driver and his principals denied the jurisdiction of the Israeli courts over the accident since it had taken place in Jerusalem. That argument was dismissed by the Court. It seems, however, that although the international community has not recognized Israel’s sovereignty over the western neighbourhoods of Jerusalem, it has nevertheless accepted the de facto applicability of Israeli law. In the view of the State of Israel, Israel acquired sovereignty over the western part of the city already in 1948, since, upon the departure of Britain, the area remained without a sovereign, and Israel took control of it by a lawful act of self-defence.
When the Six-Day War broke out in June, 1967, Israel contacted Jordan through the U.N. as well as the American Embassy, and made it clear that if Jordan refrained from attacking Israel, Israel would not attack Jordan. Nevertheless, the Jordanians attacked west Jerusalem and occupied the former High Commissioner’s building. A few days later, Israel Defence Forces recovered the compound and dislocated the Jordanian army from east Jerusalem and from the West Bank.
When the fighting was over, the Knesset passed the Law and Administration Ordinance (Amendment No. 11) Law, 1967, authorizing the Government to apply the law, jurisdiction and administration of Israel to any area which was formerly part of Mandatory Palestine. Likewise, the Municipalities Ordinance was amended so as to allow for the extension of the bounds of a municipality where a decision has been made as to the application of Israel’s jurisdiction to a certain area, as referred to above. And indeed, the Government issued an appropriate order as a result of which Israeli law was made to apply to the eastern sector of Jerusalem, which was also included within the jurisdiction of the Jerusalem municipality. It should be pointed out. however, that in several spheres Israeli law granted east Jerusalemites certain facilities, by laying down special arrangements for them, as embodied in the Legal and Administrative Matters (Regulation) Law [Consolidated Version] 1970. A special arrangement has also been followed in matters of nationality. Israeli nationality is not imposed on residents of east Jerusalem, but it can be acquired by application on their part. In actual fact, only a small number of residents of the eastern sector of the city applied for Israeli citizenship, although apparently the numbers have increased recently. The new municipal boundaries were fixed as being from Atarot in the north to Rachel’s tomb in the south, and from Ein Kerem in the west to the eastern slopes of Mount Scopus. The above measures were met with fierce criticism from the U.N. institutions.
The question arose at the time as to whether these acts constituted annexation of the eastern parts of Jerusalem. The then Minister of Foreign Affairs, Abba Eban, informed the U.N. Secretary General in writing in July, 1967 that they did not constitute annexation, but only administrative and municipal integration. On the other hand, from the point of view of Israeli law, it was held in a number of decisions of the Supreme Court that the eastern sectors of Jerusalem had become a part of the State of Israel. The 1970 case of Ruidi and Maches v. Military Court of Hebron illustrates this attitude.
In the opinion of the Government of Israel, Jordan never acquired sovereignty over the eastern part of the city since it took control of it in 1948 by an act of aggression, whereas Israel has a better right, since it conquered east Jerusalem in 1967 during the course of a war of self- defence. It should be pointed out that the international community has not recognized the annexation of east Jerusalem to the State of Israel.
On the 7th June 1967, immediately after the fighting had died down in Jerusalem, the then Prime Minister, Levi Eshkol, convened the spiritual leaders of all the communities in Jerusalem and assured them that "no harm whatsoever shall come to the places sacred to all religions", and that contacts should be maintained in order to make certain that spiritual activities of the religious leaders in the Old City may continue. He also mentioned that upon his request the Minister of Religious Affairs had issued instructions according to which arrangements in connection with the Western Wall, Muslim Holy Places and Christian Holy Places should be determined by the Chief Rabbis of Israel, a council of Muslim clerics and a council of Christian clergy respectively. Together with the extension of Israeli jurisdiction and administration over east Jerusalem, the Knesset passed the Preservation of the Holy Places Law, 1967, ensuring protection of the Holy Places against desecration, as well as freedom of access thereto. The law has provided severe penalties for anyone violating its provisions. The interpretation of this law and its application provided the focus of a dispute between the Nationalist Groups Association (a Jewish group) who have sought to enter the Temple Mount area to hold public religious services there and the police who have sought to prevent this for reasons of preservation of security and public order. The Supreme Court has recognized the authority of the police in this matter.
On the 22nd November 1967, the U.N. Security Council adopted Resolution 242, which has usually been regarded as the main basis for peace negotiations between Israel and her neighbours. The resolution required Israel armed forces to withdraw from territories occupied in the recent conflict to boundaries to be agreed upon (the interpretation of the resolution has been a matter of disagreement between Israel and her neighbours). The resolution made no explicit reference to Jerusalem.
Nor is Jerusalem referred to anywhere in the Camp David Accords of September 1978 ("A Framework for Peace in the Middle East Agreed at Camp David" and "Framework for the Conclusion of a Peace Treaty between Egypt and Israel"), due to fundamental differences of opinion between the parties on this issue. However, each of the participants at the Conference defined its position in a letter sent to the other party via the President of the United States. Israel’s Prime Minister, Menachem Begin, stated that in accordance with legislation of 1967, "Jerusalem is one city, indivisible, the Capital of the State of Israel", whereas Egypt’s President Anwar el-Sadat, stated that "Arab Jerusalem is an integral part of the West Bank" and "should be under Arab sovereignty". At the same time, he determined that "essential functions in the City" ought not to be separated, and that a joint municipal council with an equal number of Arab and Israeli members could supervise the carrying out of these functions. "In this way, the city shall be undivided". The President of the United States, Jimmy Carter, wrote that the position of the U.S. remained as stated by Ambassador Goldberg at the U.N. General Assembly in 1967 and subsequently by Ambassador Yost in the Security Council in 1969. There is, however, a difference between the speeches of the two Ambassadors. While they both stressed that the actions of Israel in the city were merely provisional and that the problem of Jerusalem’s future should be settled by negotiation, Ambassador Yost added that east Jerusalem was occupied territory to which the Fourth Geneva Convention of 1949 Relative to the Protection of Civilian Persons in Time of War applied. It is interesting that despite this basic approach, the United States has recognized Israel’s de facto control of east Jerusalem for purposes of extradition (see Attorney General v. Davis, 1988).
In the course of the negotiations regarding regional autonomy for the Arab inhabitants of the West Bank and Gaza, which took place during 1979-1982, in the wake of the 1978 Camp David Accords with the participation of Egypt, Israel and the U.S., fundamental differences of opinion emerged over Jerusalem: while the Israeli delegation took the view that Jerusalem and its inhabitants were not included in the autonomy plan outlined in the Camp David Accord since they were part of Israel, Egypt argued that east Jerusalem was part of the West Bank and as such the autonomy regime was supposed to apply to it.
At the time those negotiations were in progress between the three States, a member of the opposition in Israel presented to the Knesset a private member’s bill on the subject of Jerusalem. The law that was eventually passed in 1980, i.e., the Basic Law: Jerusalem, Capital of Israel, does not actually contain any innovation but merely repeats matters previously laid down. As to the designation of this statute as a Basic Law, it is uncertain what are the consequences of such a designation, in particular since the provisions of this law have not been entrenched.
Although in practice there is no innovation in the law, it nevertheless aroused resentment in the international community and in the Security Council. The latter severely reprimanded Israel for passing the statute which the Council considered to be contrary to international law. It determined that the Fourth Geneva Convention applied to east Jerusalem, and that the measures taken by Israel in the city were null and void and should be rescinded. It called upon member states with embassies situated in Jerusalem to withdraw them from the city. And indeed, the embassies, thirteen in number, left the city following the resolution. In 1982, the Embassy of Costa Rica returned to west Jerusalem and was followed by that of El Salvador.
Jerusalem was mentioned in President Reagan’s peace initiative of September 1982. As will be recalled, this initiative was announced in the wake of the war in Lebanon, and its purpose was to revive the peace process that began at Camp David in 1978. Regarding Jerusalem, the President declared that its status should be determined through negotiations, that the Palestinian inhabitants of the eastern part of the city should take part in the elections for the autonomy institutions, and that the city should remain undivided.
The Government of Israel turned down the plan, since it considered that it would bring about the re-partition of the city. A few days later, the Arab States made their response in the form of the Fez Declaration. The Fez Conference demanded "Israel’s withdrawal from all Arab territories occupied in 1967, including Arab Jerusalem", removal of the Jewish settlements, and the establishment of an independent Palestinian State with Jerusalem as its capital, after a short transitional period of several months during which the territories should be supervised by the U.N.
In 1988 King Hussein announced the disengagement of the West Bank from Jordan in the sphere of law and administration. In the same year the Palestine National Council of the PLO proclaimed the establishment of the State of Palestine with Jerusalem as its capital. The proclamation was recognized by many States. However, a mere proclamation, even if followed by recognition by a large number of States, is not sufficient for the establishment of a State, unless the four prerequisites for the existence of a State are present — territory, population, effective government, and the ability to establish international relations.
In Israel’s peace initiative of May 1989, Jerusalem is not mentioned. It will be recalled that this initiative recommended a number of steps for furthering the peace process: continuation and expansion of the Camp David peace process, establishment of peaceful relations between Israel and the Arab States, an international effort to resolve the problem of the residents of the Arab refugee camps, the holding of elections among the Palestinian Arabs of the West Bank and Gaza in order to elect a representation that would negotiate with Israel for a transitional period of self-rule. At a later stage a permanent solution would be agreed upon. One of the reasons for the failure of this initiative was the divergence of views on the participation of personalities from east Jerusalem in the negotiations leading to the elections. The Government of Israel was opposed to such participation, fearing that it might be interpreted as a surrender of some rights over east Jerusalem, whereas the representatives of the West Bank insisted on the participation of representatives from east Jerusalem so as to emphasize that those sectors of the city were part of the West Bank, and that the interim arrangement should apply to them.
The Jerusalem issue was at the source of two crises in the year 1990 in two different contexts. First, in March of that year, U.S. President George Bush expressed his view that the Jewish neighbourhood of east Jerusalem had the same status as the Jewish settlements on the West Bank. The background to this statement was the considerable immigration of Jews from the Soviet Union to Israel. As a condition for granting loan guarantees for immigrant absorption, President Bush had required Israel to undertake not to settle immigrants from the Soviet Union in the settlements. The President sought to apply this condition also to the Jewish sectors of east Jerusalem. This statement of the President aroused considerable anger in Israel and among Jews in the U.S.: in response, the U.S. Congress passed a resolution recognizing Jerusalem as the capital of Israel. But apparently this was a resolution of the kind not binding on the President.
The subject of Jerusalem again reached the headlines in October of 1990, when Muslim worshippers on the Temple Mount, following false information that the Temple Mount Faithful were coming to lay the cornerstone of a new Temple, were incited and threw stones at Jewish worshippers at the Western Wall. In a violent clash between the police and Muslims on the Mount, 18 Palestinians were killed. A number of persons were injured among the Jewish worshippers and among the police. This tragic incident was investigated by an official commission of inquiry set up by Israel, and was considered in a resolution of the Security Council which in effect put all the blame for the incident on Israel. In this resolution there is no mention of the stone throwing by the Muslims which preceded the police action. The Security Council again called for the application of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Furthermore, it approved the intention of the Secretary General to send a mission to the region. The Government of Israel rejected the Security Council’s resolution which it considered unbalanced and refused to receive the mission. The Council again censured Israel.
In October 1991, the Madrid Conference for Peace in the Middle East was convened, following which negotiations between Israel and her neighbours began. The problem of Jerusalem was especially relevant to the negotiations between Israel and the Palestinians (who attended as part of a joint Jordanian-Palestinian delegation). According to the invitation from the United States and the Soviet Union, the negotiations with the Palestinians were to deal at the first stage with the establishment of interim self-government arrangements for a period of five years while in the third year after the setting up of that regime negotiations on the permanent status would commence.
In order to avoid any infringement of the rights of Israel in Jerusalem, the Government of Israel demanded that Jerusalem should not be discussed in the negotiations and that no representatives residing in Jerusalem should participate in the Palestinian delegation. On the other hand, the Palestinian delegation demanded the participation of east Jerusalem delegates in the negotiations, the application to east Jerusalem of the regime of self-government to be negotiated and complete Israeli withdrawal from the eastern part of the city.
The invitation to the Conference did not refer to Jerusalem at all, nor was the city mentioned in the U.S. letter of assurances to Israel. It was, however, stated therein that "no party in the process will have to sit [at the negotiations] with anyone it does not want to sit with". On the other hand, in the letter of assurances sent to the Palestinians, the question of Jerusalem was discussed extensively. The United States promised that the composition of the delegation would not affect the claims of the Palestinians to Jerusalem. It expressed the view that the city should never again be divided, and that its final status should be determined by negotiations. The U.S. also stated that it did not recognize the annexation of east Jerusalem by Israel nor the extension of the municipal boundaries. It was the view of the U.S. that "Palestinians of east Jerusalem should be able to participate by voting in the elections for an interim self-governing authority".
As stated above, the position of the Government of Israel has been entirely different. However, just before the ninth round of talks in May 1993, Israel agreed that Feisal al-Husseini, a resident of Jerusalem, participate in the Palestinian delegation, and that the Palestinian residents of east Jerusalem vote in the elections to the self-governing authority.
In May 1993, the municipal boundaries of Jerusalem were extended in order to increase possibilities for developing the city. The extension was towards the west.
On the 13th of September 1993 Israel and the Palestine Liberation Organization signed a Declaration of Principles. The parties agreed to negotiate on the establishment of "a Palestinian Interim Self-Government Authority, the elected Council (the ‘Council’), for the Palestinian people in the West Bank and Gaza Strip, for a transitional period not exceeding five years, leading to a permanent settlement based on Security Council Resolutions 242 and 338" (Article 1). Prior to the establishment of the Council, there should already take place a large-scale transfer of authority in the Gaza Strip and in Jericho, as well as a limited transfer in the rest of the West Bank. The negotiations on the permanent settlement should begin two years after the self-government starts to function in Gaza and Jericho. The above stages are to be accompanied by a redeployment of Israel’s armed forces on the West Bank, and their withdrawal from the Gaza Strip and the Jericho area.
The Declaration of Principles includes two provisions concerning Jerusalem. It was agreed that "Palestinians of Jerusalem who live there will have the right to participate in the election process, according to an agreement between the two sides" (Annex 1). However, the status of Jerusalem is not to be discussed in the negotiations for the interim arrangements but should be one of the subjects left for the later negotiations on the permanent settlement (Article V(3)).
On the 30th of December 1993 a "Fundamental Agreement" was concluded by the Holy See and the State of Israel. The document does not deal expressly with Jerusalem, but some of its provisions are relevant to the city, e.g., the commitment to favour Christian pilgrimages to the Holy Land, the right of the Catholic Church to establish schools and to carry out its charitable function. Of great interest is the provision under which the parties affirmed their "continuing commitment to maintain and respect the ‘status quo’ in the Christian Holy Places to which it applies…" — probably a reference to the status quo established in the 19th century. In addition, Israel undertook to protect and respect Catholic sacred places.
In a letter from Israel’s Minister of Foreign Affairs to his Norwegian counterpart (October 1993), the role of certain Palestinian institutions in East Jerusalem was recognized, including those related to the Christian and Muslim Holy Places. Under the 1994 Washington Declaration signed by Israel and Jordan, "Israel respects the present special role of … Jordan in Moslem holy shrines in Jerusalem. When negotiations on the permanent status [of the West Bank and Gaza] will take place, Israel will give high priority to the Jordanian historic role in these shrines…"
Summary and Conclusions
In the section relating to Jerusalem’s uniqueness, we referred to three special features of Jerusalem: the conflicting national claims, its sanctity and the heterogeneous nature of its population.
With regard to national aspirations, Jerusalem has been situated at the focus of the Israel-Palestinian conflict, and has perhaps been the sharpest and most intense expression of the conflict. Both peoples have regarded it as their national, cultural as well as social centre, and as the natural location for their national institutions.
In the sphere of sanctity, Jerusalem has also aroused very strong emotions. Here many more interested persons have been involved: the city has been holy not only for its residents and for those of Israel, the West Bank and the Gaza Strip, but also for many millions of other human beings — Jews, Muslims, and Christians of various denominations. An additional problem has been involved in the fact that many sites have been holy to more than one religion — a phenomenon that has always been a source of friction.
Finally, the very heterogeneous nature of Jerusalem’s population should be recalled. The dividing lines have been religious, ethnic, cultural, as well as socioeconomic, in nature.
These dimensions of uniqueness demand caution, wisdom, tolerance and understanding from all those seeking to plan the future of the city.