Israeli-Palestinian Peace: A Special Regime Option for the Old City of Jerusalem

Jerusalem will probably be the toughest issue in any future Israeli-Palestinian peace negotiations. The other three core issues – borders/settlements, security, and Palestinian refugees – will also be very difficult, but Jerusalem is at a different level. Jews, Muslims, and Christians worldwide have strong attachment to the city and its many holy sites. For Israelis and Palestinians, Jerusalem is the focal point of national, cultural, and religious identities and aspirations. Their conflicting claims are based on long history and narratives that do not accommodate the other. The question thus becomes: in order to achieve a peace deal, what arrangements might be possible that could meet the basic needs of all? In this time of scant mutual trust would it possible to find a way ahead?

The prevalent concept for a Palestinian-Israeli peace agreement is for two states, Israel and the new state of Palestine, living side by side in peace and security. Both Israeli and Palestinian leaders have stated their support for this outcome. Generally included in this concept are two capitals for the two states: Israeli Yerushalayim in western Jerusalem and Palestinian al Quds (the Holy) in eastern Jerusalem.

But the Old City, with its many holy sites of all three religions, poses special problems. Who has authority over these sites? Would either Israel or Palestine agree that the Old City belonged solely to the other, that one or the other has sovereignty? Might the Old City, less than one square kilometer, be divided up, as the Clinton Parameters and the Geneva Accords suggest? Is there a way to share authority? What arrangements are thinkable to deal with the Temple Mount/Haram al Sharif and the Western Wall that together are one holy place? Is there a way to set up a trusted authority to govern the Old City as a single unit?

Working on the hypothesis of a two-state and two-capital solution, the Jerusalem Old City Initiative (JOCI) has developed in great detail the concept of a Special Regime (SR) for the Old City. Initiated by a small group of Canadians with long and deep experience and responsibilities in the area, JOCI came to include Israelis, Palestinians, Americans and others in an eight year effort to design a Special Regime that would meet three key tests:

• Ensure the security and safety of all persons residing in or visiting the Old City;
• Ensure the security and sanctity of and appropriate access to the holy sites in the Old City; and
• Is sustainable, thus contributing to the stability and sustainability of the entire peace agreement.

The SR does not address sovereignty, but neither would it prejudice the claims of either party. Those could be further negotiated when mutual trust and confidence had been achieved. The SR is seen as an interim arrangement, but with no expiration date, that would deal with the Old City as a necessary part of reaching a peace agreement. It is designed to meet the basic needs of Israel, Palestine, and believers everywhere, and provide stability and calm at the heart of the conflict. It is the practical means by which Israel and Palestine together would ensure good governance of the Old City and preserve their interests without prejudicing their respective claims.

The issues of sovereignty and possible division of the Old City are very difficult. After scores of hours of discussion and debate with Palestinians and Israelis, JOCI concluded that in peace negotiations neither side would concede sovereignty to the other and that each would demand at least parity with the other. For example, Israeli law confirmed by its high court holds that only Jews may own property and reside in the Jewish Quarter. It is unimaginable that the Palestinians would agree to a peace deal that left that in place without at least providing parallel arrangements for Muslims and Christians in the Muslim, Christian, and Armenian Quarters.

Then Prime Minister Ehud Olmert apparently reached the same conclusions when he proposed to Palestinian President Mahmoud Abbas (as Olmert recalled in a speech on March 26, 2012 in Washington) that “there would be no sovereignty over the Holy Basin or Temple Mount, not yours not ours,” and that “the Temple Mount and the Holy Basin would be administered by five nations, Israel, Palestine, Jordan, Saudi Arabia, and America.” Olmert further said that he had proposed the Israeli capital be composed of the Jewish neighborhoods of Jerusalem and that the Palestinians would have theirs in the Arab neighborhoods. Also relevant to the sovereignty question is that neither the United States nor the international community recognize Israel’s assertion of sovereignty over the Old City and east Jerusalem annexed after the 1967 war.

JOCI concluded as well that dividing the tiny Old City, especially because of security issues, would present very serious sustainability questions. A Special Regime is seen as a way to avoid these problems and enable a peace deal while ensuring good and equitable governance of the Old City, assured security for residents and visitors, and continued management of the holy sites by their current religious authorities.

The key element of the SR developed by JOCI is that it would be created by Israel and the new state of Palestine in their peace agreement. It would belong to them and be supervised by them. It would not be pressed upon them or controlled by outsiders. The JOCI Special Regime is not a revival of “internationalization.” Outside involvement in this SR would be strictly at the invitation of Israel and Palestine and restricted solely to responsibilities and tasks assigned by the two parties themselves in their treaty.

The SR would be assigned in the peace treaty powers and authority only in specific closely-defined areas and functions. These would include, for example, security, public order and safety and environmental protection. All of those not specified, including, for example, education, health, and family law, would be left for Israel and Palestine, each country for its own citizens. Jurisdiction for inter-communal and non-citizen matters would be defined in the treaty. While the Old City would be a separate jurisdiction with its own legal system for specified matters, the SR would have close relations and interactions with the two capital cities and with Israel and Palestine. The Old City would remain populated for the most part by Palestinians and Israelis who would have their close personal, family, economic and other links with their countries of citizenship. The SR would have mixed legal jurisdiction with different authorities, the SR, Israel and Palestine, for different matters.

The SR would be established with two main organs: a Governance Board and a Chief Administrator.

The Governance Board would be the oversight authority of the SR. It would consist of Palestinian and Israeli representatives and presumably those from other states as the two parties would agree. The Board would appoint a Chief Administrator (not an Israeli or Palestinian) to be the executive authority of the SR. While not being involved in the day-to-day operations of the SR, the Board would supervise and hold the Chief Administrator (CA) responsible in fulfilling his responsibilities set out in the peace agreement.

The Board would set its own organization and rules of procedure in ways that would not put at risk the claims and fundamental interests of either Israel or Palestine.

The Chief Administrator, under the supervision of and responsible to the Board, would have executive and regulatory powers of the SR. He could establish a police service and administrative apparatus to enable the SR to fulfill its mandate.

Under the SR, the Old City would be a weapons-free zone except for Police Service officers. The Service would have full authority to enforce law and maintain security and safety. It would consist of officers recruited from countries agreed by Palestine and Israel, but not from them. Israelis and Palestinians could serve on the Service as unarmed Community Liaison Officers.

The CA and the SR would be given no responsibilities for the internal management of the Holy Sites in the Old City. These sites would remain under the current religious authorities, perhaps as further set out in the peace agreement. The SR would have responsibility for security of the sites, ensuring appropriate access, decorum and respect for customary practice, and for structural soundness on safety grounds.

The mandate of the CA and SR would also include authority for planning, zoning and property, and for archeology. This is necessary to ensure that these highly contentious matters would not continue as flash points that could endanger the SR and even the peace agreement itself.

The SR as developed by JOCI has been widely briefed to and discussed among Israelis and Palestinians including at the highest levels. It has also been briefed throughout the U.S. government and in other capitals, and was the subject of a conference in May, 2010 in Washington, D.C. co-sponsored by the Middle East Institute and Windsor University, Ontario, Canada. Full details of JOCI’s work can be found at www.uwindsor.ca/jerusaleminitiative.