Jerusalem in International Diplomacy

JCPA

The Political Dimension: The Positions of the Principal Parties to the Jerusalem Question

Israeli Policy and the Current Status Quo in Jerusalem

Israel's international legal position in Jerusalem emanates from the Palestine Mandate, by which the League of Nations, the source of international legitimacy prior to the United Nations, recognized "the historic connection of the Jewish people with Palestine" and called for "the establishment in Palestine of a national home for the Jewish people." The Mandate did not deal with Jerusalem separately from the rest of Palestine. While the Ottoman Empire had ruled Jerusalem from 1517 to 1917, Ottoman Turkey renounced its rights to sovereignty in all of Palestine in August 1920 in the Treaty of Sevres -- a process that was completed with the 1923 Treaty of Lausanne, after the establishment of the Republic of Turkey. Moreover, the Covenant of the League of Nations established that the Mandates were no longer under the sovereignty of the states that formerly governed them. As already noted, even prior to the League of Nations Mandate, the Jewish people established an overwhelming majority in Jerusalem; by 1914, there were 45,000 Jews in Jerusalem out of a total population of 65,000.33 Indeed, over a half-century earlier, a British visitor to Jerusalem noted: "Although we are much in the habit of regarding Jerusalem as a Muslim city, the Muslims do not actually constitute more than one-third of the entire population."34 The Jewish presence had spread to beyond the overcrowded Jewish Quarter itself: into the Muslim Quarter, and outside of the city walls even before the Muslim population, in Mishkenot Sha'ananim (1855-1860) across from the Armenian Quarter, Nahalat Shiva (1869) near Jaffa Road, Me'a Sha'arim (1875), Kiryat Neemana (1875) across from the Damascus Gate, and Kfar Shiloah (Silwan) (1884).35 Jerusalem's demographics, and the spread of its Jewish population to all parts of the city, were consistent with the League of Nations' determination to include the Holy City in the Jewish National Home.

Despite the fact that the League of Nations was formally terminated in April 1946, the rights of the Jewish people in Palestine (and in Jerusalem particularly) were preserved by the successor organization to the League of Nations, the United Nations, through Article 80 of the UN Charter. According to Article 80, the existing rights of states, peoples, "or the terms of existing international instruments" were protected.36 True, the UN General Assembly subsequently voted in November 1947, according to Resolution 181, to create an internationalized corpus separatum for the Jerusalem area, but, like all General Assembly resolutions, this was only a recommendation rather than an internationally legally binding instrument like the League of Nations' mandate for Palestine.

Resolution 181 presented a painful dilemma to the leadership of the Zionist movement. While offering UN support for the idea of a Jewish state, it required internationalization of Jerusalem, the center of Jewish historical aspirations. However, while the Zionist movement accepted Resolution 181 and the corpus separatum for Jerusalem that it contained, at least this was not a permanent concession of Jerusalem. According to Resolution 181, the special international regime for the city was to "remain in force in the first instance for a period of ten years."

Moreover, the resolution stipulated that at that time, "the residents of the City shall be free to express by means of a referendum their wishes as to possible modification of the regime of the City." Finally, in 1947, the Jewish population constituted two-thirds of Jerusalem's population. Thus, Jerusalem could well be incorporated into the Jewish state in the future.37 In any case, the leadership of the Zionist movement, at the time, knew that the Arab world, including the Palestinian Arabs, firmly rejected the Partition Plan.

Israel's War of Independence

The invasion of Arab armies into the nascent State of Israel in May 1948 made the corpus separatum for Jerusalem a dead letter. In a letter to the members of the UN Security Council, UN Secretary-General Trygve Lie defined these military moves as "the first armed aggression which the world has seen since the end of the war (Second World War)." Transjordan's Arab Legion moved against Jerusalem from the north, easily overtaking Atarot and Neve Yaakov, which had to be abandoned. While its artillery pounded Jerusalem from northern positions on French Hill, its main thrust was aimed at the Jewish Quarter of the Old City, which surrendered on May 28, 1948. Egyptian and Muslim Brotherhood forces attacked Jerusalem from the south, but did not advance past Kibbutz Ramat Rachel.38

After the siege and invasion of Jerusalem was broken by the efforts of the Israel Defense Forces (and not the UN) during Israel's War of Independence, Israel's first prime minister, David Ben-Gurion, declared in the Knesset on December 3, 1949, after the war's end: "we can no longer regard the UN Resolution of the 29th of November as having any moral force. After the UN failed to implement its own resolution, we regard the resolution of the 29th of November concerning Jerusalem to be null and void."

Moreover, as Ambassador Abba Eban told the UN Trusteeship Council on February 20, 1950, even after the withdrawal of Britain's Mandatory government from Jerusalem on May 14, 1948, "the General Assembly simultaneously decided not to confer any international capacity upon it (Jerusalem)." In short, no other sovereignty or trusteeship superceded the rights of the Jewish people that had been acknowledged by the Mandate.

Jordan was in no position to assert sovereignty in Jerusalem, since the 1948 invasion of Palestine by the Arab Legion was illegal and in violation of the UN Charter; its 1950 annexation of the West Bank was only recognized by Great Britain and Pakistan, and rejected by most Arab states. Yet even the British stipulated that their formal recognition of the union of the West Bank with the Hashemite Kingdom of Jordan did not include recognition of Jordanian sovereignty over Jerusalem.39 Thus, Prime Minister David Ben-Gurion and Israel's First Knesset were in a strong legal position to re-establish Jerusalem as Israel's capital in 1950. Equally, Israel had a firm basis for extending Israeli law to East Jerusalem, after the 1967 Six-Day War.

After the Six-Day War

The specific circumstances of the Six-Day War along the Jordanian front, in fact, strengthened Israel's postwar claims in Jerusalem. In the weeks leading up to the conflict, the focus of the Middle East crisis had been along Israel's southern front where Egypt had closed off Israeli shipping through the Straits of Tiran and moved the Egyptian army to the Israeli-Egyptian border. While hostilities with Egypt began early in the morning on June 5, 1967, with the first wave of Israeli air attacks on Egyptian air bases at 7:45 a.m., Israel did not initially take any action whatsoever against Jordan. Nonetheless, Jordanian artillery opened fire on Western Jerusalem by 10:00 a.m., hitting both residential and commercial centers.

Already Jordan had massed most of its army (9 out of 12 brigades) along strategic positions in the West Bank and had given permission to Iraq to move an expeditionary army across Jordanian territory toward Israel. Within an hour Prime Minister Levi Eshkol sent a message to King Hussein through General Odd Bull, the commander of the UN Truce Supervision Organization (UNTSO), that Israel would not move against Jordan if Jordan would "not open hostilities." As Foreign Minister Abba Eban noted, "we decided to give King Hussein an ultimate chance to turn back." Jordanian attacks only intensified, including the movement of armor and infantry; forward Iraqi formations had reached the Jordan River. Israel only moved against Jordan at 12:45 p.m. on June 5 after Jerusalem had clearly come under attack.

With the liberation of the Old City of Jerusalem as a result of the Six-Day War, the Eshkol government, with the backing of the Knesset, extended Israeli law, jurisdiction, and administration to the eastern part of Jerusalem on June 27, 1967. New municipal boundaries were created that included strategic points in the West Bank which had been exploited by Jordanian artillery.

Before the international community, Israel argued that it had not actually "annexed" East Jerusalem. Clearly, this was done in order to assuage states that firmly opposed unilateral Israeli acts after the war. But, according to Israel's Supreme Court, the eastern section of Jerusalem had in fact become an integral part of the State of Israel. The Supreme Court did not have to take into account diplomatic considerations in its ruling, but rather legal realities. Palestinian Arabs in East Jerusalem were not forced to acquire Israeli citizenship or surrender their Jordanian passports, but did have the right to apply and receive Israeli citizenship.

Considering that Jordan's position in Jerusalem had resulted from its 1948 invasion of the city, which was defined by the UN Secretary-General at the time as an act of "aggression" (see above), while Israel's standing in Jerusalem resulted from a war of self-defense, Israel could claim that it had a superior title to unified Jerusalem. Indeed, the UN Security Council refused to agree to a Soviet initiative on June 14, 1967, to have Israel branded as the aggressor in the Six-Day War. This line of argument was largely consistent with the analysis of major international legal experts like State Department Legal Advisor Stephen Schwebel, who would later head the International Court of Justice in The Hague. Schwebel indeed argued in 1970 that "Israel has better title in the territory of what was Palestine, including the whole of Jerusalem (emphasis added), than do Jordan and Egypt.40 The situations of Jordan in 1948 and Israel in 1967 thus stood in stark contrast to one another.

UN Resolution 242

In fact, UN Security Council Resolution 242 of November 1967 did not even mention Jerusalem and did not insist on a full withdrawal to the pre-1967 lines in the resolution's operative language (only a withdrawal from "territories" to "secure and recognized boundaries"). True, Resolution 242 contains "the inadmissibility of the acquisition of territory by war" in its preamble, but this language did not preclude changes in the pre-1967 lines that would result in "secure boundaries," as stipulated in the operative language of the resolution.41 (For the complete text, see Appendix 1.) This dovetailed with Israeli legal claims to parts of the territories that it captured, including Jerusalem.

Both U.S. and British spokesmen emphasized that Resolution 242 did not call for a complete Israeli withdrawal. The British Foreign Secretary in 1967, George Brown, stated in 1970 that "The proposal said 'Israel will withdraw from territories that were occupied,' not from 'the territories,' which means that Israel will not withdraw from all the territories."42 Indeed, Lord Caradon, the British ambassador at the UN who drafted Resolution 242, turned down a Soviet request to add the word "all" before the word "territories." For that reason, the Soviets actually tabled a strict draft resolution calling for a full Israeli withdrawal, but this Soviet effort was not supported by the Security Council.43 Since Resolution 242 was a British draft resolution, its clear intent is evident from the language used in its English version; thus any alternative interpretations of Resolution 242 that could be derived from its translation to one of the other official UN languages would not be as authoritative.44

Administration of Holy Places

Resolution 242 had originally been sponsored by the British government. But its final form including its permitting territorial revision of the pre-1967 borders would have not been achieved without Israeli diplomatic efforts, at the highest levels, in London and Washington.45 Despite Israel's new legal position in East Jerusalem, the Eshkol government did not interfere with the administration of the Muslim holy sites on the Temple Mount by the East Jerusalem Waqf, whose officials continued to be appointed by Jordan. Yet Israel did not surrender its sovereignty regarding the Waqf. In its decision to expropriate the areas around the Western Wall and the Jewish Quarter, Israel was ready to assert its sovereignty vis-a-vis Waqf properties.

Nationalization of Waqf properties and compensation have occurred in Arab states like Jordan, too. But since the recovery of the Western Wall and the Jewish Quarter, Israel has rarely exercised its sovereign rights vis-a-vis the Waqf. In effect, a new status quo has arisen under which Israel could in theory intervene heavily, but in practice rarely intervenes at all.46

Israeli diplomatic policy on Jerusalem was established at the time of the annexation of East Jerusalem by the Eshkol government. While confirming Israel's political sovereignty over the entire city, Eshkol announced before a group of religious leaders that "it is our intention to place the international administration and organization of the Holy Places in the hands of the respective religious leaders."47

The Israeli position had two dimensions. As Foreign Minister Abba Eban wrote several weeks later, in a July 10 letter to the Secretary General of the United Nations: "It is evident from the United Nations discussions and documents that the international interest in Jerusalem has always been understood to derive from the presence of the Holy Places."48 The letter continued by stating that Israel "ensured that the Holy Places of Judaism, Christianity, and Islam be administered [emphasis added] under the responsibility of the religions which hold them sacred." Eban drafted the letter with the assistance of two ministerial colleagues, Menachem Begin (Gahal-Herut) and Zerach Warhaftig (Mizrachi).49

Prime Minister Golda Meir continued this line of policy by stating in October 1971: "Israel is prepared to conclude agreements with the religious authorities of Christianity and Islam so as to ensure the religious status and the universal character of the sites holy to the various religions."50 Thus, Israel was willing to work out inter-religious arrangements with respect to these holy places. The terminology of these arrangements referred to administration but not sovereignty. To the extent that Israel was prepared to make concessions in East Jerusalem, these were highly qualified and were circumscribed to the inter-religious level, and in no way compromised Israeli sovereignty in the city.

Jerusalem was not mentioned in the Camp David Accords of September 17, 1978, largely because of the insistence of Prime Minister Menachem Begin. Nor would Begin agree to Egyptian President Sadat's request that the flag of an Arab state fly over the Muslim holy sites in Jerusalem.51 Egyptian-Israeli disagreements over Jerusalem were evaded by their agreement to an exchange of letters between Begin, Sadat, and President Carter that reiterated each party's respective policies on the Jerusalem question. Sensitive to the Jerusalem issue with the advent of the autonomy negotiations, the Begin government supported passage of the Jerusalem Law in the Knesset on July 30, 1980. The new law, while reiterating the status of united Jerusalem as the capital of Israel, did not alter its legal status.

The Holst Letter and the Washington Declaration

The September 1993 Declaration of Principles between Israel and the PLO -- the Oslo Agreement -- represented a fundamental change in this past policy, for Israel's willingness to negotiate the Jerusalem issue was not narrowly circumscribed as it had been under past Israeli governments. Moreover, one month later, in the October 1993 Holst letter from Foreign Minister Peres, the PLO was recognized as a party to discussions with Israel over specific Palestinian functional interests in the city.

The Holst letter stated that "all Palestinian [sic] institutions of East Jerusalem, including the economic, social, educational, and cultural, and the holy Christian and Moslem places, are performing an essential task for the Palestinian [sic] population."52 Israel undertook "not to hamper their activity" and had this assurance relayed to the PLO. By recognizing the PLO as a party with regard to the Muslim holy places, the Israeli government was contradicting the status quo that had existed with Jordan for many years.

It also opened up the possibility of functional understandings in Jerusalem regarding the Palestinian population, instead of the narrowly confined inter-religious understandings over the administration of holy places that were proposed by the Eshkol government. At least one leading voice in the Rabin government has made statements that indicate the possibility of flexibility in the future on the issue of Jerusalem. Thus Deputy Foreign Minister Yossi Beilin stated, "I'm not saying Israel is ready to compromise on Jerusalem now, but I think that since we are ready to go a long way with the Palestinians for many other issues, we can solve the problem of Jerusalem too."53

The expansion of the negotiating agenda on Jerusalem that occurred with the Holst letter was somewhat corrected in the Washington Declaration of July 1994 by Prime Minister Rabin and King Hussein. The Israeli-Jordanian statement said that: "Israel respects the present special role of the Hashemite Kingdom of Jordan in Muslim holy shrines in Jerusalem. When negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historic role in these shrines. In addition, the two sides have agreed to act together to promote interfaith relations among the three monotheistic religions."54

The Israeli position still held that a unified Jerusalem was to remain under Israeli sovereignty. But with respect to the Palestinians, the Rabin government had made the PLO an interlocutor regarding a variety of issues affecting the Palestinian population. As for Jordan, it was an interlocutor on Jerusalem with regard to Muslim shrines alone. This latter approach was closer to traditional Israeli policy that accepted the administration of the holy places by the various religions, even if Jerusalem was to remain united under Israeli sovereignty.

It is important to add that, in approving the Washington Declaration on August 3, 1994, the Knesset also voted on a Likud party proposed statement recalling that a united Jerusalem, under Israeli sovereignty, would remain Israel's "eternal and exclusive capital." This added statement was approved by a majority of 77 to 9, and was supported by all the ministers of the Rabin government, including those from Meretz. It clearly precluded the idea of making Jerusalem a dual capital, both of Israel and of another political entity.

Rabin himself remained firm on retaining Israeli sovereignty over all of Jerusalem; he told a group of Tel Aviv schoolchildren on June 27, 1995: "If they told us that peace is the price of giving up on a united Jerusalem under Israeli sovereignty, my reply would be 'let's do without peace.'"55 Rabin's preference for the Washington Declaration formulation on Jerusalem over the Oslo track understandings should be understood against the backdrop of his strong position on Jerusalem as a whole. Rabin was born in Jerusalem; during the 1948 War of Independence, he commanded the Harel Brigade that was responsible for keeping the Jerusalem corridor open for Israeli convoys. Finally, he was chief of staff of the Israel Defense Forces in 1967 when Jerusalem was re-united.

Still, there was a contradiction in the policy of the Rabin government between the commitments made by Israel to the PLO in the Holst letter and in the Washington Declaration. The former sought to assure the PLO that Israel would encourage the continuation and even the growth of Palestinian interests in "holy...Moslem places"; the latter gave assurances to Jordan about its role in the very same holy sites. The PLO clearly pushed open the door that the Holst letter created, when it established on September 19, 1994, the Ministry for Waqf Affairs of the Palestinian Authority in East Jerusalem under Hasan Tahbub.

The following month, after Jerusalem Mufti Sulaiman al-Jabari passed away, the Jordanian-PLO rivalry intensified. Jordan appointed a new mufti, Sheikh 'Abd al-Kadir 'Abadin. The PLO appointed its own mufti, Sheikh Ekrima Sabri. The PLO was clearly moving into an area that had been previously under Jordan's special jurisdiction. But the Israeli government did not intervene in the controversy, even if it preferred Jordan as an interlocutor on Jerusalem and not the PLO.

With the implementation of the Oslo Agreements, through the September 28, 1995, Oslo II Interim Agreement, there were three further important developments in Israeli policy under the Rabin government. First, Rabin's concept of "Greater Jerusalem" was circumscribed as Ramallah and Bethlehem went over to full Palestinian control and were designated Area A territories. The Palestinians had hoped that Rabin would turn over Abu Dis, as well, as part of the Bethlehem withdrawal. But Rabin refused to give Abu Dis Area A status and instead made it an Area B territory in which Israeli security forces still had freedom of movement. Second, under the Interim Agreement, Palestinians residing in Jerusalem could vote in the elections for the Palestinian Council; yet the Jerusalem Palestinians were to only vote at Israeli post offices in East Jerusalem. Israel could claim that the Palestinians were no different than other foreign nationals who voted by absentee ballot in foreign national elections.

Third, Oslo II actually restricted Palestinian Authority governmental activity in Jerusalem, despite the provisions of the Holst letter. According to Article 1, Paragraph 7 of the agreement, "the offices of the (Palestinian) Council, and the offices of its Ra'is and its Executive Authority and other committees, shall be located in areas under Palestinian territorial jurisdiction in the West Bank and the Gaza Strip." The Rabin government did not always insist on PLO compliance with this understanding; it became more salient during the government of Prime Minister Benjamin Netanyahu (see below).

The Beilin-Abu Mazen Paper

The next major development in Jerusalem policy under the Rabin government was the secret Stockholm channel on permanent status, run by Deputy Foreign Minister Yossi Beilin and Arafat's deputy, Abu Mazen. Their joint paper, reached on October 30, 1995, proposed a Palestinian capital in Abu Dis, but no recognition of Israeli sovereignty in East Jerusalem, whose final status would be determined in subsequent negotiations. A Palestinian flag -- not a Jordanian flag -- would fly in the area of the Temple Mount. The Beilin-Abu Mazen paper was not signed; in fact, it was much more a "working paper" than a completed document. Neither Arafat nor Rabin's successor, Shimon Peres, accepted its terms. Peres had already articulated in 1994 a vision for Jerusalem different from the Beilin-Abu Mazen paper:

What I mean is that Jerusalem is politically closed, religiously open. No serious person will suggest to make out of Jerusalem another Berlin, to have a wall, a split. Jerusalem is united politically, is the capital of Israel, and you cannot have two capitals in one city. It is under Israeli sovereignty. But when it comes to the religious sites -- not that we are going to share, (but) we are going to respect completely, fully, responsibly the rights, the hopes and the worship of the Christians and the Muslims.56

Arafat was only willing to call the paper "a basis for further negotiations," which reflected the Palestinian view of the paper as only a draft of negotiations in progress. In any case, Palestinian negotiators viewed Abu Dis not as a permanent substitute for their aspirations in Jerusalem but rather as a vehicle for absorbing East Jerusalem by "osmosis." Subsequently, Abu Mazen claimed in discussions with the author that he never agreed to the document. Nevertheless, despite the refusal of Prime Minister Peres to accept the Beilin-Abu Mazen paper, it represented a further erosion of Israel's diplomatic position in Jerusalem as presented before Palestinian representatives. At the same time a myth persisted that Abu Dis was an acceptable substitute for Jerusalem, from the Palestinian perspective, leading many Israelis to overestimate the extent to which the issue of Jerusalem was soluble.

The Netanyahu Government

Prime Minister Benjamin Netanyahu sought to re-fortify Israel's position in Jerusalem. Israel's commitment to Jordan as custodian of the Muslim shrines and the continuity of the Washington Declaration was reconfirmed. The closure of Palestinian Authority institutions in Jerusalem was a precondition for the first Netanyahu-Arafat summit in 1996. Yasser Arafat, in fact, closed the offices upon which Netanyahu had insisted prior to their first meeting. Netanyahu firmly opposed high-level visits, including those of European foreign ministers, to "Orient House" for meetings with Palestinian Authority officials; the European practice, thus, came to be discontinued. At the time of the signing of the Hebron Protocol, on January 15, 1997, Israel received a commitment from Chairman Arafat to close remaining Palestinian Authority offices in Jerusalem (Note for the Record, Palestinian Responsibilities -- Article 4), and further movement on Oslo was conditioned on the implementation of Palestinian obligations on the basis of reciprocity.

In accordance with its rights under Oslo that provided Israel with jurisdiction in Jerusalem, the Netanyahu government decided to construct a new Jerusalem neighborhood at Har Homa and approved a new Jerusalem-Tel Aviv Highway (Route 45) north of the Jerusalem corridor. Finally, it refused to acquiesce to international pressure, including a direct appeal by the Clinton administration, to close an ancient Hasmonean tunnel in the Old City, one end of which was opened in September 1996. Arafat was interested in constraining Israeli freedom of action in the Old City at the time and therefore incited widespread riots in the West Bank and Gaza, claiming that Israel was digging a tunnel under the Islamic shrines on the Temple Mount. Israel's intelligence chiefs verified that the massive unrest, which did not break out immediately, was not a spontaneous response to the tunnel opening but rather the product of a decision taken by Arafat himself to escalate tension and incite violence in the wake of the tunnel controversy.57 The tunnel, in fact, was more than 2,000 years old and ran parallel to the Temple Mount, and not underneath it.

PLO and Palestinian Policy on Jerusalem

Until the Oslo Agreements, the PLO did not focus its diplomatic efforts on Jerusalem as such, but rather on its broader political-military goals, for its main constituency was located in the refugee camps of Lebanon and Syria and not in Jerusalem, proper, which had its own Palestinian elites. The 1968 PLO Covenant rejected Jewish claims to Palestine through the League of Nations Mandate. But it did not specifically single out Palestinian claims to Jerusalem, which is not even mentioned once in the PLO Covenant. It may be that the PLO needed to take into account Jordanian sensitivities on the future of Jerusalem, which could have affected Palestinian declaratory policies until the late 1980s.

Still, Jerusalem had one critical role in Palestinian politics. While PLO Chairman Yasser Arafat was in fact born to a Gazan family in Cairo on August 24, 1929, according to his Egyptian birth certificate, he spent four years of his early childhood in Jerusalem (1933-37), leading him to perpetuate a legend that he was born in Jerusalem and directly related to the elite Husseini family of the Jerusalem Mufti, Haj Amin al-Husseini.58

At times, PLO policy on Jerusalem appeared to be more flexible than the positions of the local Palestinian leadership. One of the factors affecting Prime Minister Yitzhak Rabin's decision to pursue the Oslo negotiating track was the readiness of the PLO to exclude Jerusalem from interim self-rule arrangements.59 In contrast, the Palestinian component of the Jordanian-Palestinian delegation to the pre-Oslo Washington peace talks prepared a document for the Israeli delegation dated March 3, 1992, that outlined a proposed Palestinian Interim Self-Governing Authority (PISGA) entailing "the orderly transfer of powers and responsibilities at present exercised by the Israeli military and/or other Israeli authorities in the Occupied Palestinian Territories (OPT), including Jerusalem, to the PISGA [emphasis added]."

Moreover, once the PLO leadership moved into Gaza, after 1994, it appeared ready to agree to (but not always implement) limitations on any Palestinian Authority presence in Jerusalem in accordance with the 1995 Oslo II Interim Agreement (see above). These positions were not always supported by local Palestinians, thereby reinforcing the impression that only the PLO, and Yasser Arafat, in particular, were prepared to agree to Palestinian concessions in Jerusalem.

Resurrecting UN Resolution 181

Beyond this tactical flexibility at the interim stage, however, when it came to the PLO's concept of final status, it was clear about its aims in Jerusalem: the basis of the PLO's declaration of statehood is UN General Assembly Resolution 181. According to Yasser Arafat's declaration of November 15, 1988, "this resolution still provides conditions for international legitimacy to guarantee the right of the Palestinian Arab people to sovereignty and national independence." Arafat continued his declaration by announcing "the PNC declares in the name of God and in the name of the Palestinian Arab people, the emergence of the State of Palestine over our Palestinian soil and its capital holy Jerusalem." Notably, several months earlier, in his Palestinian independence document, Faysal al-Husseini already also spoke about "Jerusalem, capital of Palestine."

Unqualified references to Jerusalem raise the question of whether the PLO claim is to East Jerusalem alone, or whether it extends to parts of West Jerusalem as well, especially since Resolution 181 did not apportion the western half of the city to Israel, but rather sought to erect a separate international regime for the city as a whole.60 The PLO's international diplomacy, moreover, has not always sought to distinguish between the eastern and western parts of the city. PLO-proposed UN resolutions, whether in the Security Council, the General Assembly, or the UN specialized agencies, make explicit reference to all of Jerusalem. Formal resolutions have deplored Israeli actions in "Arab territories occupied by Israel since 1967, including Jerusalem." Yet this qualification of territories taken since 1967 did not always appear in earlier drafts.

Privately, well-connected Palestinian academics admit that they still have claims to parts of the western half of the city. They refer to destroyed Arab villages on the western side of Jerusalem. Some still explicitly support "complete internationalization of the city including East and West Jerusalem."61 During 1998-99, Palestinian spokesmen made strong efforts, in fact, to revive these political claims on the basis of UN General Assembly Resolution 181. Thus Abu 'Ala wrote in al-Hayat al-Jadida on December 21, 1998: "it should be emphasized that the [Palestinian] state has internationally recognized borders, which are the borders set in the [1947] partition resolution."

This revival of Resolution 181 had implications for Jerusalem, especially when critical elements of the international community responded. For example, on March 1, 1999, the German ambassador to Israel, in his capacity as representing the presidency of the European Union, sent a Note Verbale to the Ministry of Foreign Affairs of Israel stating: "The European Union reaffirms its known position concerning the specific status of Jerusalem as a corpus separatum (emphasis added)." The EU statement only radicalized the Palestinian position. Again, Abu 'Ala was quoted in al-Ayyam on March 14, stating: "The [EU's] letter asserts that Jerusalem in both its parts -- the Western and the Eastern -- is a land under occupation."

Reinforced by the European position on Resolution 181, PLO Chairman Yasser Arafat brought his campaign on this issue to the United Nations. On March 23, 1999, he met with UN Secretary-General Kofi Annan and raised Resolution 181. Upon leaving Annan's office he told reporters in Arabic:

I remind the world that the decision calling for the establishment of the Palestinian state is Resolution 181, which refers to a Palestinian state, then to a Jewish state which later came to be called Israel.

Arafat's UN representative, the PLO Permanent Observer, continued the campaign two days later in a letter to the Secretary-General that was turned into a press release and subsequently distributed to all UN member states as a UN document:

Yesterday, the Israeli representative to the United Nations [Dore Gold] made some comments to the media on the issue of General Assembly Resolution 181 (II) of 29 November 1947, as well as on a statement previously made by President Arafat on the subject. The Israeli representative repeated what the Israeli Foreign Minister [Ariel Sharon] said a few days ago; namely that Resolution 181 (II) was "null and void." These are pathetic statements involving illegal positions....Moreover, we believe that Israel must still explain to the international community the measures it took illegally to extend its laws and regulations to the territory it occupied in the war of 1948, beyond the territory allocated to the Jewish state in Resolution 181 (II). Such a situation has not been accepted by the international community (emphasis added). (For the complete text, see Appendix 3.)

The PLO letter to the Secretary-General was completed while Arafat was visiting New York and thus it is likely that it had his complete backing with respect to every detail. Clearly, the letter sought to open up for discussion all Israeli territory between the partition lines and the 1949 Armistice Agreements. But also, the letter, in effect, sought to open up the issue of Jerusalem, and Israeli control of territories that had been planned in 1947 to fall under the corpus separatum. As noted in the PLO letter, Israeli Foreign Minister Ariel Sharon had repeated Ben-Gurion's determination from 1949 that 181 was "null and void."

At the UN, Israel's response, on March 30, 1999, described before the international community the PLO effort as a "transparent effort to belatedly derive benefit from a resolution which the Palestinian leadership itself violently rejected 50 years ago." The Israeli ambassador's letter stated that the PLO "seeks to broaden the parameters of the discussion of Jerusalem far beyond what was ever conceived in the Oslo Accords." (For the complete text, see Appendix 4.)

The EU position on Jerusalem, which had set off this flurry of diplomatic activity, was praised in parts of the Arab world. The Gulf Cooperation Council, representing the six Arab Gulf states, issued a press release in Riyadh, Saudi Arabia, at the end of its March 15, 1999, Ministerial Council, stating: "The Council again commended the European Union for its refusal to recognize Al-Quds, including the western section of the city (emphasis added), as the capital of the Zionist entity."62 Osama el-Baz, Egyptian president Husni Mubarak's advisor, stated that Egypt welcomed the European position. Equally, the Egyptians were critical of Israel's counter-moves against Resolution 181. Al-Akhbar, one of Egypt's official newspapers, reported on its front page on April 4, 1999, that Israel had taken "another bite" of the peace process with the rejection by Israel's UN Ambassador, Dore Gold, of the applicability of Resolution 181 today. Palestinian and European moves were hardening Arab positions across the Middle East.

Nabil Sha'ath, the normally moderate PA Minister of International Cooperation, explained the diplomatic logic behind the PLO's Resolution 181 campaign in the Palestinian press. According to Sha'ath, the PLO planned to replace the Oslo Accords, which were to expire on May 4, 1999, with UN General Assembly Resolution 181. Applying the "Namibia Model" through the UN Trusteeship Council, the PLO hoped to obtain a UN referendum among the Palestinian people living in the areas outside of the borders of the Jewish state that were proposed in Resolution 181. Sha'ath concluded: "If Resolution 181 is applied, all Palestinian land Israel occupies beyond the Partition Resolution borders will be transferred to the UN, including Jerusalem in its entirety, both East and West (emphasis added)."63

Palestinian Claims in Western Jerusalem

These positions were not new. Arafat himself has even denied the Israeli right to a capital in Jerusalem, even in its western half. In his famous Johannesburg speech on May 10, 1994, he asserted: "I'm saying this to give proof that what they (the Israelis) are saying that it is their capital. No it is not their capital, it is our capital."64 This was not the only statement of this kind; a few months later in early August, Arafat declared: "Jerusalem was and will remain the capital of Palestine, all of it is Palestinian."65 In 1995, Faysal al-Husseini stated that the Palestinians have claims to land and property in Western Jerusalem, particularly in the neighborhoods of Katamon and Talbieh. He estimated that 70 percent of the land in Western Jerusalem was Palestinian-owned; and noted Palestinian claims to villages like Lifta and Dir Yassin.66

Attempts to raise the issue of the western half of the city are implicit in the proposals of Hanna Siniora, pro-Fatah editor-in-chief of Al-Fajr:

We felt that, using the 1947 Partition Plan divisions, all the institutions of both peoples could be located in the Greater Jerusalem area. West Jerusalem would have the Knesset, the seat of the Israeli government and all other Israeli government institutions, and in East Jerusalem we would have the Palestinian National Council, the seat of the Palestinian government and all other Palestinian government institutions. Our plan calls for the mutual agreement between the two countries to suspend the issue of sovereignty over the entire area of Greater Jerusalem [both east and west -- D.G.] or the Metropolitan Council of Jerusalem.67

Siniora hopes that his model will permit the enlargement of the Palestinian presence in the western side of Jerusalem. He envisions "Palestinian neighborhoods/settlements in the Greater Area of West Jerusalem" as a means of compensating the Palestinians for the huge Israeli neighborhoods like Ramot or Gilo that have been erected on the eastern side.

While not formally representing the PLO, Walid Khalidi suggested proposals for Jerusalem that reflected some lines of thinking within the organization. Khalidi proposed in a 1988 Foreign Affairs article "the designation of West Jerusalem as the capital of Israel, East Jerusalem the capital of Palestine. Extraterritorial status and access to the Jewish holy places would be assured, and a Grand Ecumenical Council formed to represent the three monotheistic faiths (with rotating chairmanship), to oversee inter-religious harmony. Reciprocal rights of movement and residence between the two capitals within agreed-upon limits would be negotiated."68

Khalidi's proposals indicate two important elements of Palestinian thought. First, there is no indication of territorial compromise in Jerusalem, other than on the basis of a return to the 1967 lines. His offer of extraterritorial status for the Jewish holy places is within an Old City that reverts to Arab rule. This point is made repeatedly by leading Palestinians in public and private meetings. Second, like Siniora, Khalidi seeks ways of compensating for the Israeli-Jewish population on the eastern side by establishing a reciprocal Palestinian right of residence on the western side of Jerusalem.

In a seminar at PASSIA on June 25, 1992, the Palestinian scholar Rashid Khalidi maintained that 40 percent of the land in western Jerusalem was Palestinian-owned; nevertheless, he admitted: "we must demand the right to compensation for property, including public property, in West Jerusalem, and after compensation, offer acceptance of Israeli ownership of this property."69 However such a negotiation might develop in theory, the Palestinians still harbor claims to the western half of Jerusalem. This means that even if a future Israeli government agreed to a territorial division of Jerusalem, such a settlement would not satisfy all outstanding Palestinian claims in the city.

In summary, it is hard to imagine that the Palestinians really believe that they can secure territorial concessions in the western half of Jerusalem. Nonetheless, their negotiators can be expected to make claims on Palestinian Arab homes and neighborhoods lost in the 1948 War. It would be a mistake to assign these hard positions to PLO Chairman Yasser Arafat and the PLO leadership alone. Palestinian claims to all of Jerusalem are widespread, including some of the most moderate Palestinian spokesmen, and involve the local Palestinian leadership, as well.

Jordanian Policy on Jerusalem

Any discussion of Jordanian policy must recall that, given his Shariffian lineage, the late King Hussein was regarded as a descendent of the Prophet Muhammad; his family exercised a religious role as caretakers of Mecca for many generations. His great grandfather, Sharif Hussein, who led the Great Arab Revolt during World War I but subsequently lost control of Mecca and Medina in the 1920s to the Saudis of eastern Arabia, is buried in Jerusalem.

As noted above, Jordan's political control over the eastern parts of Jerusalem ended in 1967, but its religious role continued nonetheless. The Israeli government left the functions of religious affairs under the East Jerusalem Waqf from the Jordanian administration. Thus, the Jordanian Ministry of Awqaf (Waqf-pl., Arabic) and not the Israeli Ministry of Religious Affairs managed the matters of the East Jerusalem Waqf. The Waqf existed under Jordanian law and Jordan appointed its officials, who generally came from pro-Jordanian segments of the Palestinian Arab population.

Jordan provided considerable funding to the Waqf as well. Moreover, the relative role of Jordan in the Waqf budget increased over the years: in 1977, for example, Waqf expenditures of 951,356 dinars came from Waqf income of 382,389 dinars and a Jordanian contribution of 568,967 dinars. By 1982, as Waqf expenditure increased to 2,607,486 dinars, the relative contribution of Waqf income fell to 362,437 dinars, while the Jordanian contribution rose to 2,245,049 dinars.70

Jordan's decision of July 31, 1988, to sever the Hashemite Kingdom's administrative ties to the West Bank did not affect the connections of its Ministry of Religious Endowments and Religious Affairs to the Waqf.71 These connections continued into 1994. More recently, King Hussein allotted about eight million dollars for repair work on the Dome of the Rock.

Jordan's policy regarding Jerusalem went through significant developments due to the 1993 Declaration of Principles (DOP). King Hussein reconfirmed his kingdom's responsibility for the Islamic holy sites in the eastern parts of the city. His public statements indicated a willingness to look at the issue of Jerusalem as primarily a religious issue: "With regard to the Islamic holy places of Jerusalem in particular, our position remains unchanged....We did not, nor will we ever, recognize any sovereignty over them, except by almighty God, as indeed with the holy places of all believers in God in this most holy city."72 A day after signing the Israeli-Jordanian Peace Treaty, in October 1994, he addressed his parliament, saying: "we will never relinquish our religious responsibilities toward the holy sites, under all circumstances."73

By the time of the Casablanca Conference of November 1994, former Crown Prince Hassan added new elements to the definition of Jordan's role in Jerusalem. He explained on November 1 that Jordan exercised "holy authority" or "moral authority" over holy shrines within the walls of the Old City. Yet the Jordanian role was now circumscribed in time: "in the final status negotiations, when jurisdiction (over the Old City) is transferred to the Palestinian side, this responsibility in its entirely will be transferred to those concerned."74 He stated that current arrangements were for the interim period alone.

Two elements could be inferred from Hassan's statement. First, while expressing a willingness to modify the current interim arrangements in the holy places, Hassan only stated that Jordan's responsibility for holy sites would be transferred "to those concerned"; he did not make explicit reference to a Palestinian authority. Jordan could still fit into the category of a concerned party. Second, by stating that present arrangements would be modified only if a final status territorial settlement was reached between Israel and the Palestinians, Jordan now conceivably had an interest in final status agreements never being reached.

Both of these possibilities were contained in statements by then Prime Minister 'Abd al-Salim al-Majali to MBC on October 30, 1994: "As to what the final solution will be, there will be a role for Jordan in any final solution. In other words, we shall submit our viewpoint when the issue is resolved in the final phase. On Jordan's behalf, I affirm to you that on the day when Israel's political sovereignty over Jerusalem ends and the brother Palestinians take over sovereignty, we shall seriously consider abandoning this jurisdiction."75 Thus, neither Crown Prince Hassan nor Prime Minister al-Majali precluded a continuing Jordanian religious role in final status. They opened up the possibility that the claims of others could be considered.

Under King Abdullah, Jordanian efforts to come to a modus vivendi with the PLO have accelerated and insistence on retaining Jordan's exclusive role has been modified. Not long after taking office, in May 1999 Abdullah still referred to Jordan being a partner in determining the final status of Jerusalem: "Well, Jerusalem is extremely important to me as a Hashemite, as a Muslem, as a Jordanian. And I believe that whether we reach final status discussions that I hope that Jordan will have a voice on the future of Jerusalem."76 King Abdullah did not speak specifically about the Washington Declaration and Jordan's special role as caretaker of the mosques on the Temple Mount.

Abdullah's prime minister, Abdul-Raouf al-Rawabdeh, dropped the Jordanian claim to Jerusalem's holy sites altogether in August 1999. He stated that Jordan was willing to turn over its control of these sites to the PLO.77 By November 1999, Abdullah was willing to give unqualified support for making Jerusalem the capital of a Palestinian state.78 However, formal pronouncements in this regard can be expected to shift with the vicissitudes of the process.

U.S. Policy on Jerusalem

There are two very different aspects to the American approach to the question of Jerusalem. One has to distinguish between Jerusalem as a subject of formal policy, and Jerusalem as a subject of internal American politics. The former has pulled the American approach to Jerusalem in a direction that fundamentally conflicts with the Israeli position. The latter has brought about a gradual modification of the formal position in Israel's favor. Yet, even on the level of pure policy, the U.S. position on Jerusalem went through considerable fluctuations, especially with respect to the question of how or whether the 1949 Fourth Geneva Convention applied to the eastern portions of the city after 1967.

The basic American terms of reference on the Jerusalem issue are not the 1967 Six-Day War and Resolution 242, as in the case of other disputed territories. The U.S. formally is still on record supporting Resolution 181 of the United Nations from November 1947, that called for the partition of British Mandatory Palestine and the creation of a special international regime for Jerusalem as a whole.79 Resolution 181 stated: "The City of Jerusalem shall be established as a corpus separatum under a special international regime and shall be administered by the United Nations." After Israel's War of Independence, the U.S. dropped its support for the corpus separatum and instead proposed a more limited form of internationalization under a UN Commissioner.80

Thus, in July 1952, the Truman administration notified the Israeli government that "the Government of the United States has adhered and continues to adhere to the policy that there should be a special international regime for Jerusalem." And in April 1960, the U.S. notified Jordan that it "has adhered and continues to adhere to a policy which respects the interest of the United Nations in Jerusalem." In the intervening years, Secretary of State John Foster Dulles had softened the official American line when he stated in 1953 that Israel and Jordan could have "some political status" in the city.81

Declining Support for "Internationalization"

After the 1967 Six-Day War, the American preference for an international regime barely survived as an undercurrent of U.S. policy. For example, on June 28, 1967, one day after Israel's annexation of East Jerusalem, the Department of State released a statement saying, "the United States has never recognized such unilateral actions by any states of the area as governing the international status of Jerusalem."82 This was incorporated into the statement of Ambassador Arthur J. Goldberg before the UN General Assembly the following month; Goldberg's language became a basic reference point for U.S. statements on Jerusalem for the next decade.

Ambassador Goldberg influenced the drafting of UN Security Council Resolution 242, of November 22, 1967, which was prepared as a British draft resolution by Lord Caradon, Britain's UN ambassador. As already noted, Resolution 242 did not specifically call for an Israeli withdrawal from all the territories that it controlled as a result of the 1967 Six-Day War. Goldberg wrote years later in retrospect, "The facts are that I never described Jerusalem as occupied territory." He pointed out that "Resolution 242 in no way refers to Jerusalem, and this omission was deliberate."83

With the election of President Nixon, the U.S. declaratory position on East Jerusalem hardened. Goldberg's successor, Ambassador Charles A. Yost, told the UN Security Council on July 1, 1969: "The United States considers that the part of Jerusalem that came under the control of Israel in the June war, like other areas occupied by Israel, is occupied territory and hence subject to the provisions of international law governing the rights and obligations of an occupying power." Thus, Yost was essentially saying that the U.S. viewed East Jerusalem as occupied territory subject to the 1949 Fourth Geneva Convention. This represented a clear shift in U.S. policy from the Johnson Administration, as articulated by Ambassador Goldberg.84

Additionally, under the Nixon administration, Secretary of State William Rogers announced in December 1969, "certain principles" for a Jerusalem settlement. He spoke about the need for a "unified city," open access for persons of all faiths, and "roles for both Israel and Jordan in the civic, economic and religious life of the city" -- a more detailed elaboration of Dulles's "some political status." Administrative arrangements for the city, however, were to take into account the interests of "all its inhabitants" as well as of the Jewish, Islamic, and Christian communities. The international regime could still be read into American policy pronouncements at the time of the Rogers Plan.

At the time of the Camp David Accords, the U.S. government made special efforts to reassure various Arab parties about the future of Jerusalem. As already noted, President Carter wrote to President Sadat referring him to the Goldberg statement of July 1967 (see above). But a far more detailed description of U.S. policy was provided by President Carter to King Hussein in a series of answers to Jordanian questions in October 1978.85

Carter first explained that "we believe a distinction must be made between Jerusalem and the rest of the West Bank because of the City's special status and circumstances. We would envisage, therefore, a negotiated solution for the final status of Jerusalem that could be different in character in some respects from that of the rest of the West Bank." What did "different in character" mean? It could be Israeli sovereignty and Arab administration, it could mean limited Arab sovereignty with international administration, or international sovereignty with Arab administration, along the line of Dulles's "some political status." The phraseology was deliberately vague.

During the Camp David autonomy regime, Carter wrote, he supported proposals "that would permit Arab inhabitants of East Jerusalem who are not Israeli citizens to participate in the elections to constitute the self-governing authority and in the work of the self-governing authority itself." Carter warned that "it is probably not realistic to expect that the full scope [emphasis added] of the self-governing authority can be extended to East Jerusalem during the transitional period."

This indicated Carter's appraisal of Israeli public opinion rather than his preference. Concerning the U.S. position on final status, Carter simply stated that "whatever solution is agreed upon should preserve Jerusalem as a physically [emphasis added] undivided city." He spoke about free access to holy places and the basic rights of the city's residents. The only international regime hinted at was that "the holy places of each faith should be under the full authority of their representatives."

Thus, Carter seemed to be breaking away from any hint of internationalization and moving toward ultimately dividing sovereignty in Jerusalem, without a physical wall. The issue of an international regime seemed now to focus on the holy places themselves, and not on territorial sovereignty in Jerusalem.

Israeli Settlement Policy and the Fourth Geneva Convention

U.S. policy on Jerusalem was affected by the larger question of U.S. policy towards settlement activity in the West Bank and Gaza. During the Carter years, the U.S. determined that settlement activity was "inconsistent with international law." This conclusion was based on the determination of the State Department Legal Advisor, Herbert J. Hansell, that Article 49 of the 1949 Fourth Geneva Convention applied to the case of the territories Israel administered since 1967; Article 49 stated "the occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies."

The Israeli argument that the Fourth Geneva Convention did not apply to the case of Jerusalem, the West Bank and Gaza, because Jordan and Egypt previously occupied those territories as aggressors and hence had no sovereign rights, was not accepted: "the paramount purposes (of the Geneva Convention) are protecting the civilian population of an occupied territory." Nor did the argument that the 1949 Geneva Conventions grew out of the history of mass expulsion in Nazi-occupied Europe affect the judgment of the legal advisor. Hansell had moved one step beyond Yost during the early Nixon years; not only did he invoke the Fourth Geneva Convention, but he specifically connected settlement activity to Article 49 of the convention. The Carter administration had thus veered far away from the original U.S. policy on Jerusalem first articulated under President Johnson.

The test of the Carter administration's position came when the UN Security Council voted for Resolution 465, on March 1, 1980, which affirmed that the 1949 Fourth Geneva Convention applied to "Arab territories occupied by Israel since 1967, including Jerusalem (emphasis added). The U.S. initially supported the resolution, but subsequently, two days later, President Carter stated that, given the reference to Jerusalem, the U.S. vote in the Security Council by Ambassador Donald F. McHenry was a mistake. The harsh anti-Israel vote had a political impact on the New York Democratic primary for president three weeks later. Carter lost the primary to Senator Edward M. Kennedy by a margin of 59 to 41 percent; a month earlier, Carter had enjoyed a 54 to 28 percent lead over Kennedy in the polls.86

During the Reagan administration these sorts of problems were averted; settlement activity was no longer viewed as a violation of international law, essentially because Washington decided to deal with the question in practical terms rather than get tied down to a debate on principles. At the UN, Ambassador Jeanne Kirkpatrick refused to continue the past policy of the Carter team which supported a General Assembly resolution "strongly deploring" Israel's refusal to accept de jure application of the Fourth Geneva Convention to the West Bank and Gaza. The U.S. shifted its affirmative vote to an abstention.87 Thus, the question of U.S. policy toward the convention's applicability to Jerusalem became a moot point.

Under President Bush, U.S. policy partly reverted to the Carter years as U.S. criticism over Israeli settlement policy included references to Jerusalem, as well. Thus, Bush stated on March 3, 1990: "the foreign policy of the United States says we do not believe there should be new settlements in the West Bank or in East Jerusalem." Nonetheless, Bush did not return to the Carter-era position that viewed settlement activity and Israeli construction in East Jerusalem as a violation of international law.

For example, on February 1, 1990, the U.S. Ambassador to the UN in Geneva, Morris Abram, stated that he was on the U.S. staff at Nuremberg and "was familiar with the legislative intent behind the Fourth Geneva Convention: it was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people."88 Thus, as in the Reagan years, the U.S. critiqued Israeli settlement activity on policy grounds rather than on the basis of legality. At the opening of the Madrid Peace Conference on October 30, 1991, Bush did not say a word about Jerusalem; nonetheless, he introduced territorial flexibility, with implications for Jerusalem, when he stated that "territorial compromise is essential for peace."

The Clinton Administration

The Clinton administration moved forward in expressing gradual acceptance of Israel's position in Jerusalem. Just before the 1992 elections, Clinton gave an interview to Middle East Insight in which he stated, "I do recognize Jerusalem as Israel's capital, and Jerusalem ought to remain an undivided city."89 Once in office, Clinton's team softened official U.S. language on Jerusalem considerably. After the deportation of Palestinians from the territories back in early 1988 at the end of the Reagan administration, UN Security Council Resolution 608 was passed, with an American abstention, that referred to the West Bank as a whole as "occupied Palestinian territories." This policy continued into the Bush administration with its abstention on UN Security Council Resolutions 636 (on July 6, 1989) and 641 (on August 30, 1989).

But in March 1994, the Clinton administration formally retreated from tolerating this language when the motion to condemn the Hebron massacre came up for a vote. U.S. Ambassador to the UN Madeleine Albright explained: "we are today voting against a resolution precisely because it implies that Jerusalem is occupied Palestinian territory. We simply do not support the description of the territories occupied by Israel in the 1967 war as occupied Palestinian territory."90 Ultimately, the Clinton administration supported UN Security Council Resolution 904, which created a Temporary International Presence in Hebron; but Albright registered the U.S. objection to language about Jerusalem as "occupied Palestinian territory" by abstaining on two preambular paragraphs.

Clinton's team was only partially supportive of Israel's view that Jerusalem should not serve as an administrative center of any sort for the PLO's self-governing institutions. On the one hand, the administration "categorically ruled out" opening an office in East Jerusalem to administer financial assistance to the Palestinians through the Agency for International Development.91

But on the other hand, U.S. officials did not stop visiting Orient House to conduct political discussions that went beyond the narrow local interests of Palestinians living in East Jerusalem. For example, U.S. Peace Process Coordinator Dennis Ross met with Palestinian representatives in Orient House on January 17, 1994. U.S. Secretary of Commerce Ron Brown followed two days later, meeting Palestinian delegates to the peace process. More importantly, a U.S.-Palestinian memorandum was signed in Orient House on February 2, 1994, covering the financing of a construction project for the Gaza Strip.92

The Clinton administration unquestionably affected the evolution of the American position on Jerusalem by its sponsorship of peace accords between Israel and the PLO, on the one hand, and Israel and Jordan, on the other. By backing the DOP, the administration only gave its backing to the procedural point that the issue of Jerusalem would be a subject of negotiations in final status talks. But in the case of the Washington Declaration, the Clinton administration was lending its support to a point of real substance about the future of Jerusalem: that Jordan should receive "high priority" when the issue of the Muslim shrines of Jerusalem come up during permanent status negotiations. And by specifically backing the Israeli-Jordanian agreement, the Clinton administration opened the possibility that American policy might consider a religious solution in Jerusalem and not just a territorial solution.

In the meantime, the administration staunchly refused to allow other diplomatic initiatives to surface on the Jerusalem issue, outside of the bilateral peace process between the parties. On May 17, 1995, the U.S. vetoed a UN Security Council resolution on Israeli land expropriations in Jerusalem; the next day, May 18, the U.S. opposed a Palestinian proposal for a multilateral working group on Jerusalem, that was raised during the Montreux meeting of the Steering Group for the Middle East Peace Process. The administration faced competition on the Jerusalem issue from Congress; a letter dated February 3, 1995, that called for the transfer of the U.S. Embassy from Tel Aviv to Jerusalem, was signed by 93 U.S. senators (only 50 senators supported a similar initiative in 1984). The administration opposed congressional efforts to move to mandatory legislation.

Nonetheless, both houses of Congress adopted the Jerusalem Embassy Relocation Act on October 23, 1995, by huge majorities (93-5 in the Senate and 374-37 in the House of Representatives). The bill stated that the U.S. Embassy should be established in Jerusalem no later than May 31, 1999. It forced the administration to act by stipulating that 50 percent of the money allocated for the acquisition and maintenance of U.S. buildings abroad could not be spent in fiscal year 1999, if the U.S. Embassy in Jerusalem had not opened by the designated date. The Jerusalem Embassy Act still provided President Clinton with a waiver to avoid the spending penalty out of consideration of U.S. national security interests. President Clinton invoked the waiver three times, and thereby delayed the transfer of the U.S. Embassy.

The U.S. took upon itself a more active and engaged role on Jerusalem matters during the negotiations leading up to the Hebron Protocols in 1996-97. In September 1996, the Clinton administration initially pressured the Netanyahu government to close the Hasmonean tunnel, the opening of one side of which was followed by widespread rioting incited by the Palestinian Authority. Moreover, Washington would not veto UN Security Council Resolution 1073 that was adopted on September 28, 1996. After negotiating out of the text the most explicit anti-Israeli language, the U.S. abstained on the resolution which called for a "reversal of all acts which have resulted in the aggravation of the situation." Later, however, the U.S. became a guarantor of Israel's demand of the Palestinians to close Palestinian Authority offices in East Jerusalem; the Note for the Record, which contained the specific clause for closing these offices, was, in fact, signed by U.S. Peace Coordinator Dennis Ross.

During 1997, the administration, in fact, helped block PLO efforts to internationalize the dispute over Israel's Har Homa building project in eastern Jerusalem, even utilizing the American veto twice in the UN Security Council: on March 7 and on March 21, 1997. Blocked in the UN Security Council, the PLO then sought the convening of an Emergency Special Session of the UN General Assembly under the 1950 "Uniting for Peace" Resolution to adopt a resolution calling for the convening, for the first time in history, of the High Contracting Parties to the 1949 Fourth Geneva Convention, in order to consider measures for enforcing the convention with respect to the West Bank, Gaza, and Jerusalem. The U.S. consistently voted against draft resolutions brought before the Emergency Special Session as it reconvened at least five times. Moreover, the U.S. refused to attend the Conference of the High Contracting Parties to the Fourth Geneva Convention that was finally held on July 15, 1999, at UN Headquarters in Geneva.

Finally, speaking at the annual AIPAC policy conference on May 23, 1999, Vice President Al Gore forcefully rejected PLO efforts to redefine the terms of reference for Israeli-PLO negotiations from UN Resolution 242 to Resolution 181; this clearly placed the U.S. in a different position from the European Union. Gore added that the U.S. was calling on states to boycott the meeting of the High Contracting Parties to the Fourth Geneva Convention with respect to Israeli building practices in Jerusalem. A day earlier, Texas Governor George W. Bush pledged that, if elected, he would move the U.S. Embassy in Israel from Tel Aviv to Jerusalem. According to Governor Bush's spokeswoman, Bush "would set the process in motion as soon as he becomes president."93

Guest Comment:
For example, on February 1, 1990, the U.S. Ambassador to the UN in Geneva, Morris Abram, stated that he was on the U.S. staff at Nuremberg and "was familiar with the legislative intent behind the Fourth Geneva Convention: it was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people."88 Thus, as in the Reagan years, the U.S. critiqued Israeli settlement activity on policy grounds rather than on the basis of legality. At the opening of the Madrid Peace Conference on October 30, 1991, Bush did not say a word about Jerusalem; nonetheless, he introduced territorial flexibility, with implications for Jerusalem, when he stated that "territorial compromise is essential for peace."