Peace Can Be Made Irreversible By Adoption of “Condominium Solution”

by Robert V. Keeley

The "peace process" has now gone so far and made so much progress that it cannot be halted, much less reversed. There is too much at stake for there to be any turning back to the pre-Oslo status quo. Nor is war any longer an option for any state involved in the Arab-Israeli conflict, which simply reinforces the fact that the movement toward peace is irreversible.

There is the risk that the political right could prevail in the next elections to be held in Israel, now expected in the fall of 1996, which would put back in power the Likud party, which heretofore has strenuously opposed turning the West Bank and Gaza over to the Palestinians. The assassination of Prime Minister Yitzhak Rabin could, however, have the long-term effect of discrediting not only the extreme right in Israel but also those who have vociferously opposed the "peace process" which Rabin had dedicated himself to completing. The result could be a backlash in which the so-called "silent majority" of yearners for peace, disgusted with the hateful tactics, rhetoric, and the turn to violence of the hard-line nationalists, will strengthen the peace camp electorally and keep the peacemakers in power.

However, many things have not been changed by the death of Yitzhak Rabin. There is no doubt that the Oslo agreement, deficient and ambiguous as it was in some respects, was the breakthrough that was needed to get the "peace process" really launched. The exchange of letters between Rabin and Yasser Arafat that accompanied the Declaration of Principles constituted mutual recognition by Israel and the PLO.

This was the indispensable precondition for finding a permanent solution. Rabin and Shimon Peres decided they had to negotiate with the "enemy," because only that enemy had the stature and credibility and power to deliver whatever it agreed to.

For his part, Arafat reconfirmed the necessary concessions that he had made as far back as December 1988: acceptance and recognition of Israel as a legitimate state with a right to live in peace and security; renunciation of terrorism; acceptance of U.N. Resolutions 242 and 338 as the basis for peace; and a commitment to obtain Palestinian rights through negotiations. For the "liberation of Palestine" he substituted seeking a state in the 22 percent of historical Palestine that had not become Israel. Arafat also agreed to amend the Palestinian covenant, which he intends to do once there is an elected council, and to end the intifada, which has been achieved.

Mutual recognition was the indispensable precondition for finding a permanent solution.

The Oslo agreement created the Palestinian autonomous authority that is now in place, and whose responsibilities now have expanded beyond Gaza and Jericho to the rest of the Palestinian towns and villages on the West Bank. They will be governed by the popularly elected Palestinian Council chosen Jan. 20. This will be the first-ever exercise by the Palestinians of their right to self-determination. The Palestinian Authority will be given legitimacy as the expression of the popular will, and the elected Council also will be accountable to the people. Democracy, which will begin to take shape in Palestine as it already exists in Israel, tends to hinder the actions and the appeals of the extremists.

It is necessary to note, however, some of the negative aspects of the Oslo and subsequent agreements. The original agreement left many important matters, some of them crucial, to be negotiated subsequently between the two sides. This was no doubt necessary, but it in effect grants Israel veto power over any aspect which it finds distasteful, including matters that Palestinians feel they should have the right to decide on their own.

Each side is held responsible for dealing with security threats posed by its own extremists, which is a heavy burden, especially on the limited police powers and resources allowed the Palestinians. Although Israeli military forces have withdrawn from Palestinian population centers on the West Bank, they retain responsibility for the security of the Israeli settlers. Because of geographic propinquity of the two categories, this may be an impossibly contradictory set of goals to implement.

What may turn out to be the greatest flaw in the process that emerged from Oslo is that the beginning of negotiations on the all-important "final status" issues was postponed until the third year of the interim period, meaning May 1996, at the earliest. These key issues include Jerusalem, borders, refugees, settlements, and undefined "security arrangements."

A Glaring Violation

No steps were supposed to be taken during the interim period that would prejudice the outcome of these final status negotiations. One glaring example of the violation of this principle, however, is that Israeli settlement activity has continued on the West Bank and steadily increased the number of settlers, the future of whose settlements must be addressed beginning later this year. It is noteworthy that the West Bank settlements were established on Palestinian land going back to 1967 precisely to create so-called "facts on the ground," meaning such a strong Israeli presence that it would be impossible ever to turn this land back to the Palestinians. The specific intention was to prejudice the final outcome.

On the matter of refugees, the agreements reached thus far are vague on exactly who is a refugee. It would appear that the Palestinian refugees from the 1967 war may have a chance to return to whatever land comes under Palestinian rule. There is no provision, however, for the 1948 refugees who fled from or were driven out of land that now is in Israel. This aspect has caused a great deal of heartache and division within the Palestinian community at large, because different categories are likely to receive quite different treatment under whatever the final outcome turns out to be. Jews enjoy a blanket "right of return" to Israel, but Arabs do not.

On the matter of borders and settlements, there is as yet no hint about how a final settlement will look, but it seems safe to predict that the "facts on the ground" already created will result in the incorporation into Israel of some or perhaps many of the West Bank settlements near the Israeli border, thus further reducing the 22 percent of the land that will end up as part of Palestine.

The Oslo and subsequent agreements do not address the fundamental Palestinian issue: the creation of an independent state. Most people think that will be part of the eventual agreement, but they may be ignoring what I mentioned earlier, which is that every aspect of a settlement must be negotiated, which means that Israel has a veto. My view is that if Israel wants a genuine, long-lasting, and mutually beneficial peace, it will not veto a Palestinian state.

The thorniest of the "final status" issues still to be negotiated is Jerusalem. All parties have conspired to leave this to the last. This is because of the difficulty of resolving it, the emotionalism that surrounds it, and because there is a widespread and genuine belief that the positions of the two sides are so incompatible that the issue may not be resolvable at all.

The widely accepted perception has been that if an impasse is reached on Jerusalem it could imperil the viability of any final settlements at all. But if an impasse on Jerusalem jeopardizes any final outcome, perhaps it makes more sense to address it early on, so that it can be given the maximum time to be resolved. I believe there is a solution, and I also believe that without an outcome on Jerusalem acceptable to the Israelis, the Palestinians, and to Muslims, Christians and Jews wherever they are, there will be no lasting peace in the Middle East.

On the surface it appears that the two opposing positions on Jerusalem are incompatible. One wonders why the Israelis listed it as an issue to be negotiated (though this may have been at Palestinian insistence), since Israeli governments have consistently signalled that the issue is not negotiable and that expanded Jerusalem will remain the undivided capital of Israel, which will have exclusive sovereignty over the city. The preferred Palestinian outcome would be a restoration of the status quo ante 1967, that is, East Jerusalem as a city under Arab sovereignty and serving as the capital of a Palestinian state. On the surface it would appear that an undivided city cannot be divided, and an exclusive sovereignty cannot tolerate another partial sovereignty.

At this point I will become a bit of a propagandist and try to promote what I believe is the only workable solution to the problem of Jerusalem. For that I am thoroughly indebted to my friend John V. Whitbeck, an American international lawyer living and working in Paris, who has devoted many years to the Jerusalem question. The solution he has worked out for Jerusalem, which he terms the "Condominium Solution," has been published in a number of newspapers and magazines, including this one, and in the Israeli and Palestinian press.

Briefly summarized, the Whitbeck solution starts from the premise that neither the Israelis nor the Palestinians will be able to achieve their first choice, because that outcome would be completely unacceptable to the other party.

A "Best Second Choice"

Mr. Whitbeck's solution, a "best second choice" for both sides, would be joint sovereignty over an undivided city that would be a part of both states, be the capitals of both states, and be administered by an umbrella municipal council and local district councils. The proper terminology for this arrangement under international law would be a "condominium" of Israel and Palestine. While rare, this arrangement is not unprecedented in history, as exemplified in the French-British New Hebrides Condominium, the French-Spanish principality of Andorra, and the Indian city of Chandigarh, which is the capital of two Indian states.

To quote from Mr. Whitbeck's article, "As a joint capital, Jerusalem could have Israeli government offices principally in its western sector, Palestinian government offices principally in its eastern sector and municipal offices in both. A system of districts or French-style arrondissements could bring municipal administration closer to the different communities in the city. To the extent that either state wished to control persons or goods passing into it from the other state, this could be done at the points of exit from, rather than the points of entry to, Jerusalem. In a context of peace, particularly one coupled with economic union, the need for such controls would be minimal."

Whitbeck points out that by agreeing to such a plan Israel would finally achieve international recognition of Jerusalem as its capital. This is something that, to date, only three states in the world—Costa Rica, El Salvador and Zaire—have accepted, and they only recognize West Jerusalem as Israel's capital. Another appealing aspect of the joint undivided sovereignty solution is that neither the Palestinians nor the Israelis would be required to renounce sovereignty over any territory over which they have asserted sovereignty. Since sovereignty over the entire city would be shared, including territory where claims overlap, no claims would have to be abandoned.

In his article, Mr. Whitbeck cautions, "There is a widespread misconception among Israelis that, under the status quo, Israel possesses sovereignty over expanded East Jerusalem. It does not. It possesses administrative control. A country can acquire administrative control by force of arms. It can only acquire sovereignty with the consent of the international community...

"The 'condominium' solution is consistent with the letter and the spirit of the formal American position on the city, which urges that Jerusalem should remain undivided and that its permanent status should be determined through negotiations between the concerned parties. It is even consistent with the letter (if not yet the spirit) of the formal Israeli position, as restated by the late Yitzhak Rabin on July 31, 1994: 'Jerusalem must remain united under the sovereignty of Israel.' It is further from the traditional Palestinian position with its steadfast reliance on 'international legitimacy.' However, in an interview with the BBC on July 3, 1994, Yasser Arafat suggested that Israelis and Palestinians should share Jerusalem as the joint capital of their two states, hinting at a more flexible state of mind which could, in time, be susceptible to the charms of the 'condominium' solution."

"The time to think and talk about Jerusalem is now."

Nevertheless, Mr. Whitbeck is absolutely correct in his statement of the premise of his article: "If Israelis and Palestinians can agree (even if only silently for the moment) that a mutually acceptable solution for the status of Jerusalem does exist, all the other pieces in the delicate peace puzzle should fall into place. Without a mutually acceptable solution for the status of Jerusalem, everything will fall apart. That cannot be permitted to happen. The road to 'interim self-rule' may start in Gaza and Jericho, but the road to peace starts in Jerusalem. The time to think and talk about Jerusalem is now."

There are recent indications that the Palestinian side is moving toward acceptance of the principles of "joint undivided sovereignty" and the "condominium solution" as its negotiating position on Jerusalem. At the signing of the latest Israeli-Palestinian agreement at the White House on Sept. 28, 1995, Yasser Arafat referred to Jerusalem as the "joint cornerstone" of the future Israeli-Palestinian relationship. As yet, however, I have seen no signs that the Israeli leadership is reconsidering its long-standing insistence that the undivided and expanded city be under exclusive Israeli sovereignty as Israel's capital alone.

Robert V. Keeley, a career U.S. foreign service officer, was U.S. ambassador to Greece prior to his retirement in 1989. He served as president of the Middle East Institute in Washington, DC from 1990 to 1995.