by Francis A. Boyle

(The author served as Legal Adviser to the Palestinian Delegation to the Middle East peace Negotiations from 1991 to 1993. The viewpoints expressed here are his own.)

The self-styled Final Status negotiations between the Palestinians and the Israelis have now begun in earnest. Many categorical statements have emanated from the Israeli side about the yet-to-be-negotiated final status of Jerusalem. A brief review of the historical record can shed some light upon Jerusalem's currently disputed status, and thus point the way towards an ultimate solution for this Holy City.

On September 25, 1971, then-Ambassador George Bush, speaking as U.S. Representative to the United Nations, delivered a formal Statement on Jerusalem before the U.N. Security Council explaining the official position of the United States government with respect to the City of Jerusalem. Therein, Ambassador Bush specifically endorsed and repeated a 1969 statement made before the Security Council by his predecessor, Charles Yost, criticizing Israeli occupation policies in East Jerusalem in the following terms: "The expropriation or confiscation of land, the construction of housing on such land, the demolition or confiscation of buildings, including those having historic or religious significance, and the application of Israeli law to occupied portions of the city are detrimental to our common interests in the city." Ambassador Bush then reaffirmed Yost's prior statement that the United States government considers East Jerusalem to be "occupied territory and thereby subject to the provisions of international law governing the rights and obligations of an occupying power." Succinctly put, these latter obligations can be found in the Fourth Geneva Convention of 1949, which expanded upon and improved--but did not displace--the 1907 Hague Regulations on Land Warfare. The United States government is a party to both the Fourth Geneva Convention and the Hague Regulations, and Israel is bound by the terms of both treaties as well.

Ambassador Bush then concluded his 1971 Statement as follows:

We regret Israel's failure to acknowledge its obligations under the Fourth Geneva Convention as well as its actions which are contrary to the letter and spirit of this Convention. We are distressed that the actions of Israel in the occupied portion of Jerusalem give rise to understandable concern that the eventual disposition of the occupied section of Jerusalem may be prejudiced. The Report of the Secretary General on the Work of the Organization, 1970-71, reflects the concern of many Governments over changes in the face of this city. We have on a number of occasions discussed this matter with the Government of Israel, stressing the need to take more fully into account the sensitivities and concerns of others. Unfortunately, the response of the Government of Israel has been disappointing. All of us understand...that Jerusalem has a very special place in the Judaic tradition, one which has great meaning for Jews throughout the world. At the same time Jerusalem holds a special place in the hearts of many millions of Christians and Moslems throughout the world. In this regard, I want to state clearly that we believe Israel's respect for the Holy Places has indeed been exemplary. But an Israeli occupation policy made up of unilaterally determined practices cannot help promote a just and lasting peace any more than that cause was served by the status quo in Jerusalem prior to June 1967 which, I want to make clear, we did not like and we do not advocate reestablishing.

Ambassador Bush's 1971 Statement has always represented the United States government's official position on the numerous illegalities surrounding Israel's annexation and occupation of East Jerusalem since 1967. For similar reasons, the United States government has never recognized Israel's annexation of West Jerusalem as valid or lawful either. That is why the U.S. Embassy to Israel still remains in Tel Aviv, not Jerusalem.

Both Bush's 1971 Statement and similar comments he made as President in 1990 are fully consistent with and indeed required by Article 1 of the Fourth Geneva Convention, which requires the United States government not only to respect but also to ensure respect for the terms of this Convention by other parties such as Israel "in all circumstances." As treaties, both the Fourth Geneva Convention and the Hague Regulations are deemed to be the "supreme Law of the Land" by Article VI of the United States Constitution. Contrary to the public suggestions made by the U.S. Israel-lobby and its supporters, the United States government must support the vigorous application of the international laws of belligerent occupation to produce the termination of all illegal Israeli practices in East Jerusalem (including settlers and settlements), as well as in the West Bank and Gaza Strip, together with the Golan Heights and southern Lebanon.

The 1947 United Nations Partition Plan for the Mandate of Palestine called for the creation of an international trusteeship for the City of Jerusalem, that would be administered as a corpus separatum apart from both the Jewish state and the Arab state contemplated therein. Today, however, it would not be necessary to go so far as to establish a separate United Nations trusteeship for the City of Jerusalem alone under Chapter XII of the U.N. Charter. Rather, all that would need to be done is for the Israeli army to withdraw from the City of Jerusalem and a United Nations peacekeeping force to be substituted in its place. This U.N. force would maintain security within the City of Jerusalem while the provision of basic services to all the inhabitants could be enhanced.

The simple substitution of a U.N. peacekeeping force for the Israeli army would have the virtue of allowing both Israel and Palestine to continue making whatever claims to sovereignty they want with respect to the City of Jerusalem. Thus, Israel could continue to maintain that Jerusalem is the sovereign territory of Israel, its united capital, and shall remain as such, one and undivided, forever. The Israeli Knesset could remain where it is as a capital district, and the Israeli flag could be flown anywhere throughout the City of Jerusalem.

Likewise, the State of Palestine could maintain that Jerusalem is its sovereign territory and capital. Palestine would be entitled to construct a parliament building and capital district within East Jerusalem, perhaps on the Mount of Olives. The Palestinian flag could also be flown anywhere within the territorial confines of the City of Jerusalem. Both Israel and Palestine would be entitled to maintain ceremonial honor guards, perhaps armed with revolvers, at their respective capital districts. But no armed troops from either Israel or Palestine would be permitted within Jerusalem.

The residents of Jerusalem would be citizens of either Israel, or Palestine, or both, depending upon the respective nationality laws of the two states involved. Residents of Jerusalem would be issued a United Nations identity card to that effect, which would give them and only them the right to reside within the City of Jerusalem. Nevertheless, all citizens of the State of Palestine would be entitled to enter Jerusalem through U.N. checkpoints at the eastern limits of the city. Likewise, all citizens of the State of Israel would be entitled to enter Jerusalem at U.N. checkpoints located at the western limits of the city. Yet, mutual rights of access for their respective citizens to the two States through Jerusalem would be subject to whatever arrangements could be negotiated between the government of Israel and the government of Palestine as part of an overall peace settlement.

In addition, both Israel and Palestine would have to provide assurances to the United Nations that religious visitors and foreign tourists would be allowed access through their respective territories in order to visit the Holy Sites in the City of Jerusalem. Some type of U.N. transit visa issued by the U.N. peacekeeping force should be deemed to be sufficient for this purpose by both governments. Of course this right of transit could not be exercised in a manner deleterious to the security interests of the two States.

Thus, Jerusalem would become a free, open, and undivided city for visitation and worship by people of all faiths from around the world. Neither Israel nor Palestine would have to surrender whatever rights, claims, or titles they might assert to the City. Security would be maintained by the United Nations peacekeeping force. And the City of Jerusalem would remain subject to this U.N. regime for the indefinite future.

If a comprehensive Middle East peace settlement were to be negotiated along these lines, then it would be perfectly appropriate under international law for the United States government to move its Israeli Embassy from Tel Aviv to Jerusalem. There the U.S. Embassy could be simultaneously accredited to the State of Palestine as well as to the State of Israel. The same could be done by all other states in the international community. The presence of these embassies in Jerusalem under such circumstances would permit both Israel and Palestine to claim that the entire international community has now recognized Jerusalem as its capital.

There are many other historical precedents that could be drawn upon to produce a mutually acceptable arrangement for Jerusalem: e.g., the Free City of Danzig, the Vatican City State, the District of Columbia, etc. So determining the final status of the City of Jerusalem is not and has never been an insuperable obstacle to obtaining a comprehensive Middle East peace settlement. If the will for peace is there on the part of the Israeli government, then creative lawyers on each side can devise an artful arrangement for the City of Jerusalem that would allow both Peoples to claim victory while achieving peace.