The US Congress passed the Jerusalem Embassy Act by a large majority on 24 October 1995, providing for the transfer of the US embassy in Israel from Tel Aviv to Jerusalem by 31 May 1999 at the latest. The act formally passed into law in November 1995, but President Bill Clinton refused to sign it, though the transfer had been one of his campaign promises in 1992. Presidents George W Bush and Barack Obama did the same, believing that the transfer should wait until the Israel-Palestine conflict was resolved, and that the US should heed the international consensus on the status of Jerusalem. To avoid ratifying the act, they signed waivers, as did Donald Trump in June 2017.
This nuanced approach ended when Trump recognised Jerusalem as Israel’s capital on 6 December. This went against UN Security Council resolution 476, which in June 1980 declared that all Israeli measures ‘purport[ing] to alter the character and status of the Holy City’ had ‘no legal validity’. A month later, Israel’s parliament passed a ‘basic law’ declaring that Jerusalem, ‘complete and united, is the capital of Israel.’ The Security Council responded in August 1980 with resolution 478, which demanded that member states withdraw their diplomatic missions from Jerusalem. Since then, with a few exceptions (Costa Rica and El Salvador kept their embassies there until the early 2000s, and some consulates remain), diplomatic missions have been based in Tel Aviv.
Trump’s announcement was greeted in Israel with joy and official delight. Few commentators mentioned that the White House had sidestepped the question of Israel’s full and exclusive sovereignty over Jerusalem by stating that the city’s precise limits needed to be defined in the framework of final status negotiations. And the US is not ready to move: it has to acquire land and build a new embassy first. US secretary of state Rex Tillerson has indicated several times that the transfer is two or three years off, not before the end of Trump’s mandate.
The Palestinian leadership see Trump’s decision as a breach of international legitimacy and relations are rapidly deteriorating to a new low. It represents a further failure of PLO strategy, some of whose causes date back to the start of the Oslo process. On 29 July 1993, during secret negotiations, Israel’s legal adviser Joel Singer reported to prime minister Yitzhak Rabin and foreign minister Shimon Peres that the PLO intended to defer the transfer of civil powers until the Israel Defence Forces’ retreat from Gaza and Jericho, and that these powers should be transferred to the PLO leadership (then in Tunis) when it arrived in Gaza, not to Palestinians in the occupied territories. Yasser Arafat wanted to keep control of the negotiations and limit the influence of political figures inside Palestine. As a result of this rivalry, local Palestinian leaders were not part of the negotiating team, though they knew the situation on the ground better than anyone.
At the negotiations over autonomy for Gaza and Jericho in October 1993 in Taba, Egypt, I saw the frustration of Khalil Tufakji, a Palestinian cartographer from East Jerusalem, at not being allowed into the negotiating room while the Tunis leadership kept making mistakes, including over Jericho’s territorial limits. The Israeli and Palestinian teams approached logistics quite differently: The Israelis had the latest laptops and CDs with simulations prepared by top lawyers; the Palestinians wrote on notepads and only later called on more professional international lawyers. They were unable to overcome the intrinsic asymmetry between a liberation organisation and a state.
Faisal Husseini, seen as the leader of those inside Palestine, and his team kept warning against Israeli settlement building. But nothing in the agreements signed by the PLO expressly stipulated its cessation, though it is illegal under international law and the subject of many UN Security Council resolutions, the latest (2334) passed in December 2016.
The Palestinians believe two accords signed with Israel prohibit settlement building. Article 4 of the September 1993 Declaration of Principles states that ‘the two sides view the West Bank and the Gaza Strip as a single territorial unit, whose integrity will be preserved during the interim period.’ And the Israeli-Palestinian Interim Agreement (Oslo II) of September 1995 stipulates: ‘Neither side shall initiate or take any step that will change the status of the West Bank or the Gaza Strip pending the outcome of the permanent status negotiations’ (article 31-7).
Every Israeli government has rejected the Palestinians’ conclusions. But in 1996 Arafat’s team told me: ‘It’s not important. In any case, we’ll have our state in 1999 and the settlements will no longer be there.’ In May 2001 I asked Arafat, by then president of the Palestinian Authority (PA), for his reaction to settlers in the West Bank. ‘They’ll leave! They’ll leave!’ he said.
Arafat thought he could resolve the problem through compromise: an exchange of territory between Israel and Palestine to allow the relocation of settlers from the heart of the West Bank to new sites near the Green Line (the border created by the armistice agreement of 3 April 1949). After the final Taba negotiations broke down in January 2001, both sides gave EU emissary Miguel Moratinos points on which they agreed and disagreed: ‘The Israeli side stated that it did not need to maintain settlements in the Jordan Valley for security purposes, and its proposed maps reflected this position. The Israeli maps were principally based on a demographic concept of settlement blocs … The Israeli side sketched a map presenting a 6% annexation of the West Bank … The Palestinian illustrative map presented 3.1% of the West Bank.’ A difference of just 2.9%.
But the deadlock over Jerusalem remained. Both sides acknowledged reaching partial agreement over the new Israeli districts in East Jerusalem, and the Palestinians said they were ready to accept Israeli sovereignty over the Jewish quarter of the Old City, part of the Armenian quarter and the Western (Wailing) Wall, its length to be determined. But it was impossible to reach agreement over the Haram al-Sharif (the Noble Sanctuary), a holy place to Muslims and site of the Dome of the Rock and Al-Aqsa mosque. Temple Mount, as it is known to Jews, is also Judaism’s holiest site, where the First and Second Temples once stood.
In March 2002, after a long interview with Arafat, one of his advisers confided: ‘The dream of Abu Amar (as Arafat was known) is to declare Palestinian independence from the Haram al-Sharif. He’d say: “There’s no reason for a Palestinian to go to Israel and become Israeli. The Palestinians will come with us to build [our] state”.’ East Jerusalem would be the capital in exchange for giving up the refugees’ right of return to their region of origin.
On 10 December 2002, the day after a secret negotiating session in Tel Aviv, Palestinian negotiator Yasser Abed Rabbo told me on camera: ‘This time, I think [the Israelis] really want to make a deal, perhaps because they fear the right will win the coming elections. We should be able to reach agreement within two or three months. For the first time, the Israelis have accepted the principle of Palestinian sovereignty over the Haram al-Sharif.’
That afternoon, Gilead Sher, negotiator and chief of staff to Labour prime minister Ehud Barak, said: ‘I don’t understand how the Palestinians could have believed that we were ready to give up sovereignty over Temple Mount.’ Shlomo Ben Ami, Israel’s foreign minister, had not been authorised to make this major concession and during all the subsequent negotiations the Palestinians waited in vain for the Israeli delegation to repeat it.
The July 2000 Camp David summit was intended to reach a final peace accord between Israelis and Palestinians, but it foundered over the holy sites. It was out of the question for Israeli leaders to accept Palestinian sovereignty over Temple Mount. Ehud Barak was adamant: ‘I don’t know a prime minister who would be willing to sign his name to the transfer of sovereignty over the First and Second Temples [Temple Mount], which is the basis of Zionism … Palestinian sovereignty over the Old City would be as hard [for us to bear] as mourning. Without separation from the Palestinians, without an end to the conflict, we’re headed for tragedy.’
In August 2003, Arafat authorised a group of his leading advisers headed by Abed Rabbo to negotiate with a delegation from the Israeli leftwing opposition, headed by Yossi Beilin and former chief of staff Amnon Lipkin-Shahak. They reached an agreement, the Geneva Initiative, based on the trade-off principle that the Israeli government had rejected. Under it, the Palestinians would have given up their right of return, and received sovereignty over the Haram al-Sharif/Temple Mount. Ariel Sharon, by now prime minister, called the Israeli signatories of this agreement ‘traitors’. Arafat congratulated his negotiators, though the Initiative had no practical significance.
After Arafat’s death in November 2004, Mahmoud Abbas was elected head of the PLO and PA president, but struggled to maintain the status quo. He reorganised his police and security services, destroyed when the second intifada was crushed; re-established security coordination with the Israeli army and the Shin Bet security service; and scored a few diplomatic successes, including Palestine’s admission to Unesco as a state in 2011. The UN General Assembly granted Palestine observer (though not member) status in 2012.
But the biggest change has been in Israel. Mahmoud Abbas now faces one of the most rightwing Israeli governments to date, led by Binyamin Netanyahu, its tone set by religious and messianic factions. It considers democracy to mean the law of the majority, with minimal protection for minorities, and defines Israel as Jewish first and democratic second; so only Jews possess full rights. In March 2016, 79% of Israeli Jews polled were in favour of ‘preferential treatment for Jews’ – de facto discrimination against non-Jews.
A two-state solution remains a mirage. The occupation of the West Bank is becoming permanent annexation: Nearly 400,000 Israelis now live in settlements occupying 60% of it. And that does not include 200,000 in the new districts of East Jerusalem. In 1996 just over 150,000 Israelis lived in settlements in Gaza and the West Bank. The Israeli authorities brand the Israeli left and Israeli NGOs that criticise and fight the occupation as anti-patriotic, even traitors. Laws have been passed to restrict their activities. All this makes Matti Steinberg, a former Shin Bet analyst, feel that ‘the status quo is unstable, but is evolving in a direction that’s leading the parties inexorably towards the quicksand of a binational reality in which a dominant Israel would try to impose its will on the Palestinians, penned in territorial enclaves.’
Charles Enderlin is a writer whose books include The Lost Years: Radical Islam, Intifada, and Wars in the Middle East 2001-2006 (Other Press, New York, 2007). Translated by George Miller.
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