The problem of Jerusalem in internat’l law

By Ira Sharkansky

JERUSALEM — It’s one of the greatest of conundrums, or problems that appear to be insoluble. Or at least insoluble in anything like the current situation. And the current situation is not something of this morning or yesterday. It’s been with us, depending on when you begin counting, for 70 years or more than a century.

The fuzziness begins with the history of Palestine. Or the lack of a history. There never was such a country fully recognized as such by its neighbors, or what might loosely be described as the international community.

Palestinians claim a lot on the basis of international law, but relevant elements of international law have as many variations as there are commentators, with no legislative body or court having a demonstrated capacity to define and implement what is widely acceptable.

If we begin history with the Balfour Declaration and the British acquisition of responsibility for this area, there have been countless resolutions, agreements, proposals, expressions of intent, and actions on the ground. The 1948 war was a major undoer of what happened earlier. It’s peculiar that “the world” has pretty much accepted the territorial shifts from earlier allotments to Arabs and Jews that the war produced, except for Jerusalem. That peculiarity of a 1947 UN resolution remains widely accepted, but not to Israel, while other features of what the UN declared have fallen into history’s dustbin. The partisans of each resolution may claim that it is authoritative, but who knows which outranks the others?.

Palestine has acquired the status of a darling among individuals and governments who consider themselves enlightened, and they persist in demanding their view of justice despite the failure of Palestinians to do anything close to what is hoped or expected.

A reasonable view is that no one can turn back history to anything close to 1947 or 1967, but something like that continues as the nonnegotiable demands of the Palestinian leadership.

Nonnegotiable demands make great material for song, story, and chants at demonstrations, but they do not move things forward against a well entrenched power asking for the give and take of negotiations.

The most recent actions producing wails, anger, and threatening resolutions are Israeli decisions to plan for some 3,000 housing units in areas of Jerusalem and the West Bank over the lines of 1967.

All but a few of those units would be in major settlement blocks of the West Bank or areas that have been in Israel’s conception of Jerusalem since 1967.

One can quarrel as to whether Israel’s “settlement policy” is madness or moderate. Whatever one’s view, it’s unlikely that Israel will withdraw some 800,000 of its residents living beyond what others consider to be the acceptable borders.

We are hearing another round of the chorus from the Israeli and international left that Israel will have to absorb all of Palestine, and lose its Jewish majority and/or democratic character, if it doesn’t do what it necessary to find a way of agreeing with Palestinians to create a State of Palestine.

That’s horseshit, as my mother occasionally said.

There isn’t a significant political party, or movement in Israel, that would accept major Palestinian settlements in the West Bank or Gaza as part of Israel.

And despite some wonderment about the actions of America’s President, there is at least some appreciation that an “American First” President may not be as ambitious as his predecessor about changing the nature of the Middle East.

The realities are more complex than portrayed images of Israel’s relationship with its Palestinian neighbors and its Arab residents, including Israeli citizens and the Arabs of Jerusalem who have not accepted citizenship.

For the most part, Israeli authorities provide various degrees of autonomy to the Arabs of Israel and East Jerusalem.. We argue among ourselves and with the Arabs about what is fair or proper. Accommodations provide them with the same basic political rights and social services of Israeli Jews, which exceed what they would receive in most (or any) Muslim majority country or the territory of the Palestinian Authority. No doubt the Arabs suffer some degree of inequality, more or less like minorities in other democracies. Despite the tensions, Jews and Arabs mingle in professions, institutions, industry, shops, sport, public transportation, and neighborhoods, usually without comment or incident.

In order to avoid meddling in a different and at least partially hostile culture, Israel has been wary of implementing its laws about polygamy and city management on Arab families or communities. One can blame the suffering of Bedouin women or children on Bedouin culture or Israel’s failure to implement its “one wife” policy. Navigating the twists and turns of narrow streets in an Arab town may be exotic or frustrating to an outsider, but can also be seen as how Israel accommodates itself to other ways of doing things.

Palestine is short of being a single entity with a leadership widely recognized by its residents. Each of the prominent Palestinian localities in the West Bank (Nablus, Ramallah, East Jerusalem, Bethlehem and Hebron) have their own economies and politics, even while there is some integration between them and with Israeli economics and politics. The West Bank and Gaza are even more separate and antagonistic with respect to one another, despite occasional claims about Palestinian unity.

All this means that a “two state solution” makes little sense. Better to think of a multi-community solution, which has been pretty much achieved, even though it is far from being signed and celebrated in any formal way.

There remain extremists intent on revenge or moving things in ways that appeal to them, and individual tragedies of Israelis and Palestinians who find themselves in the wrong place at the wrong time.

Without minimizing the individual and family pain, during most years those tragedies resulting from a nationalist clash are a small fraction of those in Israel or among the Palestinians that result from road accidents.

Is peace possible?

It depends on one’s expectations.

The dreams of Israelis and others who view themselves as humane and concerned about Palestinians may not come to fruition. There are also likely to be continued tensions between Israelis and others, including Jews here and overseas, who see Israelis as overly concerned about their security or wrong headed about history.

Yet it might lessen the enmity of those hostile to Israeli views if they take another look at Palestinians’ descriptions of history. They define Jerusalem as historically Judenrein, and with a monopoly of holiness to Islam because of Mohammad’s ride to heaven on the back of his horse.

The most recent clearing of a West Bank settlement declared “illegal” by the Israeli Supreme Court occurs in the context of competing claims about legitimate or forged documents. There is no shortage of Jews and Arabs operating at something other than the highest norms of honesty, fair dealing, and morality.

The clearing of the settlement indicates that the country accepts the decisions of its courts, despite quarrels about the details.

Insightful in the intellectual morass is a current exhibition at the Israel Museum of Jewish artistic treatment of Jesus and other Christian themes. Several of the works on display were done by artists born in central or eastern Europe in the early part of the 20th century, who had at least a tangential experience of pogroms or the Holocaust. They portray Christ as a religious Jew, who suffered from hostile surroundings..

Art being what it is, the exhibition lends itself to various interpretations. Some may see Christ the Jew as suffering like the Palestinians at the hands of Jewish authorities. Some may see Christ the Jew suffering like Israelis from the world’s limited tolerance of Jews.

Our conundrum continues.

Comments welcome, but resist the temptation to offer a solution. Others have tried and ended up frustrated and angry, and they have been individuals with considerable knowledge, money and political power.

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Sharkansky is professor emeritus of political science at Hebrew University. He may be contacted via ira.sharkansky@sdjewishworld.com