Vol. 9, No. 14    10 December 2009

Europe Seeks to Divide Jerusalem

Dore Gold

  According to the 1993 Oslo Agreements, Jerusalem is one of the issues to be discussed in future permanent status negotiations. The Swedish move to have the European foreign ministers back a declaration recognizing eastern Jerusalem as the capital of a future Palestinian state clearly pre-judges the outcome of those talks.

• When the EU foreign ministers met on December 8, they issued a statement that only partly softened the Swedish draft. It dropped the reference to the Palestinian state being comprised of "the West Bank and Gaza with East Jerusalem as its capital," but still retained a proposal that envisions "Jerusalem as the future capital of two states."
• The EU statement insisted that the EU "will not recognize any changes in the pre-1967 borders" without the agreement of the parties. Yet by enshrining the 1967 lines as a previous political border, the EU was ignoring that these were only armistice lines and not a recognized international boundary. In fact, it was UN Security Council Resolution 242 which acknowledged that the pre-1967 lines might change.
• By waving the carrot of a statement of support for eastern Jerusalem to be part of a Palestinian state, the Swedes are causing Mahmoud Abbas' advisors to believe that if they avoid bilateral negotiations with Israel, they can create the political environment for third party intervention to their advantage.
• What is needed is an ongoing Israeli diplomatic effort for Jerusalem, underlining Israel's legal rights and its role as the protector of the holy sites. Unfortunately, European states, which once sought to protect the holy sites of Christianity in Jerusalem, today appear to be oblivious to what would happen to their churches were the Old City of Jerusalem to be given to a Palestinian regime under the influence of Hamas.

  In December 2009, the last month that Sweden held the rotating presidency of the 27-nation European Union, Stockholm undertook an initiative to have the European foreign ministers back a declaration recognizing eastern Jerusalem as the capital of a future Palestinian state. According to the 1993 Oslo Agreements, Jerusalem is one of the issues to be discussed in future permanent status negotiations; the Swedish move clearly pre-judges the outcome of those talks.

There were two extremely problematic clauses in the Swedish draft:

• "The European Union calls for the urgent resumption of negotiations that will lead, within an agreed time-frame, to a two-state solution with an independent, democratic, contiguous and viable state of Palestine, comprising the West Bank and Gaza and with East Jerusalem as its capital [emphasis added]" (Paragraph 1).
• "The Council recalls that it has never recognized the annexation of East Jerusalem. If there is to be genuine peace, a way must be found to resolve the status of Jerusalem as the capital of two states" (Paragraph 7).¹

To make matters worse, the draft document added a European "commitment to support further efforts and steps towards Palestinian statehood and to be able, at the appropriate time, to recognize a Palestinian state." By not making the European offer of recognition contingent upon a negotiated outcome, this phraseology will only encourage the Palestinian leadership to unilaterally declare a Palestinian state.

The Swedish proposal was initially backed by Great Britain, Belgium, Ireland, Luxembourg, and Malta.

When the EU foreign ministers met on December 8, they issued a statement that only partly softened the Swedish draft by modifying the first of the two problematic clauses but leaving the second clause intact. In Paragraph 1 they dropped the reference to the Palestinian state being comprised of "the West Bank and Gaza with East Jerusalem as its capital." But the EU statement still retained the proposal that envisioned "Jerusalem as the future capital of two states."² It also insisted that the EU "will not recognize any changes in the pre-1967 borders, including with regard to Jerusalem," without the agreement of the parties. By enshrining the 1967 lines as a previous political border, the EU was ignoring that these were only armistice lines and not a recognized international boundary. In fact, it was UN Security Council Resolution 242 which acknowledged that the pre-1967 lines might change; not surprisingly, the EU made no explicit reference to that resolution. From the Israeli perspective, while the EU statement still fundamentally contradicted Israeli policy on Jerusalem, which called for keeping the city united, at least the EU statement was consistent with past EU policy declarations on Jerusalem and did not contain language that went further, as did the Swedish draft.

In both the Swedish draft and the final EU statement, agreement over the future of Jerusalem is to be reached through negotiations, though this point is somewhat strengthened in the final EU version. Apparently, the U.S. government was particularly concerned with this very point. On December 8, 2009, U.S. State Department Spokesman Phillip Crowley stressed: "We are aware of the EU statement, but our position on Jerusalem is clear. And we believe that as a final status issue, this is best addressed inside a formal negotiation among the parties directly." Clearly, Washington took issue with the remaining ambiguities contained in the EU statement and how the Palestinians might interpret them to support an option of unilaterally declaring a Palestinian state with eastern Jerusalem as its capital.

The Record of Recent European Intervention on the Issue of Jerusalem

The Swedish initiative is not the first time Israel has heard Europe publically doubting its standing in its capital. Ten years ago, on May 4, 1999, the five-year Oslo Interim Agreement was about to come to an end and the Palestinian Authority, led by Yasser Arafat, was considering a unilateral declaration of Palestinian statehood. As the date drew near, Palestinian leaders debated whether they should unilaterally declare a Palestinian state and what should be its borders. Abu Ala, one of the Palestinian architects of the Oslo Agreements, wrote in the Palestinian daily al-Hayat al-Jadida on December 21, 1998, that the basis of a Palestinian state had already been established, namely, the borders set in the 1947 Partition Plan - UN General Assembly Resolution 181.

According to Resolution 181, all of Jerusalem was supposed to be an international entity for ten years under UN administration, at which time its residents could vote on whether to be incorporated into the Jewish state or the Arab state that the resolution proposed. The international entity was called in Latin a "corpus separatum" - or separate entity. On March 1, 1999, Germany held the rotating presidency of the European Union and its ambassador in Israel sent what is called a note verbale to the Israeli Foreign Ministry which stated that the EU "reaffirms its known position concerning the specific status of Jerusalem as a corpus separatum." Abu Ala celebrated the EU paper, declaring that according to the EU, both western and eastern Jerusalem were "under occupation."

Historically, Resolution 181 had been overtaken by events. Subsequent UN resolutions increasingly made reference to the 1949 Armistice Agreements. Moreover, during the 1948 War, Jerusalem came under attack by at least three Arab armies. It was evident that the UN had failed to implement its own resolution and the internationalized corpus separatum it proposed. Jerusalem was defended by the nascent Israel Defense Forces - not by the UN. As a result, Prime Minister David Ben-Gurion declared that Israel regarded Resolution 181's references to Jerusalem to be "null and void," and that remained the position of subsequent Israeli governments.

Irresponsible European diplomacy only radicalized the Palestinian position back in 1999. Arafat started a campaign to obtain international recognition of Resolution 181 as the basis for Palestinian statehood, replacing any reference to Resolution 242. Arafat visited the UN in March 1999 to advance this idea. While he was still in New York, the PLO observer at the UN, Nasser al-Kidwa, sent a letter to Secretary General Kofi Annan and all UN members which stated: "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."³ Effective Israeli diplomacy in 1999 caused the PLO to retreat from its Resolution 181 campaign and its plan to unilaterally declare a state at that time. But what was demonstrated was that rather than narrowing the gaps between Israel and the Palestinians, the Europeans succeeded only in widening them.

 Implications for Future Peace Negotiations

The Europeans have been making troubling statements on Jerusalem since the 1980 Venice Declaration, which rejected unilateral Israeli steps to reunify the city after 1967. But since 2002, they have had a new responsibility as members of the Quartet - along with the U.S., Russia, and the UN Secretariat - to help assist the parties in reaching a negotiated solution to the Israeli-Palestinian conflict. Swedish Foreign Minister Carl Bildt knows that in the November 9, 2008, Quartet statement, the Quartet members agreed to the principle that "third parties should not intervene in bilateral negotiations."

By waving the carrot of a statement of support for eastern Jerusalem to be part of a Palestinian state, the Swedes are causing Mahmoud Abbas' advisors to believe that if they avoid bilateral negotiations with Israel, they can create the political environment for third party intervention to their advantage. The Swedes have reduced the incentive for Abbas to return to any negotiations with Israel. Moreover, by violating a Quartet principle, the Swedes undermine European credibility with Israel: Who needs the Quartet if its members do not live up to their obligations?

The impact of the Swedish initiative on future Israeli-Palestinian negotiations has some similarity to what happened with the EU in 1999: rather than make negotiations easier, here a European initiative only makes them harder and encourages Palestinian unilateralism. Presently, it is well known that the Obama administration's insistence on a settlement freeze has caused Abbas to make a settlement freeze a precondition to the renewal of negotiations, one that never existed previously. Israel rightfully rejects the idea that its ten-month settlement freeze apply to eastern Jerusalem. Unfortunately, the Swedish initiative will only reinforce Abbas' demand that any settlement freeze also apply to eastern Jerusalem, thereby reducing the chances that negotiations will be restarted.

The Problem with Sweden

Sweden has become a particularly troubling country for Israel in Europe. On August 17, 2009, the Swedish daily Aftonbladet published an article by freelance writer Donald Bostrom, who argued that the IDF had harvested the organs of Palestinians and was sending them abroad. While many in the Swedish media condemned the newspaper story, the Swedish government refused to take a position. When the Swedish ambassador in Tel Aviv, Elisabet Borsiin Bonnier, expressed her disgust with the article, the Swedish government decided to distance itself from its own ambassador's statement. Since that event, Swedish-Israeli relations have been tense. The problem is that for the second half of 2009, Sweden has held the rotating presidency of the European Union and therefore can propose new European policies that conflict with Israel's most fundamental interests. In the meantime, Sweden has totally changed its official approach to Israel: from being one of the friendliest countries to the Jewish state, its government is now exhibiting increasing signs of hostility to Israel's positions.⁴

 Lessons for Israel

There is an important lesson for Israel from the debate inside the EU over the future of Jerusalem. Inside Israeli governments there is the expression that "the immediate always puts off the important." In this case, because Israeli diplomacy is always dealing with urgent issues - from the Goldstone report to the latest Iranian nuclear decisions - as a result it does not always address long-term Israeli interests such as keeping Jerusalem united. True, Sweden had a number of important opponents to its proposals on Jerusalem in the EU, like the Czech Republic, the Netherlands, France, Romania, Hungary, Poland, and Italy. But it is a mistake to take international support for Israel's positions among these states for granted.

What is needed is an ongoing Israeli diplomatic effort for Jerusalem, underlining Israel's legal rights and its role as the protector of the holy sites. The arguments to support a united Jerusalem must be raised by Israeli ambassadors in all the capitals where they serve and not wait for a crisis to develop, like the current struggle inside the EU. The Jewish people restored their majority in Jerusalem in 1864, well before the British Mandate. The League of Nations established Jerusalem as part of the Jewish National Home. Stephen Schwebel, who would eventually become President of the International Court of Justice in The Hague, wrote 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."⁵ There is a huge irony that Europeans, who remember the removal of the Berlin Wall in 1989 as a historical turning point for their continent, now advocate the re-division of Jerusalem between two separate states.

For the Palestinians, the demand for a capital in eastern Jerusalem has become a mantra that they repeat at every opportunity. Unfortunately, European states, which once sought to protect the holy sites of Christianity in Jerusalem, today appear to be oblivious to what would happen to their churches were the Old City of Jerusalem to be given to a Palestinian regime under the influence of Hamas. Indeed, prior to the EU decision on the Swedish draft, prominent former European officials like Chris Patten, Romano Prodi, Hubert Vedrine, and Lionel Jospin lobbied on behalf of the Swedish draft and the adoption of a more pro-Palestinian EU position on Jerusalem. If Israel does not make a concerted effort to protect its rights in Jerusalem, then even its closest friends in Europe will assume that at the end of the day, Israel will concede those rights and agree to the policies that Europe is proposing.

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Notes

1. Barak Ravid, "EU Draft Document on Division of Jerusalem," Ha'aretz, December 2, 2009, http://www.haaretz.com/hasen/spages/1131988.html.

2. "Council Conclusions on the Middle East Peace Process," Council of the European Union, 2985th Foreign Affairs Council Meeting, Brussels, December 8, 2009, http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/gena/105545.pdf.

3. "Letter Dated 25 March 1999 from the Permanent Observer of Palestine to the United Nations Addressed to the Secretary-General," UN General Assembly / Security Council, A/53/879, S/1999/334.

4. Mikael Tossavainen, "Swedish Reactions to the Anti-Israel Blood Libel Report," Jerusalem Issue Brief, Jerusalem Center for Public Affairs/Institute for Contemporary Affairs, Vol. 9, No. 12, October 15, 2009, http://www.jcpa.org/JCPA/Templates/ShowPage.asp? DRIT=1&DBID=1&LNGID=1&TMID=111&FID=382&PID=0&IID=3102&TTL=Swedish_Reactions_to_the_Anti-Israel_Blood_Libel_Report.

5. Stephen Schwebel, "What Weight to Conquest," American Journal of International Law, 64, 1970.

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Dr. Dore Gold, Israel's ambassador to the UN in 1997-99, is President of the Jerusalem Center for Public Affairs and author of Hatred's Kingdom: How Saudi Arabia Supports the New Global Terrorism (Regnery, 2003), The Fight for Jerusalem: Radical Islam, the West, and the Future of the Holy City (Regnery, 2007), and The Rise of Nuclear Iran: How Tehran Defies the West (Regnery, 2009).