Sovereignty and peaceful coexistence between communities in Jerusalem: a Mediation Analysis

Sovereignty and peaceful coexistence between communities in Jerusalem: a Mediation Analysis

By Davide Pernice

Brussels, Belgium December, 2013

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Contents

Contents 2 List of figures 4 List of appendices 5 Section 1 – Introduction 6 1.A General outline 6 1.B Context 6 1.B.1 Mandate 6 1.B.2 CSE and the Israeli-Palestinian conflict 6 1.C Conflict context and profile 8 1.C.1 Political history of Jerusalem 8 1.C.2 Characteristics of the city 10

1.C.2.1 Territory, population and ethnic/religious composition 10

1.C.2.2 The conflict over Jerusalem 10 1.E Conflict actors 13 1.F Legal framework 15 Section 2 – Conflict analysis 16

2.A Tools and analysis 16 2.B Conflict dynamics 19 2.B.1 Main issues 19 2.B.1.1 Borders 19 2.B.1.2 Old city 19 2.B.1.3 Rights 19 2.B.1.4 Security 20

2.B.2 Stage in the conflict 20 2.C A problem solving approach 21 2.C.1 Outline 21 2.C.2 Theoretical framework 22 2.C.3 Hypothesis of intervention 25 Section 3 – Mediation strategy 27 3.A General approach 27 3.A.1 Strategic aim 27 3.A.2 Administrative aim 27

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3.A.3 Tactical aim 27 3.B Behavioral approach 28 Section 4 – Conclusion: For a comprehensive solution 29 4.A Positive progress: next stages 29 4.B Failed attempts: alternative options 30 Appendices 32 Bibliography 49

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List of figures

Figure 1: Conflict actors Figure 2: Relationship mapping Figure 3: Actors participating to the Track-II Workshop Figure 4: Conflict Tree Figure 5: Lederach Model

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Appendices

1.A Basic Law: Jerusalem, Capital of Israel 1.B UNSC Resolution 476 1.C UNSC Resolution 478 2.A The greater Jerusalem 2.B The Old City 2.C The Temple Mount 3. Positions and Interests Tool 4. Problem Perception Tool: Barkat-Safieh 5. MoJ-DPA Conflict Triangle 6.A Trust Assessment Tool: MoJ towards DPA 6.B Trust Assessment Tool: DPA towards MoJ 7. Options Tool 8. Alternatives (BATNA) Tool

9. Currently Perceived Choice Tool Cost-Benefit: the case of the Old City

10. Circle Chart

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Section 1 – Introduction

1.A General outline This paper provides a mediation analysis aimed at offering a comprehensive political

and societal dialogue concerning the sovereignty of the city and surrounding of

Jerusalem1. The mediating party that is being advised during this workshop is the

Chief mediator of “Comunità di Sant’Egidio” (CSE).

1.B Context 1.B.1 Mandate

The present analysis offers a strategy to establish a common ground for a Track-II

dialogue between Israelis and Palestinians2 over one of the main causal factors of

conflict. The dialogue aims at preparing the ground for a pluralistic and inclusive

approach to the future status of Jerusalem by means of a non-committal process.

1.B.2 CSE and the Israeli-Palestinian conflict

CSE’s approach to the Israeli-Palestinian conflict3 implies different actions at

different times:

1. Humanitarian aid to the West Bank

                                                                                                               1 Since the territorial scope of administrative Jerusalem is contested, it is impossible to specify a clearly defined territorial scope for this analysis. Our scope roughly includes Jerusalem on both sides (Israeli and Jordanian) of the 1949 Green Line, plus the districts and settlements of Suf Bahir, Har Homa, Pisgat Ze’ev, Neve Yaakov, and Atarot. 2 Our definition of Israelis and Palestinians involves the minorities of each (Arab Israelis, and Christian Palestinians). 3 As commissioned and funded by the Political Department to the United Nations, and for a term of further two years.

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2. Negotiations with Israeli and Palestinian diplomats

3. Four Track-II Workshops on sensitive issues:

! Borders

! Security

! Jerusalem

! Right of return

4. A final Israeli-Palestinian Track-I Convention

5. Monitoring and implementation of the agreements eventually reached

The present paper addresses exclusively the third issue (Jerusalem) with respect to the

setting up of a Track-II Interactive Problem Solving Workshop4 between notable

Israeli and Palestinian authorities, opinion leaders, scholars, intellectuals and

representatives from civil society.

Participants List – Interactive Problem-Solving Workshop on Jerusalem February 2014

N. Barkat Mayor, Jerusalem A. Safieh Diplomat, Palestinian Authority Y. Shany Dean, Hebrew University of Jerusalem M. Hamdan Dean, Al-Quds University H. Siniora Editor, The Jerusalem Times Y. Beilin Former Israeli Foreign Ministry under Yitzhak Rabin A. Ayalon Former IDF General ‘Policy Centers’ Centre for Policy Studies, Crisis Management Initiative ‘Developm. Aid’ Norwegian Refugee Council, International Committee of the Red Cross S. Hazboun CEO, Joint Israeli-Palestinian Economic Forum H. Anton Atalla Director, YMCA East Jerusalem U. Savir Peres Centre for Peace D. Lau Chief Rabbinate of Israel Y. Yossi Chief Rabbinate of Israel Y. Shalev Journalist, Haaretz A. Oz Writer A. Siniora Director, All for Peace Radio ‘Internat. NGOs’ Amnesty, Human Rights Watch

                                                                                                               4 See the Smith-Smock “Managing a Mediation Process” toolkit provided during lecture 9 (Mediation Conflict Analysis) by Dr. Juan Díaz at the Brussels School of International Studies (University of Kent), 2013/14.

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Despite the institutional and political stature of some of the attendees (Barkat, Safieh,

etc.), the meeting is framed as (and remains) a Track-II dialogue: speakers in the

close-door Workshop are not constrained by the commitments of office, since their

assessments and remarks are confidential, non-binding and non-representative of their

respective organizations and institutions5.

1.C Conflict context and profile

1.C.1 Political History of Jerusalem Characterized during the centuries by the constant succession of changing rulers and

dynasties, in 1917 Jerusalem turned from being accountable to the Ottoman central

government in Istanbul to becoming the administrative capital of British Mandatory

Palestine. As early as 1946, access to holy sites and the balance of political

representation in the local Council became the flashpoints between Zionists (Jews)

and Palestinians (Muslim and Christians)6. Following the withdrawal of British forces

in 1948 and the fighting between Jerusalemite communities that accompanied it, the

city was arbitrarily divided into two sectors: East Jerusalem (held by the Hashemite

Kingdom of Jordan), and West Jerusalem (under Israeli sovereignty). The Old City,

which comprises holy sites of the uttermost importance to all three monotheistic

religions, fell under Jordanian rule.

                                                                                                               5 As explained in: 1) Babbitt, Eileen F. (2006), “Mediating Rights-Based Conflicts: Making Self-Determination Negotiable”, International Negotiation, 11, p.189; 2) Smith and Smock (2008), “Peacemaker’s Toolkit – Managing a Mediation Process”. Washington, D.C.: United States Institute of Peace. 6 Mainly, because of the centrally sponsored Jewish migration flows into Jerusalem all along the mandate period, which tripled Jewish population between 1922 and 1946 from 34,000 to 99,000 inhabitants.

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Following the capture of East Jerusalem by Israeli forces in June 19677, the Israeli

government annexed East Jerusalem to the Israeli state. Moreover, the central Israeli

government inaugurated an active policy of Jewish immigration and Palestinian

relocation to the West Bank8, so to ensure an advantage to the Jerusalemite Jewish

population in the context of the city’s demographic balance between communities and

religions.

Israel established Jerusalem as its capital city, and Palestinians today claim that al-

Quds is the natural capital city of the Palestinian State. Neither of these two claims is

internationally recognized and acknowledged.

Despite being entitled to (active and passive) voting rights at the Municipal elections,

Palestinian Jerusalemites holding a blue ID (meaning that they are recognized

Palestinians living permanently in Jerusalem, as opposed to those holding green or

orange IDs, which are Palestinians living in the West Bank and in the Jerusalem area

eastward of the Division Wall, and for which no voting rights are acknowledged

within Israeli public institutions) have a consolidated tradition of boycotting elections

to dispel the surmise that they may acknowledge Israeli occupation. Indeed, during

the last Municipal elections held in October 2013, only one9 out of nearly 500

candidates for the post of Jerusalem city councilor was Arab. The vote count assigned

victory to the incumbent secular Mayor, Nir Barkat, supported by a leftist coalition

formed by the Labor Party and Meretz. Mayor Barkat largely profited from three

major splits within the ranks of the Haredi community10.

                                                                                                               7 The Six-Day War between Israel and Egypt, Syria, Jordan, and Iraq (and supported by Algeria, Kuwait, Morocco, Libya, Saudi Arabia, Pakistan, Sudan, Tunisia, and the Palestinian Liberation Organization). 8 Despite these efforts, whereas in 1967 Palestinians accounted for 25,8% of the Jerusalemite population, some thirty-five years later (2002) they reached 32,6%. 9 Fuad Sliman, of the left-wing Meretz party. http://www.haaretz.com/blogs/jerusalem-vivendi/.premium-1.553650# 10 As explained in The Jerusalem Post. http://www.jpost.com/In-Jerusalem/City-Front/Elections-2013-In-the-running-328386

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1.C.2 Characteristics of the city

1.C.2.1 Geography, population and ethnic/religious composition

Municipal Jerusalem, intended as the administrative entity defined on the basis of the

Israeli Law and Administration Ordinance in 1967 and further modifications11,

extends over 126 square kilometers12. By the end of 2010, the population numbered

789,000 inhabitants: “Jewish and Other” were 504,000 (63,8%), whereas the Arab

population reached 285,000 units (36,2%)13. Despite Israeli efforts at containing Arab

population, trends show a constant demographic growth among Muslims and

Christians, at the expenses of the Jewish-Israeli population14.

1.C.2.2 The conflict over Jerusalem

Palestinians and Israelis have often clashed over the control and sovereignty of

Jerusalem. The Old City comprehends some of the holiest places for Muslims, Jews

and Christians, and it is contoured by sites of great religious importance. Any effort at

reaching a comprehensive agreement over the status of Jerusalem15 has ultimately

collided against the troubled issue of the sovereignty and control over the Western

Wall and the Temple Mount.

                                                                                                               11 The Law and Administration Ordinance was established in 1948, and it repealed sections 13 to 15 of the 1941 Immigration Ordinance and regulations. In 1967, it was used for the de facto annexation of east Jerusalem. 12 Before the partition of the city in 1967, west Jerusalem counted 36 square kilometers whereas East Jerusalem reached the size of 6 square kilometers. Following reunification under Israeli occupation over the east, territorial borders of the municipality were repeatedly questioned and enlarged (in June 1967; in 1988, when the Interior Ministry appointed a commission of inquiry for redrawing municipal borders; in 1993, when Israeli authorities finally agreed to expand territorial sovereignty to the actual size). 13 Choshen, Maya and Michal Korach, “Jerusalem: Facts and Trends 2011”, Jerusalem Institute for Israel Studies, 2011. 14 Ibidem, “Population of Jerusalem by Population Group, 1931-2009”, p. 8. 15 Since the Oslo Agreement in 1993, then Camp David II and Taba negotiations in 1999-2001.

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Outside the Old City, Palestinians lament the systematic eviction of Muslim and

Christian families from east Jerusalem, and the continuous planning and consolidation

of numerous settlements beyond the 1949 Green Line16. It has to be noted that

whereas the East/West division of Jerusalem during the period 1948-1967 was

arbitrary, forcing thousands of (mostly Arab, but also Israeli) families to resettle

according to ethnic/geographic lines and disrupting the century-old social and urban

texture of the city17, since July 1967 such binary division between Israelis and Arabs

has been replaced by an intermittent policy of gradual ‘Israelization’18 of greater

Jerusalem.

From an Israeli viewpoint, memories of the Second Intifada and of the indiscriminate

use of violence by Palestinian terrorists19 are enough to prove that the Division Wall

erected by decision of the Sharon Cabinet in 2002 is just one, but still partial answer

to the security issue.

Quarrel over administrative status Since the 1993 Oslo Accords, Israeli-Palestinian negotiations have notoriously

quarreled around the juxtaposition of the two national claims with regard to

Jerusalem. Both national communities claim Jerusalem as the capital city of their

respective state. The construction beyond the 1949 Green Line of new Israeli

                                                                                                               16 Springuel, Elise, “Jerusalem: City of ‘Peace’, City of Pieces”, Information Brief, The Jerusalem Fund for Education and Community Development, 2011. 17 A paradigmatic example is the old neighborhood of Musrara, today named Morasha, which is located between the Green Line and Orthodox Mea Sheraim, facing the Damascus Gate. Initially displaying a mixed population with an Arab majority, Morasha today is a predominantly Jewish/Sefardi district despite the typical Arab architecture of its housings. 18 Refer to http://www.haaretz.com/weekend/magazine/a-surprising-process-of-israelization-is-taking-place-among-palestinians-in-east-jerusalem.premium-1.490367 19 Although during the period 1995-2004 Tel Aviv was the most targeted city by Palestinian paramilitaries and bombers, Jerusalem was obviously at the culprit of interethnic tensions.

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settlements, though, escalates tensions as it renders unlikely the creation of a viable

and contiguous Palestinian state within the 1949 Armistice borders.20

Do trends in Jerusalem strain or sustain the prospects of being capital of both states?21 Subject Findings Score* Israeli presence in East JSM

Continues building private and public structures, but does not announce major new construction or development projects. The population of Jewish enclaves in Palestinian neighborhoods increases but not significantly.

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Palestinian presence and activity in East JSM

Israel consistently carries out demolitions of Palestinian construction, rescinds residency permits, and presents a PA presence or involvement in the city.

4

Status quo in the Old City

Israeli authorities restrict access to holy places for Palestinians from the West Bank and Gaza and allow increased Jewish settlement activity and pursue evictions of Palestinians living in the Old City. Israeli authorities unilaterally decide to allow a limited increase of Jewish access to the Temple Mount.

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*Ratio: from 1 (minor influence) to 5 (major influence exerted by Israeli authorities). Recent escalation Lately (August 2013), the situation in East Jerusalem escalated due to the decision by

Israeli Interior Minister, backed by the Municipality of Jerusalem, to ban the annual

‘Palestinian Puppet Children Festival’22. Although Israeli authorities claim that the

ban is justified under the terms of the Oslo Accords23, to Palestinians this is the

umpteenth proof that the Israeli government and the Municipality of Jerusalem aim at

evicting Palestinians from East Jerusalem: physically, with the installment of new

                                                                                                               20 As explained by Rashid Khalidi’s “Bad Faith in the Holy City: How Israel’s Jerusalem Policy Imperils the Peace Process” in Foreign Affairs, April 2010. http://www.foreignaffairs.com/articles/66198/rashid-khalidi/bad-faith-in-the-holy-city 21 Inspired by Toaldo, Mattia, Fatima Ayub, Hugh Lowatt, and Dimi Reider “Israel/Palestine: Two-State Stress Test”, European Council on Foreign Relations – Meda Programme, December 2013. 22 http://www.haaretz.com/news/diplomacy-defense/1.531576 23 The 1993 Interim Agreement states that the Palestinian Authority shall not support Palestinian initiatives within the 1948 Israeli borders.

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Israeli settlements; and culturally, by means of uprooting traditional social events of

the Palestinian community.

1.E Conflict actors24

Figure 1 exhibits the key actors to the Jerusalem conflict. Figure 225 depicts the

relationship mapping between these actors. Figure 3 displays a more overarching

view of the involved actors (local, regional and international); those participating in

the Track-II Interactive Problem Solving Workshop are displayed in bold26.

Figure 1: Conflict Actors

Source: Fisher 2000

                                                                                                               24 Given the complexity of the interrelations between actors that are directly involved in the conflict over the status of Jerusalem, the Conflict Actors Graph and the Relationship Mapping are reduced to the core units of the Jerusalem debate. 25 Positions of external actors are non-hierarchical. 26 For the complete list of participants referring to the single roles and titles, refer to the Participants List in pp. 7-8.

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Figure 2: Relationship mapping

Source: Fisher 2000 Figure 3: Actors participating to the Track-II Workshop (in bold)

Source: Fisher 2000

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1.F Legal Framework In 1980, the Israeli government passed the Jerusalem Law proclaiming the Israeli

legal status of the city (west and east).

United Nations Security Council Resolutions 476 and 478 of 1980 stated that Israel’s

annexation of East Jerusalem - and the proclamation of Jerusalem as the capital city

of the Jewish state – is illegitimate under the Fourth Geneva Convention relative to

the protection of civilian persons in time of war. This argument, and those against the

expropriation of land and the transfer of population planned or practiced by the Israeli

authorities, is reassessed in a number of UNSC Resolutions between 1967 and mid-

‘90s27. The Israeli Jerusalem Law and Resolutions 476 and 478 are included in

Appendices 1.A, 1.B and 1.C.

                                                                                                               27 UNSC Res. 2254 (1967); Res. 252 (1968); Res. 267 (1969); Res. 298 (1971), Res. 592 and 605 (1986); Res. 904 (1994).

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Section 2 – Conflict analysis

2.A Tools and analysis

The scope of the tools applied is limited to the main two actors taking part to the

Track-II Workshop of February 2014 in Jerusalem: Nir Barkat (Mayor of the

Municipality of Jerusalem), and Afif Safieh (Diplomat of the Palestinian Authority).

Given the list of participants to the Workshop (refer to section 1.B.2), indeed, the

Relationship Mapping in Figure 2 is relevant with regard to: two indirect relational

crisis (‘Municipality of Jerusalem’/‘East Jerusalem YMCA’, and ‘One

Jerusalem’/‘East Jerusalem YMCA’, both via ‘Palestinian Theatre’); one direct

situation of tension (‘Al-Quds University’/‘Municipality of Jerusalem’); and one

indirect situation of tension (‘Diplomat of the Palestinian Authority’/‘Municipality of

Jerusalem’ via ‘Israeli Government’).

The modicum28 used for strategic planning involves the Positions and Interests Tool

as first resource (Appendix 3). The Problem Perception Tool (Appendix 4) evidences

a significant difference in terms of historical thinking. The Trust Assessment Tool

(Appendices 6.A, 6.B) is in many ways revelatory of the profound and mutual

grievances, which on the Palestinian side are further exacerbated by the construction

of new Israeli settlements beyond the 1949 Green Line. Moreover, the BATNA Tool

helps framing and eventually containing potential fugues of the parties from final

agreement (Appendix 8). With regard to the specific situation of the sovereignty and

control over the holy sites in the Old City, the Currently Perceived Choice Tool Cost-

Benefit (Appendix 9) enlists the pros and cons of both the ‘territorial’ and the ‘special

                                                                                                               28 Mediating tools provided by Dr. Juan Díaz in the frame of the Module “International Negotiation & Mediation”, Brussels School of International Studies (University of Kent), 2013/14.

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regime’ accommodations. The Circle Chart (Appendix 10), lastly, offers a general

overview of the mediation analysis.

Figure 4: Conflict Tree

From a relational point of view, although both sides have historical reasons for

fearing each other, status quo gives account of an increasing Palestinian resentment

vis-à-vis Israeli occupation in East Jerusalem.

The historical cause of the conflict over Jerusalem, which is central and integral to the

wider regional conflict between Israel and the Palestinians, is attributable to a

complex mix of factors. Among these, three are particularly evident: the massive

Jewish immigration in Israel (and Jerusalem) since the early twentieth century; the

erratic behavior of Western international community with regard to the status of

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Jerusalem in the post-Mandate era (ranging from the vagueness of the 1927 pro-

Zionist Balfour Declaration, to the binational option displaying Jerusalem as the

capital of the Palestinian state, as envisaged in the 1939 MacDonald White Paper); the

extraordinary proximity, in the Old City (Appendix 2.B), of the Jewish holiest place

with the Muslim third holiest place, with the latest literally surmounting the former

(and with the Christian Saint Sepulcher at a close distance).

The conflict between Israeli and Palestinian Jerusalemites is value and structure

based. Structurally, the post-June 1967 scenario is one were Palestinians in East

Jerusalem live under Israeli military occupation, and where both national

communities claim the city as their own capital city. Tensions are exacerbated by

ethnic and religious polarization, so that often differences in values and traditions are

the means for triggering violent confrontations over the political status of the city.

Settlements’ construction and further expansion in East Jerusalem is a source of

permanent tension, and at the present moment the Israeli government is unwilling to

recede from the conveyed construction plans. On the contrary, recently PM

Netanyahu has announced new house tenders for settlement constructions in the

occupied territories29.

In terms of interests, competition between Palestinians and Israelis is stark. But

although the Palestinian leadership has an objective interest in gaining political

recognition inside the Municipality by means of municipal elections (its demographic

rate is increasing steadily), it refrains from doing so as it contests the very legitimacy

of the Israeli occupation.

                                                                                                               29 http://www.haaretz.com/news/diplomacy-defense/1.565438

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2.B Conflict dynamics 2.B.1 Main issues

2.B.1.1 Borders Attribution of state borders in the frame of a final-status agreement is going to be

further complicated by Israeli policy of “creating facts on the ground” (deporting

Palestinians; implanting settlers; erecting physical separations running through

occupied soil beyond the 1949 Green Line, thus implying the de facto annexation of

East Jerusalem).

2.B.1.2 Old City Accommodations based exclusively either on the mainstream territorial binary

approach, or on Corpus separatum, have proved impracticable or short-lived.

Territorial binary separation in the Old City has reached its momentum in the

nevertheless disappointing Taba Summit of 2001. It appears unrealistic, indeed, that

even assuming the Palestinians would be willing today to compromise on the basis of

the 2001 proposal, the Israeli government would consider any solution based on the

sole territorial binary approach, so far experienced with scanty results.

On the other hand, Corpus separatum in Jerusalem depends on the positive offices of

an authoritative and consensual third party, willing to carry the risks of a creepy

mission. No external actor, today, displays such attributes, capabilities and vocations.

2.B.1.3 Rights Contentious issues over the ownership, control, administration, and regulation of the

occupied territories beyond the 1949 Green Line, and over the freedom of movement

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of their inhabitants, fall into the exclusive highest jurisdiction of the Supreme Court

of Israel.

2.B.1.4 Security As the majority of the Palestinian bombers originating from the West Bank during the

1990s and early 2000s accessed the State of Israel through the Jerusalem passage, the

control of the surroundings of greater Jerusalem is of pivotal concern to Israelis. The

contested division wall (Appendix 2.A, dating December 2011) is still to be

completed, and the risk of Palestinian uprisings in East Jerusalem constitutes a

constant threat to the livelihood of Israeli Jerusalemites within and beyond the Green

Line.

2.B.2 Stage of the conflict Close examination at the causal and profile factors (sections 2.A, 1.C) suggests that

the current stalemate is unlikely to de-escalate despite the ongoing Track-I

negotiations in Washington, D.C. Indeed, present tensions concerning the future of

Jerusalem and the wider Israeli-Palestinian conflict do not meet any of Zartman’s

requirements for conflict ripeness30: 1) since asymmetries between the competing

sides are strong, the current stalemate shall not be labeled as mutually hurting; 2)

bilateral solutions are deemed to be impracticable, and neither side has the force or

will to undertake unilateral initiatives; 3) power relations between Israel and the

                                                                                                               30 As seen in: 1) Zartman, William I. (1983) “The Strategy of Preventive Diplomacy in Third World Conflicts”, in Managing U.S.-Soviet rivalry, edited by A. George, pp. 341-364. Boulder, CO: Westview. 2) Zartman, William I. (1985) “Ripe for Resolution: Conflict and Intervention in Africa”. New York, NY: Oxford University Press.

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Palestinian Authority remain fundamentally stable and unaltered, despite the

Palestinian bid for statehood within international organizations. Interestingly, Israeli

and Palestinian positions do not adhere to any of the four models of “ripeness”

developed by Christopher Mitchell, but instead embody a combination of them31.

The Israeli-Palestinian struggle over the control of Jerusalem is further complicated

by the peculiar features of this conflict: the fact that each side has formulated

objectives based on ethno-nationalist thinking; the evidence that identity on each side

is deeply rooted within the same land; the fact that the conflict over Jerusalem has

been intertwined with many other conflicts in the Middle Eastern region, and

worldwide. Moreover, the conflict is characterized by significant asymmetries in

moral claims, military capabilities, allies, economic resources, and legal rights.

2.C A problem-solving approach 2.C.1 Outline

As the situation on the ground stagnates, and the current Track-I negotiations are

heading toward another stalemate (sections 1.C.2.2, 2.A and 2.B.2), issue-focused

political and societal dialogue between sides necessitates an improvement through the

facilitating and mediating support of CSE (as explained in section 1.B.1). The

ultimate aim of this paper is to offer a strategy for establishing a common ground for

an informal dialogue on the viable options for the political and legal future of

Jerusalem. Given the complexity of the local and regional conflict, and the limited

mandate attributed to CSE, the scheduled Interactive Problem-Solving Workshops has                                                                                                                31 The ‘hurting stalemate model’ does clearly affect the Palestinian side, whereas the present Israeli leadership seems more characterized by the attributes of the ‘entrapment model’. Both sides, to some extent (demographic for the Israelis, and territorial for the Palestinians), may be subject to the ‘imminent mutual catastrophe model’ in case the stall persists. See Mitchell, Christopher R. (1995) “Cutting Losses: Reflections On Appropriate Timing”, Institute for Conflict Analysis and Resolution – Working Paper 9, 9(2).

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the sole aim of fostering mutual understanding between sides, as well as exploring the

options for creating value over interests, which may be utilized in further Track-I and

Track-I ½ dialogues32 dealing with the specific issue.

2.C.2 Theoretical framework The suggested approach focuses on Outsider-Neutral (or Impartial) mediation.

Although this type of mediation is not necessarily conducive to a durable peace33 (to

the point that its validity has been lately put into question34), it is nevertheless

recommendable in the context of non-coercive, voluntary Track-II dialogues35. The

attribute of perceived impartiality, nonetheless, should be carefully assessed with

relation to the confessional (Christian) character of CSE36.

The general framework is consistent to the problem-solving37 and humanistic38

mediation paradigm. Moreover, it adds elements from integrative mediation39.

This approach is delivered by means of pre-negotiation problem-solving discussions,

inter-community mediation40, systemic advocacy41, omni-partiality42, pro-active

                                                                                                               32 As explained in Babbitt, Eileen F. (2006), “Mediating Rights-Based Conflicts: Making Self-Determination Negotiable”, International Negotiation, 11, p. 189. 33 See Svensson, Isak (2009), “Who Brings Which Peace? Neutral Versus Biased Mediation and Institutional Peace Arrangements in Civil Wars”, Journal of Conflict Resolution, 53(3), pp. 446-469. 34 Wehr, Paul and John Paul Lederach (1991) “Mediating Conflict in Central America”, Journal of Peace Research, 28(1), pp. 85-98. 35 Refer to: 1) Smith, James D. (1994), “Mediation Impartiality: Banishing the Chimera”, Journal of Peace Research, 31(4), pp. 445-450. 2) Kydd, Andrew H. (2006) “When Can Mediators Build Trust?”, The American Political Science Review, 100(3), pp. 449-462. 36 See http://www.santegidio.org/index.php for its mission description. 37 As seen in Hopmann, Terrence P. (1995) “Two Paradigms of Negotiation: Bargaining and Problem Solving”, Annals of the American Academy of Political and Social Science, 542, pp. 24-47. 38 See for example Umbreit, Mark S. (1999), “What is Humanistic Mediation? Creating a Safe, if not Sacred, Place for Dialogue’, Centre for Restorative Justice & Peacemaking. http://www.cehd.umn.edu/ssw/RJP/Resources/RJ_Dialogue_Resources/Humanistic_Approach/What_is_Humanistic_Mediation.pdf 39 The CSSProject for Integrative Mediation offers the most comprehensive field work and analysis on ‘bottom-up’ mediation, notably in the context of post-war scenarios in former Yugoslavia. http://www.cssp-mediation.org/approach/ 40 As explained in Díaz, Juan (2008), “Integrative Mediation: A ‘Bottom-Up Approach’ to Peacebuilding”, Paper presented at the IACM Annual Conference, p. 9. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1298574 41 Díaz (n.39 above), p. 9. 42 Díaz (n.39 above), p. 10.

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mediation43, and the process of confidence-building44, all in the frame of an

interactive problem-solving workshop45. The concerned phases of the mediating

process, as developed by Chris Moore46, range from ‘Building Trust & Cooperation’

(Stage) to ‘Generating Options for Settlement’ (Stage 9). The integrated model for

mediation assessment (Figure 5) is adapted from Lederach’s Building Peace

framework47, and it highlights the features that may be conducive to conflict-

transformation through reconciliation between Jerusalemites.

Figure 5: Lederach Model48

                                                                                                               43 Díaz (n.39 above), p. 11. 44 Díaz (n.39 above), p. 12. 45 For a critical analysis of the tools, merits and demerits of interactive problem-solving workshop, refer to Hill, Barbara J. (1982), “An Analysis of Conflict Resolution Techniques – From Problem-Solving Workshops to Theory”, The Journal of Conflict Resolution, 26(1), pp. 109-138. 46 From Moore, Chris W. (2003), “The Mediation Process: Practical Strategies for Resolving Conflict”. San Francisco, CA: Jossey Bass Publisher, p. 69. 47 Lederach, John P. (1997), “Building Peace: Sustainable Reconciliation in Divided Societies”, United States Institute of Peace. Washington, D.C., p. 80. 48 Whereas the actual CSE mandate concerns the "crisis management" phase (over a period of two years), the long-time goal is systemic "reconciliation" through "prevention" of the motives that lead to conflict.

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The problem-solving workshop is by definition unofficial and non-binding. CSE,

therefore, is not expected to hand out a final agreement, as the very purpose of the

workshop is to engage parts in a “non-adversarial process of joint thinking, treating

the conflict as a shared problem that requires joint effort to find a mutually

satisfactory solution”49.

In particular, as the conflict over Jerusalem is multi-layered, with territorial/security

issues overlapping ideological/nationalist issues, disputes appear as basically zero-

sum50. Although disputes may be fractioned into “negotiable subunits”51 that can be

traded on the negotiating table, in fact, this is only possible when interests can be

actually decoupled from values52. The quest over the present and future of Jerusalem,

indeed, as well as the wider Israeli-Palestinian conflict, are deeply entrenched in

issues of religious, ethnic and national belonging. As a consequence, the dynamics of

the conflict over Jerusalem are particularly hard to decouple, and demand the services

of a pro-active mediator53.

                                                                                                               49 Kelman, Herbert C. (2005), “Building Trust Among Enemies: The Central Challenge for International Conflict Resolution”, International Journal of Intercultural Relations, 25, p. 642. 50 For a deeper understanding of absolute/relative gains in negotiations refer to Kleiboer, Marieke (1996), “Understanding Success and Failure of International Mediation”, The Journal of Conflict Resolution, 40(2), pp. 360-389. 51 Kleiboer (n. 45 above), p. 362. 52 Whereas Fisher's bargaining "interests-first" approach favors the fractionation of conflicts, Burton's problem solving "values-first" approach underlines the fact that often conflicts are about non-negotiable interests, suggesting thus a mixed approach as explained in Drukman, Daniel with Benjamin J. Broome and Susan H. Korper (1988) "Value Differences and Conflict Resolution: Facilitation or Delinking?", The Journal of Conflict Resolution, 32(3): "Separating values from negotiating positions (interests-first) was as effective as the understanding that results from prenegotiation workshops concerned with opposed group values (values-first). The delinked condition encouraged bargainers to remove their values from the discussion: Content-analyses revealed that values were rarely invoked in the discussions. Facilitation-condition negotiators used more cooperative rhetoric during the discussions and were more willing to move from their initial positions", p. 504. 53 For a pro-active approach in the frame of transformative mediation, refer to Díaz (n. 39 above), p. 11.

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2.C.3 Hypothesis of intervention The type of transformative intervention envisaged for CSE in the frame of the larger

Israeli-Palestinian conflict is consistent to the attributes of multitrack-diplomacy54, in

the sense that CSE facilitates the confidential and non-binding brainstorm of ideas for

a feasible solution of the conflict between Palestinians and Israelis over the status of

Jerusalem, whilst forwarding the agreed outcomes of those workshops to the higher

Track-I hierarchy for further consideration55. In this frame, CSE mediation role aims

at Barbara Hill’s two goals of Interactive Problem Solving56: 1) to help conflict

researchers exploring dynamics of an international conflict; 2) to offer parties a

setting in which they can meet and consider possible peaceful options.

Although the issue of Jerusalem cannot be permanently settled if not in the frame of

pure Track-I apical diplomacy, Track-II dialogue is an inescapable tool for trust-

building and for reducing prejudices among the conflicting local communities57.

Moreover, Track-II diplomacy, whose content is by definition confidential and non-

binding, is a valid if not crucial asset for improving intersocietal relationship and

mutual understanding, as experienced by Herbert Kelman in the course of numerous

Problem Solving Workshops with Israelis and Palestinians58.

                                                                                                               54 Refer for example to: 1) Böhmelt, Tobias (2010) “The Effectiveness of Tracks of Diplomacy Strategies in Third-Party Intervention”, Journal of Peace Research, 2, pp. 167-178. 2) Chataway, Cynthia J. (2002) “The Problem of Transfer from Confidential Interactive Problem-Solving: What Is the Role of the Facilitator?”, Political Psychology, 23(1), pp. 165-189. 55 Böhmelt (n. 51.1 above), p. 170 “Unofficial Diplomacy: Track Two and Track-One-and-a-Half”. 56 Hill, Barbara (1982) “An Analysis of Conflict Resolution Techniques”, Journal of Conflict Resolution, 26, pp. 109-138. 57 Systematic processing, as opposed to heuristic processing, is more likely to “result in deep cognitive changes with the breadth and depth of understanding that can support the emergence of integrative stable solutions”, in Chataway (n. 51.2 above), p. 180. 58 1) Kelman, Herbert C. (1982) “Talk With Arafat”, Foreign Policy, 49, pp. 119-139. 2) Kelman, Herbert C. (1986) “Interactive Problem-Solving: A Social-Psychological Approach to Conflict Resolution”, In W. Klassen (Ed.), “Dialogue toward interfaith understanding” (pp. 293-314). Tantur: Ecumenical Institute for Theological Research. 3) Kelman, Herbert C. (1987) “The Political Psychology of the Israeli-Palestinian Conflict: How Can We Overcome the Barriers to a Negotiated Solution?”, Political Psychology, 8, pp. 347-363. 4) Kelman, Herbert C. (1988) “The Palestinianization of the Arab-Israeli Conflict”, Jerusalem Quarterly, 46, pp. 3-15.

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Through the Four Transformations (see Figure 5 Lederach Model, p. 23) in the frame

of a Track-II dialogue, it is possible to foster arguments for creative solutions and

favor reconciliatory approaches to be undertaken at the higher Track-I negotiating

table, thus enhancing the “bottom-up approach”59 as complementary and not

substitutive of the top-down approach of Track-I60.

3425

                                                                                                               59 Díaz (n. 39 above), p. 9. 60 Multitrack-diplomacy is nonetheless effective only under certain circumstances, of which negotiators’ openness and symmetrical transfer of ideas are essential patterns, as explained in Cuhadar, Esra (2009) “Assessing Transfer from Track Two Diplomacy: The Cases of Water and Jerusalem”, Journal of Peace Research, 46(5), pp. 641-658. Two conditions that are rarely met in the context of the Israeli-Palestinian peace talks.

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Section 3 - Mediation strategy

3.A General approach 3.A.1 Strategic aim The framework for the mediation strategy is meta-conflict resolution61, where parties

are first of all called to share views about the major facets of the conflict. Pro-active

mediation is essential in fostering confidence-building measures in the initial

workshop.

3.A.2 Administrative aim A protracted time frame is functional to the characteristics of this conflict, although

contingent local and regional events always carry the potential of harming the course

of dialogue between parties. Multitrack-diplomacy requires constant flows of

reporting from Track-II and Track-I1/2 to Track-I diplomacy.

3.A.3 Tactical aim The workshop is structured into eight steps, covering the procedural (trust-building)

and substantive (create value and generate options) aspects.

1. Opening

2. Listening

3. Debate

                                                                                                               61 Although prioritization between the psycho-cultural and the structural-equalization approach cause tensions, these may be successfully addressed in meta-conflict resolution by means of a mediation strategy that encompassess all approaches, as explained in Fitzduff, Mari (2004) "Meta- Conflict Resolution" in Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Boulder, CO: Conflict Information Consortium, University of Colorado.

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4. Topic list

5. Values and options

6. Envisageable decisions

7. Outcome reporting

8. Closing

CSE shall engage in full active listening of the concerned parties in order to promote a

respectful and productive environment. Outsider-Neutral mediation62 by CSE is vital

in the context of the non-committal63 Track-II diplomacy.

3.B Behavioral approach Given the rooted grievances between Jewish/Israelis and Arab/Palestinians, and the

constant risk of conflict escalation, the Jerusalem issue is best dealt through

accommodation by means of a combination of innovative approaches to territorial and

value-based disputes64. ZOPAs may be identified in the frame of a discussion about

options (Appendix 7) and currently perceived choices cost-benefit (Appendix 9),

particularly in the context of the contentious issues over the control and legal status of

the Old City.

                                                                                                               62 See Svensson, Isak (2009), “Who Brings Which Peace? Neutral Versus Biased Mediation and Institutional Peace Arrangements in Civil Wars”, Journal of Conflict Resolution, 53(3), pp. 446-469. 63 See for instance Susskind, Lawrence E., Boyd W. Fuller, Michele Ferenz and David Fairman (2003) “Multistakeholder Dialogue at the Global Scale”, International Negotiation, 8, pp. 235-266. 64 Refer for example to Cohen, Shaul and David Frank (2009) “Innovative Approaches to Territorial Disputes: Using Principles of Riparian Conflict Management”, Annals of the Association of American Geographers, 99(5), pp. 948-955.

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Section 4 - Conclusion: For an inclusive dialogue

The degree of complexity of the Jerusalem issue can be appreciated exclusively in the

frame of the larger regional conflict between Israelis and Palestinians/Arabs. As such,

thus, any solution to the local conflict is necessarily embedded into issues related to

wider ethnic, historic, religious, value-based and territorial belongings. Moreover,

mediation in this conflict is inherently multiparty65.

Although not aiming at resolving the conflict over the sovereignty and control of the

city of Jerusalem, this mediation analysis has attempted at presenting a strategy for

trust- and relationship-building between communities, as well as introducing a

modicum for options creation based on the sensitive sub-issues (refer to Appendix 9).

It has to be noted, though, that one crucial attribute of this Track-II dialogue is that it

remains a non-committal process, where parties can explore fresh options for conflict

settlement irrespective of the political burden determined by their own organizations.

Indeed, the Interactive Problem Solving Workshop is consistent to Type I

(“Generating good ideas”) Multistakeholder dialogue (e. g., Chatham House

MSDs)66.

4.A Positive progress: next stages The proceeding order for the Interactive Problem-Solving Workshop is as follows:

MoJ, DPA and CSE; Debate in plenary with attendees (see Participants List, p. 7);

                                                                                                               65 ‘Primary parties’ in the israelo-palestinian conflict are no unitary actors, as each side displays a significant degree of internal opposition. Thus, talks and negotiations on the Jerusalem issue are necessarily multiparty. And they are even more so with the mediation role played by a third party, whereas the mediator shall engage in two bilateral (if limited to the two primary parties) and one multiparty talk. See for example Cump, Larry, Ian A. Glendon (2003) “Towards a Paradigm of Multiparty Negotiation”, International Negotiation, 8, p. 200. 66 Refer to Susskind, Fuller, Ferenz and Fairman (n. 62 above), p. 244.

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DPA, MoJ and CSE; Debate in plenary with attendees. After this first round

comprising four steps is completed, options creation may be envisaged by referring to

the combination of territorial and special status accommodation envisaged in

Appendix 10.

4.B Failed attempts: alternative options In case Track-II dialogue collapses, an alternative method regards power mediation of

the type performed by the United States in usual Track-I diplomacy. Still, the peculiar

nature, attributes and external impact of the conflict over Jerusalem is unlikely to be

resolved without the vital support of a bottom-up67 approach to principled negotiation.

Alternative solutions are portrayed in Appendix 9 (Alternative BATNA Tool).

                                                                                                               67 Refer to Díaz (n. 39 above), p. 9.

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Appendices

1.A Basic Law: Jerusalem, Capital of Israel* (Unofficial translation)

1. Jerusalem, complete and united, is the capital of Israel.

2. Jerusalem is the seat of the President of the State, the Knesset, the Government and the

Supreme Court.

3. The Holy Places shall be protected from desecration and any other violation and from

anything likely to violate the freedom of access of the members of the different religions

to the places sacred to them or their feelings towards those places.

4. (a) The Government shall provide for the development and prosperity of Jerusalem

and the well-being of its inhabitants by allocating special funds, including a special

annual grant to the Municipality of Jerusalem (Capital City Grant) with the approval of

the Finance Committee of the Knesset.

(b) Jerusalem shall be given special priority in the activities of the authorities of the State

so as to further its development in economic and other matters.

(c) The Government shall set up a special body or special bodies for the implementation

of this section.

5. The jurisdiction of Jerusalem includes, as pertaining to this basic law, among others,

all of the area that is described in the appendix of the proclamation expanding the borders

of municipal Jerusalem beginning the 20th of Sivan 5727 (June 28, 1967), as was given

according to the Cities' Ordinance.

6. No authority that is stipulated in the law of the State of Israel or of the Jerusalem

Municipality may be transfered either permanently or for an allotted period of time to a

foreign body, whether political, governmental or to any other similar type of foreign

body.

7. Clauses 5 and 6 shall not be modified except by a Basic Law passed by a majority of

the members of the Knesset.

MENAHEM BEGIN

Prime Minister

YITZCHAK NAVON President of the State

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* Passed by the Knesset on the 17th Av, 5740 (30th July, 1980) and published in Sefer Ha-Chukkim No. 980 of the 23rd Av, 5740 (5th August, 1980), p. 186; the Bill and an Explanatory Note were published in Hatza'ot Chok No. 1464 of 5740, p. 287. Amendment no. 1 was passed by the Knesset on the 29th Heshvan 5761 (27th November 2000) and published in Sefer Ha-Chukkim No. 5762, p. 28.

1.B UNSC Resolution 476

Adopted by the Security Council at its 2242nd meeting

on 30 June 1980

The Security Council,

Having considered the letter of 28 May 1980 from the representative of Pakistan, the current

Chairman of the Organization of the Islamic Conference, as contained in document S/13966

of 28 May 1980,

Reaffirming that acquisition of territory by force is inadmissible,

Bearing in mind the specific status of Jerusalem and, in particular, the need for protection and

preservation of the unique spiritual and religious dimension of the Holy Places in the city,

Reaffirming its resolutions relevant to the character and status of the Holy City of Jerusalem,

in particular resolutions 252 (1968) of 21 May 1968, 267 (1969) of 3 July 1969, 271 (1969)

of 15 September 1969, 298 (1971) of 25 September 1971 and 465 (1980) of 1 March 1980,

Recalling the Fourth Geneva Convention of 12 August 1949 relative to the Protection of

Civilian Persons in Time of War,

Deploring the persistence of Israel, in changing the physical character, demographic

composition, institutional structure and the status of the Holy City of Jerusalem,

Gravely concerned over the legislative steps initiated in the Israeli Knesset with the aim of

changing the character and status of the Holy City of Jerusalem,

1. Reaffirms the overriding necessity to end the prolonged occupation of Arab territories

occupied by Israel since 1967, including Jerusalem;

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2. Strongly deplores the continued refusal of Israel, the occupying Power, to comply with the

relevant resolutions of the Security Council and the General Assembly;

3. Reconfirms that all legislative and administrative measures and actions taken by Israel, the

occupying Power, which purport to alter the character and status of the Holy City of

Jerusalem have no legal validity and constitute a flagrant violation of the Fourth Geneva

Convention relative to the Protection of Civilian Persons in Time of War and also constitute a

serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;

4. Reiterates that all such measures which have altered the geographic, demographic and

historical character and status of the Holy City of Jerusalem are null and void and must be

rescinded in compliance with the relevant resolutions of the Security Council;

5. Urgently calls on Israel, the occupying Power, to abide by this and previous Security

Council resolutions and to desist forthwith from persisting in the policy and measures

affecting the character and status of the Holy city of Jerusalem;

6. Reaffirms its determination in the event of non-compliance by Israel with this resolution, to

examine practical ways and means in accordance with relevant provisions of the Charter of

the United Nations to secure the full implementation of this resolution.

1.C UNSC Resolution 478

of 20 August 1980

The Security Council,

Recalling its resolution 476 (1980),

Reaffirming again that the acquisition of territory by force is inadmissible,

Deeply concerned over the enactment of a "basic law" in the Israeli Knesset proclaiming a

change in the character and status of the Holy City of Jerusalem, with its implications for

peace and security,

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Noting that Israel has not complied with resolution 476 (1980),

Reaffirming its determination to examine practical ways and means, in accordance with the

relevant provisions of the Charter of the United Nations, to secure the full implementation of

its resolution 476 (1980), in the event of non-compliance by Israel,

1. Censures in the strongest terms the enactment by Israel of the "basic law" on Jerusalem and

the refusal to comply with relevant Security Council resolutions;

2. Affirms that the enactment of the "basic law" by Israel constitutes a violation of

international law and does not affect the continued application of the Geneva Convention

relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, in the

Palestinian and other Arab territories occupied since June 1967, including Jerusalem;

3. Determines that all legislative and administrative measures and actions taken by Israel, the

occupying Power, which have altered or purport to alter the character and status of the Holy

City of Jerusalem, and in particular the recent "basic law" on Jerusalem, are null and void and

must be rescinded forthwith;

4. Affirms also that this action constitutes a serious obstruction to achieving a comprehensive,

just and lasting peace in the Middle East;

5. Decides not to recognize the "basic law" and such other actions by Israel that, as a result of

this law, seek to alter the character and status of Jerusalem and calls upon:

(a) All Member States to accept this decision;

(b) Those States that have established diplomatic missions at Jerusalem to withdraw such

missions from the Holy City;

6. Requests the Secretary-General to report to the Security Council on the implementation of

the present resolution before 15 November 1980;

7. Decides to remain seized of this serious situation.

Adopted at the 2245th meeting by 14 votes to none, with 1 abstention (United States of

America)