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“TRUMP’S DEAL OF THE CENTURY” – LEGAL INCOMPETENCE OR POLITICAL GENIUS?

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Legal incompetence or diplomatic genius? This dilemma arises analysing in detail Section Five (devoted to Jerusalem) of the Deal of the century officially launched by US President Donald Trump on January 28, 2020 under the name of “Peace to Prosperity”. A Vision to Improve the Lives of the Palestinian and Israeli People”. Are the contradictions in the text a result of the legal advisers’ ignorance at the White House or, on the contrary, of the Trump’s diplomats’ intentional negotiating approach based on constructive ambiguity?

US President Trump has unveiled his long-awaited peace plan for the Middle East, alongside Israeli Prime Minister Benjamin Netanyahu.

Constructive ambiguity is an expression generally attributed to Henry Kissinger, referring to the deliberate use of ambiguous language on a sensitive issue in order to advance some political purpose, employed in a negotiation to disguise an inability to resolve a contentious issue on which the parties remain far apart, while enabling each to claim obtaining some concession.

The first paragraph, titled “Religious Aspects of the Jerusalem Issue, of the aforementioned Section Five of the text, recalls that “Under the Ottoman Empire, Christians were granted legal rights to their holy sites by successive firmans in the 18th and 19th centuries, establishing the Christian Status Quo, which was re-affirmed in the 1993 Vatican-Israel Fundamental Agreement.” 

Yet, a number of questions arise. It is quite bizarre that the text’s drafters did not mention also the much more relevant international obligation included in the treaty that the same Ottoman Empire stipulated with “Great Britain, Germany, Austria, France, Italy, Russia” in 1878. Following Article LXII of the Berlin Treaty “[…] it is well understood that no alterations can be made in the status quo in the Holy Places.” An accurate examination of this historical international treaty could spare the visionary drafters of Trump’s text the simple question: did they actually mean the Status Quoin the Holy Places (both terms capitalised)? Or to a brand new, still undefined, arrangement applying to the “legal rights” – and not to the “illegal rights”: God forbids! – granted to Christians at “their holy sites” (lower case), which includes all religious buildings in the area? To be honest, this quoted first paragraph on Jerusalem looks closer to a perfect recipe for legal, and therefore ppolitical-religious chaos, than a masterpiece of constructive ambiguity. In this respect, the worrying confusion between the Vatican and the Holy See in the Deal of the century raise doubts about how the qualified Trump’s drafters can grasp the complexity of the issue. 

And did the Trump’s drafters intentionally omitted, as a misunderstood artifice of their super smart diplomatic tactic, the most recent international treaty mentioning the Status Quo in the Holy Places (capitalised), namely the Basic Agreement between the Holy See and the PLO of May 2000? Or this negligence is a fruit of mere ignorance, and lack of professional expertise? 

Reading carefully the following paragraph of the said Section Five, titled “JERUSALEM’S HOLY SITES” (all capitalised), similar questions arise: “the State of Israel is to be commended for safeguarding the religious sites of all and maintaining a religious status quo.” This sentence could rightly deserve the award for the most constructive ambiguity in history.

Do such “religious sites” include all the religious buildings in the region, or only the Holy Places (capitalised) under the Status Quo? As to the “religious status quo”, here the Latin expression is inexplicably lower case: is this a reference to a legal regime different from the Status Quo (capitalised) previously mentioned in the aforementioned first paragraph of Section Five? Was perhaps reference made here at the broader State/Church cultural-religious status quo (lower case) mentioned in the famous – though hardly anyone read it in detail – Partition Resolution 181 (II) adopted by the UN General Assembly on November 29, 1947, entrusting for its protection the Corpus Separatum be set up in Jerusalem and its surroundings, including Bethlehem?

Bethlehem

Last (but not least) question regarding the hermeneutical analysis of Section Five, devoted to Jerusalem in Trump’s Deal of the century. What is the meaning of the term Jerusalem, especially in these legal and geographical semantic contexts?

What is the meaning of the term Jerusalem, especially in these legal and geographical semantic contexts?

The magical text’s answer seems to be quite clear and sharp, in its terminology: “The approach of this Vision is to keep Jerusalem united”. Yet, the same visionary text a bit further adds that “The President also made clear that the specific boundaries of Israeli sovereignty in Jerusalem would be subject to final status negotiations between the parties.” Hence, Jerusalem is to keep united, or the parties are completely free to determine their boundaries in the final status negotiations, including its possible physical division? 

Additionally, what is the meaning in this context of the polysemic and misleading term sovereignty? In international law, here this term cannot mean title (to territory) because this will be object of negotiations, nor independence since both the State of Israel and the PLO/future State of Palestine are independent subjects of international law. By exclusion, if sovereignty refers here to its third meaning, namely (terrorial, functional, and personal) jurisdiction,  meaning governmental power, why not to adopt in the visionary Trump’s text this clearer term, following the Oslo Accords’ model?

Additionally, Trump’s historical proposal includes the following catch-22 sentence: “Jerusalem will remain the sovereign capital of the State of Israel, and it should remain an undivided city. The sovereign capital of the State of Palestine should be in the section of East Jerusalem located in all areas east and north of the existing security barrier, including Kafr Aqab, the eastern part of Shuafat and Abu Dis, and could be named Al Quds or another name as determined by the State of Palestine.”

Besides Trump’s generous suggestion to the Palestinians about the name (Al Quds) for the Capital City of their future State, how can ever “East Jerusalem” remain a part of an “undivided city”, while at the same time be separated by a “security barrier”, and labeled with a new alternative name “as determined by the State of Palestine”? 

History will determine whether the drafters selected to write Trump’s visionary text will facilitate a successful peace treaty between the conflicting parties of this tragic seven-decades old conflict.

One wonders whether in the meantime the US President may consult also different experts who could suggest a clearer terminology for the peace negotiations, limiting the risk to add to the political and diplomatic turmoil a new war on words. 

Annex: Sections of the Trump’s text related to Jerusalem and its Holy Places

PEACE TO PROSPERITY

JANUARY 2020° A Vision to Improve the Lives of the Palestinian and Israeli People

PART A

POLITICAL FRAMEWORK

CONTENTS

GLOSSARY | 1 

SECTION ONE: INTRODUCTION | 2 Background Oslo Realistic Two-State Solution

SECTION TWO: THE APPROACH | 5 Overview of United Nations Efforts Current Realities Legitimate Aspirations of the Parties  The Primacy of Security  The Question of Territory, Self-Determination and Sovereignty  Refugees  Jerusalem The Problem of Gaza  International Assistance

SECTION THREE: A VISION FOR PEACE BETWEEN THE STATE OF ISRAEL, THE PALESTINIANS AND THE REGION | 10

SECTION FOUR: BORDERS | 11 

SECTION FIVE: JERUSALEM | 14 Religious Aspects of the Jerusalem Issue Jerusalem’s Holy Sites  Political Status of Jerusalem  Tourism matters relating to the Old City of Jerusalem

SECTION SIX: THE TRUMP ECONOMIC PLAN | 19 

SECTION SEVEN: SECURITY | 21 

SECTION EIGHT: CROSSINGS | 24 

SECTION NINE: GAZA CRITERIA | 25 

SECTION TEN: FREE TRADE ZONE | 26 

SECTION ELEVEN: TRADE AGREEMENT WITH THE UNITED STATES | 2

SECTION TWO 

THE APPROACH

JERUSALEM 

Jerusalem is holy to multiple faiths and has religious significance for much of humanity. The issue of Jerusalem’s holy sites, particularly the Temple Mount/Haram al-Sharif should be treated with the utmost   sensitivity.   The State of Israel has been a good custodian of Jerusalem. During Israel’s stewardship, it has kept Jerusalem open and secure.  Jerusalem should be a city that unites people and should always remain open to worshippers of all religions.

Jerusalem is holy to multiple faiths and has religious significance for much of humanity.

SECTION FIVE

JERUSALEM

The United States recognizes the heightened sensitivity surrounding Jerusalem, a city that means so much to so many. Jerusalem is a city unique in the history of civilization. No other place on earth can claim significance to three major religions. 

Each day, Jews pray at the Western Wall, Muslims bow in prayer at the al-Aqsa Mosque and Christians worship at the Church of the Holy Sepulchre. 

Throughout history, Jerusalem has been subject to war and conquest. It has been used to divide people and to instigate conflict by those with evil intentions. But it does not have to be this way. Jerusalem must remain a city that brings people of all faiths together to visit, to worship, to respect each other and to appreciate the majesty of history and the glory of God’s creation. The approach of this Vision is to keep Jerusalem united, make it accessible to all and to acknowledge its holiness to all in a manner that is respectful to all.

Muslim Prayer

RELIGIOUS ASPECTS OF THE JERUSALEM ISSUE

We understand that theological interpretations differ within each religion. The descriptions below of Judaism, Christianity, and Islam are not intended to be definitive theological interpretations. It is nevertheless clear that each of these three great faiths has its own connection to Jerusalem.

For Judaism,Jerusalem is where Mount Moriah is located. According to Jewish tradition, it was there that Abraham nearly sacrificed his son, Isaac, until God intervened. Centuries later, Jerusalem became the political center of the Jewish people when King David united the twelve tribes of Israel, making the city the capital and spiritual center of the Jewish people, which it has remained for nearly 3,000 years. 

King David’s son, King Solomon, built the First Temple on Mount Moriah. According to Jewish tradition, inside the Temple, within the Holy of Holies, were stored the original Ten Commandments, revealed by God to Moses at Mount Sinai. 

The First Temple was destroyed by the Babylonians in 586 B.C. The Second Temple was built atop the same mountain and stood until it was destroyed by the Romans in 70 A.D. However, Jerusalem never lost its holiness to the Jewish People: It remains the direction to which Jews throughout the world turn in prayer and the destination of Jewish pilgrimage. Every year, on the 9th day of the Jewish month of Av, Jews fast, mourn and commemorate the destruction of the two Temples. Although Jews pray today at the Western Wall, which was a retaining wall of the Second Temple, the Temple Mount itself is the holiest site in Judaism. There are nearly 700 separate references to Jerusalem in the Hebrew Bible. For 100 generations the hopes and dreams of the Jewish people have been encapsulated by the words “Next Year in Jerusalem.”  

Jews pray at the Western Wall

For Christianity, Jerusalem is where Jesus of Nazareth preached, was tried, crucified, resurrected, and ascended to Heaven. Immediately after the recognition of Christianity as the official religion of the Roman Empire by Constantine in the early 4th century, religious institutions were established at important sites such as the Church of the Holy Sepulchre and the Mount of Olives.

 After the Islamic conquest of Jerusalem in 637, Christians longed to recover the holy city, which they finally achieved in 1099, although it was lost to them again in 1187. 

During the medieval period, Jerusalem remained the premier Christian pilgrimage site, and a steady stream of visitors followed the footsteps of Jesus through Jerusalem, despite the dangers and challenges inherent in such travel. Under the Ottoman Empire, Christians were granted legal rights to their holy sites by successive firmans in the 18th and 19th centuries, establishing the Christian “Status Quo,” which was re-affirmed in the 1993 Vatican-Israel Fundamental Agreement. Today, Jerusalem is home to more than a dozen Christian sects and a thriving Christian population.

Church of the Nativity birth place of Jesus Christ Bethlehem near Jerusalem Israel

For Islam, Jerusalem acquires prominence as stated in the Holy Koran: “Glory to Him who made His Servant go by night from the Sacred Mosque (al-Masjid al-Haram) to the Farthest Mosque (al-Masjid al-Aqsa) whose surroundings We have blessed, that We might show him some of Our signs.” According to Islamic tradition, the verse refers to the Prophet Muhammad’s nocturnal journey from Mecca to Jerusalem (al-Isra’); he arrives at the area of the Temple Mount/Haram al-Sharif, where he ascends to Heaven (al-Mi’raj), to meet the earlier prophets and receive the commandment of prayer. In early Islam, when Muhammad had taken his followers from Mecca to Medina, he established Jerusalem as the direction of Islamic prayer (the first Qiblah) before later changing the direction of prayer to Mecca. 

There have been Muslim rulers who also emphasized the religious importance of Jerusalem. The Ummayad Caliphate, based in Damascus, offered Jerusalem as an alternative place of pilgrimage when Mecca was controlled by a rival caliphate. The victory of Saladin over the Crusaders in 1187 led to a revival of Islamic interest in Jerusalem, and in 1517, Sultan Suleiman the Magnificent rebuilt its walls and religious sites. Today, it is widely considered the third holiest site in Islam.

In Arabic, Jerusalum is called “Al-Quds”—the Noble, Sacred Place

JERUSALEM’S HOLY SITES

After the Six Day War in 1967, when the State of Israel took control over all of Jerusalem, the State of Israel assumed responsibility for protecting all of the city’s holy sites.

Those holy sites include, without limitation, the Temple Mount/Haram al-Sharif, the Western Wall,  the Muslim Holy Shrines, Church of St. Anne, Via Dolorosa (Stations of the Cross), Church of the Holy Sepulchre, Church of Viri Galilaei, Church of St. Stephen, Dormition Abbey, Tomb of the Virgin Mary, Room of the Last Supper, Augusta Victoria Church of Ascension, Garden of Gethsemane, Church of Mary Magdalene,  Dominus Flevit Church, Pater Noster Church, Church of St. Peter in Gallicantu, Church of the Ascension, The Russian Church, Secours Catholique ‘House of Abraham,’ Mount Scopus, Hurva Synagogue, Tomb of Absalom, Tomb of Zechariah, Second Temple Pilgrimage Road, Tomb of the Prophets Haggai, Zechariah and Malachi, Gihon Spring, City of David, Mount of Olives, Sambuski Jewish Cemetery, and the Pool of Siloam.

Unlike many previous powers that had ruled Jerusalem, and had destroyed the holy sites of other faiths, the State of Israel is to be commended for safeguarding the religious sites of all and maintaining a religious status quo. Given this commendable record for more than half a century, as well as the extreme sensitivity regarding some of Jerusalem’s holy sites, we believe that this practice should remain, and that all of Jerusalem’s holy sites should be subject to the same governance regimes that exist today.

In particular the status quo at the Temple Mount/Haram al-Sharif should continue uninterrupted. Jerusalem’s holy sites should remain open and available for peaceful worshippers and tourists of all faiths. People of every faith should be permitted to pray on the Temple Mount/Haram al-Sharif, in a manner that is fully respectful to their religion, taking into account the times of each religion’s prayers and holidays, as well as other religious factors.

Christian pilgrims

POLITICAL STATUS OF JERUSALEM

One of the most complicated issues in achieving peace is resolving the question of the political status of Jerusalem. Prior to 1967, a divided Jerusalem was a source of great tension in the region, with Jordanian and Israeli forces separated by barbed wire and Israeli residents of Jerusalem endangered by sniper fire. 

 A division of Jerusalem would be inconsistent with the policy statements of the Jerusalem Embassy Act of 1995 of the United States. All former presidents who have been involved in the peace process have agreed that Jerusalem should not be physically divided again. 

On December 6, 2017, on behalf of the United States of America, President Trump recognized Jerusalem as Israel’s capital. The President also made clear that the specific boundaries of Israeli sovereignty in Jerusalem would be subject to final status negotiations between the parties. We believe that returning to a divided Jerusalem, and in particular having two separate security forces in one of the most sensitive areas on earth, would be a grave mistake. While a physical division of the city must be avoided, a security barrier currently exists that does not follow the municipal boundary and that already separates Arab neighbourhoods (i.e., Kafr Aqab, and the eastern part of Shuafat) in Jerusalem from the rest of the neighbourhoods in the city. 

This physical barrier should remain in place and should serve as a border between the capitals of the two parties. Jerusalem will remain the sovereign capital of the State of Israel, and it should remain an undivided city. The sovereign capital of the State of Palestine should be in the section of East Jerusalem located in all areas east and north of the existing security barrier, including Kafr Aqab, the eastern part of Shuafat and Abu Dis, and could be named Al Quds or another name as determined by the State of Palestine. 

This Vision would allow the Arab residents of Israel’s capital, Jerusalem, beyond the 1949 armistice lines but inside the existing security barrier to choose one of three options:      Become citizens of the State of Israel        Become citizens of the State of Palestine       Retain their status as permanent residents in Israel. Over the years, some Arab residents of these areas (approximately 6%) have chosen to become Israeli citizens, and that option should remain available to Arab residents of these areas in the future. Other Arab residents of these areas may want to embrace a Palestinian political identity by choosing to become citizens of the State of Palestine, and that option should be available to them as well. Many of the Arab residents of these areas may want to maintain a political identity that is separate from either Israel or Palestine, and which allows them to take pride in their unique identity and history. 

That option should remain available to them.

President Trump officially recognized Jerusalem as the capital of Israel.

A PRIVILEGES, BENEFITS AND OBLIGATIONS The privileges, benefits and obligations of Arab residents of these areas who choose to keep their status as permanent residents of Israel should remain the same. 

The privileges, benefits and obligations of Arab residents of these areas who choose to become citizens of Palestine will be determined by the laws of the State of Palestine and the State of Israel, as applicable. 

The residents of these areas who choose to become citizens of the State of Israel will have all the privileges, benefits and obligations of being citizens of the State of Israel. Residents of these areas, who today are citizens of Israel, will maintain the same privileges, benefits and obligations that they have today.

SPECIAL TOURIST AREA The State of Israel should allow for the development by the State of Palestine of a special tourism zone in Atarot, in a specific area to be agreed upon by the parties. We envision that this area should be a world class tourist zone that should support Muslim tourism to Jerusalem and its holy sites. 

We envision that this zone will become a thriving and vibrant tourism center that includes state-of-the-art public transportation that provides easy access to and from the holy sites. To support this new development, the economic development program will identify financing for the construction of restaurants, shops, hotels, cultural centers, and other tourism facilities within this zone. 

Fast-track accessibility to the Muslim Holy Shrines should be developed and maintained. The specific details of this area, including, without limitation, taxation, and zoning should be negotiated between the parties. 

TOURISM MATTERS RELATING TO THE OLD CITY OF JERUSALEM Without derogating the State of Israel’s sovereignty, during the negotiation of the Israeli-Palestinian Peace Agreement, and subject to the State of Israel’s security requirements, the parties shall:  Negotiate a mechanism by which licenses shall be provided to Palestinian tour guides to operate tours in the Old City of Jerusalem as well as at sites sacred to Christianity and Islam in other areas of Jerusalem; Establish a Jerusalem-Al Quds Joint Tourism Development Authority (the “JTDA”).

The JTDA will work to promote   Jewish, Muslim and Christian tourism in both the State of Israel and the State of Palestine. Israel will establish a mechanism whereby part of the tax revenues from the increased tourism in the Old City of Jerusalem will be allocated to the JTDA for further reinvestment for tourism in the Old City of Jerusalem. The JTDA will also work with the Hashemite Kingdom of Jordan to promote regional tourism.

RECOGNITION OF CAPITALS Jerusalem should be internationally recognized as the capital of the State of Israel. Al Quds (or another name selected by the State of Palestine) should be internationally recognized as the capital of the State of Palestine. Neither party shall encourage or support efforts by other countries or persons to deny the legitimacy of the other party’s capital or its sovereignty. The mayors for each capital city will establish mechanisms for regular consultation and voluntary cooperation on matters of significance to the two capitals. 

The embassy of the United States to the State of Israel will remain in Jerusalem. Following the signing of the Israeli-Palestinian Peace Agreement, the embassy of the United States to the State of Palestine will be in Al Quds at a location to be chosen by the United States, in agreement with the State of Palestine. 

The United States will recognize the State of Israel and the State of Palestine in their respective capitals and encourage other nations to relocate their embassies to Jerusalem and Al Quds, as applicable.

Enrico Molinaro, Ph.D.

Multi-disciplinary lecturer in Italian English French Spanish Hebrew. Founder and chairman of Mediterranean Perspectives. Secretary General of the Italian Network for Euro-Mediterranean Dialogue (RIDE-APS: ride.mediper.eu), Head of the Anna Lindh Foundation Network in Italy.