On the 30th anniversary of the Oslo Accords, it is appropriate to reflect on some of the central legal issues surrounding the agreements. Several fundamental legal factors underscore any serious consideration and analysis of these issues, as well as any prognosis as to the Accords’ future success.
The negotiation and signing of the Oslo Accords followed a series of international instruments that called for the negotiation of peace between all the parties in the Middle East, including U.N. Security Council Resolutions 242 (1967) and 338 (1973).
On the strength of these instruments, the various parties negotiated the Camp David Accords (1978) as well as the respective peace treaties between Israel and Egypt (1979), Israel and Jordan (1994) and the draft peace treaty between Israel and Lebanon (1983), which, due to Syrian blockage, was never ratified by the Lebanese parliament.
Perhaps the most important and symbolic instrument in the Israeli-Palestinian relationship was the historic Sept. 9, 1993 exchange of letters between Israel’s Prime Minister Yitzhak Rabin and PLO leader Yasser Arafat.
These letters contained mutual declarations of recognition, reciprocal commitments to negotiate peace and Palestinian statements that “all outstanding issues relating to the permanent status will be resolved through negotiations” and “the PLO renounces the use of terrorism and other acts of violence.”
The Accords constitute the sole valid source of legal authority regarding the relationship between Israel and the Palestinians. They are the only authoritative legal source of authority for the very existence of the Palestinian Authority, as well as its governing institutions, presidency, police, security authorities, ministerial functioning, powers and responsibilities, and relationship with the international community.
Pending the outcome of negotiations on the permanent status of the disputed territories, the Oslo Accords remain the only valid, agreed, legal source of authority for the division of control, powers and responsibilities between the Palestinians and Israel over various parts of the territories.
The parties agreed that the P.A. would be the administering agency with powers, responsibilities and jurisdiction over the highly populated Palestinian towns and villages under its control (Areas A and B). The parties also agreed that Israel exercises governing powers, responsibilities and jurisdiction over the sparsely populated Area C, where Israel’s settlements and security installations are located.
No other legal or normative framework, whether through international conventions, declarations or U.N. resolutions, has replaced, nor can they replace, the agreed-upon, still-valid legal framework of the Oslo Accords.
As such, the Palestinians have entirely accepted and agreed that pending the outcome of permanent status negotiations, Israel has full authority and jurisdiction over Area C. Thus, Palestinian attempts, whether in the U.N. General Assembly or through international judicial bodies, to achieve international acknowledgment that Israel is an “occupying power” and the legal status of territories is that of “belligerent occupation” are legally flawed and substantively wrong.
In the same way, since the permanent status of the territories is an agreed negotiating item between the parties pursuant to the Accords and pending the outcome of such negotiations, the Palestinians are stopped from claiming that the territories are Palestinian.
The P.A.’s attempts to make such claims therefore directly contradict the Palestinian obligations and commitments pursuant to the Oslo Accords.
Moreover, they undermine the commitments of the Palestinian leadership, including Arafat in his letter to Rabin, to resolve all outstanding issues through negotiation.
They further undermine the solemn Palestinian obligation in Final Clause Article XIII (7) of the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo 2) not to “initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.”
The Oslo Accords make no mention of the projected outcome of permanent status negotiations. Despite somewhat naïve wishful thinking by leading elements and groups in Europe and the U.S. administration, they make no mention whatsoever of a “two-state solution.” On the contrary, nothing in the Accords precludes an outcome of the negotiations leading to one, two or three states; or a federation, confederation or condominium.
As such, the Palestinians are stopped from making the claim that they are a sovereign state. In making this false claim and pursuing it in international bodies, they prejudge the outcome of ongoing negotiations. This is clearly contrary to the foundations of the Oslo Accords.
The Oslo Accords also make no predetermination as to the outcome of negotiations on Israeli settlements nor on the settlements’ legality. On the contrary, the Accords grant each party the power and authority to engage in planning, zoning and construction in the areas under its respective jurisdictions.
Since there exists no prohibition on settlements in the Oslo Accords, and since settlements are an agreed negotiating issue, the continuing Palestinian campaign in the international community to have settlements declared illegal runs against the spirit and word of the Oslo Accords.
The Accords make no reference whatsoever to the outcome of negotiations on the issue of Jerusalem or the historical status quo regarding holy sites.
Claims and declarations by the Palestinian and Jordanian leadership, as well as by leaders in the international community, that attempt to predetermine the outcome of negotiations on the Jerusalem issue, and especially regarding the “status quo” on the Temple Mount, are clearly incompatible with the terms of the Oslo Accords and their witnessing states.
The issue of borders is another agreed permanent status issue. It cannot be prejudged by incorrect, empty declarations and expressions of wishful thinking by Palestinian and international leaders calling for a “return to the 1967 borders.”
In fact, no such borders ever existed. The pre-1967 separation between Israel and the disputed territories was the “Armistice Demarcation Line” established in the 1949 Armistice Agreements between Israel and Egypt, Syria, Lebanon and Jordan.
In referring to the legal status of the Armistice Demarcation Line, these agreements clearly stated, at the insistence of the Arab states, that they were not permanent borders.
Both the Egyptian-Israeli agreement, in its Article V, and the Jordanian-Israeli agreement, in its Article VI, stated that the Armistice Demarcation Line is “not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question.”
The call for negotiation of international borders emanates from U.N. Security Council Resolution 242 (1967), which, in acknowledging that permanent borders never existed between the parties, called inter alia for “Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.”
Moreover, the P.A.’s continuing rhetorical and financial support for terror violates Palestinian commitments under Oslo. Article XV of the 1995 Israeli-Palestinian Interim Agreement (Oslo 2), entitled “Prevention of Hostile Acts,” states: “Both sides shall take all measures necessary in order to prevent acts of terrorism, crime and hostilities directed against each other, against individuals falling under the other’s authority and against their property, and shall take legal measures against offenders.”
Incitement violates Article XXII of that agreement, entitled “Relations between Israel and the Council,” according to which the parties undertook to “foster mutual understanding and tolerance and abstain from incitement, including hostile propaganda” and to “take legal measures to prevent such incitement by any organizations, groups or individuals within their jurisdiction.”
The signatories also undertook to ensure that their respective educational systems “contribute to the peace between the Israeli and Palestinian peoples and to peace in the entire region, and will refrain from the introduction of any motifs that could adversely affect the process of reconciliation.”
In Annex V of the agreement entitled “Protocol on Economic Relations,” reproduced from the earlier Gaza-Jericho Agreement (1994), the parties declared:
The two parties view the economic domain as one of the cornerstones in their mutual relations with a view to enhance their interest in the achievement of a just, lasting and comprehensive peace. Both parties shall cooperate in this field in order to establish a sound economic base for these relations, which will be governed in various economic spheres by the principles of mutual respect of each other’s economic interests, reciprocity, equity and fairness.
Clearly, Palestinian sponsorship, support and encouragement of the BDS campaign, as well as the support and passive encouragement given to that campaign by European and other states and organizations, openly and blatantly undermine Palestinian obligations under the Oslo Accords as well as those commitments by states that are witnesses to the Accords.
Resuming Israeli-Palestinian negotiations and reaching a permanent status agreement remains a distant and unlikely hope.
The Palestinians’ fundamental violations of the Oslo Accords, their ongoing actions in the international community to obstruct the operation of the Accords and their undermining and prejudicing of the integrity of the Accords, place before Israel several internationally recognized legal options rooted in customary international treaty practice that deal with fundamental violations and frustration of treaties.
However, despite such options, Israel has repeatedly called upon the Palestinian leadership to unite and resume bona fide negotiations.
In considering possible actions to bring about such a return, serious efforts should be made by the government of Israel and by the U.S.
They should urge the international witnesses to the Accords not to turn a blind eye and passively encourage the Palestinians to violate the Accords and to take a more active and involved function in encouraging the Palestinian leadership to fulfill their commitments.
They should also urge the international witnesses not to initiate, sponsor or support actions, including resolutions and declarations in international organizations, that serve to undermine the Accords.
In the same context, the witnesses, most of whom are parties to the Rome Statute of the International Criminal Court, should be urged to actively dissuade the Palestinian leadership from its preoccupation with referring vexatious, politically-generated complaints to the ICC, thereby harming and politicizing that court.
The international witnesses should be urged to encourage the Palestinian leadership not to complain to international bodies and initiate political resolutions in international bodies, but rather act within the existing dispute-resolution mechanisms agreed to in the Accords.
According to the Accords, Israel has discretionary rights inter alia to withhold VIP privileges, limit right of passage and withhold monies. Such discretionary rights should be used as leverage and quid pro quo in order to bring the Palestinian leadership back into a mode of active cooperation and implementation of its obligations.
It remains to be seen if a responsible and unified Palestinian leadership will materialize and be capable of or willing to take up this call before it is too late.
It also remains to be seen if the members of the international community, international organizations and especially those European and other states that consistently, unjustly and illogically seek to find fault with Israel, will eventually realize that to advance the peace process, they must cease supporting and encouraging Palestinian violations. They must demand Palestinian accountability and call upon the Palestinian leadership to abide by its commitments under the Oslo Accords.
Originally published by the Jerusalem Center for Public Affairs.
