In approaching the thirtieth anniversary of the Oslo Accords and in light of the unique and complex relationship between the Palestinians and Israel, it is appropriate to reflect on some of the central legal issues concerning validity, accountability, and compliance with the Accords. Such issues enable or impede progress toward achieving the basic aims of the Accords – peaceful and fruitful good-neighborly relations between the Palestinians and Israel through a permanent settlement of the status of the territories and resolution of the major issues between them.

Several fundamental legal factors underscore any serious consideration and analysis of the nature of the relationship and are essential for any prognosis as to chances for its future success.

1. Background

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 area, including UN Security Council Resolutions 242 (1967)¹ adopted after the 1967 “Six-Day War” and 338 (1973)² adopted after the 1973 “Yom Kippur War.”

On the strength of these instruments, the various parties negotiated the Camp David Accords (1978)³ as well as the respective peace treaties between Israel and Egypt (1979)⁴, Israel and Jordan (1994),⁵ and the draft peace treaty between Israel and Lebanon (1983) which, due to Syrian blockage, was never ratified by the Lebanese parliament.⁶

Perhaps the most important and symbolic instrument within the Israeli-Palestinian relationship reflecting the desire and obligations of the parties within the Oslo peace process was the historic exchange of letters between Israel’s Prime Minister Rabin and the PLO’s Chairman Arafat, dated September 9, 1993.

This exchange, which carries no time limit on its validity, contains mutual declarations of recognition, reciprocal commitments to negotiate peace, and Palestinian declarations 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.”⁷

The Oslo Accords materialized following negotiations in Madrid, Washington D.C., and Oslo between Israel and its neighbors, including the PLO, between 1991-3, covering both bilateral and multilateral tracks that also involved the international community.⁸

The negotiation and signing of the Oslo Accords, in addition to their serious substantive content, signaled a high level of mutual trust, reciprocal respect, and good faith that had developed between the parties through years of intimate negotiation. It also signaled the hope and expectation that such mutual trust and good faith would permeate the future relations between them and their respective populations during the course of the implementation of the Accords.

2. Validity of the Oslo Accords

The Oslo Accords constitute the sole valid source of legal authority for the relationship between Israel and the Palestinians. They are the only authoritative legal source of authority for the very existence of the Palestinian autonomous body established by agreement between the PLO and Israel to implement the Accords in the areas under Palestinian control – the Palestinian Authority (PA).

The Accords also represent the agreed and sole source of authority and legal framework for the functioning of the PA’s governing institutions, its presidency, police, security authorities, all ministerial functioning, powers and responsibilities, as well as regulating its external relationship with the international community.

The documents comprising the Oslo Accords, while not constituting the classical and accepted international agreement between two states, as defined in the 1969 Vienna Convention on the Law of Treaties,⁹ are nevertheless considered a significant international document. Accordingly, they are countersigned and witnessed by the United States, the Russian Federation, the European Union, Egypt, and Norway and subsequently endorsed by the UN in several resolutions.

Signatures as witness and international endorsement of agreements are recognized in international practice as a political commitment by such witnesses not to undermine or encourage violation of the agreements to which they are witness.¹⁰

In this context, it is expected that the international witnesses to the Oslo Accords will indeed act to encourage Palestinian observation of their commitments under the Accords, as well as a return to the negotiating table to complete the negotiation of the permanent status agreement and thereby achieve a negotiated, peaceful resolution of the Israeli-Palestinian dispute.

To this end, they are expected to refrain from undermining and prejudicing the Accords through unilateral and third-party initiatives and actions and from initiatives and attempts to impose a solution that seeks to bypass the agreed-upon negotiations.

3. Legal Status of the Territories

Pending the outcome of negotiations on the permanent status of the 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.

By this division, the parties agreed that the PA would be the administering agency with powers, responsibilities, and jurisdiction over those 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 UN 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. Accordingly, Palestinian attempts, whether in the UN General Assembly or through the international judicial bodies, to achieve some international acknowledgment that Israel is an “occupying power” and that the legal status of territories is that of “belligerent occupation,” are legally flawed and substantively wrong.

Since Israel’s presence in the territories was agreed to by the Palestinians in the Oslo Accords, they are stopped from making any claim that the territories are occupied. By the same token, 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 negotiation, the Palestinians are estopped from claiming that the territories are Palestinian territory.

Such attempts fundamentally and directly contradict the Palestinian obligations and commitments pursuant to the Oslo Accords.

Similarly, all Palestinian attempts to claim before the international judicial bodies that the disputed territories are sovereign Palestinian territory are presumptuous inasmuch as no Palestinian state exists and, hence, no sovereign Palestinian territory.

They undermine the commitments of the Palestinian leadership, including Chairman Arafat, in his letter to Prime Minister Rabin, to resolve all outstanding issues through negotiation.

They also 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.”¹¹

4. Permanent Status Negotiations and Palestinian-claimed Statehood

The Oslo Accords make no mention of the projected outcome of negotiations on permanent status.

Despite somewhat naïve wishful thinking by leading elements and groups in Europe and the U.S. Administration, the Oslo Accords, and all other agreements between the parties, make no mention whatsoever of any “two-state solution.” On the contrary, nothing in the Accords precludes an outcome of the negotiations leading to one, two, or three states, a federation, confederation, or condominium.

As such, the Palestinians are estopped from making the claim that they are a sovereign state, and in making this false claim, they come before the international community with unclean hands. That is a prejudging of the outcome of ongoing negotiations.

No such Palestinian state exists, and their attempt to interpret and present a symbolic, political UN upgrade to that of a “non-member observer state” in November 2012, as if it is tantamount to statehood, is deliberately misleading. The UN General Assembly, whose resolutions are non-binding, recommendatory, and not authoritative, does not have the power to establish or declare statehood.¹²

Unilateral actions by the Palestinian leadership in the UN, in other international organizations, and in international courts and tribunals intended to undermine, frustrate and bypass the Oslo Accords by attempting to dictate an imposed outcome to the negotiations are clearly contrary to the foundations of the Oslo Accords. The parties to the Accords have solemnly committed to continuing bonafide negotiations between them “to achieve a just, lasting, and comprehensive peace settlement and historic reconciliation through the agreed political process.”¹³

Indeed, Palestinian actions in the international community violate the very integrity of the Accords as solemn and binding agreements between the parties.

One of the most fundamental principles of international law and practice is the obligation to fulfill international commitments in good faith. This is detailed in Article 26 of the 1969 Vienna Convention on the Law of Treaties, according to which “every treaty in force is binding upon the parties to it and must be performed by them in good faith.” ¹⁴

On the issue of fulfilling international obligations, and contrary to Palestinian accusations and worldwide propaganda, Israel has neither acted nor legislated to alter the status of the territories and consistently calls upon the Palestinian leadership to return to the negotiating table.¹⁵

5. Permanent Status Issues

The obligation to negotiate the central issues between the parties is encapsulated in Article V (2) of the abovementioned Oslo 1 Accord, which details such issues as Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest.¹⁶

Israel has consistently called upon the Palestinian leadership to return to the negotiations and has stated that it remains fully committed to resuming negotiating the permanent status issues as agreed between them.

5.1. Settlements

Since the permanent status issue of settlements is on the negotiating table, the Oslo Accords make no predetermination as to the outcome, nor do they relate in any manner whatsoever to the legality of Israel’s settlements.

On the contrary, as agreed between them, the Accords grant each party the power and authority to engage in planning, zoning, and construction in the areas under its respective jurisdiction, whether this be the Palestinian Authority in Areas A and B, or Israel in Area C.¹⁷

Since there exists no prohibition of 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 is self-defeating. Moreover, it runs against the spirit and word of the Oslo Accords.

5.2. Jerusalem

Since the issue of Jerusalem is also an agreed item on the permanent status negotiating table, the Oslo Accords make no reference whatsoever to the outcome of the negotiations on this issue, nor do they contain any commitment or reference to the historical status quo regarding Holy Sites.

In fact, in the Jordan-Israel Peace Treaty dated October 26, 1994, Israel declared it “respects the present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem. When negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historic role in these shrines.”¹⁸

As such, it is to be assumed that in any genuine negotiation regarding Jerusalem, the parties, including Jordan, would, inter alia, devise the appropriate, honorable, respectful, and agreed resolution of the issue of access to the Holy Sites in Jerusalem, including for prayers and visitation at the Sites.

Such a resolution should consider the unique nature of the Holy Sites, the need to honor, respect, and protect sensitivities of the various religious sects, and the overriding obligation to protect and guarantee fundamental internationally acknowledged human rights of access and worship.¹⁹

Claims and declarations by the Palestinian and Jordanian leadership, as well as by leaders in the international community attempting to predetermine the outcome of the negotiation of the Jerusalem issue, and especially regarding the “status quo” on the Temple Mount, are clearly incompatible with the terms of the Oslo Accords and with the international commitments of those states and organizations that are signatories to the Accords as witness.

5.3. Borders

The issue of borders is another agreed, permanent status negotiating 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.²⁰

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 armistice 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.²¹

The call for negotiation of international borders emanates from Security Council resolution 242 (1967), which, in acknowledging that permanent borders had 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.²²

Hence the inclusion of the permanent status negotiation item of borders.

5.4. Violations of the Oslo Accords

In several other respects, issues regarding compliance by the Palestinians with the Oslo Accords appear to rise in several spheres:

The Separate Hamas Regime in the Gaza Strip

The 2007 separation of the Gaza Strip from the main body of the Palestinian Authority and the creation of a separate Hamas regime in Gaza, thereby fragmenting the Palestinian leadership, were serious factors substantially altering the situation on the ground, undermining the integrity of the Oslo Accords, and acting to frustrate the possibility of resuming the agreed negotiating process.²³

Legal Proceedings in International Tribunals

The actions of the Palestinian leadership in initiating legal proceedings in the ICC against Israel’s leaders and commanders, as well as its appeal to the ICJ for an advisory opinion questioning the legality of Israel’s administration in the territories, are utterly inconsistent with the commitments in the Oslo Accords as well as in the 1993 Arafat-Rabin correspondence to continued dialogue and negotiation pursuant to the accords, and the Arafat-Rabin commitment to settle all outstanding issues by negotiation.²⁴

Continuing Terror and Incitement

The continued advocating of terror, financing terrorists, and incitement to violence are incompatible with the spirit and words of the Oslo Accords and specifically with Palestinian commitments to prevent terror and punish violators.

These commitments were agreed upon in Article XV of the 1995 Israeli-Palestinian Interim Agreement (Oslo 2), entitled “Prevention of Hostile Acts,” according to which:

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 also 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.”

They also undertook to ensure that their respective educational systems would “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.”²⁵

Detailed implementation provisions are included in Annex I to the Interim Agreement (Protocol on Security Arrangements), Article II entitled “Security Policy for the Prevention of Terrorism and Violence,” in which the Palestinian side committed itself:

to act systematically against all expressions of violence and terror; to issue permits possession and carrying of arms by civilians; to confiscate illegal possession of arms, to arrest and prosecute individuals suspected of acts of violence and terror; to ensure immediate, efficient and effective handling of any incident involving a threat or act of terrorism, violence or incitement, whether committed by Palestinians or Israelis; to cooperate in the exchange of information and coordinate policies and activities; to immediately and effectively respond to and prevent the occurrence or anticipated occurrence of an act of terrorism, violence or incitement; to actively prevent incitement to violence; to apprehend, investigate and prosecute perpetrators and all other persons directly or indirectly involved in acts of terrorism, violence and incitement; and to prevent and deal with any attempt to cause damage or harm to infrastructure serving the other side, including, inter alia, roads, water, electricity, telecommunications and sewage infrastructure.²⁶

Obligation to Prevent Incitement

In Article XXII of the 1995 Interim Agreement, the parties are committed to “seek to foster mutual understanding and tolerance and shall accordingly abstain from incitement, including hostile propaganda, against each other and, without derogating from the principle of freedom of expression, shall take legal measures to prevent such incitement by any organizations, groups or individuals within their jurisdiction.”²⁷

On the specific issue of preventing incitement, in addition to agreeing to participate in a U.S.-Palestinian-Israeli committee to monitor cases of incitement (which committee never materialized), the Palestinian leadership committed, in the Wye River Memorandum of October 23, 1998, to “issue a decree prohibiting all forms of incitement to violence or terror, and establish mechanisms for acting systematically against all expressions or threats of violence or terror.”²⁸

Continued support and sponsoring of the Boycott, Divestment, and Sanctions (BDS) Campaign against Israel

Similarly, in Annex V to 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.²⁹

Clearly, the ongoing and active 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 signatories as witnesses to the Accords.

Conduct of Foreign Affairs

According to Article IX of the 1995 Interim Agreement, actions by the Palestinians in establishing diplomatic missions abroad and other acts of international diplomacy, and accession to hundreds of international conventions constitute fundamental violations of the limitations in the Accords on the conduct of foreign affairs.

In accordance with the agreement, and subject to its functioning for the specific benefit of the Palestinian Authority, it:

will not have powers and responsibilities in the sphere of foreign relations, which sphere includes the establishment abroad of embassies, consulates or other types of foreign missions and posts or permitting their establishment in the West Bank or the Gaza Strip, the appointment of or admission of diplomatic and consular staff, and the exercise of diplomatic functions.³⁰

6. Conclusion and Recommendations

The question of whether it is possible to resume negotiations and reach a permanent status agreement remains a distant and unlikely hope.

Palestinian fundamental violations of the Oslo Accords, their ongoing actions in the international community to obstruct the operation of the Accords, as well as their undermining and prejudicing the integrity of the Accords, place before Israel several internationally recognized legal options rooted in customary international treaty practice, to deal with fundamental violations, and frustration of treaties.

However, despite such options, Israel has repeatedly called upon the Palestinian leadership to unite and resume bonafide negotiations.

In considering possible actions to bring about such a return to negotiations, serious efforts should be expended by the government of Israel and by the United States:

• to urge the international witnesses to the Accords, rather than turning a blind eye and passively encouraging the Palestinians to violate the Accords, to take a more active and involved function in encouraging the Palestinian leadership to fulfill their commitments.

• to 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 International Criminal Court, thereby harming and politicizing that court.

• The international witnesses should be urged to encourage the Palestinian leadership, rather than complaining to international bodies and initiating political resolutions in international bodies, to better act within the existing dispute-resolution mechanisms agreed to in the Accords.

• Within the Accords, Israel has at its disposal discretionary rights inter alia to withhold VIP privileges, limit rights 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 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 negotiation process, they must cease supporting and encouraging Palestinian violations, demand Palestinian accountability, and call upon the Palestinian leadership to abide by its commitments in the Oslo Accords.

* * *

Notes