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From Camp David to Oslo

Published online by Cambridge University Press:  04 July 2014

Yehuda Z. Blum
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Extract

On 13 September 1993 Israel and the Palestine Liberation Organization (hereinafter “PLO”) signed on the lawn of the White House in Washington, in the presence of United States President William J. Clinton, a “Declaration of Principles on Interim Self-Government Arrangements” (hereinafter “the DOP”), the text of which had been initialled the previous month in the Norwegian capital Oslo, following several months of secret negotiations. This occurred almost exactly fifteen years after the signing at the White House, on 17 September 1979, by the President of Egypt, Muhammad Anwar Al-Sadat, and the Prime Minister of Israel, Menachem Begin, of the “Framework for Peace in the Middle East” that had been negotiated and agreed at Camp David, Maryland (hereinafter “the Framework”).

Both the Framework and the DOP aim at resolving one of the most complex conflicts of our time, namely, the dispute that first developed between the Arab and Jewish communities in Mandatory Palestine and which widened, with the establishment of Israel in 1948, into a conflict between Israel and the entire Arab world. While both agreements provide for interim arrangements (and the DOP even stresses this aspect in its title), pending the negotiations for a definitive solution, and while both even use similar terms, the basic concepts underlying each of these agreements widely diverge.

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Israel Law Review , Volume 28 , Issue 2-3: The Peace Process , Spring–Summer 1994 , pp. 211 - 235
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1994

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References

1 U.N. Doc. A/CONF. 39/27.

2 U.N. General Assembly resolution 3237(XXIX) of 22 November 1974.

3 The DOP was signed, in addition to Shimon Peres (Israel) and Mahmoud Abbas (PLO), also by U.S. Secretary of State Warren Christopher and Russian Foreign Minister Andrei Kozyrev, representing the co-sponsors of the Madrid Middle East peace conference which ostensibly served as the basis for the DOP. However, their signatures were appended merely as witnesses, without their countries becoming parties to the DOP.

4 Article 3 of the Convention (supra n. 1) then adds that the scope of the Convention does not affect the validity of other international agreements not covered by it.

5 U.N. General Assembly resolution 3210(XXIX) of 14 October 1974.

6 See e.g. Benvenisti, E., “The Israeli-Palestinian Declaration of Principles: a Framework for Future Settlement”, (1993) 4 European J. Int'l L. 541 ff., at 544–5CrossRefGoogle Scholar, and the authorities cited at 544, n. 20 there.

7 See Lapidoth, R. and Hirsch, M. (eds.), The Arab-Israel Conflict and its Resolution: Selected Documents (1992) 384, at 385Google Scholar (hereinafter “Lapidoth-Hirsch”); emphasis added.

8 Emphasis added.

9 This formulation is certainly curious: it gives the impression that the draftsmen did not consider political rights as being included within “legitimate” rights. An alternative explanation could simply be sloppy draftsmanship which seems to pervade also other parts of the DOP.

10 It is noteworthy, though, that in his response to PLO Chairman Arafat's statement at the opening session of the Casablanca Middle East/North Africa Economic Summit Conference on 30 October 1994, in which Mr. Arafat envisaged the establishment, before the end of this century, of a Palestinian state, with Jerusalem as its capital, Mr. Rabin confined himself to rejecting only Arafat's claim with regard to Jerusalem, while passing over in silence his reference to the projected Palestinian state. Moreover, a fair proportion of coalition members of the Knesset (including some of the Labour party and even some of its cabinet ministers) have since the signing of the DOP openly voiced their support for the establishment of such a state.

By contrast, in 1978 Prime Minister Begin had informed President Carter (see Lapidoth-Hirsch, supra n. 7, at 206) that any reference in the Framework to “Palestinians” or to “Palestinian People” will be construed by Israel as “Palestinian Arabs”. No such caveat accompanies the DOP.

11 Benvenisti, supra n. 6, at 544.

12 See Article A(1)(a) of the Framework and Article V(1) of the DOP. See also infra, Section 5(a).

13 See Article A(1)(c) of the Framework and Article V(2) of the DOP.

14 Article A(1)(c) of the Framework.

15 Ibid.

16 Article V(3) of the DOP.

17 Lapidoth-Hirsch, supra n. 7, at 204.

18 Lapidoth-Hirsch, supra n. 7, at 205. The official English translation of the Law is as follows: “The law, jurisdiction and administration of the State shall extend to any area of Eretz Israel designated by the Government by order” ((1967) 21 L.S.I. 75)Google Scholar. The Law in question was adopted by the Knesset on 27 June 1967. On the same day the Knesset also passed an amendment to the Municipalities Ordinance (originally enacted under the British Mandate) enabling the Minister of the Interior to enlarge, by proclamation, the area of a particular municipality by the inclusion of an area to which Israeli law, jurisdiction and administration had been extended (ibid.). The following day the Government of Israel extended the area of Israeli law, jurisdiction and administration to the municipal neighbourhoods of Jerusalem that had been under Jordanian control prior to June 1967, as well as to other adjacent areas outside the municipal boundaries of the city; the Minister of the Interior then enlarged, by proclamation, the municipal area of the city of Jerusalem to include those neighbourhoods and areas. The result of these legislative activities was the reunification of the city within enlarged municipal boundaries.

19 This was promptly circumvented by appointing Jerusalem resident Faisal Husseini as “adviser”.

20 The period since the signing of the DOP has been marked in Jerusalem by constant Palestinian attempts to change the existing status quo, by creating faits accomplis on the ground to enhance the PLO'S bargaining posture in the projected permanent status negotiations concerning the future of the city. Thus, for example, the “New Orient House”, in the eastern part of the city, which had served as the office locale of the Palestinian contingent in the Jordanian-Palestinian delegation to the Madrid conference and to the subsequent Washington talks prior to the signing of the DOP, has been transformed into a de facto PLO Mission in Jerusalem, with the PLO flag flying over the building; official visitors to Israel have been hosted there as if they were entering exterritorial “Palestinian” soil. Thus, when Turkish Prime Minister Tansu Ciller, on 5 November 1894, paid a visit to the building (not co-ordinated in advance with her Israeli hosts), her accompanying Israeli security detachment was forcibly prevented from entering the building with her.

Likewise, when U.S. President Clinton visited Jerusalem on 27 October 1994, a planned visit to the holy shrines in Jerusalem's Old City was cancelled when it became known that the Moslem authorities on Temple Mount would prevent Jerusalem Mayor Ehud Olmert from accompanying the President on that leg of his tour. Furthermore, when the Mufti of Jerusalem died in the summer of 1994 and the Government of Jordan appointed his successor (as it had done since 1948, including the period since 1967), this was immediately met with a counter-appointment made by Hassan Tahboub, a member of the Gaza-based Palestinian Authority, in charge of Wakf (Moslem Religious Trusts) Affairs. To isolate the Jordanian-appointed mufti and to prevent him from functioning, the Jericho-based Palestinian “preventive security service”, headed by Jibril Rajoub, in clear violation of the DOP, posted its agents on Temple Mount.

To cope on the legislative level with PLO attempts to erode the existing status quo in Jerusalem, the Knesset, on 26 December 1994, by 56 votes to 6 with 32 abstentions, passed the “Gaza/Jericho Agreement Implementation (Limiting of Activities) Law”, aimed at putting a stop to heightened PLO activity in eastern Jerusalem and the establishment there of institutions belonging to the Palestinian Authority. The law restricts the activity of the Palestinian Authority to Gaza-Jericho and bars any activity in Israel, without government permission, by the PLO or the Palestinian Authority, “of a political or governmental nature … which is inconsistent with respect for Israel's sovereignty”.

21 While the Framework seems to distinguish between the 1948 “refugees” and the 1967 “displaced persons”, the distinction between these two terms in general international legal practice and literature is not altogether clear. The term “displaced persons” has its origin in the aftermath of World War II referring at the time, within the context of the activities of two short-lived organizations, namely, the United Nations Relief and Rehabilitation Administration (UNRRA) and the International Refugee Organization (IRO), mainly to “those deported or expelled from their own countries, some of whom had been sent to undertake forced labour”. (Goodwin-Gill, G. S., The Refugee in International Law, (1983) 4Google Scholar).

The term was revived in 1976 when the U.N. General Assembly, in its resolution 3465(XXX) of 9 December of that year, used it in connection with the humanitarian assistance rendered by the United Nations High Commisioner for Refugees (UNHCR) in the Indo-Chinese Peninsula. Commenting on the said distinction, Gooodwin-Gill states that “if the term was intended to cover groups, besides refugees, who had crossed international frontiers, then it may have been something of a misnomer. ‘Displaced persons’ had a special meaning in the constitution of the IRO, but had otherwise been commonly employed to describe those displaced within their own country, for example, by the effects of civil strife or natural disasters” (ibid., at 8; emphasis in original). In 1977 the High Commissioner for Refugees requested a clarification of the distinction between refugees and displaced persons. “No formal advice was tendered, but there was considerable support for the view that refugees were those who had crossed an international frontier, whereas displaced persons had not” (ibid., at 10). For the origins of the distinction, see also Grahl-Madsen, A., The Status of Refugees in International Law, vol. I (1966) 133–8Google Scholar.

22 The Egyptian Jewish community virtually disappeared in the 1950's and 1960's, largely as a result of pressure-induced emigration. Most of these emigrants settled in Israel and in Europe.

For the sake of completeness it should be added here that some Jewish villages in the territories of the former British Mandate overrun by Arab armies simultaneously with Israel's establishment in 1948 had to be evacuated and their residents found refuge in Israel.

23 In a letter dated 22 September 1978 and addressed to Israeli Prime Minister Begin, U.S.President Carter acknowledged that he had been informed by the Prime Minister that whenever “the expression ‘West Bank’ appears [in the Framework], it is being, and will be, understood by the Government of Israel as Judea and Samaria”. (Lapidoth-Hirsch, supra n. 7, at 206). No comparable letter accompanies the DOP.

24 The Jerusalem Post of 24 December 1994, p. 2Google Scholar.

25 Ibid.

26 Ibid.

27 This seems to have been implicitly admitted also by the Palestinian Authority itself, since in a statement issued by it on 28 December 1994, after a special meeting convened to discuss this matter, it asserted that, while “settlement expansion [was] a violation of the Israel-Palestinian accords”, the issue must “be treated as a political problem in the framework of the DOP, and not [as] one of Israeli law”. (The Jerusalem Post of 29 December 1994, p. 1Google Scholar). Likewise, Israeli cabinet ministers representing the left-wing Meretz party which supports the PLO position on this matter, “did not delve into the question of the legality of the Efrat expansion, but argued that settlement expansion is inconsistent with peace”. (Ibid.)

28 The Jerusalem Post of 3 January 1995, p. 2Google Scholar.

29 Ibid., at 1.

30 It is sometimes suggested that a distinction should be made between “boundaries” which are “lines artificially drawn by man” (Bothe, M., “Boundaries”, in Bernhardt, R. (ed.), Encyclopedia of Public International Law, vol. I (1992) 443–9, at 444Google Scholar), and “borders”, the latter term describing the immediate areas on both sides of the boundary. It would appear, however, that contemporary practice uses the two terms interchangeably.

31 To be sure, there is a slight difference between the two instruments. While Article A(1)(a) of the Framework speaks of “a [transitional] period not exceeding five years”, Article V(1) of the DOP refers to “the five-year transitional period”.

32 Since this withdrawal was effected in May 1994, the transitional period is now scheduled to end in May 1999.

33 Article A(1)(a); emphases added.

34 Dinstein, Y., “Autonomy”, in Dinstein, Y. (ed.), Models of Autonomy (1981) 291 ff., at 292Google Scholar, where he cites Redslob, , “Le Principe des nationalités”, (1931) 37 Recueil des Cours, 1 ff., at 48–9Google Scholar.

35 The DOP does not use the term “autonomy”, territorial or otherwise, apparently to accommodate the sensibilities of the PLO for whom the very term evokes the memory of the Camp David Framework which neither mentioned the PLO nor envisaged any role for it.

36 Emphasis added. It is worth noting that the Article refers to “West Bank and Gaza Strip territory” and not to “the West Bank and the Gaza Strip territory”. Bearing in mind the well-known controversy concerning the legal significance of the missing definite article in the English version of the withdrawal clause of Security Council resolution 242 (“withdrawal of Israel armed forces from territories” — not the territories — “occupied in the … [1967] conflict”), the omission of the definite article in Article IV of the DOP is probably not devoid of meaning. However, it must be pointed out that Article IV also provides that “the two sides view the West Bank and the Gaza Strip as a single territorial unit, whose integrity will be preserved during the interim period”. It is hard to escape the impression that the wording of Article IV constitutes an apparent compromise in that it has collated conflicting Israeli and PLO drafts.

Attention should be drawn here also to Article XIII(4) of the Israel-PLO Agreement on Preparatory Transfer of Powers and Responsibilities signed at Erez on 29 August 1994 (sometimes referred to also as the “early empowerment agreement; hereinafter “the Erez Agreement”) stating that “the two Parties view the West Bank and the Gaza Strip as a single territorial unit, the integrity of which will be preserved during the interim period”. It must be assumed that this provision was inserted in the Erez Agreement for the purposes of the said agreement.

37 Article VII(4) of the DOP. It is worth mentioning that Article 1 of Annex III to the DOP (“Protocol on Israeli-Palestinian Cooperation in Economic Development Programs”) lists “cooperation in the field of water, including a Water Development Program prepared by experts from both sides”, as the first topic to be discussed by an Israeli-Palestinian Continuing Committee for Economic Cooperation, to be set up under the said Annex.

38 See Lapidoth-Hirsch, supra n. 7, at 214-7. By contrast, in Article IV(2) of its “Proposed Model of Full Autonomy for the West Bank and the Gaza Strip” of 28 January 1980 (ibid., 207-13, at 211) Egypt suggested that “the jurisdiction of the [Palestinian] Self-Governing Authority will encompass all of the Palestinian territories occupied after 5 June 1967 …. Authority of the Self-Governing Authority extends to the inhabitants as well as the land in the West Bank and Gaza Strip” (emphases added).

39 Article A(1)(a).

40 Article A(1)(b). The article also provides that “the delegations of Egypt and Jordan may include Palestinians from the West Bank and Gaza or other Palestinians as mutually agreed” (emphasis added). The last three words were inserted to ensure, at Israel's request, that any attempted participation by members of the PLO could be prevented by Israel.

41 Article A(1)(c).

42 Article VI(1) of the DOP and Annex II (“Protocol on Withdrawal of Israeli Forces from the Gaza Strip and Jericho Area”). Under the Protocol, the parties were to sign an agreement on Israeli withdrawal (article 1), the transfer of authority to Palestinian representatives (article 3(a)), the powers and responsibilities of the Palestinian Authority (article 3(b)), the establishment and composition of a Palestinian police (article 3(c)), arrangements for safe passage between Gaza and Jericho (article 3(g)), etc.

Article 1 of the Protocol provides that the agreement should be signed within two months after the coming into force of the DOP. Since the DOP went into force on 13 October 1993, one month after its signing (see Article XVII(1) of the DOP), the Gaza-Jericho Agreement should have been signed by 13 December 1993, and Israeli withdrawal should have been completed within four months afterwards (article 2 of the Protocol), that is, by 13 April 1994. However, the Gaza-Jericho Agreement was signed in Cairo only on 4 May 1994; Israeli withdrawal was accelerated and completed by the latter part of May 1994, in compliance of the provisions of Article II(1) of the Agreement which stipulated that “Israel should complete … withdrawal within three weeks from this date [that is, 4 May 1994]”.

43 Article VI(2) of the DOP. The article also provides that during this stage “the Palestinian side will commence in building the Palestinian police force [for the West Bank], as agreed upon”. It further stipulates that the parties may negotiate also the transfer of additional powers and responsibilities.

44 Article VII(1) of the DOP.

45 Article VII(2) of the DOP. Article III(2) of the DOP established a “goal for holding the elections not later than nine months after the entry into force” of the DOP, that is, by 13 July 1994. That goal has not been met.

46 Article III(l) of the DOP.

47 Article 2 of Annex I to the DOP (“Protocol on the Mode and Conditions of Elections”).

48 Article IV of the DOP.

49 Article VII(3) of the DOP.

50 Article A(1)(c).

51 Article A(1)(b).

52 See Egyptian, “Proposed Model of Full Autonomy for the West Bank and the Gaza Strip” of 28 January 1980Google Scholar, Lapidoth-Hirsch, supra n. 7, at 207 ff., at 212.

53 Ibid., at 211; emphasis added.

54 Israel's Autonomy Proposals of January 1982, ibid., at 214; emphasis added.

56 Ibid.; emphases added.

56 Ibid.

57 See Article IV of the DOP.

58 Article VII(2) of the DOP. Elections to the Council, “under agreed supervision and international observation” (Article III(1) of the DOP), are subject to an agreement (not yet concluded) concerning their exact mode and conditions (Article III(2) of the DOP and its Annex I). Article III(2) of the DOP sets a “goal of holding the elections not later than nine months after entry into force” of the DOP. This goal has not been met.

59 Ibid. Article XI(1) of DOP states: “The Council will be empowered to legislate, in accordance with the Interim Agreement, within all authorities transferred to it”. With regard to the legislative powers of the Palestinian Authority in Gaza-Jericho, Article VII(l) of the Cairo Agreement confers on it “the power, within its jurisdiction, to promulgate legislation, including basic laws, laws, regulations and other legislative acts”, provided that legislation so promulgated “shall be consistent with this Agreement” (Article VII(2)). Legislation by the Palestinian authority shall be communicated to a joint “Legislation Subcommittee” (Article VII(3)), and Israel may request it, within 30 days, to decide that it exceeded the Authority's jurisdiction or is otherwise inconsistent with the Agreement (Article VII(3)). In case of disagreement with regard to the legislation's validity, a board of review, consisting of two jurists (one of each side) shall deal with the matter (Article VII(5)). The final arbiter in case of disagreement will be, according to Article VII(7) of the Agreement, the Joint Israeli-Palestinian Liaison Committee, established under Article X of the DOP. Pending its decision, the disputed legislation shall not enter into force (Article VII(8). Article VII of the Erez Agreement enables the Palestinian Authority to promulgate secondary legislation regarding the powers and responsibilities transferred to it in the West Bank, provided it is consistent with the provisions of the Agreement.

60 Article IV(1) of the Agreement The PLO will inform Israel of any change in the Authority's membership, such changes to take effect upon the exchange of letters between the parties (Article IV(3)).

61 See supra nn. 54 and 55.

62 See supra nn. 52 and 53.

63 Emphasis added.

64 Article A(2) of the Framework.

65 Article VIII.

66 “… the Palestinian police force … [shall consist] of police officers recruited locally and from abroad …”

67 Emphasis added. The police force's equipment shall consist of 7,000 light personal weapons, up to 120 machine guns, up to 45 armored vehicles and appropriate communication systems (Cairo Agreement, Annex I, Article VIII(5)(b)).

68 Article A(l)(b).

69 Ibid.

70 Article A(1)(c).

71 Article VIII of the DOP.

72 Ibid.

73 See also Articles 1 and 2 of the Annex II to the DOP.

74 This includes “responsibility for the defense against external threats, including the responsibility for protecting the Egyptian border and the Jordanian line, and for defense against external threats from the sea and from the air” (Article VIII(1) of the Cairo Agreement). The reference to the “Jordanian line”, as distinct from the “Egyptian border”, is explained by the fact that at the time of the signing of the DOP Israel had only cease-fire lines with Jordan. Article 3 of the Israel-Jordan peace treaty of 26 October 1994 determined the international boundary between the two countries, “without prejudice to the status of the territories that came under Israeli military government control in 1967”.

At the same time, Article X of Annex I to the Cairo Agreement provides for the establishment of two separate “wings” — one Palestinian and one Israeli — at the Allenby Bridge crossing (from Jordan) and at the Rafah crossing (from Egypt), to serve, respectively, the Palestinian residents of Gaza-Jericho, Palestinian residents of the West Bank and visitors to the West Bank and Gaza, on the one hand, and all other persons, on the other hand. The Article contains elaborate provisions concerning the checking of passengers and luggage passing through the Palestinian wing both by the Palestinian and Israeli police (the latter inspection being carried out sometimes “indirectly and in an invisible manner” [Article X(3)(d)(1)]). The main purpose of all these elaborate arrangements ostensibly is “to maintain the dignity of the persons passing through the border crossings” (Article X(1)(d)). It would perhaps be more accurate to state that the real intention was to enhance the prestige of the PLO. Hence also the provision that “at the entrance to the Palestinan Wing there will be a Palestinian policeman and and a raised Palestinian flag” (Article X(3)(a). Yet the overall responsibility for the management and security of the terminals at the border crossings rests with an Israeli director-general, with two deputies — one Israeli and one Palestinian, the latter appointed by the Palestinian Authority (Article X(2)(b)).

75 Annex I to the Cairo Agreement (in particular Articles IV and V) contains detailed provisions concerning the joint use of roads, to be supervised and enforced, inter alia, by joint patrols and joint mobile units (Article II).

76 Under the same article, “the Palestinian side shall take all measures necessary to prevent such hostile acts directed against the [Israeli] Settlements, the infrastructure serving them and the [Israeli] Military Installation Area [in the Gaza Strip], and the Israeli side shall take all measures necessary to prevent such hostile acts emanating from the Settlements and directed against Palestinians”.