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Responsibility for the Protection of Human Rights under the Interim Israeli-Palestinian Agreements

Published online by Cambridge University Press:  04 July 2014

Eyal Benvenisti
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The Israeli-Palestinian Declaration of Principles of September 13, 1993 (the “DOP”), which establishes the framework for the settlement of the conflict between the parties, sets the stage for a gradual transition towards a peace settlement, or the “permanent status” as referred to in the DOP. The interim arrangements outlined in the DOP provide for a step-by-step assumption of responsibilities by Palestinians in the West Bank and the Gaza Strip. The Agreement on the Gaza Strip and the Jericho Area, signed in Cairo on May 4, 1994, prescribes at length the arrangements for the first steps to be taken towards that goal. During the period of the interim arrangements, the Gaza Strip (excluding Israeli settlements and military installations) and the “Jericho Area” are to be administered by a “Palestinian Authority” (PA), a body established under the Cairo Agreement, which is distinct from the PLO.

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Articles
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Israel Law Review , Volume 28 , Issue 2-3: The Peace Process , Spring–Summer 1994 , pp. 297 - 317
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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 (1993) 321.L.M. 1525. For analyses of various aspects of the DOP see Benvenisti, Eyal, “The Israeli-Palestine Declaration of Principles: A Framework for Future Settlement”, (1993) 4 E.J.I.L. 542Google Scholar; Cassese, Antonio, “The Israel-PLO Agreement and Self-Determination”, (1993) 4 E.J.I.L. 564Google Scholar; Shihadeh, Raja, “Can the Declaration of Principles Bring About a ‘Just and Lasting’ Peace?” (1993) 4 E.J.I.L. 555Google Scholar; Singer, Joel, “The Declaration of Principles on Interim Self-Government Arrangements”, (1994) 1 Justice (published by the Int'l Assoc. of Jewish Lawyers and Jurists) 4Google Scholar.

2 The DOP was preceded by an exchange of letters, both dated September 9, 1993, which included mutual recognition. On these letters and their significance see Benvenisti, supra n. 1, at 542-6.

3 (1994) 33 I.L.M. 622.

4 The Palestinians use the title “Palestinian National Authority” or PNA, a title which does not appear in the accords.

5 Agreement on the Preparatory Transfer of Powers and Responsibilities, Done in Erez, 29 August 1994. The powers are in the areas of education, culture, health, social welfare, tourism, direct taxation and Value Added Tax on local production (Article II.1). The PA replaces the “authorized Palestinians” referred to in Article VI of the DOP (Article II.2).

6 See Article V.1 of the DOP, and Article XXIII.3 of the Cairo Agreement, which provides that “The five-year interim period referred to in the DOP commences on the date of the signing of this agreement”.

7 In addition, in Article II.7.h(1) of Annex III to the Cairo Agreement (Protocol concerning Legal Matters) provides that the treatment of individuals suspected of committing offences transferred from Israeli to PA custody and vice versa shall comply “with internationally-accepted norms of human rights regarding criminal investigation”.

8 The withdrawal of Israeli forces from populated areas in the rest of the West Bank during the interim period, as envisaged in Article XIII of the DOP, may bring additional areas under the jurisdiction of the PA, or the Council.

9 The law of occupation does not relieve an occupant from the duty to protect the interests of the occupied population by the mere fact of signing an agreement to transfer power to local groups. Article 47 of the Fourth Geneva Convention of 1949 states: “Inviolability of Rights: Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as a result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory”.

On the conditions for the applicability of this convention in general and in particular to the West Bank and Gaza see e.g., Benvenisti, Eyal, The International Law of Occupation (1993) 109–112Google Scholar; Roberts, Adam, “Prolonged Military Occupation: The Israeli-Occupied Territories since 1967”, (1990) 84 Am. J. Int'l L. 44CrossRefGoogle Scholar.

10 According to this Article, “[c]hanges in the membership of the Palestinian Authority will take effect upon an exchange of letters between the PLO and the Government of Israel”.

11 Legislation by the PA must be communicated to a bilateral “Legislation Subcommittee”, in which Israel may raise objections regarding such legislation which it deems as exceeding the jurisdiction of the PA or otherwise inconsistent with the Agreement.

12 Such schemes must be published in the form of law, and therefore are subject to Israel's approval, as described in Article VII of the Cairo Agreement.

13 Joel Singer, “The Declaration of Principles on Interim Self-Government Arrangements: Some Legal Aspects” supra n. 1, at 12-13 (emphasis added).

14 The Promulgation concerning the Jericho Area was issued on 15 May 1994, effective from 13 May, while the Promulgation concerning the Gaza Strip was issued on 17 May 1994, effective from the date of the signature of the Cairo Agreement.

15 If the accords are international agreements, these promulgations are redundant: the accords affect the powers of the Israeli occupation administration, and for this matter they become part of the international norms that bind the occupant. For the status of this occupation as “armistice occupation” see Benvenisti, supra n. 1, at 551. On the definition of this term “armistice occupation” see Bothe, Michael, “Occupation After Armistice”, 4 Encyclopedia of Public International Law 63 (Bernhart, Rudolph, ed., 1982)Google Scholar; Roberts, Adam, “What is a Military Occupation?” (1984) 55 Brit. Yb. of Int'l L., 249, at 265–267Google Scholar.

16 “In accordance with the Declaration of Principles, the Palestinian Authority will not have powers and responsibilities in the sphere of foreign relations …” This restriction is aimed at divesting the Palestinian Authority of at least the fourth conventional indicator of statehood as provided in Article 1 of the Montevideo Convention on Rights and Duties of States of 1933 (165 L.N.T.S. 19). The fourth criterion for statehood in this Article is the “capacity to enter into relations with other States”. The Restatement (Third) on the Foreign Relations Law of the United States (1987) follows this formula by requiring that the entity “engages in, or has the capacity to engage in formal relations with other such entities” (sec 201). On the Montevideo formula see Crawford, James, The Creation of States in International Law (1979) 36–48Google Scholar. See especially the criticism of the fourth criterion at 47-48, and the emphasis on the better criterion of independence, which is th e central criterion of statehood” (at 48 et seq.). See also Benvenisti, supra n. 1, at 548.

17 On the revocability of the DOP see Benvenisti, supra n. 1, at 545-6.

18 Singer, supra n. 1, at 13.

19 Section 4 of Mr. Arafat's letter to Prime Minister Rabin, 4 May 1994.

20 See the Palestinian National Council's Declaration of Independence of November 15, 1988, and its Political Communique reprinted in (1988) 27 LLM. 1664, at 1665; Lapidoth, Ruth and Hirsch, Moshe, The Arab-Israeli Conflict and its Resolution: Selected Documents, (1992) 344, at 348Google Scholar. On the status of “the Palestinian State” following the Algiers Declaration see, e.g., Boyle, Francis A., “The Creation of the State of Palestine”, (1990) 1 E.J.I.L. 301Google Scholar; Crawford, James, “The Creation of the State of Palestine: Too Much Too Soon?” (1990) 1 E.J.I.L. 307Google Scholar.

21 See supra n. 16.

22 The third draft of this Basic Law, April, 1994, reproduced in (1994) 23(4) Journal of Palestinian Studies 137. By the end of 1994, this Basic Law was not promulgated.

23 Translated and reproduced in ibid., at 145, 146.

24 For translation of the declaration and criticism see Shehadeh, Raja, “Questions of Jurisdiction: A Legal Analysis of the Gaza-Jericho Agreement”, (1994) 23(4) J. Pal. Stud. 18, at 23Google Scholar.

25 See, e.g., “Arafat Declared the Return of the pre-1967 Law, and the Abolition of the Israeli Military Law” Ha'aretz, A4 26 May, 1994 (in Hebrew)Google Scholar. See also Shehadeh, ibid.

26 Some of the military orders amended the pre-1967 local laws. Therefore the “revitalization” of the pre-1967 laws is incompatible with the retention of those military orders that have, since 1967, amended or repealed them.

27 See Mona Rishmawi, “Judicial Independence under Palestinian Rule”, (Paper delivered at a conference on “The Arab-Israeli Accords: Legal Perspectives”, School of Oriental and African Studies, London, December 1994) at 5-6. The court in Gaza refused to hear appeals from Jericho, and thus, in fact, all appeals from the Jericho court are frozen.

28 Most revealing is the account of Geoffrey Bindman and Bill Bowering, “Human Rights in A Period of Transition” published in 1994 by the British Law Society. The authors met with a judge of the Jericho court, whose principle, as he told them, is always to help the weak (at 23); see also Rishmawi, ibid., at 6.

29 Bindman and Bowering, ibid., at 22, Rishmawi, supra n. 27, at 5.

30 Bindman and Bowering, supra n. 28, at 20-21.

31 Article V.1 begins with the following: “The Palestinian Authority shall be fully responsible for the proper functioning of the offices included in the Spheres and for the management of their personnel in all aspects, …”

32 Article VI.5.: “Nothing in this Agreement shall affect the continued authority of the military government and its Civil Administration to exercise their powers and responsibilities with regard to security and public order, as well as with regard to other spheres not transferred”.

33 Article VI.2. “The military government and its Civil Administration shall assist and support the Palestinian Authority in promoting the effective exercise of its powers and responsibilities …” Article VIII.4 (concerning law enforcement): “Except as specifically provided in this Agreement, all powers and responsibilities regarding law enforcement, including investigation, judicial proceedings and imprisonment, will continue to be under the responsibility of the existing authorities in the West Bank”.

34 See the International Law Commission's “Draft Articles on State Responsibility” (1980) 2 Yrbk. ILC 30–34Google Scholar. Draft Article 8, entitled “Attribution to the State of the Conduct of Persons Acting in Fact on Behalf of the State” reads: “The conduct of a person or group of persons shall also be considered as an act of the State under international law if: (a) it is established that such persons or group of persons was in fact acting on behalf of that State; …”

35 See Brownlie, Ian, State Responsibility, Vol. I (1983) 181–183Google Scholar.

36 On the responsibility of these organs for their violations of individual rights see (with respect to the U.N.) Exchange of Letters Constituting an Agreement between the United Nations and Belgium relating to the Settlement of Claims Filed against the United Nations in the Congo by Belgian Nationals, (1965)U.N. Jurid. Yearbook 39; (with respect to EU institutions) Case 4/73, Nold v. Commission, [1974] ECR 491, at 607; Case 36/75, Rutili v. Minister of the Interior, [1975] ECR 1219, at 1232. On this issue see Schreuer, Christoph, “The Waning of the Sovereign State: Towards a New Paradigm for International Law?” (1993) 4 E.J.I.L. 447, at 465-66Google Scholar. On the general question of international responsibility of international organizations see Hirsch, Moshe, The Responsibility Under International Law of International Organizations Toward Third Parties: Some Basic Principles (Ph.D. Thesis, The Hebrew University, Jerusalem, 1994)Google Scholar.

37 See Article 42 of the Regulations Respecting the Laws and Customs of War on Land, annex to the Convention (IV) Respecting the Laws and Customs of War on Land, signed at The Hague, October 18, 1907 (“The Hague Regulations”) (“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”). Article 43 of the same Regulations prescribes the powers of the occupant, defined as the one, into whose hands “the authority of the legitimate power having in fact passed”. For similar emphases on effective control see the British Military Manual (The Law of War in Land (1958) 141, para. 502) (occupation as “actual and effective,… It is sufficient that the national forces should not be in possession, that the inhabitants have been disarmed, that measures have been taken to protect life and property and to secure order, and that, if necessary, troops can within a reasonable time be sent to make the authority of the occupying army felt”.); The United States Military Manual (The Law of Land Warfare (1966) fm 27-10, para. 355) (“Military occupation is a question of fact. It presupposes a hostile invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded”.); The German Military Manual (Federal Ministry of Defence, Humanitarian Law in Armed Conflict - Manual (1992), paras. 526, 527 emphasis in original) (“The occupying power must be able to actually exercise its authority”; A force invading hostile territory will not be able to substantiate its occupational authority unless it is capable of enforcing directions issued to the civilian population”.). On this point see also Stone, Julius, Legal Controls of International Conflict (1954) 696Google Scholar (“Occupation of an area begins when there is a sufficient force to retain command of the situation, following cessation of substantial local resistance”.); Greenspan, Morris, The Modern Law of Land Warfare (1959) 214Google Scholar (“[t]he prerequisite is that [the occupying troops] can make their authority felt when and where it is required”.). For similar emphases on effectiveness see Feilchenfeld, Ernst, The International Economic Law of Belligerent Occupation (1942) 6Google Scholar; Bothe, supra n. 15, at 65, and Roberts, supra n. 15, at 256.

38 See also the decision of the Israeli Supreme Court in Tsemel v. The Minister of Defence, (1982) 37(ii) P.D. 365, at 373 (discussing Israel's position in Lebanon during the 1982 war).

39 Buergenthal, Thomas, “To Respect and Ensure: State Obligations and Permissible Derogations”, in Henkin, Louis, ed., The International Bill of Rights (1981) 72, at 74Google Scholar; Nowak, Manfred, CCPR Commentary (1993) 41–42Google Scholar. The European Commission of Human Rights determined in a number of cases that “within their jurisdiction” was no more and no less than under the state party's effective control: Applications No. 6780/74 and No. 6950/76, Cyprus v. Turkey, (1975) 18 Y.B Europ. Conv. Hum. Rights 82, at 118; Application 8007/77, Cyprus v. Turkey, (1978) 21 Y.B Europ. Conv. Hum. Rights 100, at 234; the decision of the European Committee of Ministers regarding the “events which occurred in Cyprus [which] constituted violations of the Convention”: Resolution DH (79) 1, (1979) 22 Y.B Europ. Conv. Hum. Rights 440.

On the applicability of human rights treaties in occupied territories see Benvenisti, Eyal, “The Applicability of Human Rights Conventions to Israel and to the Occupied Territories”, (1992) 26 Is.L.R. 24, at 27–28Google Scholar.

40 It is not the purpose of this article to expound on the status of the regime in the Gaza Strip and the Jericho Area. For a discussion of this matter see E. Benvenisti, “The Status of the Palestinian Authority” (to be published).

41 Schreuer, supra n. 36, at 463.

42 On these developments see e.g., Janis, Mark, “International Law?” (1992) 32 Harv. Int'l L. J. 363Google Scholar; Koskenniemi, Martti, “The Future of Statehood” (1992) 32 Harv. Int'l L. J. 397Google Scholar; Lapidoth, Ruth, “Sovereignty in Transition” (1992) 45(2) J. Int'l Affairs 325Google Scholar; Steinberger, Helmut, “Sovereignty” in Bernhardt, Rudolph, ed., Encyclopedia of Public International Law (instalment 10, 1987) 397–418Google Scholar.

43 On international agreements between provinces, cantons, regions and states in federal unions see Schreuer, supra n. 36, at 450; Broms, Bengt, “Autonomous Territories” in Bernhardt, Rudolph, ed., Encyclopedia of Public International Law (instalment 10, 1987) 7, 8Google Scholar. On the international status of national liberation movements see Barberis, Julio A., “Nouvelles questions concernant la personalité juridique internationale”, (1983-I) 179Google ScholarRecueil des Cours 145, at 239-268; Cassese, Antonio, International Law in a Divided World (1986) 90–99Google Scholar; Benvenisti, supra n. 1, at 544-45.

44 Sieghart, Paul, The International Law of Human Rights (1983) 43–44Google Scholar; Paust, Jordan, “The Other Side of Right: Private Duties under Human Rights Law”, (1992) 5 Harv. Hum. Rt. J. 51Google Scholar; Kiss, Alexandra, “La definition des devoirs des individus par les instruments internationaux protegeant les droits de l'homme” in Jekewitz, Jurgen et al. eds., Das Menschen Recht zwiachen Freiheit und Verantwortung (1989) 17Google Scholar.

45 This conclusion is compatible with the restriction in the Cairo Agreement on the foreign relations of the PA (Article VI.2.a provides that the PA “will not have powers and responsibilities in the sphere of foreign relations” (emphasis added)). While this provision curtails the PA's powers to deny it the attributes of statehood, it does not deny its legal personality. Legal personality, and powers to conduct international relations, are two separate questions: sub-state entities, similar to international organizations and to individuals, may have rights and responsibilities under international law, notwithstanding their incapacity to sign treaties or to accredit foreign diplomats.

46 See Annex I, Article VII.9 concerning “hot pursuit”; Annex III, concerning the extradition of criminals in the Gaza Strip and the Jericho Area to Israel.

47 Article VI.b: “[T]he PLO may conduct negotiations and sign agreements with states or international organizations for the benefit of the PA in the following cases only: …”

48 According to Article V.3 of the Cairo Agreement, Israel retains authority (and responsibility) over settlements, military locations, Israelis, external security, and other agreed powers and responsibilities specified in the Agreement. The only specified authority with respect to foreigners (those who are neither Israeli nor Palestinian) is the provision of Article I.6 of Annex III, which specifies that tourists in transit to or from Israel on certain roads may be arrested and questioned only by Israeli authorities (but proceedings against them shall be taken by the PA.) With respect to other foreigners, Israel retains the right to meet those detained by the PA, and to provide them with “any necesary assistance, including consular notification, requested by the detainee”. The reason for this provision is the lack of powers of the PA in the sphere of international relations (see supra n. 16).

49 Compare an argument to the same effect, which highlights Article 6, paragraph 3, of the Fourth Geneva Convention. This Article states that the Convention shall cease to apply one year after the general close of military operations, yet the occupying power shall continue to be bound by a number of provisions “to the extent that such Power exercises the functions of government in such territory”. This provision, which relieves the occupant that does not exercise the functions of government of its duties, envisages an assumption of powers by a local government while the area is still under the occupant's control, as was the case in some European countries following World War II (see Pictet, Jean, ed., Commentary: The Fourth Geneva Convention (1958) 62–63)Google Scholar. It is arguable, however, that Israel cannot make use of such an argument, to relieve itself from the obligations of an occupant while continuing to assert that the occupation continues, since, lacking effective control, it does not occupy the Gaza Strip and the Jericho Area. For another view, which enlists Article 6 in claiming that Israel should still be regarded as occupant, see the report of Human Rights Watch/Middle East, “Human Rights under Palestinian Partial Self-Rule” (Feb. 1996) 31.

50 See supra n. 16.

51 See supra, text accompanying n. 40.

52 See, e.g., “Israel Will Present to the Palestinians a list of Dozens of Violations of the Oslo Accord”, Ha'aretz, (Israeli daily), 2 January, 1995, at A1Google Scholar. The article cites “sources in Jerusalem” claiming that the Palestinians do whatever they want, disregarding the accords. In response, PA officials presented their own list of (Israeli) violations: “The Palestinians Also Prepared A List of Violations of the Oslo Accord”, Ha'aretz, 3 January, 1995, A4Google Scholar.

53 See Paust, supra n. 44, and see the references cited in his note 5.

54 I thank Prof. David Kretzmer for this suggestion. On the applicability of these instruments to the Israeli occupied territory see supra text accompanying nn. 39-40. In 1991, Israel ratified the 1966 Covenant on Civil and Political Rights, the 1966 Covenant on Economic and Social Rights, the 1979 Convention on the Elimination of Discrimination against Women, the 1984 Convention Against Torture, and the Convention on the Rights of the Child. For the dates of ratifications, and the text of the declaration and reservations regarding the 1966 Covenant (concerning Articles 9 and 23) see Cohen, Becky, “The Practice of Israel in Matters Related to International Law”, (1992) 26 Is.L.R. 572–573Google Scholar.

55 On this issue see text accompanying n. 25 supra.

56 See Article 8 of the draft, supra n. 22, at 137 (recognition and acceptance of fundamental human rights enshrined in international instruments); Articles 9-33 (enumerating the various rights); and Article 35 (the establishment of an Independent Commission for Human Rights).

57 Yet these facts do not elude commentators. Paul de Waart, for example, already noted (de Waart, Paul, Dynamics of Self-Determination in Palestine (1994) 193Google Scholar) that “[i]n the unlikely event of failure [in the implementation of the DOP], the UN might be faced with the necessity of taking action in order to safeguard the progress made, i.e. the mutual recognition by Israel and the [PLO] of each other's legitimate and political rights. Such action could be the establishment of a temporary international administration of the Gaza Strip and the West Bank. The UN might then even consider the possibility of admitting Palestine to its membership in order to safeguard the Palestinian interim authority of the Gaza Strip and Jericho”. Such a view may find support in Christian Tomuschat's recent clarification regarding the choice among the different forms in which self-determination can be fulfilled. In his view, “a free choice is given to the people concerned. They are entitled to decide which way to go. In each and every case all the possible options are open to them. They cannot be prevented from choosing independent statehood. It is for this reason that States are normally so anxious to eschew calling a given ethnic group a ‘people’” (Tomuschat, C., “Self-Determination in a Post-Colonial World” in Tomuschat, Christian, ed., Modern Law of Self-Determination (1993) 1, at 12)Google Scholar.