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Can the Declaration of Principles Bring About a `Just and Lasting Peace'?
Raja Shihadeh 1
Full text available: PDF format *
The Declaration of Principles2 signed between the Government of Israel and the Palestinian Liberation Organization3 has two salient features. First, it aims at establishing permanent settlement based on Security Council Resolutions 242 and 338. Second, the DOP also provides for the establishment of interim arrangements through the creation of a Palestinian Interim Self-Government Authority.
It is understood that the interim arrangements are an integral part of the whole peace process and that the negotiations on the permanent status will lead to the implementation of Security Council Resolutions 242 and 338.4
The seventeen articles of the DOP elaborate on the interim arrangements. These include the jurisdiction of the Palestinian Authorities for a duration of five years, the transfer of authority to it, the law it will enforce, its relations with Israel, Jordan, and Egypt, and the withdrawal of Israeli forces from certain areas and their redeployment to other areas. It is made abundantly clear that none of these arrangements are permanent. Permanent status negotiations, according to Article V(2) `will commence as soon as possible, but not later than the beginning of the third year of the interim period...'. Subsection (3) of the same Article states that:
It is understood that these negotiations shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbours, and other issues of common interest.
Finally subsection (4) provides that:
The two parties agree that the outcome of the permanent status negotiations should not be prejudiced or preempted by agreements reached for the interim period.
In the course of its 26-year occupation of the Palestinian territories, successive Israeli governments pursued a deliberate and declared policy of acquiring land for Jewish settlements and carrying out changes in the laws and administration of areas under their control to facilitate the creation of these settlements. Their objective was to achieve de facto annexation to Israel,5 a policy which continues to be pursued at the time of writing.6 Although the policy of settling the areas occupied in 1967 began a few months after the occupation, the main legal and administrative changes intended to separate the settlements from the rest of the Palestinian population were carried out in earnest after Israel signed the Camp David agreement in 1978. This agreement constituted the framework that determined the course of subsequent legal developments. In the years that followed their signature, Israel had ample time to reconcile its obligations under the Camp David agreement - as it interpreted it - with an expansionist policy that led it to acquire the majority of the land in occupied territories. These arrangements have become the basis for the transitional five-year period which, according to the DOP, will begin upon Israeli withdrawal from the Gaza Strip and Jericho area (Article V(1)).
Although the DOP itself makes no reference to Camp David, the link between the two was stressed by Prime Minister Yitzhak Rabin in an address to the Knesset:
The plan to apply self-government to the Palestinians in Judea, Samaria and Gaza - the autonomy of the Camp David Accords - is an interim settlement for a period of five years.7
In this article I want to show, through reference to the DOP, how the main arrangements imposed unilaterally by Israel in the past 26 years relating to land, water and Israeli settlements have been left intact, and how the jurisdiction of the Palestinian Authority has been restricted to exclude Israeli settlements. In the second part of the article I will discuss the question of whether a legal case can be made for action based on the declaration, and in pursuance of its stated objectives, to reverse these arrangements and challenge the Israeli control of the land and the continued existence of the settlements.
I. How Israeli Settlements have been Left Untouched by the DOP
It is quite obvious that the Israeli side went to great lengths to defeat any of the attempts by the Palestinians to introduce articles which could later be interpreted as enabling the Palestinian Self-Government Authority to extend its jurisdiction to Israeli settlements. Although there is no statement in the DOP itself excluding the settlements from the jurisdiction of the Palestinian Council, their exclusion results from Agreed Minutes attached to the Declaration. Thus, Article IV, which discusses jurisdiction of the Palestinian authority, states that:
Jurisdiction of the Council will cover West Bank and Gaza territory, except for issues that will be negotiated in the permanent status negotiations.
These are defined in Article V(3) as including settlements.
Article IV continues with a statement which was the subject of lengthy negotiations in the period preceding the direct Israeli Government/PLO negotiations. It 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'. Should the Palestinians interpret this as granting the Self-Government Authority jurisdiction over the settlements, section B of the Agreed Minutes indicates that:
It is understood that: 1. Jurisdiction of the Council will cover West Bank and Gaza Strip territory, except for issues that will be negotiated in the permanent status negotiations: Jerusalem settlements, military locations and Israelis.
Not only are the settlements explicitly excluded from the general jurisdiction of the Palestinian Authority, any exercise by the Palestinian Self-Government Authority in the specific spheres which shall be transferred to it will not empower the Palestinian Council to exercise these over the settlements or their Israeli inhabitants. Section B.2 of the Agreed Minutes makes it clear that `the Council's jurisdiction will apply with regard to the agreed powers, responsibilities, spheres and authorities transferred to it'. Any transfer of authority will therefore be carefully tailored to exclude settlements, and no transfer could possibly be open-ended or territorial, extending to all the inhabitants of the territory of the West Bank and Gaza regardless of the nationality of the inhabitants residing in it.
Moreover, the DOP strictly defines the powers to be transferred to the Palestinian Council. Residual powers shall remain within the jurisdiction of the Israeli Government. Thus, although Article VII(5) provides that:
After the inauguration of the Council, the Civil Administration will be dissolved and the Israeli military government will be withdrawn.
The Agreed Minutes regarding this Article specify that:
The withdrawal of the military government will not prevent Israel from exercising the powers and responsibilities not transferred to the Council.
The consequences of this Article are detrimental. Until the signing of the DOP, all the areas in which the settlements were established (with the exception of East Jerusalem) were outside the jurisdiction of Israel. Despite the arrangements that led to their de facto inclusion within Israel it was never admitted that a de jure annexation had taken place. Now, however, it is agreed that the Government of Israel will exercise direct jurisdiction over these areas. This will be tantamount to annexation. It must be pointed out here that this contradicts Article V(4) that the `outcome of the permanent status negotiations should not be ... preempted by agreements reached for the interim period'. The Agreed Minutes seem to do exactly this. By giving the Israeli Government direct jurisdiction over the settlements established in occupied territories, albeit in limited spheres, the outcome of the permanent status negotiations is preempted.
Finally, in the Agreed Minutes to Annex II it is stated that:
It is understood that subsequent to the Israeli withdrawal, Israel will continue to be responsible for external security, and for internal security and public order of settlements and Israelis. Israeli military forces and civilians may continue to use roads freely within the Gaza Strip and the Jericho area.
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1 Barrister at Law, Aziz, Fuad and Raja Shihadeh, Jerusalem. Legal
advisor to the Palestinian delegation of the Israel/Palestinian negotiations in
Washington from November 1991 to September 1992.
2 Hereafter referred to as the DOP.
3 Hereafter referred to as the PLO.
5 See W.W. Harris, Taking Root, Israeli Settlement in the West
Bank, the Golan and Gaza-Sinai, 1967-1980 (1980). Also see M. Benvenisti,
The West Bank Data Project, A Survey of Israel's Policies
(1984).
6 Article in the Jerusalem Post of 11 November 1993 in which
it is reported that: `A government-appointed committee has approved a plan for
massive Jewish development in the administered territories, from the Eastern
borders of Jerusalem to the outskirts of Jericho.'
7 Official Publication of Ministry of Education and Culture, Central
Office of Information, Ministry of Foreign Affairs, Declaration of
Principles of Interim Self-Government Arrangements, September
1993.
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This file was last modified:
Tuesday, October 14, 2003 11:54AM