QUESTION #9
What are the legal implications of the Oslo
Accords vis a vis the security fence and the issue of jurisdiction?
On September 13, 1993, Israel and the Palestinian Liberation Organization
signed an agreement, whereby final borders between Israel and a
Palestinian autonomous region or state were to be determined by
negotiation. Because the initial discussions took place in Oslo,
Norway, the agreement later signed was named the Oslo Accords.
In signing the Accords, both sides created for themselves legal
obligations regarding the other. This is an extremely important
point, as Article 36 of the Statute of the International Court of
Justice specifically gives the Court jurisdiction to adjudicate
cases according to, inter alia, treaties between parties.
Below are the articles most relevant to the advisory now before
the International Court of Justice, including accompanying analysis.
Articles from the Oslo Accords, most relevant to the issue of
the security fence
Article 4: The two sides view the West Bank and Gaza Strip
as a single territorial unit, whose integrity will be preserved
during the interim period.
The ICJ will have to determine if the security fence fundamentally
disrupts the territorial integrity of the West Bank.
The Palestinian side agreed in principle to leave the status of
the land of the West Bank undecided and as something to be determined
via negotiations, including borders. This further buttresses the
point that neither side has a manifest and unchallengeable claim
to sovereignty rights over the West Bank. This then affects how
the ICJ will rule regarding the fence as possibly infringing on
Palestinian claims.
Article 8: In order to guarantee public order and internal
security for the Palestinians of the West Bank and Gaza Strip,
the [Palestinian] Council will establish a strong police force,
while Israel will continue to carry the responsibility for defending
against external threats, as well as the responsibility for overall
security of Israelis for the purpose of safeguarding their internal
security and public order.
In Article 8, the Palestinian side agreed to give Israel
the authority to take such measures within the West Bank as preserves
the security of Israelis, including those in the West Bank (Israel's
responsibility for the security of settlements in the West Bank
is mentioned explicitly in Article
12 of the 1995 Interim Agreement - “Oslo II”. The
security fence would seem to have a legal basis within this specific
context.
Article 15, paragraph 2: Disputes which cannot be settled
by negotiations may be solved by a mechanism of conciliation to
be agreed upon by the parties.
Although the Oslo Accords provided mechanisms for resolving disputes,
the bottom line is that when there is an irreconcilable disagreement,
there is no final arbiter.
Thus, when the Palestinian Authority chose to very loosely interpret
the numbers of armed policeman it could employ, all Israel could
do was continue to seek the agreement of the Palestinians, who refused
to refer the issue to some third party or outside arbiter.
Likewise, with regard to the fence, there is obviously no agreement
between the two sides, and no mechanism to impose a definitive resolution.
Thus, Israel is within its legally derived right to interpret Article
8 regarding its responsibility for overall security, just as the
Palestinians were within their right to interpret what constitutes
an armed policeman.
Conclusions
Inasmuch as the Palestinian side in the Oslo Accords committed
itself to accepting the provisions of the Accords, including Israel's
right to be present in the West Bank and to be active in the realm
of security, the International Court of Law will need to weigh the
precise meaning of the relevant articles very carefully, in order
to determine the security fence's legality in the context of International
Law.