A legal perspective on “Oslo”

A legal perspective on “Oslo”

By John V. Whitbeck

INTRODUCTORY NOTE

With the 20th anniversary of the signing of the “Oslo”Declaration of Principles, the American University of Cairo Press is releasing a book of essays entitled “The Oslo Accords 1993-2013: A Critical Assessment“.

Below is my own essay which is included in the book.

I wrote my essay last December and subsequently updated it only to take account of the Presidential Decree of January 3, 2013, by which the Palestinian Authority was formally absorbed and replaced by the State of Palestine, a change which remains almost universally ignored outside of Palestine. It therefore reflects toward its end a warm glow of optimism in the wake of the overwhelming UN vote confirming Palestine’s “state status” on November 29, 2012.

Needless to say, this warm glow has gone cold. The November 29 vote has not proven to be the game-changer which I believe it could have been and should have been. Rather than building constructively and imaginatively on its UN triumph and the enthusiastic support of the overwhelming majority of mankind, the current Palestinian leadership in Ramallah has returned to
the American-manipulated hamster-wheel of the perpetual “peace process”, aggravated this time by an American-imposed “gag order” against even speaking about what is (or is not) happening in this new round of “negotiations”.

          The announcement on August 13, 1993, that secret Israeli-Palestinian negotiations, facilitated by the government of Norway, had produced the agreement which, exactly one month later, was signed between the State of Israel and the Palestine Liberation Organization as the “Declaration of Principles on Interim Self-Government Arrangements” (the “DOP”) came as not only a surprise but also a shock to many people.

It should be recalled that the State of Palestine had been proclaimed on November 15, 1988, and rapidly recognized diplomatically by some 100 other states. Furthermore, official Israeli-Palestinian negotiations in Washington, which had been launched after the Madrid peace conference of October 1991 and in which Palestine was represented by a highly distinguished and competent team of Palestinian negotiators who were assisted by American law professor Francis Boyle and the well-known Palestinian lawyers Raja Shehadeh and Anis Kassim, were still ongoing. It was widely reported that the members of the official Palestinian negotiating team were particularly shocked, both about their having been kept in the dark and about the terms to which the secret negotiators had agreed.

I was shocked too. In an article published in the Washington quarterly journal Middle East Policy during the spring of 1993, I had written the following:

“While a comprehensive Arab-Israeli peace is the formal goal of the current “peace process”, the terms of reference for the Israeli-Palestinian bilateral talks effectively bar the Palestinian negotiators from even talking about peace. They may only discuss a restructuring of the administration of the occupation of the West Bank (excluding Jerusalem) and the Gaza Strip for a further period of at least five years. Unless one believes (or hopes) that Jordan, Lebanon or Syria will agree to a Camp David-style “separate peace” leaving the Palestinians out in the cold, one must now recognize that this Likud-imposed strait-jacket on the essential Israeli-Palestinian bilateral talks is preempting and preventing, rather than promoting, genuine progress toward peace….

“Accordingly [after an exposition of Palestine’s state status under the applicable international law criteria], as a matter of customary international law, if not yet of international power politics or Western public consciousness, the status of the occupied territories today is clear and uncontested. The State of Palestine is sovereign, the State of Israel is the occupying power, and U.N. Security Council Resolution 242, explicitly premised on ‘the inadmissibility of the acquisition of territory by war’, is the internationally accepted basis for terminating the occupation.

“It is also absolutely clear that a territory cannot be ‘autonomous’ or ‘self-governing’ under its own sovereignty. Therefore, if the Palestinians were to accept a regime of ‘autonomy’ or ‘self-government’, the ostensible goal of the Israeli-Palestinian bilateral talks, sovereignty would necessarily have to shift elsewhere – presumably to Israel. By agreeing to ‘autonomy’ or ‘self-government’, the Palestinians would be acquiescing, for the first time, in the occupation and would, de jure, be renouncing their existing sovereignty over those portions of mandatory Palestine where they still constitute the overwhelming majority of the population. What could possibly induce them to do so?

“In these circumstances, one may reasonably assume that, ever since Madrid, the Palestinians (as well as the Israelis) have been ‘faking it’ in the ‘peace process’ negotiations, concerned, above all else, with not being blamed for the inevitable breakdown of those talks when it comes. One may also assume that they will continue to ‘fake it’ until they, like the Jordanians, Lebanese and Syrians, are permitted to discuss with the Israelis what they want to discuss – peace, real peace, and how it could be structured to serve the needs and interests of both peoples.” (1993: 63-65)

By agreeing to the terms of the DOP, those who secretly negotiated it made clear that they took Palestine’s declaration of independence (still commemorated in occupied Palestine as Independence Day every November 15) less seriously than the other states, already constituting a majority of the world’s states and encompassing an even higher percentage of the world’s population, which had formally recognized the State of Palestine – indeed, not seriously at all.

The DOP was clearly a leap of faith – and a rather desperate one. Leaps of faith do occasionally produce happy landings, but the odds are against them. In this case, in light of the overwhelming asymmetry of power between Israel and Palestine, the nature of the landing depended almost entirely on the good faith and goodwill of the Israeli side in the negotiations which were to follow the famous handshakes on the White House lawn.

While the DOP in no sense fixed a “two-state solution” as the agreed endgame of the contemplated five-year “interim period” and three-year period of negotiations on “final status”, which were not even to begin until two years into the “interim period”, the Palestinians (and many others) chose to assume that this must surely be the common goal. Indeed, it may well have been the goal in the hearts and minds of Yair Hirschfeld and Ron Pundak, the Israeli academics who played an important role in initiating the secret talks which led to the DOP. However, once the document was signed, it passed immediately into the hands and effective control of Israeli politicians and generals (including politicians who had previously been generals) who, in the words of Uri Savir, Israel’s chief negotiator with the PLO from 1993 to 1996, saw the DoP as “a new instrument for reaching traditional objectives.” (Savir 1998: 96).

Those “traditional objectives” combined the profound Israeli obsession with “security” and the old Zionist goal of settling the “Whole Land of Israel”, and the Israeli government rapidly took advantage of the ambiguities, omissions and injustices incorporated into the DOP and amplified in subsequent implementing agreements to achieve a best-of-all-possible-worlds and cost-free (for Israel) situation in which the settlement project could continue unhindered (indeed, could accelerate and metastasize) , in which “security” in occupied Palestine was subcontracted to Palestinian “security forces” which protected Israelis (including Israeli settlers) but not Palestinians, in which the costs of providing basic services to the occupied people (a legal obligation of the occupying power), as well as the costs of the Palestinian “security forces”, were miraculously borne by western friends of Israel and in which any lingering concerns of the “international community” regarding peace and justice were effectively anesthetized by a perpetual “peace process” of never-ending negotiations of which every “failure” constituted a fresh success for Israel in maintaining this best-of-all-possible-worlds status quo.

It is important to recall that, while Israel was represented in the secret negotiations which produced the DOP by Yoel Singer, a highly competent Washington-based lawyer who had been involved with all of Israel’s important treaties since Camp David, Palestine had no legal representation whatsoever in these negotiations. I do not believe it to be unfair to characterize the absence of any legal representation on the Palestinian side as reckless behavior on the part of the DOP’s Palestinian negotiators. On every objective and practical ground, Palestine was at a huge negotiating disadvantage. To add to those unavoidable disadvantages the avoidable disadvantage of having an agreement of such fundamental importance to the Palestinian people, which was negotiated, drafted and executed in the English language, negotiated and finalized exclusively by people with no legal training and for whom English was not a first language was a grave error which should never have been permitted.

My initial personal involvement in post-DOP negotiations involved serving as a legal advisor to the Palestinian negotiating team during the final week of the negotiations in Cairo which produced the first post-DoP implementing agreement, the Gaza/Jericho Withdrawal Agreement, which was signed on May 4, 1994.

Until near the end of these negotiations, the only legal advisor taking part in these negotiation for the Palestinian side was an elderly Egyptian diplomat who was not, in fact, a lawyer. Shortly before my arrival, Nabeel Shaath, the future Palestinian foreign minister who was the chief negotiator in this round of negotiations, fortuitously ran across the Palestinian-American lawyer Jonathan Kuttab, in Cairo on other business, and asked him to stay and help with the negotiations. Jonathan accepted but told Nabeel that he should also bring in one or more good native-English-speaking lawyers. Nabeel, who had previously invited me to Madrid to contribute ideas for the Palestinian speeches at the 1991 peace conference, called me, and I immediately flew from my Paris home to Cairo.

It was already very late in the negotiating day. In addition, the imbalance of legal talent was again overwhelming, with the Israeli side represented not only by the inevitable Yoel Singer but also by a half-dozen bright, young Jewish-American lawyers and with Yoel “keeping the master”, the working draft of the future agreement to which the Palestinian side could only propose changes. In any negotiation, whether commercial or diplomatic, “keeping the master” confers significant practical advantages.

By the time I arrived, the draft agreement already contained various provisions which could have been read as conferring implicit legitimacy on the occupation and as effectively renouncing the state which had been proclaimed in 1988. Any suggestions of Palestinian statehood were rigorously rebuffed by the Israeli side. As proposed provisions passed back and forth, the Palestinian side would always refer to the “Palestinian National Authority”, and the Israeli side would always cross out the word “National”. The Israeli side was even adamant that postage stamps could not say “Palestine” but must say “The Palestinian Authority”, which was a lot to squeeze on to a postage stamp.

To make it even more difficult to “get to yes” in these negotiations, the Israeli side frequently presented their proposed provisions and revisions on paper headed “Non-Paper”, a diplomatic term of art meaning that the proposal was not a true “offer” which, if accepted, would be binding on the party presenting it. Nabeel Shaath, who managed to maintain his wit and good humor even in the most frustrating of circumstances, broke new diplomatic ground by frequently presenting the Palestinian side’s proposals to the Israelis on paper headed “Non-Non-Paper”.

To make matters even worse, May 4 was Hosni Mubarak’s birthday and the Egyptian president had made clear that he insisted on having the agreement signed, with appropriate pomp and ceremony, on his birthday. Accordingly, blessed with this firm deadline, the Israeli side only needed to run out the clock, refusing to make any changes to the “master” which they were keeping which did not fully satisfy them. Indeed, the agreement was signed on Mubarak’s birthday, in a packed auditorium, albeit only after an extraordinary hour’s delay when Yasser Arafat, shocked by certain aspects of a map which he was seeing for the first time, walked off the stage and had to be virtually dragged back by Mubarak to affix his initials to the offending map.

The only meaningful contribution to the text which I can recall making was securing the inclusion of Article XXIII(5), which was also included in subsequent post-DoP implementing agreements and which read: “Neither party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions.” This “saving clause” was intended to ensure that the agreement could not, as a legal matter, be read as legitimizing the occupation or renouncing the state. If no “final status” agreement could be negotiated during the contemplated five-year “interim period” (extended by the Gaza/Jericho Withdrawal Agreement through May 4, 1999, the fifth anniversary of that agreement), then, as a legal matter, the status quo could – and should – have been restored.

Of course, as a practical matter, this did not happen. After five years, a new status quo had developed, with a great many vested interests (notably including jobs, incomes and, for the top leadership, privileges and an understandable sense of personal importance). Neither the Israeli side nor the Palestinian side nor the “international community” had any incentive to point out that, as a strictly legal matter, the Palestinian Authority – indeed, the “Oslo Accords” in their entirety — had no basis for continuing to exist. Nonetheless, from a purely legal perspective, it would have been easier between May 4, 1999, when the “interim period” ended, and January 3, 2013, when, pursuant to a presidential decree, the Palestinian Authority was formally absorbed and replaced by the State of Palestine, for a conscientious international lawyer to write a legal opinion that the State of Palestine existed than it would have been to write a legal opinion that the Palestinian Authority existed.

In addition to the cancerous spread of settlements in occupied Palestine (new settlement building not having been restrained in any way under the terms of the DOP), the collaborationist “interim arrangements” were – and have continued to be – degrading and humiliating in innumerable ways. While such degradations and humiliations could have been borne and tolerated for five years in the hope that the occupation would then end and true freedom be achieved, had the negotiators of the DOP presented these arrangements to the Palestinian people in 1993 as their people’s “final status” (something which the negotiators could surely not have imagined in their worst nightmares), they would have been, quite rightly, lynched by their own people. Yet these “interim arrangements” (with those aspects even mildly favorable to the Palestinian people largely ignored by Israel) have, tragically, become “final status”.

It is this catastrophic and claustrophobic cage from which Palestine’s “state status” initiative at the United Nations sought to extricate the Palestinian national movement and the Palestinian people.

In early 2011, the State of Palestine, never formally renounced but effectively consigned to a dark closet by the DOP and its subsequent implementing agreements, was brought out again into the light of day, dusted off and polished up with a determined and highly successful effort, starting in South America, to add to the number of states extending diplomatic recognition to the State of Palestine. By November 29, 2012, when the State of Palestine was formally accorded “state status” by the UN General Assembly, the number of states recognizing the State of Palestine had reached 131, more than two thirds of the 193 UN member states, and these states, which included 16 of the 20 largest states by population, encompassed well over 80 percent of the world’s population.

On the 65th anniversary of the fateful General Assembly vote to partition Palestine into two states and on the annual International Day of Solidarity with the Palestinian People, the General Assembly voted, by 138 votes to nine, with 41 abstentions and five no-shows, to recognize the existence as a state “of the State of Palestine on the Palestinian Territory occupied since 1967”. While 16 states which had extended diplomatic recognition to the State of Palestine abstained and four states which had extended diplomatic recognition to the State of Palestine failed to vote, 28 states which had not yet recognized the State of Palestine (including Norway) voted “yes”.

The “no” votes came from an intriguing “Gang of Nine”: Israel, the United States, Canada, the Czech Republic, the Marshall Islands, Micronesia, Nauru, Palau and Panama.

The Marshall Islands, Micronesia and Palau, all former components of the U.S. Trust Territory of the Pacific Islands, are “freely associated states” of the United States, with U.S. postal codes and “Compacts of Free Association” which require them to be guided by the United States in their foreign relations. They more closely resemble American territories than genuine sovereign states and snuck into the UN in the flood of new members consequent upon the dissolution of the Soviet Union and Yugoslavia, when the previous standards for admission were effectively ignored.

Nauru, a tiny island of fewer than 10,000 people in the central Pacific, has, since the exhaustion of the phosphate deposits which briefly made it the country with the world’s highest per capita income, had virtually no sources of income other than marketing its UN votes (reliably joining the United States in voting against Palestine) and diplomatic recognitions (joining Russia, Nicaragua and Venezuela in recognizing Abkhazia and South Ossetia) and housing, in tents, aspiring illegal immigrants who had been hoping to reach Australia. It is a sad place, an isolated island with no beaches, the world’s highest rates of obesity and diabetes and no real alternative to diplomatic prostitution.

Accordingly, only three states of the slightest significance joined Israel and the United States in voting against Palestine and the two-state solution: Canada, the Czech Republic and Panama. They will have to make their own excuses.

In population terms, those who opposed Palestine’s “state status” represented approximately five percent of the world’s population, 370 million out of over seven billion, and, of those, the United States accounted for 314 million. It follows that countries with less than one percent of the world’s population supported the United States in this vote. By contrast, 18 of the 20 most populous states (all except the United States and Germany) voted to support and confirm Palestine’s “state status”.

The European Union vote was 14 “yes”, one “no” and 12 abstentions. Aside from Germany, the Netherlands and the United Kingdom, which abstained, all of the old “western” members voted “yes”. All ten of the new “eastern” members (the three Baltic states, formerly part of the Soviet Union, the six former Warsaw Pact states and Slovenia) abstained or, in one case, voted against Palestine. These “eastern” states have passed from domination by one empire to domination by another empire without ever daring fully to assert their independence. That said, all except the Czech Republic did at least dare to abstain.

It may take some time for the results of this vote to be fully digested. In the best of all possible worlds, one might hope that the United States would finally recognize that, on the issue of Palestine, it is totally divorced and isolated from the moral and ethical conscience of mankind and must now stop blocking progress toward peace with some measure of justice, step aside and permit other states with a genuine interest in actually achieving peace with some measure of justice to take the lead in helping Israelis and Palestinians to achieve it. (Perhaps the time is now ripe for Norway to resume a major role.)

Since we do not live in the best of all possible worlds, and since Americans persist in believing that they are the “indispensable” nation, other states will need to make clear to the United States that its shameful vote against Palestine, the two-state solution and the overwhelming majority of mankind has definitively disqualified it not only from its prior monopoly control over the “Middle East peace process” but even from any further role in it and that its further involvement in the preeminent moral issue facing the international community is no longer needed or wanted.

Notwithstanding all the disappointments and daily degradations and humiliations of the “Oslo process” for the Palestinian people, the process which began 20 years ago with the DOP did permit a governmental and administrative Trojan horse called the Palestinian Authority to be dragged into occupied Palestine and to start building the structures of a state which, until recently, dared not speak its name. The State of Palestine has now emerged from the belly of the Trojan horse, fully equipped to take its rightful place among all other states. The United Nations, with a resounding vote of endorsement and a prolonged standing ovation of support, has certified its existence as a current reality (albeit still under occupation), not simply as a future aspiration.

The State of Palestine is back. Whether its return is too late to make any meaningful difference on the ground remains to be seen but should be known reasonably soon. While a great deal of time has been lost, not all hope has been lost.

 

References

Savir, U. 1998. The Process: 1,100 Days that Changed the Middle East. New York: Random House.

Whitbeck, J.V. 1993. “Confederation Now: A Framework for Middle East Peace.” Middle East Policy 43(2): 63-68.


John V. Whitbeck is an American-born, Paris-based international lawyer who has served as an occasional legal and strategic advisor to the Palestinian leadership for over 20 years. He was in Madrid in October 1991 to contribute ideas for the Palestinian speeches delivered at the conference which launched the “peace process”, in Cairo in April/May 1994 as a legal advisor to the Palestinian negotiating team which negotiated the Gaza/Jericho Withdrawal Agreement and in a motel near Camp David in July 2000, when the “peace process” effectively ended, to be available to provide legal advice on any documents which emerged from the Arafat/Barak/Clinton summit. (None did.) Since 1988, his articles on behalf of Palestinian rights and Middle East peace have been published more than 700 times in more than 80 different Arab, Israeli and international newspapers, magazines, journals and books. Between 1988 and 2000, his “Two States, One Holy Land” framework for peace and his “condominium solution” for sharing Jerusalem in a context of peace and reconciliation were each published more than 40 times, in various lengths and in six different languages.

He is on the board of directors of the Council for the National Interest.

 

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