ICC and Palestine Symposium: The (Non) Effects of Oslo on Rights and Status

[Jeff Handmaker teaches law, human rights and development and conducts research on legal mobilisation at the International Institute of Social Studies of Erasmus University in the Netherlands and is a senior research fellow in the School of Law, University of the Witwatersrand, South Africa. Alaa Tartir is a Research Associate at Graduate Institute of International and Development Studies (IHEID) in Geneva, Switzerland and is a Program Advisor to Al-Shabaka: The Palestinian Policy Network.]

The Oslo Process / Accords was a core focus of the Office of the ICC Prosecutor (OTP) in its request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (hereafter ‘OTP request’).

However, the highly-dubious legal basis of the Oslo Process and resulting Agreements have been widely misunderstood and frequently misrepresented, both in relation to content, and even more so in relation to their functioning.

These misunderstandings are reproduced in the OTP request, resulting in an incomplete representation of Palestinian rights and the status of Palestine’s jurisdiction in the OTP request, particularly in relation to the applicable crimes and territory falling under the ICC’s jurisdiction.

The Oslo Process

On 13 September 1993, Yasser Arafat and Yitzhak Rabin shook hands on the White House lawn in the presence of President Clinton in what all present must have felt was a profoundly historic occasion. The occasion was to mark the signing of a set of documents (“Oslo I”) by representatives of the State of Israel and the Palestine Liberation Organization, which arose out of the Oslo Process. This, and other Agreements (Wye River, Madrid, etc.) directly connected to the Process (hereafter ‘Agreements’) that have been signed by Israeli and Palestinian representatives, assume a two-state solution as the core, long-term objective and interim creation of differently-administered territories (e.g. Areas A, B and C).

Despite their flaws, these Agreements have structured and framed the UN, states’ and now the ICC’s attempts to address multiple violations of international law and, ultimately, bring peace to the region. Moreover, the Oslo Process has formed the primary basis for the claim to statehood by the State of Palestine at the United Nations, which has also triggered the ICC’s jurisdiction.

The problems with the Oslo process

The Oslo Process was a murky and flawed attempt to bring peace between Israel and the Palestinians. The Process adopted an exceptionalist approach to international law, undermining Palestinians’ individual rights and their collective claim to self-determination.

The Agreements are deficient in at least four respects. Firstly, the processes leading to them have involved limited participation from the full Palestinian political representation, not to mention ordinary Israelis and Palestinians who, according to international law, should have been provided an opportunity to determine their own future, such as by way of referendum, in ensuring self-determination. Second, as the OTP Request does acknowledge, the Processes excluded the most fundamental issues fuelling the impasse, each of which were relegated as ‘permanent status’ issues, to be resolved in the future, not by the Agreements themselves. The issues excluded from the agreement were: (1) Jerusalem, (2) refugees, (3) settlements, (4) security arrangements, (5) borders, (6) relations and cooperation with other neighbours, and (7) other issues of common interest. Third, the content of the Agreements arising from the Oslo process has been highly-ambiguous in relation to the obligations of Israel, particularly regarding international humanitarian law (IHL), and Palestinian rights. Fourth, and most crucially, while the Palestinian political representatives have met most of their commitments according to the agreements, the Israeli government and military have met few of theirs, fundamentally violating both the content and spirit of the Accords; the OTP Request makes only limited reference to this.

In sum, and following the failures of the past 25 years, the Agreements arising from the Oslo Process cannot be regarded as a solid basis for establishing jurisdiction over alleged crimes in the Palestinian territories. In light of the structural imbalances of power and absence of any meaningful accountability mechanisms guarded by international law, the Agreements are largely security arrangements that have sustained the Israeli military occupation and facilitated the expansion of its settlements and exercising control over the West Bank.

Violations by Israel

In the absence of clear obligations and effective accountability mechanisms, Israel has annexed large swathes of Jerusalem, committed countless IHL and human rights violations, suppressed and excluded refugees and actively encouraged massive settlement construction. The Golan (occupied Syrian territory) was annexed and there are even proposals, especially in light of the so-called “Peace to Prosperity” plan by the United States government, which would “legally” annex large sections of the West Bank that encircle illegal Israeli settlements.

In other words, rather than resolving the conflict, it has been said that the lack of clear obligations in the various Oslo-inspired Agreements have enabled these numerous violations. And yet despite the highly-contested history of these failed peace processes, the ICC has made extensive reference to the content of the resultant Agreements.

Correct references to Oslo by the OTP

There is a specific section in the OTP request under a bold, and legally-correct heading that ‘The Oslo Accords do not bar the exercise of the Court’s jurisdiction’ (section B3). Moreover, the prosecutor is correct in determining, for the purposes of establishing jurisdiction, that the Palestinian Authority (PA) was given authority through the Accords over multiple areas of governance (para 65); that the Accords amounted to a ‘functional transfer and a territorial transfer’ (para 66) and that the territories of the West Bank and Gaza amount to a ‘single territorial unit’ (Idem). Extensive reference to settlement construction underpins the OTP’s references to numerous reports that the viability of a two-State solution has been undermined.

Crucially, while repeating the dubious claims that the PA ‘does not have criminal jurisdiction with respect to Israelis or with respect to crimes committed in Area C’, the Prosecutor did ‘not consider these limitations … to be obstacles to the Court’s exercise of jurisdiction’ (para 183). Indeed, there is huge scepticism, given Israel’s control over the entire West Bank and especially its borders, whether the PA would ever have the capacity to exercise this jurisdiction. There is also an important assertion that ‘the Oslo Accords cannot override the right to self-determination of the Palestinian people’ (para 187).

Incomplete record of the functioning of the Agreements

Yet, the record of Israel’s deliberate undermining of the Peace Process is incompletely represented in the OTP Request. This is partly due to extensive reliance on an article by Yoram Dinstein. Dinstein’s credibility has been severely compromised after he was exposed for his double roles with international NGOs and with the Israeli Foreign Ministry. This is relevant not so much in relation to the norms that the Agreements provided, which are dubious on their own terms, but raises serious questions regarding their functioning.

With the exception of settlement expansion in the West Bank, condemned by Security Council Resolution 2334, and the affirmation of Israel’s control over air, sea and land borders in both the West Bank and Gaza Strip, there is little to no reference in the OTP Request to how Israel has routinely violated its (limited) obligations in the Oslo Accords.

Israel has deepened its military occupation of the West Bank with hundreds of military checkpoints (no mention of this in the OTP Request), routinely violated the territory of Gaza through frequent and large-scale military attacks (limited mention in the OTP Request), arrested and imprisoned elected members of the Palestinian Legislative Council and prevented further elections (no mention of either in the OTP Request).

All of these violations, and much more, including racial segregation in Israel, form the basis for what the Committee on the Elimination of Racial Discrimination (CERD) determined in its 2012 and 2019 Concluding Observations is Israel’s maintenance of an extensive ‘apartheid’ regime. The word ‘apartheid’, a crime against humanity, is not mentioned at all in the 112-page document. Indeed, there is limited reference generally in the document to crimes against humanity.

In short, both in its norms and functioning, the Oslo process was structurally incapable of delivering an interim, let alone final resolution between Israel and the Palestinians. It is therefore unfortunate that the OTP Request relies so extensively on it.

ICC’s Jurisdictional scope is wider than the OTP Request specifies

Basing the ICC intervention on a fundamentally flawed framework (Oslo Accords) reproduces the same problems, despite what appear to be the good intentions of the Office of the Prosecutor. As there is increasing awareness of the fundamental limitations of Oslo Accords and a search for, and even entertaining other ideas for alternative frameworks/paradigms to better reflect the realities on the ground, it is crucial to treat the Oslo Accords and subsequent agreements as of dubious legal value.

In fact, the jurisdictional scope of the ICC is considerably wider than the OTP specifies in its request.

Hence, as this matter moves forward, the ICC’s understanding of its jurisdictional scope should not be constrained by the exceptionalist framing of the Oslo Process. This includes the fundamental rights of Palestinians and in particular the ICC’s jurisdiction over crimes against humanity, including the crime of apartheid, of which there is abundant evidence.

An effective ICC investigation goes hand in hand with accountable leadership

A future ICC investigation will likely be a long and daunting process, consuming the scarce resources of Palestinian, Israeli and international human rights organizations, political leadership, and (inter-) governmental bodies. Crucially, a legitimate, representative, and accountable Palestinian leadership is a vital prerequisite to ensure an effective and meaningful ICC investigation.

Apart from its relevance to the rights of Palestinians and status of the Palestinian territory under the jurisdiction of the Court, the ICC moment could also be an important opportunity for the Palestinians to strengthen their governance structures and leadership models, in the realisation of their longstanding claims for self-determination and justice.