Coming Apart at the Seamline-
The Oslo Accords and Israel's Security Barrier: A Missed Opportunity at the International Court of Justice and the Israeli Supreme Court
Seth Benjamin Orkand*
Cite as: Seth Benjamin Orkand, Comment, Coming Apart at the Seamline-the Oslo Accords and Israel's Security Barrier: A Missed Opportunity at the International Court of Justice and the Israeli Supreme Court, 10 Gonz. J. Int'l L 391 (2007), available at http://www.gonzagajil.org.
In 2004, the International Court of Justice and the Israeli Supreme Court both ruled on the legality of the barrier that Israel is constructing along the ‘seamline' between Israel and the West Bank. While they differed in their outcomes, both opinions were based on international humanitarian and human rights law, and neither court found it necessary to discuss the obligations that the Israelis and Palestinians had made in signing the Oslo Accords. This paper examines several possible explanations for this omission, ultimately concluding that the Oslo Accords were binding on the parties as subjects of international law, and they continued to remain in force at the time of the court decisions. If the courts had considered the parties' express agreements, they would have found them extremely relevant to the legality of the barrier. First, the context provided by the Oslo Accords should have given the I.C.J. pause before exercising its discretionary jurisdiction, since the parties agreed that the permanent status issues of borders and Jerusalem would be resolved only through negotiation. Second, both courts may have been more sympathetic to Israel's claim of military necessity if they had considered Oslo's mandate that Israel have exclusive authority to protect its citizens, and the Palestinians' unfulfilled obligation to prevent terrorist attacks. Third, the Oslo Accords would have strengthened the Palestinian's case, since those sections of the barrier that seek to change the demographic composition of the West Bank are likely violative of the Accords' prohibition against changing the status of the territory pending permanent status negotiations. This paper concludes that both courts missed an opportunity to hold the parties to their commitments and enforce them under international law, choosing instead to base their opinions on sources of law far more removed from the current conflict.
I. Introduction............................................................................ 393
II. Writing on the Wall: The Facts About Israel's Security Barrier 395
A. Linguistic Skirmishes: The Use of Words as Weapons........... 395
B. The Security Barrier in Context............................................ 397
C. The Effect of the Security Barrier........................................ 400
III. Legal Challenges to the Barrier............................................ 401
A. International Reaction......................................................... 401
B. Israeli Judicial Interpretation of the Barrier............................ 405
IV. The Peace Process and Bilateral Agreements......................... 407
A. Oslo I: The Declaration of Principles.................................... 408
B. The Gaza-Jericho Agreement............................................... 410
C. Oslo II: The Interim-Agreement........................................... 411
D. The Assassination of Rabin and the Hebron Protocol............. 413
E. The Wye River and Sharm El-Sheik Memoranda.................... 413
G. The Camp David Negotiations............................................. 415
H. The Quartet Roadmap........................................................ 416
V. Why the Oslo Accords Were Not Considered by the I.C.J. or the Israeli Supreme Court 418
A. Were the Oslo Accords Ever Legally Binding?....................... 419
1. The Oslo Accords Do Not Satisfy the Vienna Convention's Traditional Definition of a ‘Treaty' 420
2. The Oslo Accords as Binding Treaties Between ‘Subjects of International Law' 423
B. The Oslo Accords Were Still in Force in 2004....................... 427
VI. The Oslo Accords Applied to the Separation Barrier............. 430
A. Jurisdiction of the International Court of Justice.................... 431
B. Oslo's Prohibition Against Actions that Would Prejudice Permanent Status Negotiations 433
C. Reciprocity and Israel's Security Obligations........................ 436
VII. Conclusion............................................................................. 437
I. Introduction
A grim "monument to evil," the charred and twisted carcass of the Number 19 bus sat outside the International Court of Justice (I.C.J) in The Hague as a reminder of how Israel had suffered from terror and why it felt its security barrier along the ‘seamline' with the West Bank was necessary. [1] The bus had been destroyed and eleven passengers were killed when a Palestinian suicide bomber detonated explosives on board while traveling in Jerusalem during rush hour three weeks earlier.[2] Flown from Israel to the Netherlands by Zaka, a search and rescue organization that collects the remains of attack victims for Jewish burial, the bus provided a symbolic backdrop as the I.C.J. considered the legality of the security barrier.[3] In another symbolic plea for international support, 927 Jewish students from Israel and abroad, one for each of the victims killed in terrorist attacks since September 2000, marched holding placards detailing a victim's life story.[4] Other supporters erected a papier-mâché wall decorated with sunflowers arranged to spell the word "Defence," some wearing shirts splattered with red paint reading "The Fence Saves Lives."[5]
Opponents of the security barrier's legality also used symbolism to garner international sympathy for the plight of the Palestinian people.[6] The Palestinians sent fruit farmers and olive growers who had been separated from their land.[7] They marched near the courthouse and chanted "[t]his wall must fall."[8] Some opponents of the barrier carried gruesome photographs of Palestinian women and children who had died at the hands of Israeli soldiers, and those that spoke with reporters told personal stories of dispossession of the land that their families had farmed for generations.[9] Meanwhile, Palestinians in the West Bank and Gaza Strip marked a "day of rage," observing a moment of silence, staging demonstrations and a general strike, and rallying against Israeli troops.[10]
At the same time that the protests raged in the usually quiet streets of The Hague, the Israeli Supreme Court was also considering arguments on the legality of the barrier.[11] Ruling within two weeks of each other, the decisions of these two courts differed greatly in their outcomes, though they were both predominantly based on the same sources of international law.[12] The Israeli Supreme Court ruled that Israel had the right to build the barrier on occupied territory, but that certain sections posed disproportionate hardships on Palestinians and had to be rerouted.[13] The I.C.J., on the other hand, ruled that the entire barrier violated international law and urged that it be dismantled.[14] Though both decisions determined that Israel holds the West Bank in "belligerent occupation"-and was thus subject to international humanitarian law-neither court considered whether the binding agreements signed between the parties, namely the Oslo Accords, either allowed or prohibited the security barrier's construction.[15]
This essay examines the applicability of the Oslo Accords and subsequent agreements to the legality of the barrier along the seamline between Israel and the West Bank. Part I discusses the history of the barrier, its physical properties, and its effect on Palestinian and Israeli society. Part II explores the Palestinian-Israeli peace process and the main themes established by the Oslo Accords. Part III discusses the legal and political challenges to the barrier as addressed to the United Nations, International Court of Justice, and the Israeli Supreme Court. Part IV addresses possible rationales for why neither the International Court of Justice nor the Israeli Supreme Court considered the Oslo Accords in their decisions regarding the security barrier. Finally, having concluded that the Oslo Accords were legally binding and in effect at the time of these decisions, Part V applies the Accords to the security barrier and discusses how such consideration may have affected the courts' analyses.
II. Writing on the Wall:
The Facts About Israel's Security Barrier
A. Linguistic Skirmishes: The Use of Words as Weapons
How commentators refer to the security barrier often reflects their attitudes regarding its legitimacy and its effect on Israelis and West Bank Palestinians.[16] Some Palestinians call it an "Apartheid Wall [that] isolates Palestinian communities, keeping people locked in Ghettos and Bantustans."[17] The Palestinian National Authority officially refers to the barrier as the "Expansion and Annexation Wall."[18] Of course, linking the barrier to ghettos verbally connects it to the emotionally sensitive history of persecution of European Jews during the Holocaust.[19] Even calling the barrier a "wall" has symbolic significance, subtly likening it to the Berlin Wall, erected by the Communist East German government to prevent East Berliners from defecting to the West.[20]
Meanwhile, the Israeli government labels the barrier a "security fence" built to thwart terrorist infiltration.[21] The Israelis see the distinction between a fence and a wall as an important one; in fact, several Israeli government agencies have created public relations websites dedicated to convincing the public that the barrier should be termed a "fence."[22] In order to emphasize the government's view that the barrier's construction was prompted by the Palestinian Authority's lack of responsiveness to terrorist activity, several members of the government referred to it as the "Arafat Fence."[23] Supporters of the barrier see it as the paradigm nonviolent solution to the problem of terrorist infiltration into Israel.[24] Prime Minister Sharon even invoked Robert Frost's maxim that "good fences make good neighbors" to describe it.[25] It is also interesting to note that many Israelis now call the barrier the "separation" fence, referring to a proposal to withdraw from the West Bank and unilaterally declare Israel's border using the barrier as a reference point.[26]
Despite these attempts to employ facile terms of art to describe the security barrier, in reality its complex construction is comprised of several different types of security structures.[27] The barrier is the largest infrastructure project in Israeli history, costing well over $1 billion, and its construction is indeed a mammoth engineering feat.[28] Once the project is completed, approximately 94 percent of the barrier will be the composite of a number of types of obstacles.[29] It begins with a pyramid-shaped stack of six coils of barbed wire on the West Bank side of the structure, followed by a 1.8 to 2.4 meter (5.9 to 7.9 feet) ditch to prevent vehicles from crossing.[30] Beyond the ditch, a chain-link fence situated atop a concrete foundation contains electronic sensors that warn the IDF of attempted intrusions.[31] On the Israeli side of the fence is a smoothed strip of sand (termed a "trace road") that runs parallel to the fence and enables detection of footprints and vehicle tracks.[32] Beyond this is a two-lane asphalt patrol road, and finally, additional barbed wire.[33] The entire structure has a width of 50 to 70 meters (164 to 230 feet), though it increases to up to 100 meters (328 feet) in some areas.[34] By the time it is completed, the barrier will total approximately 425 miles, of which 335km (209.4 miles) were completed and operational by April 2006.[35]
Perhaps the most controversial section of the barrier is the six percent that will be comprised of a concrete wall.[36] These walled sections have been constructed primarily along the newly-completed Trans-Israel Highway in order to prevent sniper fire that was once common along the road, and in areas where Palestinian population centers closely border Israeli cities and towns.[37] Because this concrete wall is eight meters (25 feet) high, it does not require the adjacent buffer zone included in the rest of the barrier, making it attractive to the Israeli government in areas where there is not a large amount of undeveloped land available or where the wide footprint of the fence would be particularly intrusive.[38] The Israelis claim that the construction of a concrete wall has been limited to areas in which either the electronic fence would not be effective (e.g., along highways that have a history of being subjected to sniper fire) or where there is not enough land for the fence's large footprint.[39] However, Palestinians claim that these concrete wall sections reinforce their feeling of being trapped inside ghettos and may strengthen the aptness of the analogy to the Berlin Wall.[40]
B. The Security Barrier in Context
The construction of walls and fences is not a new phenomenon in Israel.[41] Indeed, security fences surround many Israeli residential communities, airports, power plants, schools, and even nature reserves.[42] Fences and walls are also common on Israel's international borders.[43] For example, Israel's peaceful border with the Hashemite Kingdom of Jordan is marked by several rows of razor-wire fencing and an unpaved road that is examined for footprints and vehicle tracks.[44] Similar barriers have been constructed to demarcate Israel's 266km (100 mile) border with Egypt, its 79km (49 mile) border with Lebanon, and its 76km (47 mile) border with Syria.[45] Perhaps most analogous to the West Bank security barrier is the 52km (30 mile) barrier constructed in 1994 along the border of the Gaza Strip.[46] Like the West Bank barrier, the Gaza Strip barrier consists of an electronic wire fence with posts, sensors, and buffer zones.[47] It also includes a 300-meter (984 foot) wide open observation area on the Gaza side.[48]
The security barrier along the border of the West Bank is unique because it is built primarily inside occupied territory, deviating in several locations from the reference point of the ‘Green Line,' the armistice line established in 1949 at the end of the 1948 Arab-Israeli War.[49] In many cases, these departures from the Green Line were included to maximize the number of Israeli settlements the barrier incorporates.[50] For example, the barrier's route penetrates deep into West Bank territory in order to surround the Israeli settlement of Ariel, a town of 15,000 people located 10 miles inside the Green Line.[51] Israel claims that the inclusion of Israeli settlements on the Israeli side of the fence is motivated by its security need to defend Jewish settlers from terrorist attacks.[52]
However, the deviation from the Green Line is one of the primary concerns of those who oppose the barrier.[53] Opponents rely on the barrier's relation to Israel's controversial settlement policy in their claims that the barrier is not merely motivated by security concerns, but is a veiled attempt at a land-grab.[54] Indeed, the Palestinian position is that the security barrier is an extension of Israel's settlement policy, and that it has sought to avoid the legal complications associated with de jure annexation by pursuing policies of de facto annexation.[55]
While parts of the barrier are being constructed on public land, much of it is located on land privately-owned by Palestinians.[56] In these cases, the land has been requisitioned by the Commander of the IDF Forces.[57] The land remains the property of the landowners, who are compensated for use of the land and any damage incurred by the barrier's construction.[58] The amount of land requisitioned by the IDF is massive-in the first phase of its construction, which comprised approximately 18 percent of the total planned route, the barrier itself passed over 4,850 dunams of land (approximately 1.9 square miles), and separated Palestinian landowners from more than 37,000 dunams (14.2 square miles), including 26,500 dunams (10.2 square miles) of cultivated agricultural land.[59] As of May 2005, the total amount of land requisitioned by the IDF was 47,921 dunams (approximately 18.5 square miles).[60]
C. The Effect of the Security Barrier
The security barrier clearly has a considerable impact on both Palestinian and Israeli populations.[61] It has detrimentally altered the social and economic fabric of Palestinian society, disrupting the lives of up to 600,000 of its citizens.[62] According to the Palestinian National Authority, 149 Palestinian population centers have been adversely affected by the barrier.[63] The economic effects of the barrier have included the closure of over 1,700 businesses, loss of revenue from agricultural harvests, and reduction in access to foreign goods and markets.[64] The poverty rate in the West Bank is severe, and has been exacerbated by the barrier's construction.[65] As of the fourth quarter of 2005, the unemployment rate in the West Bank stood at 21.8 percent, with each working individual supporting an average of 5.4 unemployed persons.[66] Moreover, agricultural production has fallen in the West Bank because of difficulty accessing land located between the Green Line and the barrier.[67]
The social and cultural effects of the barrier have been equally injurious.[68] According to the World Bank, school days have been shortened in areas near the barrier due to restrictions in the movement of schoolchildren across checkpoints.[69] Palestinian government surveys report that the ability of households to visit family and relatives has been hampered for 70.6 percent of households east of the wall, and 90.7 percent of households west of the wall.[70] The barrier separates Palestinian communities that would otherwise be territorially adjacent to each other.[71] It separates communities from religious and holy places.[72] The cumulative effect of these hardships has resulted in psychological trauma, as evidenced by an increase in reported cases of Post-Traumatic Stress Disorder.[73]
While the security barrier's impact on Palestinians has been severe, it has had a positive impact on Israeli society.[74] Israel's ambassador to the United Nations gave a presentation to that body in 2004 that showed a 90 percent decline in successful terror attacks, 70 percent reduction in civilians killed, and an 84 percent decline in the number of people wounded in areas in which the barrier has been completed.[75] The number of suicide bombings within Israel has also declined significantly, from approximately 50 in 2002 to four in 2006.[76] Nonetheless, the route of the barrier remains a hotly debated issue in Israeli politics, and whether Israel should unilaterally declare its eastern border along the route of the security barrier was a key issue in the Israeli elections held in March, 2006.[77]
III. Legal Challenges to the Barrier
A. International Reaction
Israeli's security barrier has been met with resounding and almost unanimous international condemnation.[78] When Prime Minister Sharon announced an initial plan to create buffer zones designed to achieve security separation from West Bank Palestinians in order to prevent terrorist attacks, Palestinian Authority Chairman Yasser Arafat immediately termed the proposal a "violation of international law" that was contrary to the Oslo Accords.[79] The Palestinian leadership issued a statement denouncing the proposed buffer zones as "racist," claiming that they would "convert Palestinian population centers into prisons."[80] Even the United States, Israel's closest ally, has been critical of the current plan.[81] President Bush warned that he sees the barrier as "a problem," while Secretary of State Condoleezza Rice has cautioned Israel not to take actions that would prejudice a final peace settlement.[82] Putting a finer point on the State Department's position, its spokesman Richard Boucher reminded the Israelis "that offering hope to Palestinians, offering them a decent life [and] an end to the barriers, is an important part of achieving security and peace."[83]
In October 2003, the nations of Guinea, Malaysia, Pakistan, and Syria submitted a draft resolution to the U.N. Security Council, calling on Israel to end its occupation of the West Bank and the Gaza Strip, and declaring a wall departing from the armistice line of 1949 "illegal under relevant provisions of international law."[84] Despite ten out of fifteen members of the Security Council voting in favor of the resolution, it failed due to the veto of the United States, which viewed the proposal as "unbalanced" because it "did not condemn terrorism in explicit terms."[85]
Over the next month, the "Quartet," comprised of the United States, the European Union, the Russian Federation, and the United Nations, drafted a "performance-based roadmap to a permanent two-State solution to the Israeli-Palestinian conflict."[86] This plan was unanimously approved by the Security Council in November, 2003.[87] However, several U.N. Member States saw the fact that the Roadmap did not mention the security barrier as a major omission, and petitioned the General Assembly to consider a resolution declaring the barrier illegal under international law.[88] In addition, the League of Arab States asked the Assembly to approve a second measure seeking an advisory opinion from the International Court of Justice (I.C.J.) on whether Israel was legally obligated to dismantle the barrier.[89] Heeding these calls for debate, the Assembly reconvened its Tenth Emergency Session on Illegal Israeli Activities in Occupied East Jerusalem and the Rest of the Occupied Palestinian Territory.[90] Most of the speakers at the emergency session condemned the construction of the barrier, and many questioned why it deviated from the Green Line established under the 1949 Armistice.[91]
The Tenth Emergency Session adopted a resolution demanding that Israel stop and reverse construction of the West Bank security barrier, declaring it a "contradiction to relevant provisions of international law."[92] This condemnation of Israel was overwhelmingly adopted by a vote of 144 in favor, 4 against, with 12 abstentions.[93] Six weeks later, the Emergency Session adopted a second resolution on the subject of the barrier, requesting an advisory opinion from the I.C.J. on the following question:
What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?[94]
The I.C.J. took up the matter quickly, determining that Palestine would be entitled to submit a written statement to the Court because it had permanent observer status at the U.N., despite not being a Member State.[95] The I.C.J. received 49 written submissions, including briefs from Israel, Palestine, the United States, and a dossier of documents from the Secretary General of the United Nations.[96] These statements primarily argued against the legality of the barrier, though the United States and Israel urged the Court to use its discretion not to issue an opinion.[97] The Court heard oral submissions from 12 Member States, in addition to oral statements from Palestine, the Arab League, and the Organization of the Islamic Conference; both Israel and the United States declined the invitation to appear before the Court.[98]
The I.C.J. issued its advisory opinion in July, 2004, holding that the barrier was in violation of international law and calling for Israel to immediately cease its construction, return all land to private owners, and provide compensation to the affected parties.[99] In particular, the Court was concerned that the barrier's placement on West Bank territory might amount to de facto annexation of the territory on its western side.[100] The Court's first holding was that the military necessity clause in Article 23(g) of Hague Convention IV was not a legitimate justification for the barrier because that provision is contained in the section governing armed hostilities, whereas the only regulations pertinent to the barrier are contained in the section governing occupation of territory.[101] Second, the court held that the barrier is contrary to Articles 46 and 52 of Hague Convention IV, and of Article 53 of the Fourth Geneva Convention.[102] Third, the barrier was held to restrict Palestinians' freedom of movement, in violation of Article 12 of the International Covenant on Civil and Political Rights of 1966.[103] In sum, the I.C.J. held that the construction of the security barrier breached several of Israel's obligations under international humanitarian and human rights law.[104] The opinion made no mention of the Oslo Accords, nor did the Court address whether either party's actions were consistent with its treaty obligations.[105]
B. Israeli Judicial Interpretation of the Barrier
At the same time the I.C.J. considered the General Assembly's request for an advisory opinion, the Israeli Supreme Court heard arguments from a number of Palestinian villagers, Palestinian village councils, security experts, and a group of Israeli petitioners, appealing IDF seizure orders for the construction of the barrier through their lands.[106] Sitting in its capacity as the High Court of Justice, the Court heard testimony regarding the barrier's impact on the affected villages, including its impact on agricultural lands, residents' freedom of movement, the environment, and access to educational services.[107] In its opinion, the Court addressed three primary issues: whether the military commander is authorized to order construction of the barrier, the legality of the orders issued to take possession of private land, and whether the proposed route of the barrier violated Israeli or international law.[108]
The right of the IDF military commander to seize private lands within the West Bank had previously been upheld on several occasions by the Israeli Supreme Court based on Israeli law.[109] However, the Court reaffirmed its prior holdings that this authority is limited to military and security actions, and may not by motivated by political considerations, such as the desire to annex territory to the State of Israel.[110] The Court's interpretation of international law supported this view, holding that the military commander is authorized to seize land under belligerent occupation if it is necessary for the needs of the military. [111] Citing articles 23(g) and 52 of the Hague Convention and article 53 of the Fourth Geneva Convention, the Court determined that infringement of the property rights of private landowners does not negate the authority of the military to seize land out of military necessity.[112] Rather, balancing the needs of the local population with the needs of the military, the Court held that the need to block terrorist infiltration into Israel justifies the authority of the IDF to construct the barrier.[113]
Secondly, the Supreme Court held that there had been no defect in the process of issuing orders to seize private land or in the process of allowing submission of appeals, relying on regulations 23(g) and 52 of the Hague Regulations and upon Article 53 of the Fourth Geneva Convention.[114]
Lastly, relying on these international treaties, the Court determined that the proper test for the legality of the barrier's route was whether the harm to the local population was proportionate to the security benefit gained through its construction along that route.[115] Israel claimed that the route of the barrier had been carefully planned according to a number of operational considerations, including the composition of various population centers, population density, topography, terrorist threat assessments, archeological and environmental sensitivity, and humanitarian concerns.[116] In particular, the IDF commander stated his goal was to select a route that ensured the continuity of the barrier, and that established operational superiority by taking advantage of topography and providing space to enable pursuit of terrorist suspects.[117] At the same time, he claimed that Israel attempted to distance the fence from Palestinian cities and villages, minimize the disruption it caused to daily life, and minimize the impact to the environment and archeological sites.[118] Indeed, the Israelis have employed methods such as including crossing points to enable the transfer of goods and people, constructing agricultural passageways to enable farmers to access their lands, and relocating over 60,000 olive trees to areas where they can continue to be cultivated.[119]
The Court examined each section of the barrier independently, holding that some sections met the proportionality test (contradicting the I.C.J. opinion), and that some did not.[120] Those that were held to be disproportionate were ordered to be rerouted.[121] Like the I.C.J.'s Advisory Opinion, the Israeli Supreme Court did not consider the Oslo Accords or other agreements between the parties.[122]
IV. The Peace Process and Bilateral Agreements
"International law does not operate in a vacuum; [indeed], the application of international law is always contextual."[123] The security barrier's construction, and the court decisions that considered its legality, are but one issue within the broad context of the Israeli-Palestinian peace process.[124] In order to understand why the Palestinians were compelled to seek assistance from the U.N. and the I.C.J., and why Israel objected to what it claimed to be inappropriate interference, it is necessary to briefly summarize the 15-year peace process and the diplomatic actions that preceded Israel's decision to construct the barrier.[125] Though the parties have yet to achieve a permanent negotiated settlement, they have produced a series of bilateral agreements grounded in U.N. Security Council Resolutions 242 and 338, which support the principle of Israel relinquishing land in exchange for peace.[126] Six main accords have been signed as part of this process: the Declaration of Principles in 1993 (Oslo I); the Gaza-Jericho Agreement in 1994; Oslo II in 1997; the Hebron Protocol in 1997; the Wye River Memorandum in 1998; and the Sharm el-Sheik Memorandum in 1999.[127] These agreements, viewed together as the ‘Oslo Accords,' evidence a clear pattern and direction, each building upon those preceding it.[128]
The six accords share several themes in common that are applicable to the security barrier.[129] First, though the Israelis have progressively ceded an increasing amount of land to the Palestinians to maintain public order and internal security, Israel has maintained exclusive authority for the security of Israelis and Israeli settlements located in the West Bank.[130] Second, both parties have agreed to take all measures necessary to prevent terrorism and other hostile acts directed toward each other.[131] Third, it was agreed that negotiations for the interim period preceding a permanent settlement would not prejudice final status negotiations, and that neither party would take actions that would change the status of the West Bank or Gaza Strip pending the outcome of permanent negotiations.[132] Fourth, the parties agreed to exercise their responsibilities in accordance with internationally-accepted principles of human rights and the rule of law.[133] Finally, disputes arising out of the application or interpretation of the agreements were to be resolved through negotiations between the parties or through a mechanism of conciliation to be mutually agreed upon, including binding arbitration.[134] Examination of the Oslo Peace Process and the parties' resulting agreements provides context as to why the Israeli government determined it had no option other than to construct a security barrier, and why the Palestinians felt betrayed by these actions.[135]
A. Oslo I: The Declaration of Principles
The Palestinian-Israeli peace process has its roots in the 1991 Madrid Peace Conference, which brought the Palestinians and Israelis together for the first time under the sponsorship of the United States and the Soviet Union.[136] The Conference focused primarily on arms control, regional security, water, the environment, economic development, and the status of refugees.[137] The talks continued in Washington over the next two years, but by mid-1993 it was apparent that the negotiations between the Israelis and Palestinians had stalled on a number of political and security issues.[138]
All was not lost, however; clandestine back-channel talks were conducted in Oslo under the auspices of a private Norwegian citizen.[139] Much to the amazement of the international diplomatic community, these secret discussions resulted in Israel and the P.L.O. exchanging mutual letters of recognition.[140] A few days later, at a ceremony in the Rose Garden of the White House, representatives from Israel and the P.L.O. signed the Declaration of Principles on Interim Self-Government Arrangements, which later came to be known colloquially as ‘Oslo I' or the ‘Declaration of Principles.'[141]
While it was general in nature, and only five pages in length, Oslo I represented a tremendous diplomatic step forward for both parties, as bitter enemies recognized each other's legitimacy.[142] The P.L.O., whose 1968 Charter contained 26 clauses that denied Israel's right to exist, renounced the use of terrorism and other acts of violence and "recognize[d] the right of the State of Israel to exist in peace and security."[143] For its part, Israel formally recognized the P.L.O. for the first time "as the representative of the Palestinian people," agreeing to negotiate with P.L.O. representatives within the framework of the peace process.[144]
Oslo I outlined the framework of a peace process involving the gradual transfer of power from Israel to the Palestinians, with the ultimate objective of reaching a permanent negotiated settlement within five years.[145] This transfer was to take place in four stages: in the first stage, Israel would withdraw from the Gaza Strip and the Palestinian city of Jericho in the West Bank.[146] In the second stage, Israel would transfer partial civil authority to the Palestinians throughout the West Bank.[147] The third stage would involve negotiation of an Interim Agreement on the implementation of Oslo I.[148] Lastly, and most relevant to the security barrier, the fourth stage would resolve differences on the permanent status issues of Jerusalem, the Israeli settlements, water, borders, and refugees' rights.[149]
Oslo I provided for the establishment of a Palestinian Interim Self-Government Authority for the Palestinian People (the Council).[150] The jurisdiction of the Council covered the West Bank and the Gaza Strip, which both parties agreed to view as a single territorial unit, though they are not physically contiguous.[151] In addition, it was agreed that the elected Council would guarantee public order and internal security in the West Bank and Gaza Strip by establishing an effective police force, and Israel agreed to redeploy its military forces in the West Bank and Gaza to unpopulated areas.[152] Israel was to "continue to carry the responsibility . . . for overall security of Israelis for the purpose of safeguarding their internal security and public order."[153] Finally, the parties agreed that any disputes arising out of the application or interpretation of the Oslo Accords, or any subsequent agreements established during the interim period, would be resolved either by a Joint Liaison Committee or by a "mechanism of conciliation to be agreed upon by the parties," including binding arbitration.[154]
B. The Gaza-Jericho Agreement
The Palestinians and Israelis have signed five major agreements within the framework envisioned by the Oslo Accords that were designed to facilitate and eventually achieve a permanent status agreement.[155] The first in this sequence was the Gaza-Jericho Agreement, which provided for the first phase of implementation of Oslo I.[156] As initially agreed in Oslo I, Israel withdrew its military forces from most of the Gaza Strip and the West Bank city of Jericho and transferred civil administration of these locales to a newly-created Palestinian Authority (the P.A.).[157]
The P.A. was granted administrative, judicial, and legislative power encompassing matters falling within its territorial, functional, and personal jurisdiction.[158] While the P.A. pledged to guarantee public order and internal security and prevent terrorist attacks against Israeli targets, Israel retained exclusive responsibility for defense against external threats and the "overall security of Israelis and Settlements, for the purpose of safeguarding their internal security and public order . . . ."[159] Both parties agreed to exercise their powers with "due regard to internationally-accepted norms and principles of human rights and the rule of law."[160]
C. Oslo II: The Interim-Agreement
Israel and the P.L.O. made progress during 1995, and in September of that year they signed the Interim Agreement on the West Bank and the Gaza Strip, which came to be known as ‘Oslo II.'[161] Oslo II remains the primary document governing relations between the two sides.[162]
While only 23 pages long, Oslo II included 284 pages of annexes and appendices covering topics from those of weighty importance, such as Israeli military redeployment and Palestinian elections, to the most mundane, such as the age at which Palestinian children would be vaccinated against measles and the number of adzuki beans that could be imported from Jordan annually.[163] The fact that sweeping declarations and minute details were often contained in the same paragraphs reflected "the enormous complexity of a process of separation in which the Palestinians [were] to gain autonomy but not real sovereignty, and the Israelis [would] cede civil control while keeping a tight grip on security . . . ."[164]
Oslo II provided for the withdrawal of the Israeli military from areas of the West Bank and the transfer of power to a newly-created elected Palestinian Interim Self-Governing Authority that would replace the P.A.[165] The agreement divided the West Bank into three areas, each of which were to be subject to varying degrees of autonomous and shared authority.[166] As Israeli military forces withdrew over an 18-month period, the Palestinian Police were to assume responsibility for public order and internal security.[167]
As in Oslo I and the Gaza-Jericho Agreement, the Palestinians agreed to guarantee public order and internal security.[168] However, Israel maintained responsibility for defense against external threats as well as the overall security of Israelis and Israeli settlements, having "all the powers to take the steps necessary to meet this responsibility."[169] As in the previous agreements, both parties agreed to take all measures necessary to prevent terrorist and hostile acts against each other, and exercise their powers with due regard to international law.[170] Finally, any disputes arising out of the application of Oslo II were to be settled by the parties themselves either through a liaison committee, by a mechanism of conciliation to be mutually agreed upon, or through binding arbitration.[171] Neither side was to take any steps that would change the status of the West Bank or Gaza Strip pending permanent status negotiations.[172]
D. The Assassination of Rabin and the Hebron Protocol
Though the majority of Israelis supported this interim agreement, the population remained sharply divided over the decision to transfer authority in the West Bank to the P.L.O.[173] The day after the signing ceremony, hundreds of Jewish settlers rioted in the West Bank city of Hebron, displaying signs declaring the agreement as "national suicide" and accusing Israeli and Palestinian leaders guilty of "crimes against the Jewish people."[174] The discontent of right-wing Israelis led to the assassination of Prime Minister Yitzhak Rabin following a peace rally in Tel Aviv.[175] The peace process suffered further setbacks a few months later, in the spring of 1996, when Hamas carried out several terrorist attacks inside Israel, killing approximately 55 and wounding another 100 civilians.[176]
Despite the violence and political turmoil, Israelis and Palestinians both took important steps toward implementing Oslo II.[177] By the end of 1995, Israel had withdrawn its military forces from seven of the eight major populated areas of the West Bank.[178] In January 1996, elections were held for the P.A., with P.L.O. Chairman Yasser Arafat elected head of state.[179] However, Israeli redeployment from Hebron, which was supposed to have been completed under Oslo II, was postponed.[180] It was not until 1997 that the Hebron issue was resolved through the enactment of the Hebron Protocol, which called for the redeployment of Israeli forces from much of the city within 10 days of its signing.[181] The Hebron Protocol also included a "Note for the Record," authored by U.S. Ambassador Dennis Ross at the parties' request, reaffirming a commitment to moving the Oslo process forward and resuming permanent status negotiations within two months.[182]
E. The Wye River and Sharm El-Sheik Memoranda
Despite these good intentions, the peace process did not resume in earnest until late 1998, when the parties met once again at the Wye River Conference Center on Maryland's Eastern Shore.[183] The result of the talks recommitted the two sides to continuing the Oslo peace process, providing details to obligations that were left intentionally vague in Oslo II.[184] The Wye River Memorandum defined the exact size and timing of Israeli redeployments, through which Israel would transfer additional area to Palestinian control.[185] In exchange, the Palestinians agreed to outlaw and combat terrorist organizations, prohibit and confiscate illegal weapons, and prevent incitement of violence and terror.[186] Additionally, the Palestinians reaffirmed their commitment to nullify the clauses of the Palestinian National Charter that denied Israel's right to exist.[187] As in the previous agreements, the Palestinians pledged to exercise power with due regard to international law.[188] Most importantly, the two sides agreed to resume permanent status negotiations as soon as possible in order to reach an agreement by May 4, 1999, the five-year deadline proscribed by Oslo I. Additionally, in order to create a positive environment for these negotiations, neither side would take any actions that would change the status of the West Bank or the Gaza Strip.[189]
The slow progress of the peace process, punctuated only by the signing of the Wye Memorandum, was accelerated when Ehud Barak replaced Benjamin Netanyahu as Prime Minister of Israel in May 1999.[190] In September of that year, U.S. Secretary of State Madeline Albright mediated talks between Israeli and Palestinian negotiators in the Egyptian Red Sea resort of Sharm el-Sheikh.[191] The resulting Sharm el-Sheikh Memorandum recommitted Israel and the P.L.O. to implementation of the previous agreements, transferred additional land to Palestinian control and set a deadline of five months for completion of a framework agreement on all permanent status issues.[192] As in previous treaties, both parties agreed not to take any step that would change the status of the West Bank and the Gaza Strip.[193]
G. The Camp David Negotiations
Permanent status negotiations were formally resumed at the Erez checkpoint between Israel and the Gaza Strip nine days after the signing of the Sharm el-Sheik Memorandum.[194] Talks continued a few months later in Washington, D.C., followed by other negotiations.[195] In July 2000, President Clinton invited Yasser Arafat and Ehud Barak to Camp David with the hope of finalizing a negotiated settlement on permanent status issues.[196] The parties decided in advance that there would not be agreement unless all issues were resolved.[197] The negotiations ultimately failed after two weeks of diplomacy.[198] While the primary sticking points were the status of Jerusalem and the right of return of refugees, the parties made tremendous headway on a number of issues that had previously been off-limits.[199] However, the two sides could not agree on the sovereignty of East Jerusalem, including the Jewish and Muslim holy site of the Temple Mount.[200]
Though the two sides could not bridge this gap to reach an agreement, they issued a trilateral statement with the United States that agreed on principles to guide future negotiations.[201] Significantly, the parties recognized the "importance of avoiding unilateral actions that prejudge the outcome of negotiations and that their differences will be resolved only by good faith negotiations."[202]
On September 28, 2000, Israeli opposition leader Ariel Sharon, who would later be elected Prime Minister, visited the Temple Mount accompanied by members of the Likud Knesset faction, then-Jerusalem Mayor Ehud Olmert, and a 1,000-person security force.[203] Sharon's visit was meant to display his objection to the Israeli government's conciliations regarding potential international supervision or any future division of Jerusalem.[204] Clashes between Palestinian protesters and Israeli forces escalated over the following weeks, thus starting "[t]he second Palestinian intifada."[205]
In a final attempt to broker a peaceful settlement before leaving office, President Clinton brought the parties together again in December, 2000.[206] Building on the Camp David talks, Mr. Clinton suggested that Israel give up sovereignty of 96 percent of the West Bank, the entire Gaza Strip, Arab neighborhoods of East Jerusalem, and the holy site of the Temple Mount.[207] Jerusalem would become the joint capital of two countries.[208] In exchange, Mr. Clinton asked the Palestinians to surrender the right of return to Israel proper (though they would be allowed to return to a Palestinian state), accept the Jewish connection to the Temple Mount and the Western Wall, and agree to Israeli control over the borders in the Jordan Valley for three to six years.[209] The two sides agreed to negotiations using this proposal as a starting point, and talks were held in Taba, Egypt, in January 2001, though they were not successful before the conference ended in advance of Israeli elections.[210]
H. The Quartet Roadmap
Ariel Sharon was elected Prime Minister of Israel on February 6, 2001, vowing to retain an undivided Jerusalem as the capital of Israel and to keep the Jordan Valley in the West Bank for security purposes.[211] Members of Prime Minister Sharon's government declared that the results of the negotiations at the Camp David summit and its progeny were "null and void," and the newly-elected Bush Administration in Washington asserted that the plans previously communicated by President Clinton "were no longer United States proposals."[212]
With Prime Minister Sharon refusing to negotiate with the Palestinians as long as the P.A. supported terrorism, numerous efforts to renew the peace progress failed over the next two years due to escalating violence.[213] In an attempt to find a way back to permanent status negotiations, the "Quartet" of the United States, the European Union, the United Nations, and Russia proposed "A Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict" (the Roadmap) in April, 2003.[214] The Palestinians and Israelis formally accepted the Roadmap that May.[215]
The Roadmap called for a three-phase approach toward a two-State permanent settlement, including the cessation of violence and the establishment of independent Palestinian political infrastructure.[216] In the first phase, the Palestinians would unequivocally cease violence and terrorism and hold free and fair elections, while Israel would withdraw from Palestinian areas it occupied since September 28, 2000 in order to restore the status quo that existed at that time, would freeze all settlement activity, and dismantle those settlement outposts erected since March, 2001.[217]
The second phase of the Roadmap called for a transition period focused on the creation of provisional borders and attributes of sovereignty based on a new Palestinian constitution.[218] The Quartet pledged to use its diplomatic relations to enhance international support of the peace process, including recognition of a new Palestinian state.[219] The final stage of the Roadmap was intended to be completed by the end of 2005, and would focus on negotiating a permanent status agreement and stabilizing Palestinian institutions and the security situation.[220]
Despite finding initial favor with the parties, and progress at a summit held in Jordan in June, 2003, the cease-fire envisioned by the Roadmap ended in August, 2003, when a suicide terrorist detonated a bomb on board a bus in Jerusalem, killing 23 and wounding 130 civilians.[221] As a result of the attack, the Israeli Cabinet approved a plan to wage war against Hamas and other terrorist organizations.[222] In addition, the Israeli Parliament (the Knesset) approved the Cabinet's plan for complete disengagement in the areas of the Gaza Strip and the northern West Bank area of Samaria in June, 2004, and the disengagement from Gaza was completed in August, 2005.[223]
V. Why the Oslo Accords Were Not Considered by the
I.C.J. or the Israeli Supreme Court
Because the Oslo Accords committed both sides to settling the dispute over borders through negotiations, and forbade them from taking steps that would prejudice these negotiations, it seems surprising that neither the I.C.J. nor the Israeli Supreme Court mentioned the agreements in their decisions regarding the security barrier.[224] Perhaps the exclusion of the Accords from the decisions reflected the view that they were not legally binding, and thus not appropriate for judicial review.[225] This view would take into account the intention of the parties when they signed the Oslo Accords as well as the fact that the P.L.O. is not a State with traditional treaty-making powers.[226] However, despite the P.L.O. not being a State, traditional international treaty law does accommodate non-State entities entering into binding treaties.[227] Another reason that the courts may not have considered the Oslo Accords was that they viewed them as no longer in effect, either because the agreements were politically dead, had expired by their terms, or had been terminated on account of material breaches by both parties.[228] However, this section will demonstrate that the Oslo Accords were in force in 2004 when the two courts considered the security barrier, and there are several provisions that should have either informed their interpretations of international law, or could have themselves been the basis for decisions.[229]
A. Were the Oslo Accords Ever Legally Binding?
Treaties that are binding have greater legal significance than agreements that are discretionary, in part because they are appropriate sources of law that may be considered by domestic and international courts.[230] Most countries adhere to the principle that treaties made in accordance with their constitutions bind domestic courts, though some countries require that self-executing treaties be incorporated by local legislation.[231] Treaties, in essence, become the law of the land, though countries differ on how they handle conflicts between treaties and national laws.[232] Under Israeli law, international treaties that have not achieved the status of customary law are only binding on domestic courts once the Knesset enacts legislation incorporating them into the relevant portions of domestic law.[233] Since the Knesset ratified the Oslo Accords, the Israeli Supreme Court would have been bound to follow these agreements.[234]
Whether the Accords were legally binding also has implications for whether they were an appropriate source of law for the I.C.J. to have considered.[235] The Statute of the International Court of Justice limits the sources of law it may use to international conventions, international custom, the general principles of law recognized by civilized nations, the judicial teachings of the most highly qualified international legal scholars, and the like.[236] In the parlance of the I.C.J., international conventions are those agreements that have received manifest acceptance or recognition by the parties.[237] The Oslo Accords would certainly satisfy this definition if they were binding, and thus would have been an appropriate source of law for the I.C.J. to consider.[238]
1. The Oslo Accords Do Not Satisfy the Vienna Convention's
Traditional Definition of a ‘Treaty'
International law embraces the concept of pacta sunt servanda -- that every international agreement in force is legally binding on the parties and must be followed in good faith.[239] The leading contemporary source of treaty law is the Vienna Convention on the Law of Treaties (the Vienna Convention), which sets out the law and procedure for the making, operation, and termination of international treaties between states.[240] Because the Vienna Convention is largely a codification of customary international law, it is "a useful depository of international legal rules even for countries, like the United States, which are not yet parties to it."[241] Thus, even though Israel and Palestine, like the United States, have not signed the Vienna Convention, it is a useful tool in determining whether treaties between these parties are legally binding.[242]
The Vienna Convention defines several elements that, if satisfied, distinguish a legally binding ‘treaty' from nonbinding ‘agreements' or ‘memoranda of understanding.'[243] The first requirement that a treaty be an ‘international agreement' in order to be binding under the Vienna Convention is meant to underscore the necessity that treaties be based on communication between two or more parties, and not unilateral statements of understanding.[244] This is clearly satisfied by the Oslo Accords and the interim agreements between Israel and the Palestinians, as they were the result of years of bilateral and multilateral negotiations.[245]
The second requirement of the Vienna Convention, that agreements must be ‘in written form' in order to be considered treaties subject to the Vienna Convention, reflects the need for proof of ratification and registration of treaties, which is only possible if they are in written form.[246] This requirement is also clearly satisfied by the Oslo Accords, which were not oral agreements, but rather were written, signed, and ratified by both parties.[247]
The Vienna Convention's third requirement is that in order for agreements to be considered treaties, they must be "governed by international law."[248] This requirement signifies its drafters' intent not to subject those agreements that might be governed by a system of domestic law, such as purely commercial transactions between governments, to the terms of the Vienna Convention.[249] The Oslo Accords clearly meet this requirement as well, referring to U.N. Security Council resolutions and internationally-accepted principles of human rights.[250]
The fourth element of treaties, that they may be comprised of one or several instruments, and may be legally binding regardless of their names and titles, reflects the view of the drafters that the number of instruments and the specific designation of each should never be determinant as to whether they are binding. [251] Thus, while the Oslo Accords are comprised of at least six distinct documents titled ‘Declaration,' ‘Agreement,' ‘Memorandum,' and ‘Protocol,' the number of instruments comprising them and their designation have no legal significance under the Vienna Convention.[252]
The last requirement, which is the most controversial in relation to the Oslo Accords, embodies the notion that "the Convention does not apply to all international agreements, only those between States."[253] The final agreement from the Vienna Convention explicitly does not cover "agreements between States and ‘other subjects of international law.'"[254] Unfortunately, the Vienna Convention leaves the concept of what constitutes a ‘State' undefined, although other agreements suggest that for these purposes, a State consists of a defined territory, a permanent population, a government in control of the territory, and the capacity to engage in foreign relations.[255]
Though Palestinian claims to statehood have grown stronger with the signing of each Accord, application of these four elements leads to the conclusion that the P.L.O. was not a State at the time it signed Oslo I.[256] While the P.L.O. did have a permanent population, it is less likely that it had a defined territory, since its borders were one of the permanent status issues left unresolved by Oslo I.[257] In addition, there would be great difficulty in making the argument that the P.L.O. was "a government in control of Palestinian territory.[258] Indeed, in 1993 the Israeli military controlled the day-to-day life of Palestinians in the West Bank and the Gaza Strip.[259] Lastly, while the P.L.O. had made significant strides in its diplomatic capability, it did not have full capacity to engage in foreign relations.[260]
While a stronger argument can be made that the Palestinian Authority more closely met the requirements of statehood upon the signing of Oslo II, it was still not in total control of its territory.[261] Indeed, even after Oslo II, Israel retained control over law enforcement involving Israelis living in the West Bank and Gaza Strip.[262] Further, there are indications that the Palestinian Authority had no greater capacity to engage in foreign relations than it did at the time of Oslo I.[263] Finally, Oslo II left the definition of the borders of the West Bank and the Gaza Strip as an unresolved permanent status issue, with Israel retaining control of external borders.[264]
In summary, the Oslo Accords are treaties in almost every sense of the definition contained in the Vienna Convention, except that the P.L.O. did not meet the traditionally narrow definition of a State.[265] Certainly, the Palestinian Authority came closer to statehood with the signing of each agreement, but it has never had complete autonomy over its territory or its borders.[266] Since the Vienna Convention only considers treaties to be agreements between States, it is necessary to turn to modern customary treaty law, which is broader in its definition of what parties may conclude binding treaties.[267]
2. The Oslo Accords as Binding Treaties
Between ‘Subjects of International Law'
Despite the P.L.O. likely not satisfying the traditional test of statehood, the Vienna Convention recognizes that agreements between ‘other subjects of international law' may still be binding.[268] Indeed, Article 3 states that "[t]he fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law . . . shall not affect . . . the legal force of such agreements."[269] Though the Vienna Convention does not define ‘other subjects of international law,' its history indicates that Article 3 was intended to allow states to enter into legally binding treaties with international organizations and entities such as insurgent groups, without these agreements being precluded from being binding by the Vienna Convention.[270] Several commentators have claimed that the P.L.O. is a ‘subject of international law,' thus allowing the possibility that the Oslo Accords are legally binding under the Vienna Convention.[271]
Some have claimed that the parties' recognition of each others' legitimacy elevated the status of the P.L.O. and equalized its international standing with that of Israel.[272] However, the international status of the P.L.O. and its ability to enter into legally binding treaties is not solely dependent on Israel's recognition.[273] Indeed, the P.L.O. has a long history of acceptance as the representative of the Palestinian people by the rest of the international community, and especially in the United Nations.[274] The U.N. General Assembly granted permanent observer status to the P.L.O. in 1974, and the Palestinians have operated missions to the U.N. in New York and Geneva since that year.[275] In 1988, the General Assembly adopted resolution 43/177, recognizing the proclamation of statehood by the Palestine National Council, and declaring that "the designation of ‘Palestine' should be used in place of the designation ‘Palestine Liberation Organization' in the United Nations system . . . ."[276]
In 1998, the General Assembly conferred additional rights and privileges upon Palestine, including the right to participate in the general debate held at the start of each session of the General Assembly, the right of reply, the right to co-sponsor resolutions and the right to raise points of order on Palestinian and Middle East issues.[277] Furthermore, in light of Palestine's permanent observer status at the U.N., the I.C.J. granted Palestine the right to submit written statements on the legality of the security barrier, a right enjoyed by U.N. Member States.[278] In addition to participating at the United Nations, the State of Palestine is recognized by some 94 countries.[279] Palestine operates embassies, missions, and delegations in several countries around the world.[280]
In addition to the P.L.O.'s recognition by Israel and a substantial part of the international community, alternative theories have been suggested as to why it should be considered a subject of international law.[281] For example, Professor Geoffrey Watson argues that there is moment at which sub-State entities can begin to bind themselves to international agreements, even though they may lack complete sovereignty, especially in the case of colonies signing agreements with their former governing states prior to complete independence.[282] Indeed, as a practical matter, States would have less incentive to enter into agreements with sub-State entities if they were not binding, since there would be no legal assurance of mutual performance.[283]
Throughout the twentieth century, there is ample precedent of States entering into legally binding agreements with sub-State actors.[284] For example, Great Britain entered into agreements with the National Front for the Liberation of Occupied South Yemen in 1967 and the African National Council in 1979.[285] Likewise, in 1974 Portugal entered a binding agreement with the Mozambique Liberation Front.[286] France concluded a treaty with the Front de Libération Nationale Algérien as part of its withdrawal from Algeria in 1962.[287] The United States has even entered into agreements with the P.L.O., such as the "Agreement on Encouragement of Investment", signed in 1994.[288]
While the Oslo Accords do not appear to be binding treaties between States under a narrow definition of statehood, they do comprise agreements between other subjects of international law.[289] While history is rife with examples of nations concluding treaties with national liberation movements, these treaties are only binding if the parties actually intended to be bound.[290] Indeed, it is conceivable that two subjects of international law could conclude non-binding agreements if the parties chose to draft them that way.[291]
In the case of the Oslo Accords, the parties signaled their intent to be legally bound in a number of ways.[292] Most importantly, the agreements that formed the Oslo process were ratified by both the Israeli and Palestinian governments in accordance with their respective laws.[293] In addition to ratifying the Oslo Accords, the parties evidenced their seriousness of purpose and intent to be bound in a multitude of other ways.[294] For example, all of the Accords were signed at formal ceremonies hosted by foreign countries and witnessed by representatives from other nations, such as the United States, Jordan, and Egypt.[295] Each of the six agreements were executed by individuals holding the highest political offices in Israel and the P.L.O.[296] They speak of ‘entry into force' and contain language imposing mandatory, rather than optional, obligations, using terms such as ‘will' and ‘shall.'[297] Finally, the agreements are structured formally like treaties, containing preambles, articles, annexes, maps, and final clauses.[298]
Having determined that the Oslo Accords are binding agreements between subjects of international law, and evince the parties' intent to be legally bound, it is appropriate to consider whether they were still in effect when the courts considered the security barrier, since they would have been irrelevant to the I.C.J. and Israeli Supreme Court if they were no longer in force.[299]
B. The Oslo Accords Were Still in Force in 2004
Even if the I.C.J. and Israeli Supreme Court were convinced that the Oslo Accords were legally binding, they may have regarded them as legally, and not just politically, extinct.[300] There are three possible bases for considering the Accords dead: first, that they had expired because permanent status negotiations were not concluded within the timeframe required; second, that both parties had materially breached their obligations under the Accords, rendering them null and void; and third, that circumstances had changed so fundamentally as to render the Oslo Accords obsolete.[301]
According to the Vienna Convention, parties cannot denunciate or withdraw from a treaty that does not contain a termination provision unless it can be established that the parties intended to admit the possibility of denunciation or withdrawal or if this possibility was implied by the nature of the treaty.[302] With regard to the Oslo Accords, both the text of the agreements and the actions of the parties indicate that they intended for the Accords to stay in force in the event that a settlement on permanent status issues was not achieved within the required timeframe.[303]
Though the Oslo Accords envisioned resolution of permanent status issues by May 4, 1999, none of the Oslo agreements contained a termination clause, nor a provision that the agreements would no longer be in effect if a permanent status settlement was not reached.[304] In fact, the text shows that the parties held the opposite point of view, describing the Oslo peace process as "irreversible."[305] The actions of the parties are consistent with this textual interpretation.[306] As the deadline for a permanent settlement approached without significant diplomatic progress, P.L.O. Chairman Yasser Arafat announced plans to unilaterally declare Palestini |
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