by Mazen Qupti
A careful study of the Gaza-Jericho Agreement signed between Israel and the PLO in Cairo on May 4, 1994, reveals the fact that Israel has given the Palestinians limited authorities and responsibilities and has kept the essence in its own hands.
This article proposes to shed light on certain facts of the Agreement by analysing some of its clauses.
The status of the Gaza Strip and Jericho "shall not be changed for the period of the Agreement, and nothing in the Agreement shall be considered to change this status". The status of Gaza and Jericho, like all the other Palestinian lands is occupied territory. This is stipulated in article XXIII(7) of the Agreement. According to international law in occupied territories, the military government is the sovereign de facto, and the military governor is the highest authority in these territories.1
Similarly, article III(4) emphasizes that the withdrawal of the military government shall not prevent it from continuing to exercise the powers and responsibilities specified in the Agreement and that the military government shall continue to have the necessary legislative, judicial and executive powers and responsibilities in accordance with international law [art. V(3)(b)].
According to Israel this fact is very significant. It emphasizes that, notwithstanding the transfer of a large portion of the powers and responsibilities exercised by Israel to the Palestinian Authority (PA), the status of the West Bank and Gaza Strip will not be changed during the interim period. It further suggests that "the Palestinian Council will not be independent or sovereign in nature, but rather will be legally subordinate to the authority of the military government. In other words, operating within Israel, the military government will continue to be the source of authority for the Palestinian Council and the powers and responsibilities exercised by it in the West Bank and Gaza.” 2
In the Agreement, all authorities and responsibilities to be transferred to the PA, are clearly defined. Article III(l) for example, indicates that Israel shall transfer authority to the PA "as specified in this Agreement" and the PA shall carry out and be responsible for all the legislative and executive powers and responsibilities transferred to it under the Agreement.
By the same token, the Agreement also clarifies the powers and responsibilities which the PA cannot practise, among which are foreign relations. These include the establishment abroad, as well as in Gaza and the Jericho area, of embassies, consulates or other types of foreign missions and posts. They also include the appointment of or admission of diplomatic and consular staff and the exercise of diplomatic functions [art. VI(2)(9)].
Also, Israel and not the PA shall continue to carry the responsibility for defense against external threats, including the responsibility for protecting the Egyptian border and the Jordanian line, and the defense against external threats from the sea and from the air, as well as the responsibility for overall security of Israelis and settlements [art. VIII(l)], [art. V(l)(b)] and [art. V(3)(a)].
While powers, responsibilities and authorities were transferred to the PA specifically and only in accordance with the provisions of the Agreement, the transfer of the Israeli Military Government's duties, liabilities and obligations arising with regard to acts or omissions which occurred prior to the transfer to the PA was effected in large and without any specification. After signing the Agreement, Israel will cease to bear any financial responsibility regarding such acts or omissions and the PA will bear all such financial responsibility [art. XXII(l)(a)].
Phrases such as "in accordance with this Agreement", or "subject to the provisions of this Agreement", etc. in the manner and number in which they were used, lead to the conclusion that the Israeli side insisted on giving to the Palestinians only those authorities Israel was willing to give and not what the Palestinians wanted to get.3
A good example of the minimization of 'the scope of powers and responsibilities which were transferred to the PA is in the sphere of legislative powers. According to article IX(1)(2) of the Declaration of Principles signed in Washington, September 1983, the elected Palestinian Council will be empowered to legislate in accordance with the interim agreement within all authorities transferred to it. It was also agreed that both parties will review jointly laws and military orders presently in force in the remaining spheres. Accordingly, the Palestinians have the sole legislative power within all the authorities transferred to them, unless it is agreed upon differently in accordance with the interim agreement. However, the Palestinians in the Gaza-Jericho Agreement accepted the Israeli interpretation of this article by giving Israel the affirmation power for legislation promulgated by the Council in order to enter into force.4
For example, article VII(3) stipulates that "legislation promulgated by the Palestinian Authority shall be communicated to a legislative sub-committee to be established by the CAC (hereinafter the legislation subcommittee). During a period of thirty days from the communication of the legislation, Israel may request that the legislation subcommittee decide whether such legislation exceeds the jurisdiction of the Palestinian Authority or is otherwise inconsistent with the provisions of this Agreement."
If there is such an Israeli request, the legislation does not enter into force, and the situation shall be maintained pending the decision of a liaison committee [art. VII(8)].
In addition, article VII(9) which stipulates that laws and military orders in effect in the Gaza Strip or the Jericho area prior to the signing of the Agreement remain in force, unless amended or abrogated in accordance with the Agreement, has closed the circle by keeping in force all the Israeli military orders in the Gaza and Jericho area.
In other words, while Israel has the right, according to article IX(2) of the OOP to review, jointly with the PA, laws and military orders in force in the remaining spheres that were not transferred to the Palestinians, it has, according to the Gaza-Jericho Agreement the right of veto on any amendment or abrogation of any of the laws and military orders in effect in the Gaza Strip and Jericho area, even if such an order fell within the powers and responsibilities that were transferred to the Palestinians.
Furthermore, while both the Israelis and the Palestinians have jointly the right to review all the laws and military orders in force in the remaining spheres which were not transferred to the Palestinians, the Palestinians in the Gaza-Jericho Agreement waived their right to review these military orders - a right which probably could have led to the cancellation and amendment of some of these military orders. Instead, they have subordinated the amendment and cancellation of these orders to a complicated procedure agreed upon in article VII which would take many months, or maybe years to get into effect.
While the PA legislative powers were derogated in the Gaza-Jericho Agreement, the jurisdiction of the PA has been, since the outset and already in the OOP, agreed upon by both parties, to cover part of the territory, functions and persons. The jurisdiction of the PA will not cover Jerusalem, settlements and military locations. The territorial jurisdiction shall include land, subsoil and territorial waters but not airspace [art. V(1)(9)].
The functional jurisdiction that the PA has extends only to those areas specified and provided for the PA according to the Agreement. For instance, it does not cover all the Gaza and Jericho area, nor all the persons living or visiting in the Gaza and Jericho area.
Israelis are excluded from the jurisdiction of the PA. They will not be subject to laws legislated by the PA or the councilor to arrest or detention or to the jurisdiction of Palestinian courts. Israeli jurisdiction over Israelis, on the other hand, is not limited to any area, and it actually includes all the Gaza and Jericho area [art. V(3)(a)].
More Professional Approach Needed
Has the fact that the OOP and the Gaza-Jericho Agreement deal with a five-year transitional period, and not a permanent status of the OPT been instrumental in leading the Palestinian negotiators to accede to conditions and terms clearly not in their favor? And which preserve the status quo regarding the legal standing of the OPT and the military government? An answer in the affirmative would provide a certain amount of relief, but would certainly not give an adequate justification for all the concessions offered by the Palestinians on all the issues discussed in the Agreement.
According to the OOP, a lot of work and negotiations have to be undertaken by both sides to implement all that was agreed upon in Oslo. Today, the Palestinians already have their own authority and their own self-government in Gaza and Jericho, and any lack of professionalism or mistakes committed in the negotiations for Gaza and Jericho, will not be as easily tolerated in the future. A more professional approach is needed on the part of the Palestinians.
1 Mazen Qupti, "The Application of International Law in the Occupied Territories as Reflected in the Judgments of the High Court of Justice in Israel", International Law and the Administration of Occupied Territories,
pd. Emma Playfair (Oxford:1992) 102, fn. 6.
2 Joel Singer, "The Declaration of Principles on Interim Self-Government Arrangements: Some Legal Aspects", Justice Vol. I, 1994, p. 8.
3 The above phrases and other similar ones were used 33 times in the Agreement.
4 In Feb. 1994, Adv. Joel Singer, the legal advisor of the Israel Foreign Ministry published his article about the DOP Agreement where he suggested a way to limit the exercise of legislative powers of the PA: "Moreover, even within the spheres of authority transferred to the Council, the power to legislate must be exercised 'in accordance with the Interim Agreement'. Thus the Interim Agreement may limit the exercise of this power by, for example, requiring Israeli affirmation for legislation promulgated by the Council in order to enter into force". See also Singer, op. cit., p. 8.