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.
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.
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
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
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
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
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
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.