If The Two-State Solution Is So Popular, Why Are Oslo Accords That Make It Possible Being Ignored? (Daled Amos)

The ultimate goal of the Oslo Accords is self-determination for Palestinian Arabs, culminating in statehood -- contingent on certain benchmarks being fulfilled. It's been a long wait since 1993, when Oslo I was signed, but the accords are still in force, as the continued existence of the Palestinian Authority attests.

Yet people seem to take Oslo for granted.

Or ignore it altogether.

Especially when they attack Israel.

Betty McCollum's Congressional Bill

Betty McCollum is the first US lawmaker to ever publicly accuse Israel of apartheid. This year she is introducing the “U.S. Commitment to the Universal Human Rights of Palestinians Living Under Israeli Military Occupation Act” -- similar to the previous iterations of this bill that she introduced in 2017 and 2019. In it, she repeats claims of military detention, interrogation, abuse, torture, and prosecution of Palestinian children by Israel.

In its critique of the bill, NGO Monitor notes that this year the bill adds a reference to house demolitions by Israel. The bill claims that “Israel’s drive to perpetuate its control over the occupied West Bank results in other serious violations of international law, including the unlawful demolition of Palestinian homes and the forcible transfer of Palestinian civilians.”

NGO Monitor points out:

The bill fails to explain that Israel’s actions in this regard derive from the provisions of the Oslo Accords, under which Israel has responsibility for the administration of Area C. As such, and even under the rules of occupation that the NGOs and McCollum apply, Israeli authorities must approve all construction, and they are permitted to demolish structures that are built illegally.

Additionally, the issue of illegal homes is subject to judicial review, including by the Israeli Supreme Court, which has been known to issue injunctions against demolition, even when the homes have been constructed illegally.

The key point is that in accordance with the Oslo Accords, Israel retains authority in Area C, a point that McCollum's bill fails to take into account.

The Covid Vaccine

Back in November, Israel made a deal with Pfizer and Moderna to acquire 18 million shots, taking a leading role in the fight against the coronavirus. Israel was in the spotlight for its aggressive approach towards attacking the virus and returning life to normal.

Then in March, accusations came out that Israel was negligent in fulfilling its obligations as an 'occupying power' to innoculate the Palestinian Arabs. Eventually, left-wing members of Congress came out publically repeating the claims that Israel had an obligation under international law, specifically Article 56 of the Fourth Geneva Convention, to innoculate the Palestinian Arab population in addition to its own and was allegedly putting Palestinian Arab lives at risk.

In an article, Fake International Law Is the Newest Anti-Israel Libel, Eugene Kontorovich debunked this claim, pointing out the text of the Oslo Accords:  

Powers and responsibilities in the sphere of Health in the West Bank and the Gaza Strip will be transferred to the Palestinian side...The Palestinian side shall continue to apply the present standards of vaccination of Palestinians and shall improve them according to internationally accepted standards in the field, taking into account WHO recommendations.

Self-proclaimed experts on international law went so far as to proclaim the supremacy of the Geneva Convention over the Oslo Accords -- neglecting the fact that the full name of the Geneva Convention is "The Convention Relevant to the Protection of Civilians in Time of War," and that according to Article 6:

in the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations.

That would be 1968, 53 years ago.

But if the sourcing used to attack Israel is suspicious, so is the timing. Kontorovich points out:

The claim of Israeli responsibility for vaccinating the PA's populace was never made before Israel achieved global renown for its rapid vaccine rollout program. The accusations against Israel now are designed to besmirch and belittle this remarkable achievement. [emphasis added]

This point, that the goal of the accusation is being made more as an attempted smear of Israel than out of genuine concern for Palestinian Arabs, is similar to a suggestion Elder of Ziyon makes in a post about Betty McCollum's congressional bill, mentioned earlier.

The bill includes restrictions on Israel as to what it is allowed to do with the money it receives from the US. Its provisions

would restrict Israel from using US funds to detain Palestinian minors, appropriate or destroy Palestinian property or forcibly move Palestinians, or annex Palestinian areas.

The post goes into detail about the safeguards that are normally included to ensure the proper use of US aid. In fact, in 2016 in response to questions by Congressional critics of Israel, there was an investigation by the State Department into how Israel in fact used US aid -- and Israel was cleared of any wrongdoing.

So if safeguards are already in place, what is the point of McCollum's bill? 
Elder of Ziyon writes:

The bill is meant to do only one thing: to demonize Israel...It is a PR move to get headlines in newspapers that indicate that Israel is an untrustworthy partner, that it is an enemy and not an ally.

This is reminiscent of the boycotts of the BDS movement, which urges others to divest their money and protest against buying tractors that only companies are going to use -- while BDS members are caught using Israeli products like Wix and others that contain parts manufactured in Israel.

Students for Justice in Palestine at the University of Denver defend this apparent hypocrisy by claiming

Boycotts therefore form a limited but necessary component of the BDS campaign. For supporters of the Palestinian call for BDS, boycotts serve as a tactic within a wider strategy...

And SJP Cornell follows suit:

“BDS is not abstention, nor an absolute moral principle … it is a tactic.”

A tactic in an overall smear campaign against Israel and not a principled mission.

The ICC

This year, the other shoe finally dropped as the ICC issued its decision as to whether The Hague would investigate Israel for war crimes allegedly committed in the West Bank, Gaza Strip and East Jerusalem.

In a 2-1 decision, the court decided it would.

Beyond the question of whether there was reason to believe that war crimes had been committed, there was the complex question as to whether the ICC actually had the jurisdiction to step in.

On the one hand, Israel is not a party to the ICC -- unlike the PA, which joined in 2015.
On the other hand, there is the question of whether the Palestinian Authority even has the criminal jurisdiction that it could then delegate to the court to investigate on its behalf.

The logic behind the court's jurisdiction is that the alleged crimes took place on Palestinian soil, so the ICC can investigate, regardless of whether Israel is a member or not, since the Palestinian Authority itself is a member.

This is far from clear cut, and ignores international law, as Israeli Attorney General Avichai Mandelblit points out:

Mandelblit noted that only sovereign states can delegate criminal jurisdiction to the court, claiming that the Palestinian Authority did not meet the criteria; asserted that Israel too had “valid legal claims” over the territory in question; and added that the sides had agreed in the past “to resolve their dispute over the future status of this territory in the framework of negotiations.”

The issue of "valid legal claims" goes back, again, to the Oslo Accords.

Dennis Ross served as the lead US negotiator on Middle East peace and participated in both the Oslo talks as well as other Israeli-Palestinian discussions from 1993 to 2001. In an article, Why the ICC Prosecutor Is Wrong on Oslo, Ross writes that based on his personal and detailed knowledge of the Oslo Accords, he submitted an amicus curiae brief to the ICC, outlining his belief that "the OTP [Office of the Prosecutor] has misrepresented the terms and meaning of these agreements in a number of ways."

Ross quotes from Fatou Bom Bensouda, the chief prosecutor of the International Criminal Court, who wrote that the purpose of the Oslo Accords was “to give effect to the Palestinians’ right to self-determination,” a fact that outweighs the lack of effective control over a well-defined territory. 

Ross responds that it is a mistake for the prosecutor to assume that the "object and purpose" of the Oslo Accords was self-determination --

But that is inaccurate; the accords had several equally important goals, including Israeli security, peaceful coexistence, education for peace, and the development of effective Palestinian governance. Self-determination could not be fully advanced beyond Oslo’s interim self-governance arrangements unless these other goals were fulfilled. [emphasis added]

In the drive for Palestinian self-determination and sovereignty, these issues of importance to Israel are ignored, if not forgotten.

Instead, Bensadou thinks that Palestinian self-determination is an independent end in and of itself, if not the whole point of the agreement.

This is a fundamental error by the prosecutor that is shared by many who tout the virtues of a two-state solution. They ignore the fact that the Oslo Accords address the needs of both parties, the Palestinian Arabs and Israel. Instead, there is a readiness to assume that as a result of Oslo, Israeli rights really have been waived.

A key right that Israel never waived is jurisdiction over area C. Because Israel retains that control and since the Palestinian Authority has only limited control over areas A & B and none over area C, the PA cannot delegate any authority over to the ICC to investigate alleged crimes in Area C.

The accords state unmistakably that Palestinian criminal jurisdiction is circumscribed, that it does not include jurisdiction over Israelis, and that any jurisdiction not explicitly transferred to the Palestinians rests with Israel.

In an article published in the Journal of International Criminal Justice in 2013 entitled "Israel, Palestine and the ICC — Territory Uncharted but not Unknown," Eugene Kontorovich delineates the 2 sides of what Oslo establishes.

On the one hand:

Within the context of Oslo, a Palestinian government has been created which controls the vast majority of the Palestinian population, enjoys direct foreign relations with most countries in the world, and, of course, has recently been welcomed as a sovereign state by the GA. All of these developments are a direct consequence of Oslo.

However:

On the other side of the coin, Oslo established the principle of negotiated final borders and the interim maintenance of settlements. Israeli jurisdiction over settlements is as much a part of the peace process as Palestinian control of Ramallah and Jenin, even if it is not the expected ‘final status’. [emphasis added]. [pp. 991-2]

For all the talk about a "two-state solution," there is a tendency -- if not an outright desire -- to forget that there are 2 states at stake and instead think of it as "the Palestinian-state solution". That second state, Israel, has not only interests represented by the Oslo accords, but binding legal rights as well that preserve jurisdictions while at the same time placing limits on the jurisdiction of the Palestinian Authority.

It is because of the rights retained by Israel that, as Ross notes, "if the Oslo Accords were actually terminated, the legal result would not be more expansive Palestinian authority. Rather, authority would revert back to Israel, as stated explicitly in the accords."

Just as Jews in the Diaspora have historically been forced to fight for their rights, Israel today continually finds itself having to rebut attempts to deprive it of the rights and sovereignty other states take for granted.

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