A Presentation of the Geneva Accord
Between Israel and PLO
With Reference to Precedent Agreements
Fribourg 2 December 2003 [Pour une pleine compréhension de cette analyse, se reporter à la Version anglaise de l''Accord de Genève'.] Asem Khalil. Born in Zababdeh, West Bank/the Occupied Palestinian Territories on 1976. B.A. in Philosophy (1997), B.A./Master/PhD. in Law (Utriusque Iuris) from the Lateran University in Rome, 2003. Now, preparing a thesis to obtain Ph.D. in Public Law, from the University of Fribourg/Switzerland. Proposed title of the thesis: "The Constituent Power of the Palestinian People". For comments, proposals, suggestions, please contact the author at: firstname.lastname@example.org
Preliminary Notes 3
I. Geneva Accord as a Solution 4
1. Geneva Accord and the Oslo Agreements 4
2. The Palestinian State 4
3. The cooperation Between the Parties 5
II. Jerusalem 6
1. Jerusalem Capital of two states 6
2. Al-haram- Ash-sharif – Temple Mount (Compound) article 6.5. 7
3. The Old City 8
4. The Municipal Coordination and The Jerusalemites 8
III. The Question of Refugees 9
1. The Refugee Problem 9
2. The Israeli Responsibility 10
3. The End of the Status of Refugee 11
4. The Hosted countries 11
5. The State of Palestine and the Refugees 11
6. The Compensation Process 12
7. Reconciliation Programs 12
IV. Final provisions 13
1. Designated Road Use Arrangements 13
2. Sites of religious significance 13
3. Border Regime 14
4. Palestinian Prisoners and Detainees 14
5. Dispute Settlement Mechanism 16
Annex I: Index of Geneva Accord 17
Annex II: The Geneva Accord 21
Annex III: Borders Map 50
Annex IV: Jerusalem Map 51
1. Mid-October saw the unveiling of a peace proposal that members of the Israeli leftist opposition and Palestinian officials have been working on for the past two-and-a-half years. The initiative was spearheaded by Oslo architect Yossi Beilin on the Israeli side and former minister Yasser Abed Rabbo for the Palestinians .
2. This agreement was signed in Geneva the first of December 2003, but is unofficial, since the Israeli part is not the representative of the government of Israel. The fact that the agreement is unofficial does not mean necessarily that it is irrelevant since it intends to obtain (and seems to success) the parties populations' approval and the international support.
3. The Geneva Accord is composed of a long preamble and 17 articles, and two maps. The agreement mentions a certain Annex X but the text is not published yet. The GA dedicates a good part for Jerusalem (Article 6) to refugees (Article 7) and to roads, religious sites and borders (articles 8-17).
4. Articles 8 to 17 consider various arguments that we will consider in the fourth section of this paper. The accord that was published in the web included three articles to be completed later (12-14) that should treat vital questions for any agreement between the parties of 1) water; 2) economic Relations; and 3) legal cooperation.
5 In the Geneva Accord and in the present paper the term parties means Israel and the Palestine Liberation Organisation, the representative of the Palestinian people. When an article number is mentioned here it refers to Geneva Agreement, unless specified differently.
6 In the present paper, there are some abbreviations: GA for Geneva Accord, OA for Oslo Agreements, MF for Multinational Forces, IVG for Implementation and Verification Group and PLO for Palestine Liberation Organisation.
I. Geneva Accord as a Solution
1. Geneva Accord and the Oslo Agreements
1.1. The GA is an agreement within the Oslo peace process (see preamble of GA) but supersedes all precedent agreements (article 2.5). The main point of the GA is that Israel shall recognise the state of Palestine and that the new Palestinian state shall recognise the state of Israel; while the OA was based mainly on the recognition between Israel and PLO.
1.1. Article 1 of GA is the key article. With this agreements, the conflict and the claims of the parties shall end. An example of possible contradiction will be the question of refugees that the third draft of Palestinian constitution, article 13.b: the State of Palestine shall strive to apply the legitimate right of return of the Palestinian refugees to their homes, and to obtain compensation in accordance with the United Nations Resolution 194 of 1948, and the principles of International Law, through negotiations, and political and legal channels.
1.3. We read in article 2.2. that the state of Palestine shall be the successor to the PLO with all its rights and obligations. This Agreement seems to be a PLO auto-execution. The right to eliminate the PLO is the right of those who had established it, or to those designed by it; now, the right to take decisions of that importance is not the right of the Executive committee of the PLO but of the Palestinian National Council. This means that the PLO representatives are expressing an international obligation but needs to use constitutional arrangements; as such the international obligation are not directly binding to the Palestinian institutions.
1.4. Article 2: Without prejudice to the commitments undertaken by them in this Agreement, relations between Israel and Palestine shall be based upon the provisions of the Charter of the United Nations. This means that parties decides to prevail mutual recognition and yet the mutual compromises over the international legacy.
2. The Palestinian State
2.1. While the Oslo agreement has no reference to territory of the Palestinian state, since it does not envision it, the GA specifies that the borders are those of June 1967, in accordance with UNSC Resolution 242 and 338 with the reciprocal modifications as set forth in an attached map .
2.2. The withdrawal of Israeli forces and the transfer of authority are also regulated. Sovereignty and territorial integrity shall be respected. This means also the necessity to evacuate most of settlements as agreed upon (article 4.5); the state of Palestine will be the only entitled of the evacuated settlement structures. Still, the evacuation and the withdrawal of Israeli forces and security personnel and equipment are to be partially in stages as agreed by parties and specified in annex X (article 5.7).
2.3. The establishment of a corridor between West Bank and Gaza that will be under Israeli sovereignty that is permanently opened and administered by Palestinians (Article 4.6.).
2.4. According to GA the Palestinian State shall be a non-militarized state, with a strong security force (article 5.3). A multinational Force shall be established and deployed in the state of Palestine (article 5.6) and accomplish the duties specified in the agreement, under the supervision of the IVG. The MF shall enter into the appropriate Status of Forces Agreement with the state of Palestine.
2.5. A joint committee will monitor the crossing borders (as it was the case in Oslo but then cancelled by the Israeli government after the second Intifada). The difference is that the IVG shall review or cancel these provisions after five years (article 5.12.d).
3. The cooperation Between the Parties
3.1. Article 2.n.7-10 presents an important element in a peace resolution: the cooperation between parties, in points of common interest: not only in economy (2.8.) and security (2.9.), but also in legislature institutions, and civil society (2.7). This will help parties to promote real equality between parties.
3.2. Article 5 of GA is dedicated to the security arrangements. The parties shall not use war, terrorism against each other. They shall not make part of a coalition that encourages these acts. Parties have the responsibility in their correspondent states to refrain militias acting in their territories, although they keep mutual consultation on this argument (article 5.4); while OA gave Israel a full authority to act against terrorism wherever, without limits .
3.3. The parties in GA agreed to establish a mutual committee (ministerial level) that guide the implementation of this agreement (2.11). As it was in Oslo, this agreement gives priority to mutual agreement than to international law, or international arbitrage. Still, the novelty of GA is the establishment an Implementation and Verification Group (IVG) that will coordinate with the mentioned committee (article 3).
3.4. This IVG shall be composed of the Quadrate (USA, Russia, EU, UN) and other parties agreed upon by parties. The IVG will guide also a Multinational force, and shall establish a dispute settlement mechanism (article 3.2.f.).
1. Jerusalem Capital of two states
1.1. Article 6.2. Jerusalem shall be the capital of the state of Israel and Palestine. The parties have chosen this solution, in order to satisfy the demands of the two parties, with a compromise. The motivation is that this city is holy for the three monotheistic religions, that will be either Palestinians or Israelis, but also pilgrims from all over the world.
1.2. This article follows the declaration of parties of their recognition of the universal historic, religious, spiritual, and cultural significance of Jerusalem and its holiness enshrined in Judaism, Christianity, and Islam (6.1). it seems interesting to underline that parties accepted to conserve and to respect the status quo, expressed as follows: the Parties reaffirm their commitment … to respect the existing division of administrative functions and traditional practices between different denominations.
1.3. When Mr. Clinton tried to convince the parties (Arafat and Barak) to sign the agreement of Camp David, the religious leaders wrote him a letter in which they asked to be consulted, when treating the question of Jerusalem, for the same reasons that this article provides the creation of an inter-faith body consisting of representatives of the three monotheistic faiths, to act as a consultative body to the Parties on matters related to the city's religious significance and to promote inter-religious understanding and dialogue.
1.4. Jerusalem is the capital for two states (with a non-divided Jerusalem's Old city as in 6.7.). Still, it is not a question of mutual sovereignty. This is regulated with the details in the agreement. Map 2 indicated in article 6.3. is the reference. As for the borders, it is stipulated that it shall be in accordance to article 11 that will be subject of our study in a different chapter. For the moment we can say that there will be a kind of border regime between the parties that is presented in very general terms. This border regime will take in consideration the particularity of Jerusalem.
2. Al-haram- Ash-sharif – Temple Mount (Compound) article 6.5.
2.1. The same title of this article is interesting. It includes mutual recognition of the religious importance and reference of that place. For Muslims this is the Haram al-sharif. In the same time, they recognise the fact that once there was a temple (just down there). This temple was the holiest place for Jews. It was destroyed several times, but the last one was by the Roman Titus, after the Jewish revolution in Jerusalem, in the first century A.D. At the same time, the Israeli state recognises the fact that this place is –and was for centuries- one of the holiest places for Muslims. They reject any fanatic Jewish ideologies calling for the destruction of the al-haram, and the re-building of the temple. It is logic then, that we join the conclusion that there shall be no digging, excavation, or construction on the Compound, unless approved by the two Parties.
2.2. An international group composed of the Implementation and Verification Group (IVG) and other parties with Multinational presence in the compound. They have to monitor, verify, and assist in the implementation of what the parties agree upon. Parties can complain to the International group that investigates and verify the consistence of these complaints.
2.3. The State of Palestine has the security responsibility in the compound. Security members are those Palestinians, and from the international group. The transfer of authority is regulated, until then all organs shall continue their functions. Sovereignty over the compound, once the withdrawal ended, the state of Palestine shall assert sovereignty over the Compound. This sovereignty over the compound does not change the status of the wailing wall that shall be under Israeli sovereignty. While the Mount of Olives Cemetery (6.8.) and the Western Wall Tunnel (6.10.a) will be under the Israeli administration only
3. The Old City
3.1. The Parties view the Old City as one whole enjoying a unique character (6.7.a). This means that the religious communities' position regarding the old city was taken in consideration. That means concretely that movement within the Old City shall be free and unimpeded. All these regulations can be suspended in case of emergency.
3.2. The two principles that will guide the parties in any decision regarding the Old City and in its administration are: 1. the preservation of this unique character together with 2. Safeguarding and promoting the welfare of the inhabitants. The parties agree to act in accordance with the fact that the Old City is part of the UNESCO World Cultural Heritage List.
3.3. The role of the IVG is essential in the Old City in coordination with the Old City Committee of the Jerusalem Coordination and Development Committee (JCDC). The IVG shall establish a special Policy Unit for the Old City. The number of Israelis and Palestinians in this unit shall be agreed on. It is interesting to notice that the agreement gives a role to USA and not to the IVG in relation to the coordination between parties in security and intelligence.
3.4. Entries and Exit of the Old Cities will be under the sovereignty of the state where the point falls. In the map, it is shown that two gates will be under the Israeli's control (to the Jewish and Armenian quarter), four under the Palestinian's control (to the Christian and Muslim quarters) and one mixed (Jaffa Gate), that is regulated apart (6.7.2.f). The entrance to the Old city does not give persons the permission to exit to the other's state without valid authorisation.
4. The Municipal Coordination and The Jerusalemites
4.1. The two Jerusalem municipalities shall
form a Jerusalem Co-ordination and Development Committee ("JCDC") to oversee the cooperation and coordination between the Palestinian Jerusalem municipality and the Israeli Jerusalem municipality (6.11.a). The JDCC shall be composed of Israelis and Palestinians in equal number, and shall have the following sub-comities: a Planning and Zoning Committee, a Hydro Infrastructure Committee, a Transport Committee, an Environmental Committee, an Economic and Development Committee A Police and Emergency Services Committee, an Old City Committee Other Committees as agreed in the JCDC.
5.1. The agreement provides that the Jerusalemites with Israeli citizenship shall loose this status, upon the transfer of authority to Palestine (6.12). This is a discriminatory article towards the Jerusalemites since they are not consulted in maintaining or loosing their status. Loosing their status, in my point of view, shall be determined individually since some Palestinians of Jerusalem prefer the social system in Israel, and their interests shall be taken in consideration. At the same time, parties shall create an attractive social system in the future state of Palestine equal or similar to that of Israel. That's why parties will apply certain socio-economic spheres interim measures to ensure the agreed, expeditious, and orderly transfer of powers and obligations from Israel to Palestine. This shall be done in a manner that preserves the accumulated socio-economic rights of the residents of East Jerusalem (6.13).
III. The Question of Refugees
1. The Refugee Problem
1.1. The parties, conscious of the difficulties to treat the problem of refugees, with its emotional, legal and political connotations, dedicate a long article to this issue (7). Many believe that the agreement does not answer to Palestinian aspirations to a just and fair solution of the refugees' problem in accordance with international law, and UN resolutions. This explain the critics made in the local Palestinian newspapers since Palestinians receive nothing in exchange from the Israeli side, but other promises; now, Palestinians are skeptic towards promises.
1.2. Some believes that Palestinian request is impossible, since the refugees' return to the actual state of Israel may create a demographic problem, especially in relation to the proportion of Arabs in the only Jewish state in the world. Still, we have to admit that the refugee problem is badly presented in this agreement, because the significance of the refugee problem cannot be limited in its importance to the solution of the conflict, to the stability or/and to the development of the region. This is why it is not true that article 7 represent the fulfillment of Refugees rights as represented by UNGAR 194, UNSC Resolution 242, and the Arab Peace Initiative (article 7.2).
2. The Israeli Responsibility
2.1. There is a cause for the disaster of the Palestinian refugees. This responsible was condemned by the UN and invited to give the permission to those people to return to their homes and properties. It is true that every state in the region shall assume its responsibility, including Israel that has to assume its (part of) responsibility to the Palestinian refugees' problem.
2.2. The Palestinian refugees' problem, in fact, is a disaster, created in a specific place and history. Palestinian refugees are not a creation of destiny, but of a specific history. Their problem is related to the 1948 war and the Israeli hostility towards Arabs, during, and immediately after the war. This hostility meant terrorist attacks and a systematic government policy that viewed in the Arabs a danger to the same foundation of the state of Israel that is its Jewish character.
2.3. This disaster is not humanitarian only; it is also a legal and political problem related to a people, and not only to individuals or to a group of individuals. A people that does not stop since then to fight for its right to self-determination, liberation and statehood.
2.4. The problem of refugees in Geneva agreement becomes an individual issue. It is more a question of compensation and does not reflect necessarily anyone's moral responsibility. When speaking about refugees, Israel is mentioned indirectly: actually, the agreement mentions that it will participate in the compensation process, as if it was any other state in the region, and not the main reason of such humanitarian disaster.
2.5. It is interesting to notice that the right to return is never mentioned in the agreement, and this is a logic consequence of the non-responsibility Israel as in the agreement. Instead, the agreement uses these words: Choice of Permanent Place of Residence! Actually, Palestinians may choose: first, the state of Palestine including the areas transferred in the land swap; second, present host countries in accordance with the sovereign discretion of present host countries, and third, other countries including Israel, and according to their sovereign well. In fact, every state would communicate to the international agency the number of Palestinians it would like to absorb.
3. The End of the Status of Refugee
3.1. The agreement provides the end of the claims of the parties upon the implementation of this agreement, and the end of the status of refugees upon the individual decision regarding his Choice of Permanent Place of Residence. In the words of the agreement, no other claims may be issued, unless in the implementation of Geneva Accord. In fact, the agreement provides a solution that will not be necessarily implemented, as such it would not necessarily end the question of refugees, and their claims.
3.2. Besides, it seems very important to underline that the individual informed choice will not be immediately implemented. This will be the case for example, of Palestinian refugees who choose to return to the present Israel. Their decision will depend on the number that the state of Israel will admit, taking in consideration the number that other states admit.
4. The Hosted countries
4.1. An important problem rises here regarding the host countries. It seems that their participation in the process of resolving the refugees' problem will be subordinated to its well to absorb a number of Palestinian refugees that will communicate to the international commission. Now, this decision may not occur, and then, would create a real problem with the existing refugees that would prefer to stay in that country.
4.2. The agreement, in fact, is binding for the two parties, as such, their invitation to third countries will be limited and without real obligation, because it is out of the possibilities of this bilateral agreement. For this reason, the problem of refugees in special way, need to be treated in its regional and international dimension, recognized in the same agreement. The international dimension of the refugee problem is remarkable. The role of UN agencies was decisive in providing the elementary necessities of the refugees, and the UN resolutions provided the frame for the international consideration of that issue.
5. The State of Palestine and the Refugees
5.1. The return to the Palestinian state is a right to every Palestinian refugee limited only by this Palestinian domestic law. Any choice will not prejudice the recognition of Palestine as the realization of Palestinian self-determination and statehood (article 7.5.). In this sense, Palestine does need the Israeli nulla osta for the return of Palestinians to the territory of the state of Palestine.
5.2. Besides, the question of refugees is left to the individuals, for the good well of the states of the region and for the work of the international commission. The Palestinian state, will participate as others, without a specific title in implementing the agreement.
6. The Compensation Process
6.1 The agreement invites the international community to fully participate in the process of resolving the refugees' problem. This would include the establishment of an international commission and fund (article 7.9.) that are regulated with details in article 7.11. and article 7.12. While the UNRWA shall cease to exist within five years of the commission operation and its functions will be transferred to hosted states (7.13.).
6.2. Besides, the agreement uses the term displacement. Now, a displaced is different from a refugee, since the first is the one who is forced to leave his property within his same country. The refugee, on the other hand is the one who is forced to leave his property and his country of origin. Compensation shall be for both, according to the estimation of the Panel of Experts that the international commission will appoint.
6.3. The cost of the settlements that Israel would leave for the Palestinian State (see part II) will be deduced from the Israeli sum of money, agreed with the Palestinians. Here the terms are vague and can be object of different interpretation and estimation, and as such, a reason of tension between parties, that may obstacle the implementation of the present agreement.
7. Reconciliation Programs
7.1 The agreement includes an interesting article regarding the reconciliation program (article 7.14). This means that parties agree on the necessity of a real peace that parties have to construct after the agreement, and consist on mutual understanding through a constant exchange of experiences regarding the past. This includes some cross-community cultural programs in order to promote the goals of conciliation in relation to their respective histories.
7.2. Palestinians and Israelis are invited to memorize their disasters and recognize the others'. This confrontation with the past helps to avoid confrontation between parties, since it will be based on mutual recognition and mutual pardon. This can be motivated by the necessity to end the conflict, or at least, the opportunity to do that, for the good of the population, their security and their prosperity. In other words, this reconciliation is necessary for the future of the Israelis and the Palestinians, and as such shall have the priority for the Palestinian and Israeli state.
IV. Final provisions
1. Designated Road Use Arrangements
1.1. The Geneva Accord provides special arrangements for the use of indicated roads (Road 443, Jerusalem to Tiberias via Jordan Valley, and Jerusalem –Ein Gedi) by Israeli civilian. The same article provides that:
- This will not prejudice Palestinian jurisdiction.
- Israelis need authorization.
- Entrance of these roads will be controlled by MF patrols.
- In case of emergency, legal or criminal proceedings against Israelis, parties will cooperate.
1.2. This article differs from Oslo arrangements that limited the Palestinian jurisdiction over all Israelis, including Arab with Israeli citizenship. Oslo agreements, in fact, created a kind of confusion since it gave a kind of immunity for all Israelis in the territories under the jurisdiction of the Palestinian Authority.
2. Sites of religious significance
2.1. Parties agree to protect the religious sites, and secure free access to them. The accord mention three sites, important for Jews: the Tomb of the Patriarchs in Hebron, Rachel's Tomb in Bethlehem, and Nabi Samuel.
2.2. As for the administration of religious sites −we read in article 9− parties shall create a joint body. Is this the case of all the religious sites or the only three mentioned Jewish religious sites? Article is not clear. It seems that this will be the case only of the three mentioned sites, since the same article speak about the presence of MF and Palestinian tourist police in these sites. Some sites of religious importance are, in fact, present in Israel (the Annunciation church for example in Nazareth); it is no question of Palestinian police office there!
2.3. Entrance will be through shuttle that will be subject to MF inspection.
2.4. The Geneva agreement, we can notice, gives only MF and not Palestinian forces the power to control or to inspect, every time Israelis are involved.
3. Border Regime
3.1. Parties agree to have a border regime. Entrance will be only through designed entrances. Now, he who knows Israel/Palestinian territories understands that any borders will be artificial. En gros it will follow the green line, the line that –following the armistice of 1948- divided the new born state of Israel from the other territories (West Bank and Gaza Strip) that will be the territories of the new state of Palestine.
3.2. Arriving at this point of our analysis, it seems inevitable to speak about a controversial (à la mode) question: The wall. Is it the solution? Many think, rightly, that it is not the solution, but only a solution that some defends with enthusiasm and other refuses categorically.
3.3. Personally I believe that it can be a temporary solution, but only in case the wall followed the green line. I have to make clear that the wall that I am speaking about here is not the controversial wall that the actual government of Israel is constructing. Actually, the wall that Israel is constructing now cuts the Palestinian territories in many small and disconnected cantons. This wall intends to annex more than the half of West bank and the third of Gaza; in other words, Israel wants to annex most Palestinians territories to with the less Palestinians. The actual wall is discriminative and racist. It cannot be a solution but rather another reason for the conflict.
4. Palestinian Prisoners and Detainees
4.1. The application of these articles will follow the entrance into force of this agreement Palestinians representative to the Geneva Accord would accept the division of detainees in different categories:
4.1.1. Category A detainees shall be released immediately, and includes:
- All persons imprisoned prior to the start of the implementation of the Declaration of Principles on May 4, 1994,
- Administrative detainees
- Prisoners in ill health.
4.1.2. Category B detainees shall be released within eighteen months, and includes:
- All persons imprisoned after May 4, 1994 and prior to the signature of this Agreement.
- Excluded category C detainees.
4.1.3. Category C: Exceptional cases - persons whose names are set forth in Annex X - shall be released in thirty months at the end of the full implementation of the territorial aspects of this Agreement.
4.2. These articles need to be understand in the light of the following clarifications:
4.2.1. Most Palestinians refuse the division of Palestinian detainees in categories because it will be subject to Israeli unilateral arbitral decision. The Israeli side to the agreement seems to refuse the fact that some Palestinians participated in violent acts against Israel (soldiers or colons), in the context of combating against occupation and not for racial hatred. Some fractions used terrorism also, but they are distinguished from the majority of Palestinian people that refuse terrorism, that, despite the occupation, is immoral. Still, not every use of violence by Palestinians is to be considered terrorism. Now, violence is not the best solution to end occupation, but –and this is a historic fact- most oppressed peoples used also violence to liberate themselves from the oppressor. Personally, I believe that negotiations within the international legality, is the best way for people in order to obtain its rights.
4.2.2. The Geneva Accord speaks about deadline: the Declaration of Principles on May 4, 1994; now, on that date Israel and the PLO signed the Agreement in Gaza Strip and Jericho area that would be superseded by the Interim Agreement. The declaration of Principles, in fact, was signed in Washington on September 13, 1993.
4.2.3. Many controversial points are mentioned to be regulated by annex X (such as special detainees that will be named in that annex). Now, this annex, as we said in the first part, is not published in the web. We urge that Palestinians will sign the agreement only if they agree on the contents of this annex. Some followed the Oslo agreements and made serious critics to the Palestinian side, that signed the agreements although they received a copy of the modified agreement with new maps at the last moment.
4.2.4. Since the signature of the Geneva Accord and its entrance into force will not necessarily coincide (since the Accord does not specify when the agreement will enter into force!), some detainees will be excluded from the agreement regulations. Besides, the entrance into force of the agreement does not mean its full implementation. Meanwhile Israel would detain other Palestinians; shall they be object to further negotiations and agreements? That is not what parties wants, since they agreed to end the conflict once forever.
5. Dispute Settlement Mechanism
5.1. Geneva Accord, as Oslo, gives priority to bilateral negotiations (article 16.1) to resolve disputes regarding the interpretation of the accord. This bilateral mechanism may block the implementation of the agreement, since the same provision may be object to different or contradictory interpretations.
5.2. In fact, the two parties may submit the dispute to the mediation and conciliation by the IVG mechanism. In case the two mechanisms do not succeed, either Party may submit the dispute to an arbitration panel. Mis en ligne le 05 décembre 2003 sur le site www.upjf.org