[Jeff Handmaker teaches law, human rights and development and conducts research on legal mobilisation at the International Institute of Social Studies of Erasmus University in the Netherlands and is a senior research fellow in the School of Law, University of the Witwatersrand, South Africa. Alaa Tartir is a Research Associate at Graduate Institute of International and Development Studies (IHEID) in Geneva, Switzerland and is a Program Advisor to Al-Shabaka: The Palestinian Policy Network.]

The Oslo Process / Accords was a core focus of the Office of the ICC Prosecutor (OTP) in its request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (hereafter ‘OTP request’).

However, the highly-dubious legal basis of the Oslo Process and resulting Agreements have been widely misunderstood and frequently misrepresented, both in relation to content, and even more so in relation to their functioning.

These misunderstandings are reproduced in the OTP request, resulting in an incomplete representation of Palestinian rights and the status of Palestine’s jurisdiction in the OTP request, particularly in relation to the applicable crimes and territory falling under the ICC’s jurisdiction.

The Oslo Process

On 13 September 1993, Yasser Arafat and Yitzhak Rabin shook hands on the White House lawn in the presence of President Clinton in what all present must have felt was a profoundly historic occasion. The occasion was to mark the signing of a set of documents (“Oslo I”) by representatives of the State of Israel and the Palestine Liberation Organization, which arose out of the Oslo Process. This, and other Agreements (Wye River, Madrid, etc.) directly connected to the Process (hereafter ‘Agreements’) that have been signed by Israeli and Palestinian representatives, assume a two-state solution as the core, long-term objective and interim creation of differently-administered territories (e.g. Areas A, B and C).

Despite their flaws, these Agreements have structured and framed the UN, states’ and now the ICC’s attempts to address multiple violations of international law and, ultimately, bring peace to the region. Moreover, the Oslo Process has formed the primary basis for the claim to statehood by the State of Palestine at the United Nations, which has also triggered the ICC’s jurisdiction.

The problems with the Oslo process

The Oslo Process was a murky and flawed attempt to bring peace between Israel and the Palestinians. The Process adopted an exceptionalist approach to international law, undermining Palestinians’ individual rights and their collective claim to self-determination.

The Agreements are deficient in at least four respects. Firstly, the processes leading to them have involved limited participation from the full Palestinian political representation, not to mention ordinary Israelis and Palestinians who, according to international law, should have been provided an opportunity to determine their own future, such as by way of referendum, in ensuring self-determination. Second, as the OTP Request does acknowledge, the Processes excluded the most fundamental issues fuelling the impasse, each of which were relegated as ‘permanent status’ issues, to be resolved in the future, not by the Agreements themselves. The issues excluded from the agreement were: (1) Jerusalem, (2) refugees, (3) settlements, (4) security arrangements, (5) borders, (6) relations and cooperation with other neighbours, and (7) other issues of common interest. Third, the content of the Agreements arising from the Oslo process has been highly-ambiguous in relation to the obligations of Israel, particularly regarding international humanitarian law (IHL), and Palestinian rights. Fourth, and most crucially, while the Palestinian political representatives have met most of their commitments according to the agreements, the Israeli government and military have met few of theirs, fundamentally violating both the content and spirit of the Accords; the OTP Request makes only limited reference to this.

In sum, and following the failures of the past 25 years, the Agreements arising from the Oslo Process cannot be regarded as a solid basis for establishing jurisdiction over alleged crimes in the Palestinian territories. In light of the structural imbalances of power and absence of any meaningful accountability mechanisms guarded by international law, the Agreements are largely security arrangements that have sustained the Israeli military occupation and facilitated the expansion of its settlements and exercising control over the West Bank.

Violations by Israel

In the absence of clear obligations and effective accountability mechanisms, Israel has annexed large swathes of Jerusalem, committed countless IHL and human rights violations, suppressed and excluded refugees and actively encouraged massive settlement construction. The Golan (occupied Syrian territory) was annexed and there are even proposals, especially in light of the so-called “Peace to Prosperity” plan by the United States government, which would “legally” annex large sections of the West Bank that encircle illegal Israeli settlements.

In other words, rather than resolving the conflict, it has been said that the lack of clear obligations in the various Oslo-inspired Agreements have enabled these numerous violations. And yet despite the highly-contested history of these failed peace processes, the ICC has made extensive reference to the content of the resultant Agreements.

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