Why Oslo really failed (II)

Each side breached the agreements, or interpreted their obligations or those of the other side differently.

By
August 20, 2007 20:32
rabin-arafat shake 88

rabin-arafat shake 88. (photo credit: )

 
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With the renewal of the peace process, it is worthwhile taking a moment to look at some of the lessons that should have been learned from the failure of the process thus far. This article is the second of three that will provide some insights into some of those lessons. Lesson Learned: Protracted conflicts in which there is little or no trust and confidence require external mechanisms for verification of implementation of the agreements, external mechanisms for insuring compliance, and external mechanisms for external dispute resolution. The Israeli-Palestinian agreements did not have any external mechanisms of verification of implementation, for ensuring compliance and for dispute resolution. The DOP stated: "Disputes arising out of the application or interpretation of this Declaration of Principles, or any subsequent agreements pertaining to the interim period, shall be resolved by negotiations through the Joint Liaison Committee (JLC) to be established... Disputes which cannot be settled by negotiations may be resolved by a mechanism of conciliation to be agreed upon by the parties." What happens when and if the sides cannot resolve the disputes or disparate interpretations of the agreements through agreement? What happens if the sides are not capable of reaching an agreement on the mechanism of conciliation? THIS IS precisely what happened. Each side breached the agreements, or interpreted their obligations or the obligations of the other side in different ways, and then issued statements against the other side. The JLC that was established was simply incapable of resolving the disputes because it became the forum through which each side raised it claims against the other - not for the purpose of resolving the dispute but to "score points" against the other side. When the breaches piled up so high the JLC ceased to function, as did most of the joint bodies that were formed through the agreements. There was no mechanism established that could fairly determine which claims were valid and which were less valid. There was no external mechanism to help the sides comply with the commitments they had taken upon themselves. There was no external mechanism that could help bring about resolution of the disputes; and thus once the process of breaching the agreement became the norm, there was little or no value in signing new agreements. SIGNING new agreements nevertheless became part of the process - these agreements mainly stating that the sides would undertake the implementation of agreements already signed in the past. At least two formal agreements were subsequently signed that were aimed at repairing the damages of formerly breached agreements (the Wye River Protocol and the Sharm e-Sheikh Agreement), yet these agreements were also breached. Throughout the process, the failure to resolve the disputes also emanating from a lack of external mechanisms led to further breakdowns in trust and confidence that further limited the ability of the sides to continue negotiations on the core issues. It seems that had the sides invented mechanisms involving acceptable third parties for processes of verification of implementation, compliance assurance and dispute resolution, perhaps breaches of the agreement would have been resolved from the very first breach, and future disputes would have been contained and resolved. Leaving the verification, compliance assurance and dispute resolution means to the two disputing parties alone sabotaged the process from within. Lesson learned: Agreements must be as explicit as possible. TOO MUCH of the Oslo Agreements was open to too many varied and opposing interpretations. Several of the best examples relate to territorial and settlement issues. Palestinians understood that upon signing the DOP Israeli settlement activity would cease in the West Bank, Gaza Strip and east Jerusalem. The Palestinians believed that Israeli agreement to specify that the process was based on UN Security Council Resolution 242, that the process would not prejudice the outcome of final status agreements, that the Israelis agreed to mention the integrity of Palestinian territories and that the Palestinian Council would have authority over all areas of the West Bank and Gaza "except external security, settlements, Israelis, foreign relations..." meant that Israel would refrain from the construction of new settlements or from expanding existing ones. This, however, did not happen. The Israelis claimed that nowhere in any of the agreements did Israel agree to cease settlement construction. Israel further claimed that the construction of new settlements, bypass roads or the enlargement of existing settlements did not prejudice the outcome of the permanent status agreements because their construction did not impinge on the possibility that they would either remain under Israeli sovereignty by agreement, or be transferred to Palestinian sovereignty by agreement. According to the letter of the agreements, Israel is correct. On the other hand, there is little doubt that the continuation of settlement construction, the continued confiscation of Palestinian lands and the construction of bypass roads was one of the major factors that led to the end of the Oslo process. One can only ponder: Why, then, did the Palestinians not demand an explicit reference to the cessation of all settlement construction in writing as part of the agreement? ANOTHER example of so-called "constructive ambiguity" appears in Oslo 2, where there is reference to further Israeli redeployments to "specified military locations." The agreement also states that "the two sides view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which will be preserved during the interim period" (Article XI, paragraph 1). Furthermore, the agreement states "the two sides agree that West Bank and Gaza Strip territory, except for issues that will be negotiated in permanent status negotiations, will come under the jurisdiction of the Palestinian Council..." (Article XI, paragraph 2). From these statements the Palestinians understood that Israel would withdraw from all territories of the West Bank and Gaza except for settlements and military bases prior to the beginning of permanent status negotiations and that approximately 90 percent of the West Bank and Gaza would be under their control, leaving only an additional 10% of the territory open for negotiations. THE ISRAELI understanding was different. While the built up areas of settlements accounted for only 2%-3% of the territory, the zoning maps of the settlements that Israel had authorized through its various planning bodies accounted for more than 40% of the West Bank and Gaza. With regards to "specified military locations," Israel later stated (under prime minister Binyamin Netanyahu) that this referred to "security zones" and not military bases. The specified military locations would account for about 6% of the territories, while "security zones" can be anything. As such, Israel related to the entire Jordan Valley as a "security zone," and therefore precluded further redeployment from that area. There is no problem in providing additional examples where non-explicit language may have made the signing of an agreement possible, but in fact made its amenable implementation impossible. The writer is co-CEO of the Israel/Palestine Center for Research and Information. This is the second of a three-part series.

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