control over territory. Following the Oslo Accords, Israel has maintained
control over; security, land, including colonies and borders, and air and naval
space in all of the West Bank and Gaza including East Jerusalem. The official
position of numerous legal experts - including the International Committee of
the Red Cross (ICRC) - and the international community at large, attests that
the current level of control amounts to occupation and that the provisions of
IHL continue to apply to all of the West Bank, including East Jerusalem and
the Gaza Strip.42
Article 47 of the GCIV reaffirm that: “Protected persons who are in occupied
territory shall not be deprived, in any case or in any manner whatsoever,
of the benefits of the present Convention by any change introduced, as the
result of the occupation of a territory, into the institutions or government of
the said territory, nor by any agreement concluded between the authorities
of the occupied territories and the Occupying Power.” Consequently, the
Oslo Accords cannot deprive the occupied Palestinian population from the
protection and rights they are entitled to under the GCIV, including Israel’s
obligations vis-à-vis the administration of service provision and natural
resources. Furthermore, if any of the provisions of the Accords interfere with
the rights of the occupied population, such provisions are deemed invalid.
As such, the Accords cannot be introduced as a justification to absolve Israel
from its responsibilities; Israel ultimately remains responsible for ensuring
the occupied population’s rights and benefits in its role as an Occupying
Power.
As they were meant to be temporary transitional agreements, with a duration
of five years, the validity of the Accords themselves could be questioned.
Today, almost a quarter of a century after the signing of the Accords, their
capacity to serve as a valid legal instrument to manage the affairs of the oPt is
dubious at best. For the purposes of this analysis, the paper will address and
deal with the Oslo Accords as a valid legal instrument; however, based on the
agreed upon duration, and the lack of movement following their expiration,
the validity of its provisions will be measured against relevant international
rules. Thus, if the provisions contradict the GCIV or derogate the fundamental
rights and entitlements of the occupied Palestinian population, their validity
should be considered void.
The delegation of limited autonomy to the PA (through the Accords) does not
absolve Israel’s legal responsibility for the welfare of the occupied population,
and this will remain the case until occupation, including its effective control,
is resolved. Accordingly, despite any conflicting provisions contained within
42 ICRC, Occupation, 7-10, supra note 5.
18
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