II. Enforcing ESCR in Palestine

A. Structural Flaws in the Oslo Process

The Oslo process marked a diplomatic and psychological breakthrough in the Israeli-Palestinian conflict.  Leaders on both sides proclaimed a new era of peace and cooperation, while the international community, in particular the United States and Europe, pledged financial and political support.

This lofty rhetoric stands in stark contrast to the catastrophic effects of the Oslo process on Palestinian rights.  The broad political consensus in favor of Oslo has actually served to mask the underlying reality of economic stagnation and geographical dismemberment in Palestine, and the effective abandonment of Palestinians' human and national rights. 

The most significant flaw in the Oslo Accords is the failure of the negotiators even to acknowledge applicable international law regarding occupation and self-determination – the central legal concerns of the Israeli-Palestinian conflict.  Without international law to mediate disputes, Israel, as the dominant force on the ground, has exercised the unfettered power to unilaterally dictate the terms of Oslo’s implementation.  This has allowed Israel to cripple the Palestinian economy through closure and seize more Palestinian land and resources for settlement expansion without facing real international pressure for these major violations of international law.  The international community has also tolerated a high degree of repression and corruption by the PA as part of the “price" of peace.  As a result of these Israeli and PA policies, Palestinians face higher unemployment rates, lower household incomes, restricted access to such basic services as health care and education, and severe limitations on freedom of speech and movement – despite over three billion dollars in international aid since the Oslo process began.

In short, structural flaws in the Oslo process have led to a paradox in which increased violations of Palestinians’ national and human rights have been met with decreased international concern and pressure.  Yet the dominant public discourse continues to insist that Oslo is the only viable framework for resolving the Israeli-Palestinian conflict.  This view attributes breakdowns in the Oslo process to personality conflicts between political leaders that can be resolved through “shuttle diplomacy.”  Moreover, opposition to Oslo is equated with opposition to peace, with no recognition that any peace process built on a foundation of human rights violations and economic exploitation is not sustainable except through increasing levels of repression.

This narrow view can no longer be allowed to preclude legitimate critiques and alternatives.  Only through identifying structural flaws in the Oslo process will it be possible to prevent their continuation or recurrence under a different guise in the future.  And without the promotion of alternatives based on human rights and international law, Israel, the PA, and international donors will continue to blame each other for the crisis in Palestine while shunning their own responsibility by hiding behind Oslo's veil of legal and political ambiguity.

B. A Human Rights Critique of Oslo

Under the Oslo process, Palestinians have suffered systematic abuse of the full range of their human rights.  The extraordinary poverty in Palestine – a clear indication of ESCR violations – results from deliberate policy decisions by governments and agencies taken within the Oslo framework.  To challenge these policies as human rights violations, it is necessary to analyze the respective legal responsibilities of each of the major parties to Oslo – Israel, the PA, and international donors.

Israel’s Responsibility

Israel has ratified several international human rights treaties, including the Covenant on Economic, Social, and Cultural Rights.  As a state party to the Covenant, Israel must respect the full range of human rights contained therein and report periodically to the Committee that monitors compliance with the Covenant.^xxii Several UN human rights committees have affirmed that Israel is legally responsible for policies that violate human rights and humanitarian law of all people within its effective control and jurisdiction, even those living beyond its borders in Palestinian territories.^xxiii

Despite its status as an occupying power in violation of the Geneva Conventions,^xxiv Israel was allowed to retain control over the critical factors of Palestinian development during Oslo’s interim period.  This includes control over borders, basic resources such as land and water, external trade, foreign affairs, refugees, and the status of Jerusalem.^xxv  As a result, Israeli policies have largely determined Palestinian enjoyment of ESCR.  Using these powers, Israel has enforced the harshest series of continuous “closures” of Gaza and the West Bank since its military occupation began in 1967, prohibiting the free movement of people and goods through a restrictive permit system and effectively suffocating the nascent Palestinian economy.  The closure has cut Gaza off from the West Bank despite Israel’s agreement under Oslo to view these areas as “a single territorial unit, whose integrity will be preserved during the interim phase.”^xxvi  The World Bank has estimated the direct costs of closure at over million per day.  As an indication of closure’s devastating impact, Palestinian real per capita GDP has actually declined about 20% since the Oslo process began, despite over billion in foreign aid.  Largely as a result of closure, Palestinians suffer from higher unemployment, greater incidence of poverty, and worse access to health and education. 

Israel has also faced minimal international condemnation despite undertaking the largest-ever expansion of settlements and roads on occupied Palestinian land.  The settler population, which reached 280,000 in 27 years of direct occupation, increased 43% to approximately 400,000 in the span of just six years under Oslo.  Jewish-only areas now encircle most Palestinian population centers in the West Bank, cutting off contiguous towns and markets from each other.  While expanding Jewish settlements, Israel has destroyed thousands of Palestinian homes on the pretext that their owners lacked proper permits.  In addition, Jewish settlers are allocated five times the amount of water as their Palestinian neighbors, greatly hindering Palestinian industrial and agricultural development.  These geographic and demographic policies make Palestinian development extraordinarily difficult.

Israel has even ignored its most important commitments under Oslo without facing international repercussions.  These include pledges to withdraw in three phased troop redeployments from “all” of the West Bank and Gaza except for final status areas, to guarantee safe passage for people and goods between the West Bank and Gaza as “a single territorial unit,” and to permit external access for Palestinians through an airport and seaport.

Numerous independent and UN bodies have recognized these Israeli violations of ESCR.  In November 1998 the Committee on ESCR assessed Israel's compliance with its obligations under the Covenant and strongly condemned Israeli policies of closure, settlement building, by-pass road construction, expropriation of land, water and resources, housing demolition and arbitrary evictions.^xxvii  (For more on the Committee's assessment of Israeli violations, please see CESR's Palestine Project Series 2.)  As discussed above, a state’s most basic duty under the applicable legal regime is the duty to respect, that is, refrain from taking any action that prevents people from enjoying such rights.  It is evident that all these Israeli policies violate this most basic duty.  They also violate the most basic principles of ESCR, namely the principles of non-regression and non-discrimination, by targeting Palestinians but not Israelis and regressively impacting Palestinian enjoyment of all ESCR, including the rights to an adequate standard of living, education, housing, and health care.^xxviii

The PA’s Responsibility

Even states that have not ratified international treaties on ESCR are bound to respect human rights principles that are part of “customary law,” law that has gained universal acceptance in the international community.^xxix  The Universal Declaration is widely considered to be part of customary law and therefore binding on all states, whether or not they have ratified subsequent human rights treaties.  The PA is therefore obligated to respect human rights as a delegated authority of the PLO, which has state-like human rights responsibilities.^xxx  As the PLO explicitly recognized in its 1988 Declaration of Independence:  “The State of Palestine declares its commitment to the purposes and principles of the United Nations, to the Universal Declaration of Human Rights and to the policy and principles of non-alignment.”^xxxi  This position also finds support in the PA’s frequent public declarations agreeing to abide by human rights principles. ^xxxii

Under Oslo, the PA has been granted full jurisdiction only over A areas -- currently about 65% of Gaza and isolated enclaves comprising 10% of the West Bank including Jerusalem.^xxxiii  In effect, the PA was given the unenviable task of protecting Israeli security (strictly defined as the personal safety of every single Israeli) without enjoying either sufficient political recognition or economic control to pursue real self-determination or development.  The PA has responded to inevitable popular protest over declining living conditions by repressing institutions and individuals with dissenting views on Oslo, including journalists, NGOs, and other civil society groups. ^xxxiv  These repressive policies and widespread human rights violations – characterized by security sweeps, military courts, arbitrary detention, and torture – have not only been demanded by Israel in the name of fighting "terrorism," but also condoned by the same donor governments who fund PA training programs on the rule of law and good governance.^xxxv

Moreover, the PA has instituted a corrupt system of governance; an audit by the elected Palestinian Council revealed that senior public officials had mismanaged a staggering 40% of aid and funds.^xxxvi  Ordinary Palestinians have also been harmed by the establishment of monopolies by PA officials, leading to a steep rise in price of basic commodities.^xxxvii  Widespread corruption by public officials, even if not an express governmental policy, implicates human rights to the extent that the governing authority is responsible for the acts of third parties under its control under the duty to respect.  Corruption that is so prevalent at the highest levels of the cabinet and bureaucracy, combined with the monopoly-based price increases of basic goods, constitute regressive measures that have harmed the enjoyment of ESCR by most Palestinians.^xxxviii

International Donors

A broad range of non-state actors have duties under human rights law even though they have not ratified specific treaties.  The General Assembly proclaimed in the Universal Declaration that “every individual and every organ of society shall…promote respect for these rights and freedoms.”^xxxix  The ESCR Committee has affirmed this broad concept of human rights responsibility in observing that third parties, intergovernmental organizations and agencies, and the international community as a whole have legal obligations regarding ESCR.^xl  Moreover, states and non-state actors are responsible for policies that indirectly support violations by third parties.  For example, the International Court of Justice found the United States responsible for abuses committed by the contras in Nicaragua by virtue of US political and financial support.^xli

Under Oslo international donors have used aid programs to support irresponsible and illegal Israeli and PA policies and actively promote a model of development that ignores the socio-economic needs of the impoverished Palestinian majority.  These donors therefore have legal obligations as third parties whose policies influence human rights protection in Palestine.  The fact that European and US funders are essentially bankrolling the entire Oslo process, providing an estimated 70% of the PA’s budget, makes them responsible for human rights violations committed with these funds, as the US was found liable for violations by the contras in Nicaragua.  The astonishing imbalance in foreign funds granted to the PA –the executive branch has received 99% of the aid while the judiciary and legislature combined have received only 1%^xlii – has been the single largest factor in undermining the rule of law and shaping the increasingly lawless security apparatus in the self-rule areas.^xliii

Moreover, donors have not demanded an end to the Israeli closure despite the fact that their aid has been diverted away from real development and towards emergency measures such as temporary job creation.  The total foreign aid to the PA under Oslo, more than billion, does not even equal the direct Palestinian losses (wages and trade) resulting from closure, let alone the indirect losses such as declining foreign investment.  In effect, foreign aid has partially subsidized Israel's illegal policy of suffocating the Palestinian economy, and thereby diluted international pressure to lift the closure.

Perhaps the biggest indictment of international aid to Palestine is that donors intend to establish export processing zones as the blueprint for Palestinian economic development. Economic plans proposed by Israel, the United States, the World Bank, and other donors have called for the expansion of export processing zones like Karni at the Erez checkpoint.  Similar to the maquiladoras at the US-Mexico border, these zones will allow Israeli and foreign capital to exploit cheap Palestinian labor while maintaining a strict closure that illegally confines Palestinians within their enclaves.  It is self-evident that this plan will not only perpetuate Israeli closure, which is the single largest factor in ESCR violations, but will also preclude any long-term economic development in Palestine.

Thus in both the concrete uses of international aid and the future blueprint for development, donor policies have undermined Palestinians' human rights and damaged the prospects for peace and democratization in the region.

C. Conclusion

The Oslo process has spelled disaster for most Palestinians.  Expected to bring a measure of prosperity and security to a population which had suffered 27 years of brutal military occupation, it has instead caused an increase in economic deprivation and human rights violations.  Under Oslo Israel and the PA both claim responsibility for exercising power while at the same time disavowing responsibility for human rights protection.  The international community is complicit through its silence in the face of grave human rights abuses and through its lack of accountability for donor funds which subsidize PA corruption and Israel's disastrous policy of closure.

Israel, the PA, and international donors have thus avoided accountability for the crisis by pointing fingers at each other and hiding their own responsibility behind a veil of legal and political ambiguity.  In essence, Oslo's structural failure to link peace with human rights has created a situation in which Palestinians now face a form of double repression from Israel and their own nascent government, without recourse to international law or effective outside pressure.  The end result is that, at a time when the human rights of Palestinians are under unprecedented attack, there has been no conceptual or practical program for effectively defending these rights.

The Oslo process is at a critical juncture.  Israeli and Palestinian negotiators will soon conduct "final status" talks on intractable issues such as land and water, refugees, and Jerusalem.  Yet Israeli Prime Minister Barak has already insisted that there will be no division of Jerusalem, no return of refugees to present day Israel, no dismantling of major settlement blocs, and economic "separation" (read strangulation) of any future Palestinian state.  Given the weakness and complicity of the Palestinian leadership, the future is clear: a politically and economically unviable Palestinian statelet in most of Gaza and fragmented enclaves of the West Bank, subject to Israeli control, dependent on international aid and brutally policed by the ubiquitous Palestinian "security" forces.

It cannot be denied that the political and legal complexities of the Palestinian situation make any human rights approach difficult.  Even before Oslo, the history of varying successive ruling authorities – Ottoman, British, Jordanian, Egyptian, and Israeli – led to the fusion of incompatible laws and institutions into an arbitrary patchwork with separate and competing jurisdictions in Gaza and the West Bank.  However, a human rights advocacy campaign based on thorough scientific research and a clear understanding of current legal complexities offers the best hope for challenging the ongoing impoverishment of Palestinians under Oslo. 

Since 1996 the Center for Economic and Social Rights (CESR) has worked with a team of Palestinian and international NGOs on a comprehensive research program in Gaza and the West Bank.  The research documents human rights violations linked to a dramatic decline in Palestinian living conditions since the onset of the Oslo process six years ago.  Based on these findings, CESR and project partners are coordinating an education and advocacy campaign to hold Israel, the PA and international donors accountable for violations resulting from their respective policies under Oslo.