1 Treaty of Peace Between the State of Israel and the Arab Republic of Egypt, UNTS, vol. 1138, no. 17855, pp. 72-75.

2 The notion of “security” means something quite different for Israelis and Palestinians. In a report on discussions of Israeli and Palestinian security experts it appears that “For Palestinians, security can be interpreted to mean the ability to conduct their lives freely without the fear of Israeli military check points, interrogations, arrests, house demolitions, expulsions, etc.; the ability to conduct their political lives and affairs; the ability to move about freely. For Israel, security vis-à-vis the Palestinians means more than anything else an end to terrorism: knifings, kidnapping, bombs on buses and in market places, etc.” Israel/Palestine Center for Research and Information, ed., “Internal Security Issues in an Interim Agreement”, vol. II, n. 1, February 1993, p. 3 (hereinafter referrred to as I.P.C.R.I.). See also Shalev, A., The West Bank — Line of Defense, (1985) 103Google Scholar on positions held by the Palestinians concerning Israel's security needs.

3 Alpher, J., “Israel's Security Concerns in the Peace Process”, (1994) 70 International Affairs 229CrossRefGoogle Scholar.

4 Declaration of Principles on Interim Self-Government Arrangements signed in Washington on September 13, 1993, Ministry of Foreign Affairs, 1993, p. 21.

5 Agreement on the Gaza Strip and the Jericho Area, Ministry of Foreign Affairs, Jerusalem (hereinafter “the Cairo Agreement”).

6 For a discussion of the content, form or value of this letter see Benvenisti, E., “The Declaration of Principles, A Framework for Future Settlement” (1993) E.I.L.J. 542–544Google Scholar; Goller, K. Calvo, “Le Régime d'Autonomie prévu par la Déclaration de Principes du 13 Septembre 1993”, (1993) 39 AFDI (forthcoming)Google Scholar; Dajani, B., “The September 1993 Israeli-PLO Documents: A Textual Analysis”, (1994) 23 Journal of Palestine Studies 5CrossRefGoogle Scholar.

7 In order to see the exact context in which the commitments were undertaken, here is the complete text:

September 9, 1993

Mr. Prime Minister,

The signing of the Declaration of Principles marks a new era in the history of the Middle East. In firm conviction thereof, I would like to confirm the following PLO commitments:

The PLO recognizes the right of the State of Israel to exist in peace and security.

The PLO accepts United Nations Security Council Resolutions 242 and 338.

The PLO commits itself to the Middle East peace process, and to a peaceful resolution of the conflict between the two sides and declares that all outstanding issues relating to permanent status will be resolved through negotiations.

The PLO considers that the signing of the Declaration of Principles constitutes a historic event, inaugurating a new epoch of peaceful coexistence, free from violence and all other acts which endanger peace and stability. Accordingly, the PLO renounces the use of terrorism and other acts of violence and will assume responsibility over all PLO elements and personnel in order to assure their compliance, prevent violations and discipline violators.

In view of the promise of a new era and the signing of the Declaration of Principles and based on Palestinian acceptance of Security Council Resolution 242 and 338, the PLO affirms that those articles of the Palestinian Covenant which deny Israel's right to exist, and the provisins of the Covenant which are inconsistent with the commitments of this letter are inoperative and no longer valid. Consequently, the PLO undertakes to submit to the Palestinian National Council for formal approval the necessary changes in regard to the Palestinian Covenant.

8 See supra n. 4, at 39.

9 The doubts raised about the nature of the commitments included in the letters do not concern the legal capacity of the PLO. The principle of self-determination grants a right to peoples, in order to be subjects of rights and obligations, they must have a representative organisation in order to claim to possess international status. See Cassese, A., International Law in a Divided World, (1986) 93Google Scholar; Brownlie, I., Principles of Public International Law, (4th ed., 1990) 64Google Scholar; Lazarus, C., “Le Statut International des Mouvements de Libération Nationale à l'Organisation des Nations Unies”, (1974) AFDI 198Google Scholar. For precedents concerning the conclusion of international agreements by liberation movements with States see Barberis, J. A. “Nouvelles Questions Concernant la Personnalité Juridique Internationale”, (1983–I) 179 Hague Recueil, 259Google Scholar. The PLO is recognized by the international community as the representative of the Palestinian people. The Government of Israel recognized the PLO as the representative of the Palestinian people (see below n. 12), but the international status of the Palestinian people, and the PLO as its representative was not dependent upon Israeli recognition. See E. Benvenisti, supra n. 6, at 544.

10 Dinh, Nguyen Quoq, Droit International Public, (1975) 324Google Scholar; Suy, E., Les Actes Juridiques en Droit International Public, (1962) 22Google Scholar; see also Rousseau, Ch., Droit International Public, Vol. I, (1971) 423–424Google Scholar; I. Brownlie, supra n. 9, at 637.

11 See Ch. Rousseau, supra n. 10, at 423.

12 Due to the fact that the PLO Chairman's letter relates to the Declaration of Principles (The signing of the Declaration of Principles marks a new era in the history of the Middle East … In view of the promise of a new era and the signing of the Declaration of Principles…) it might be argued that the promise in question does not constitute a unilateral act, but one attached to the Declaration of Principles. We do not share this view. The commitments of Yasser Arafat's letter to Prime Minister Rabin were a preliminary condition set by Israel to the signing of the Declaration of Principles. Prime Minister Rabin's letter of response states as follows: “…in light of the PLO commitments included in your letter, the Government of Israel has decided to recognize the PLO as the representative of the Palestinian people and commence negotiations with the PLO within the Middle East peace process”. For the full text of this letter, see supra n. 4, at 39. This letter, just as Yasser Arafat's, constitutes a unilateral act, a promise which is no less binding than the first one. It cannot be considered that the terms “…In light of the PLO commitments…” in the Prime Minister's letter constitute acceptance. In our view they signify “because the PLO committed itself”, Israel decided to recognize the PLO as the representative of the Palestinian people.

13 Verdross, A., Völkerrecht, (3rd ed., 1955) 133CrossRefGoogle Scholar; Pallieri, G. Balladore, Diritto Internazionale Pubblico, (6th ed., 1952) 295–298Google Scholar. See Movrommatis Palestine Concessions, (1925) Ser. AB, n. 14, PCIJ, p. 37 and German Interests in Polish Upper Silesia, (1926) Ser. AB, n. 18, PCIJ, p. 13 for cases where unilateral promises were held to be legally binding. In the French Nuclear Tests cases, the International Court held that France was legally bound by an undertaking given publicly. The criteria for obligation did not include the requirement of acceptance, response or of a quid pro quo. (1974) ICJ, Rep., 267-72 (Australia v. France) and 472-75 (New Zealand v. France).

14 Ch. Rousseau, supra n. 10, at 423; I. Brownlie, supra n. 9, at 637; Nguyen Quoc Dinh, supra n. 10, at 325. The rules of interpretation applicable to unilateral promises are the same as those governing the interpretation of treaties. Ch. Rousseau, supra n. 10, at 424.

15 The fact that the promise was in the form of a letter does not alter its binding nature. The law of treaties does not contain mandatory requirements of form. I. Brownlie, supra n. 9, at 634.

16 Nguyen Quoc Dinh, supra n. 10, at 325.

17 See below pp. 244-245; see also E. Benvenisti, supra n. 6, at 543.

18 Emphasis added.

19 Peace Watch Report, From the Signing in Washington to the signing in Cairo - Compliance with the Israel-PLO Accords, Sept. 13, 1993 to May 4, 1994, p. 6 (this Report is not yet published, the page numbers might therefore change in the final draft). See also “One Year Since Oslo: Changes in Pattern of Terror”, Peace Watch Report, September 11, 1994Google Scholar, Tables 7-8 focusing on violence from May to September 1994, and indicating that the number of Israelis murdered during that period, compared to the same period during the two previous years, remains roughly unchanged, be it in Gaza or in the West Bank. If certain measures of violence have dropped in the Gaza Strip, where the Palestinian police replaced the Israeli army as the main force, nevertheless, 19 Israeli soldiers were injured during the said period. In the West Bank the number of wounded soldiers increased to 58 from 22 during the same period the previous year.

20 Statements such as the one made by Farouk Kaddoumi, Head of the PLO's political department on Algiers Voice of Palestine on August 7, 1994, (in Arabic) in which he related to Israel as follows: “…there is a state which was established through historical force and must be destroyed. This is the Palestinian way”, are in contradiction with the PLO's recognition of Israel and constitute a violation of Article XII, paragraph 1 of the Cairo Agreement. On the issue, Prime Minister Rabin stated that: “Farouk Kaddoumi's comments contradict the agreement … he spoke against what the PLO Chairman committed himself to in his letter to me, which was a condition for mutual recognition”. Jerusalem Post, August 11, 1994.

21 Article XVIII of the Cairo Agreement.

22 Protocol Concerning Withdrawal of Israeli Military Forces and Security Arrangements.

23 There is no provision on intelligence cooperation which would imply that as soon as the other party was informed of a planned attack, it would have to take the necessary steps to prevent it. It can be assumed that this lacuna is due to political reasons pertaining to the Palestinian side. In the absence of explicit provisions, there must, at least, be a clear policy on how to act.

24 Since the signing of the Cairo Agreement the question appears on a bilateral level, namely whether the parties have absolute leeway as to the rules of conduct in preventing acts of terrorism, crime and hostilities. As the rules of conduct were not defined in the agreements, a certain margin of appreciation is left to the parties. Here too their conduct must comply with the principle of good faith just as in the case of unilateral commitments.

25 See below pp. 247-248.

26 A. Cassese, supra n. 9, at 153-154.

27 (1974) ICJ, Rep., 268.

28 See Peace Watch Report, supra n. 19, at 58-59 for further details on the three cases of punishment in relation to terrorism.

29 For example, when Col. Munir Maqdah, the top commander of Fatah forces in Lebanon, declared his opposition to the Declaration of Principles and vowed to continue attacking Israeli targets, the PLO Chairman sent an order in September 1993 ending Maqdah's appointment and replacing him (Jerusalem Report, November 18, 1993, p. 26).

30 Peace Watch Report, supra n. 19, at 59.

31 The Palestine National Charter, 1968, reprinted in Lapidoth, R. and Hirsch, M., The Arab-Israeli Conflict and its Resolution, Selected Documents, (1992) 136Google Scholar.

32 It has to be remembered that, among others, the Covenant calls for the destruction of the State Israel, a State it considers illegal; the Covenant rejects any settlement based on compromise and denies any solution except a military one.

33 This letter is considered as integral part of the Cairo Agreement. See below p. 247.

34 Article 33 of the Palestinian Covenant.

35 Article 32 of the Palestinian Covenant implies that the obligations of the PLO organs and institutions are to be in conformity with the Covenant. That the Palestinian Covenant is not something which can be done away with, is conveyed by the remark made by Ziad Abu Zayyad, a lawyer and member of the PLO delegation in Taba, who compared the Israeli “demand for annulment of the PLO Charter” to a hypothetical request made by Palestinians “that the Jewish nation cancel the Bible” (from a speech delivered by Ziad Abu Zyyad before the American Jewish Federation on October 23, 1993).

36 See Free Zones case, (1932) PCIJ, Series AB, n. 46, 147–148Google Scholar; see also Shaw, M.N., International Law, (2nd ed., 1986) 476–477Google Scholar. As was already mentioned (see supra n. 14), the interpretation of unilateral commitments is subject to the rules of the interpretation of treaties. Article 36 of the Vienna Convention provides that “a right arises for a third state if the parties … intend the provision to accord that right…. to the third State … Its assent shall be presumed as long as the contrary is not indicated…”.

37 I. Brownlie, supra n. 9, at 623; Ch Rousseau, supra n. 10, at 190-191.

38 Article XVIII of the Cairo Agreement on prevention of hostile acts provides that:

“Both sides shall take all measures necessary in order to prevent acts of terrorism, crime and hostilities directed against each other, against individuals falling under the other's authority and against their property, and shall take legal measures against offenders. In addition, the Palestinian side shall take all measures necessary to prevent such hostile acts directed against the Settlements, the infrastructure serving them and the Military Installation Area, and the Israeli side shall take all measures necessary to prevent such hostile acts emanating from the settlements and directed against Palestinians”.

Another article related to Yasser Arafat's commitments is the following:

“Israel and the Palestinian Authority shall seek to foster mutual understanding and tolerance and shall accordingly abstain from incitement, including hostile propaganda, against each other and, without derogating from the principle of freedom of expression, shall take legal measures to prevent such incitement by any organisations, groups or individuals within their jurisdiction”. Article XII. para. 1 of the Cairo Agreement.

39 Could the Palestinian Authority adopt the Palestinian Covenant as a political document? The answer is negative as such a step would not “foster mutual understanding and tolerance” as the parties undertook to seek under Article XII. para. 1 of the Cairo Agreement.

40 See Article VII. para. 1 of the Cairo Agreement.

41 Fourth Geneva Convention, 1949 (Convention Relative to the Protection of Civilian Persons in Time of War), 1949, Article 27.

42 The number of Palestinians killed by Israeli citizens was 11 from October 1990 to August 1991, 0 from October 1991 to August 1992, 7 from October 1992 to August 1993, and 38 from October 1993 to August 1994 (which includes the 29 Palestinians killed in the Hebron massacre). Peace Watch Report, Table 6.

43 The status of the territories was not changed by any of the Israel-PLO Agreements; see below p. 252 and n. 56.

44 Declaration of Principles, Annex II, para. 2: Protocol on Withdrawal of Israeli Forces from the Gaza Strip and the Jericho Area.

45 Annex I, para. 1: Protocol to the Cairo Agreement Concerning Withdrawal of Israeli Military Forces and Security Arrangements.

46 “The Middle East Peace Process — An Overview”, Information Division, Israel Ministry of Foreign Affairs, 2 June 1994, p. 5.

47 During the negotiations, a Palestinian proposal to use the terms “withdrawal of all Israeli military forces” in Annex II, para. 2 was rejected. J. Singer, “The Declaration of Principles on Interim Self-Government Arrangements — Some Legal Aspects”, (Winter 1994) Justice, 11.46.

48 The same article (in para, d) provides that the term “Israelis” shall also include Israeli statutory agencies and corporations registered in Israel. While the extent of the area known as Gaza Strip was agreed upon by the parties, the size of the Jericho area remains subject to discussions (see the exchange of letters between the PLO Chairman and Prime Minister Rabin of May 4, 1994, and a further confirmation by Prime Minister Rabin on May 8, 1994 that Israel is prepared, among other matters, to continue discussions on the size of the Jericho area.) The area from which withdrawal has to take place at this point is the Jericho area limit line as provided by map no. 2 attached to the Agreement.

49 Article II, para. 5 of the Cairo Agreement. Israeli military forces in the context of this Agreement “may include Israel police and other Israeli security forces”. Ibid., para. 4.

50 The Protocol Concerning the Withdrawal of Israeli Military Forces and Security Arrangements (Annex I to the Agreement on the Gaza Strip and the Jericho Area) is a 40-page document, Article I contains the Arrangements for the withdrawal of Israeli military forces, Articles II to XII are security arrangements.

51 See below pp. 263-264 on the role of this Committee.

52 The plan was to include arrangements for the entry of the Palestinian Police, the introduction of police arms as well as ammunition and equipment. Article I, para. 2(c) of Annex I to the Cairo Agreement.

53 Article I, para. 2(a) of Annex I to the Cairo Agreement.

54 Article XIII, para. 2 of the Declaration of Principles.

55 Article II, para. 3 of the Cairo Agreement.

56 Notwithstanding withdrawal and transfer of authority in several fields, it is explicitly provided that the status of the West Bank and the Gaza Strip will not be changed “for the period of this Agreement” (Article XXIII, para. 7 of the Cairo Agreement), which shall remain in force “until and to the extent superseded by the Interim Agreement…” (Ibid.,. para. 2).

57 J. Singer, supra n. 47, at 6.

58 Article V. 3. b. of the Cairo Agreement.

59 IPCRI, supra n. 2, at 9.

60 Shalev, A., “The West Bank and Gaza Strip Autonomy”, in Challenges in the Middle East, Novik, N. and Starr, J., ed., (1981) 81Google Scholar.

61 IPCRI, supra n. 2, at 10.

62 Ibid.

63 See Article IX of the Cairo Agreement and Article III of Annex I to this Agreement on the same issue.

64 The term “Council” signifies the elected Authority as opposed to the appointed Palestinian Authority for the areas of Gaza and Jericho.

65 The guaranteeing of public order and internal security in the West Bank and in the Gaza Strip will be the responsibility of the Council once the interim agreement is signed. The Declaration of Principles provides for the negotiation of an interim agreement on the powers and responsibilities of the elected Council. The transfer of authority under the Cairo Agreement is of a preparatory nature until the inauguration of the Council. The interim agreement will include the security arrangements concerning the West Bank and certain arrangements in force for the Gaza Strip and the Jerico area might be modified.

66 Article VIII, para. 1 of the Cairo Agreement.

67 Article III, para. l(a) of Annex I to the Cairo Agreement.

68 Article I, para. 1 of Annex III to the Cairo Agreement (Protocol Concerning Legal Matters); see below for security aspects of judicial and civilian issues.

69 On the issues of personal and territorial autonomy under the Declaration of Principles, see K. Calvo Goller, supra n. 6.

70 Article IX, para. 2 of the Cairo Agreement.

71 Article III, para. 3(a) of Annex I to the Cairo Agreement. A Palestinian Coastal Police unit which will function in defined areas and up to specific distances along the coastline and the Sea of Gaza, will be established by the Palestinian Police. See ibid. and Article XI of the same Annex.

72 Article III, para. 3(c) of Annex I to the Cairo Agreement.

73 See ibid., para. 4 for the recruitment of the Palestinian Police.

74 Article III, para. 5(b) of Annex I to the Cairo Agreement.

75 Ibid., para. 6(b).

76 Article VI, para. 2 of Annex I to the Cairo Agreement.

77 See below nn. 91 and 92.

78 Article XVIII of the Cairo Agreement.

79 Article III, para. 2(a)(2) of Annex I to the Cairo Agreement.

80 The number of Palestinans killed by Palestinians decreased from 166 in 1992-93 down to 108 in 1993-1994. Peace Watch Report, September 11, 1994, p. 3 and Table 4.

81 Article VIII, para. 1 of Annex I to the Cairo Agreement.

82 Article VIII of the Declaration of Principles and Article VIII of the Cairo Agreement. See Annex II to the Declaration of Principles, (para. 3(b)) for the principle that the area of foreign relations was not to be transferred to the Palestinian Authority.

83 Article XI and XII of Annex I to the Cairo Agreement.

84 See ibid., Article VII for Crossing Points. Passage to and from the Jericho area does not need to be effected through a crossing point.

85 The Erez, Nahal Oz, and Sufa crossing points which are preceded by checkpoints located within the Gaza Strip.

86 The Karni, Kisufim, Keren Shalom and Elei Sinai crossing points.

87 Article 3(g) of Annex II to the Declaration of Principles.

88 Article IX, Annex I to the Cairo Agreement.

89 Ibid., para. 4(a).

90 Article IV, para. 3(a).

91 A joint patrol is composed half of Palestinians, half of Israelis including an officer, a signal operator, a guard and a driver for each side. They will patrol in two vehicles, one Palestinian and one Israeli. The mission of joint patrols is to ensure free and secure movement along the roads, to prevent incidents, to provide assistance should they occur and to report to the District Coordination Offices and headquarters of the two sides. The composition of joint mobile units is similar to that of the joint patrols. Located at roads and junctions, the joint mobile units are to provide secure movement and rapid response in the event of incidents and emergency situations. In case of incidents involving Israelis and Palestinians, they are to reach the site, to provide assistance and to investigate (see Article II, paras. 3 and 4 of Annex I to the Cairo Agreement).

92 Joint patrols will operate along the lateral roads to the settlements, in the Mawasi area, along the central North-South road in the Gaza Strip, in locations defined “yellow areas”, on the North-South road crossing Jericho. Joint mobile units will be located at four junctions in the Gaza Strip (Nissanit, Netzarim, Deir el-Ballah and Sufa-Morag junctions), and at the Auja and Nahal Elisha Junctions in the Jericho area. Concerning lateral roads, the construction of buildings or installations is prohibited up to 75 meters from the center of these roads (Article VI. 6 of Annex I to the Cairo Agreement).

93 Article IV, para. 7(a)(3) of Annex I to the Cairo Agreement.

94 Ibid., para. 6.

95 Besides the Egyptian border, there are several other locations designated as yellow areas such as in Gush Katif along the Sea of Gaza, part of Nezarim and Kfar Darom and Elei Sinai settlements.

96 Article IV, para. 4(a) of Annex I to the Cairo Agreement.

97 See Article VI, para. 5 of Annex I to the Cairo Agreement.

98 Article VIII of the Declaration of Principles.

99 Annex II, para. 3(b) of the Declaration of Principles and Article VI, para. 2(a) of the Cairo Agreement.

100 See exchange of letters of May 4, 1994 between the PLO Chairman and Prime Minister Rabin, and letter of Prime Minister Rabin of May 8, 1994 attached to the Cairo Agreement, supra n. 5.

101 Most, but not all provisions included in Article X were part of the Cairo Agreement of February 9, 1993 between Israel and the PLO. This last Agreement was superseded by the Cairo Agreement of May 4, 1994.

102 Article X, para.1(e) (Annex I to the Cairo Agreement) does not say “other visitors” but “others”.

103 The procedures on control and management of the passages are subject to review one year after the signing of the Cairo Agreement.

104 Article X, para. 3(e) of Annex I to the Cairo Agreement.

105 See ibid., para. 3(f) for the definition of “resident of the Gaza Strip and West Bank”.

106 See Article XI of Annex I to the Cairo Agreement and the attached map no. 6.

107 Ibid., Article XI, para. 1(b)(4).

108 Ibid., Article XII, para. 8(a).

109 An example would be the release of Palestinian prisoners held by Israel.

110 Article VIII, para. 3 of the Cairo Agreement. The JSC is composed of five to seven members from each side, meetings are scheduled to be held at two weeks intervals but may be convened within 48 hours. See Article II of Annex I to the Cairo Agreement.1

111 The JSC is headed by the Joint Israeli-Palestinian Liaison Committee established by the Declaration of Principles (Article X).

112 See Article II, para. 2(b) of Annex I to the Cairo Agreement for other security-related tasks and coordination in humanitarian matters.

113 Article II, para. 1(a) of Annex III to the Cairo Agreement (Protocol Concerning Legal Matters).

114 See ibid., Article I on these issues.

115 Criminal jurisdiction for offences committed in the areas under the territorial jurisdiction of the Palestinian Authority by Israelis constitute an agreed exception (ibid., para. 2(b).

116 Ibid., para. 7.

117 Article II, para. 7 of Annex III to the Cairo Agreement.

118 Article XIV of the Cairo Agreement.

119 Article VIII, para. 1 of Annex I to the Cairo Agreement.

120 In this case the Israeli may be “detained in place” by the Palestinian police, until a mobile unit, joint patrol or an Israeli representative arrives. Even in cases of suspicion, an Israeli may not be apprehended, arrested, placed in custody or in prison. (Article VIII, para. 4(b) of Annex I to the Cairo Agreement).

121 Article VIII, paras. 5 and 6 of Annex I to the Cairo Agreement.

122 Ibid., Article VIII, para. 9(a).

123 Ibid., para. 9(c).