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Palestine's Permanent Transition Zinaida Miller Cornell International Law Journal Volume 47 Article 3 Issue 2 Spring 2014 Perils of Parity: Palestine's Permanent Transition Zinaida Miller Follow this and additional works at: http://scholarship.law.cornell.edu/cilj Part of the Law Commons Recommended Citation Miller, Zinaida (2014) "Perils of Parity: Palestine's Permanent Transition," Cornell International Law Journal: Vol. 47: Iss. 2, Article 3. Available at: http://scholarship.law.cornell.edu/cilj/vol47/iss2/3 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell International Law Journal by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. \\jciprod01\productn\C\CIN\47-2\CIN203.txt unknown Seq: 1 9-OCT-14 13:33 Perils of Parity: Palestine’s Permanent Transition Zinaida Miller† Introduction: Stalemate, Internationalized ........................ 332 R I. Prelude: The Legal and Institutional Background for International Governance ................................. 338 R A. The View from the Law of Occupation ................. 341 R B. Occupation on the Ground: 1967– 1993 ............... 344 R C. Occupation Under Oslo/Oslo Under Occupation: 1993– 2013 ........................................... 348 R 1. Spatial Separation ................................. 349 R 2. Palestinian Authority Governance ................... 353 R II. International Governance: Money and Expertise Under Oslo ..................................................... 356 R A. Peace and Development After the Cold War ............ 358 R 1. The New Peace .................................... 359 R 2. Economic Development ............................. 362 R 3. Human Rights ..................................... 364 R 4. Humanitarianism .................................. 366 R B. Peace and Development in the Palestinian Territories: International Aid, 1993– 2013 ......................... 368 R 1. Building Peace: 1993– 2000 ......................... 368 R 2. Managing Crisis: 2000– 2006 ....................... 371 R 3. Confronting Statehood: 2006– 2013 .................. 372 R C. Costs and Consequences .............................. 375 R 1. Subsidy ........................................... 377 R 2. Infrastructure ..................................... 377 R 3. Mitigation ......................................... 379 R III. Reframing the Conflict: The Significance of Oslo ......... 382 R A. Parity ................................................. 383 R 1. Imagining Equality ................................. 384 R 2. Limits of Peacemaking ............................. 390 R B. Economism ........................................... 394 R 1. A Question of Development? ........................ 395 R 2. Politics and Depoliticization ........................ 401 R † Senior Fellow, Institute for Global Law and Policy, Harvard Law School. J.D., Harvard Law School; M.A.L.D., The Fletcher School, Tufts University; Ph.D. Candidate, The Fletcher School, Tufts University. My thanks to the editors of the CILJ for their patience and hard work. For their extraordinary contributions and consultations, my thanks to Aziza Ahmed, Robert Blecher, Karen Engle, Janet Halley, Ian Johnstone, Lisa Kelly, David Kennedy, Duncan Kennedy, Lilia Ella Blecher Miller, Ylana Miller, Martin Miller, Naz Modirzadeh, Rachel Rebouch´e, Sara Roy, and Peter Uvin. 47 CORNELL INT’L L.J. 331 (2014) \\jciprod01\productn\C\CIN\47-2\CIN203.txt unknown Seq: 2 9-OCT-14 13:33 332 Cornell International Law Journal Vol. 47 C. Transition ............................................ 405 R 1. Process and Progress ............................... 405 R 2. Permanent Transition .............................. 410 R Conclusion....................................................... 412 R A decade [after the signing of the Oslo Accords,] . the image of [a Pales- tinian] economy had taken form. The superheroes were not the negotia- tors . and not even the Audi-happy Palestinian ministers, but rather the donors and their agents who built an entire aid industry using the [Oslo] agreements . as its foundation. – Sam Bahour1 Good governance is the highest form of resistance. – Senior Palestinian official2 Introduction: Stalemate, Internationalized3 On September 13, 1993, the New York Times announced, “In a triumph of hope over history, Yitzhak Rabin, the Prime Minister of Israel, and Yasir Arafat, the chairman of the [Palestinian Liberation Organization (PLO)], shook hands today on the White House lawn, sealing the first agreement between Jews and Palestinians to end their conflict and share the holy land . that they both call home.”4 Media the world over echoed the themes of “hope over history,” peace over war, negotiation and compromise over violence and conflict.5 Many expected that the Declaration of Princi- ples on Palestinian Self-Government signed that day, along with several agreements known collectively as the “Oslo Accords,”6 would usher in a new and profoundly different era for Israelis and Palestinians.7 1. Sam Bahour, Palestine’s Economic Hallucination, 165 THIS WEEK IN PALESTINE, Jan. 2012. 2. Interview with senior Palestinian official in Ramallah, West Bank (Jan. 2009). 3. In addition to secondary literature, reference will be made to interviews conducted by the author in Israel and the West Bank between 2007 and 2009. Names have been kept confidential. 4. Thomas L. Friedman, Rabin and Arafat Seal Their Accord as Clinton Applauds ‘Brave Gamble’, N.Y. TIMES, Sept. 13, 1993, at lA1. 5. See id. 6. Declaration of Principles on Interim Self-Government Arrangements, Isr.-PLO, art. 1, Sept. 13, 1993, 32 I.L.M 1525 (1993) [hereinafter DOP]. The litany of documents and meetings that have emerged from various bilateral negotiations since Oslo is vast in scope. Following the Declaration of Principles, there was the Agreement on the Gaza Strip and the Jericho Area (1994); Interim Agreement on the West Bank and Gaza Strip (1995); Hebron Agreement (1997); Wye River Memorandum (1998); Sharm el-Sheikh Memorandum (1999); Camp David II Summit (2000); Taba negotiations (2001); Quartet on the Middle East, A Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict (2003), available at http://www.un.org/News/dh/ mideast/roadmap122002.pdf [hereinafter Roadmap]; and the Annapolis Conference (2007). 7. This description is not to imply that there were no skeptics at the time. The most renowned was, perhaps, Edward Said, who authored a series of articles criticizing the Accords. Several of these were later collected in Said’s PEACE AND ITS DISCONTENTS: ESSAYS ON PALESTINE IN THE MIDDLE EAST PEACE PROCESS (1996). \\jciprod01\productn\C\CIN\47-2\CIN203.txt unknown Seq: 3 9-OCT-14 13:33 2014 Perils of Parity 333 By April 2014, the New York Times had a more skeptical assessment: “The crisis that engulfed the ailing Middle East peace process this week was much more about preserving the process than finding a path to peace.”8 More than two decades after the historic handshake, the goals of the Oslo Accords remain unfulfilled: violence continues, the parties have failed to achieve a diplomatic agreement, and Israeli occupation persists.9 Yet the institutional forms, central players, and daily practices of the Israeli- Palestinian conflict have been transformed. In this sense, the “Oslo regime” is as significant for the system it produced as for the solution it failed to provide. The Accords produced a durable new reality in the West Bank and Gaza10 in which international ideas, donor aid, and expert assis- tance play a dominant role in the routine organization and management of the Palestinian territories. The Oslo Accords both anticipated and necessitated international intervention. International organizations and foreign states have played a role in managing, governing, and shaping the territory between the Jordan River and the Mediterranean Sea for over a century.11 Their direct role on the ground diminished between 1948, with the establishment of the state of Israel, and 1993.12 With the advent of the Oslo era, however, interna- tional money, expertise, and ideas became central once again. Israelis and Palestinians negotiated the Accords in an era of increased international involvement in conflict and post-conflict territories, and the Accords were predicated on the availability of international resources and experts. Yet international norms and ideas shaped the regime the Accords produced in ways that its authors could not have foreseen. International involvement contributed to reframing the conflict from the occupation of territory by a victorious power against the will and resistance of a local population, into an indefinite “transition” in which two organized entities face one another in negotiations as notional equals while the focal point of public life in the occupied territories shifts from political resistance to institution-building, economic development, and security. The Oslo regime formally reallocated power and responsibility for the 8. Jodi Rudoren, A Peace Process in Which Process Has Come to Outweigh Peace, N.Y. Times, Apr. 4, 2014, at A1. 9. Id. 10. Throughout this Article, “West Bank and Gaza,” “occupied territories,” and “Pal- estinian territories” will be used interchangeably. 11. See generally MARK TESSLER, A HISTORY OF THE ISRAELI-PALESTINIAN CONFLICT (2009). 12. The notable exception is the U.N. Relief and Works Agency for Palestine Refu-
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