The Israeli Disengagement Plan:  A Prejudicial Action

By Brandon Hollinder*

August 2005

                            Table of Contents

Abstract

The Israeli-Palestinian conflict is just that, a conflict.  It has had its ups and downs, but it has been characterized by violence, and consequently is viewed as a violent struggle.  There have been many efforts to end the cyclical relationship between the Israelis and Palestinians of attack and counter attack, resulting in several peace agreements and increased communication between both sides.  Cooperation and dialogue have been hallmarks of the achievements and successes that do exist in this relationship.  Now the Israelis have diverged from this course and are in the process of unilaterally withdrawing their troops and citizens from the Gaza Strip.  The end to the Israeli occupation is a good thing, but it must be done properly, and it should not disrupt the peace process or the relationship between the Israelis and the Palestinians, unfortunately that is exactly what the unilateral plan has done.

This article argues that the Unilateral Disengagement Plan being implemented by the Government of Israel as a means to pull its troops and settlers out of the Gaza Strip violates both the Israel and PLO:  Declaration of Principles on Interim Self-Government Arrangements, as well as the Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict, and thus prejudices them.  By acting unilaterally, the Israelis violate direct terms of these agreements as well as the overall spirit of them.  As these documents remain relevant tools in the peace process, the direct and deliberate violation of them by the Israelis can only have negative impacts upon the overall peace process and the relationship between the Israelis and the Palestinians.  The actions Israel is pursuing will undermine the Palestinians’ trust in the Israeli Government, and call into question their roll as a partner to peace.

Introduction

The past decade has seen renewed attempts to solve the Israeli-Palestinian conflict, including efforts by western leaders such as United States Presidents Bill Clinton and George W. Bush.  The respective works created with the assistance and impetus of these two Presidents’ administrations, the Israel and PLO:  Declaration of Principles on Interim Self-Government Arrangements, hereinafter “The Oslo Agreement”, and George W. Bush’s Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict, hereinafter the “Roadmap”, remain the most significant agreements to the Israeli-Palestinian conflict achieved through international efforts and support, as well as having garnered approval from the Israelis and Palestinians themselves.  Consequently they have dominated the recent peace process, and the commentary surrounding it.

These two agreements, and most others that have been proposed, share the characteristic that the process towards peace must be one of cooperation and negotiation, as opposed to unilateralism, especially between the Israelis and Palestinians.  In 2004 the Israeli Prime Minister, Ariel Sharon, introduced a plan for unilateral disengagement, seemingly rejecting the internationally shared ideals of cooperation and agreed settlement as unnecessary to resolving this process, replacing those principles with ones of imposed terms and imposed peace.[1]

The Israeli Government claims that abandoning negotiation and an agreed to settlement does not violate or “prejudice” any of their treaties or agreements with the Palestinian people.[2] 

This paper will argue that the Unilateral Disengagement Plan currently being implemented by the Israeli government does in fact violate both the “Oslo Agreement” and the “Roadmap”, and that these violations will have significant negative impacts on the peace process moving forward, and any peace achieved by it will not last.

I. The Israeli Disengagement Plan is Openly Unilateral

The Gaza Strip and the West Bank are territories that have been occupied by Israel since the Six-Day War in 1967.[3]  Gaza lies south of Israel, and borders the Mediterranean See and Egypt as well as Israel.  Within Gaza, there are approximately 1,376,289 Palestinians, many of whom live in refugee camps, and approximately 5,000 Israeli settlers who are heavily protected by the Israeli Defense Force (IDF).[4] 

The West bank consists of the territory on the west bank of the Jordan River.  It is home to approximately 2,385,615 Palestinians and 187,000 Israelis.[5]  Together the Gaza Strip and West Bank form the core and essential parts to any future state of Palestine.

In April of 2004, Prime Minister Ariel Sharon introduced a Disengagement Plan for withdrawing Jewish Settlers and the IDF from the Gaza Strip and from four settlements in the West Bank.[6]  Despite heavy opposition from his own party, Likud, Sharon has pressed forward with his plan.[7]  The Likud party voted to reject the Disengagement Plan by 60%, although with only a 52% turnout for the vote.[8]  Despite the lack of confidence from his own party Sharon has sought, and won, the support of both his cabinet[9] and the Knesset.[10]  This latter step prompted former Prime Minister, and current Finance Minister, Benjamin Netanyahu of Sharon’s Likud Party to threaten to resign if Sharon did not seek a referendum on the plan.[11] 

Sharon has ignored Netanyahu’s calls, along with others similar to it, despite that the negative affect of a referendum on Sharon would seemingly be minimal; he has enjoyed the support of the general public throughout the process, although that support is waning as orange ribbons become evermore ubiquitous across Israel, and protests have increased as the pullout date grows closer.[12]  The plan has continued to move forward, and Sharon scored another victory on June 9, 2005 when the Israeli Supreme Court ruled ten to one that the Disengagement Plan did not violate Israeli law.[13]  The court held Israeli Law to be inapplicable, because the land is not officially a part of Israel, because it was seized during war.[14]  This decision helped Sharon shrug off some of his domestic detractors, but it also recognizes the fact that this land is controlled by International principles and treaties, of which the “Oslo Agreement” and “Roadmap” would be the most pertinent.

The Disengagement Plan, while it has been revised to be less cosmetically abrasive to the negotiation process with the Palestinians, is openly unilateral.  There is no inclusion of the Palestinians for advice, support, or thought given or sought in the decision making process.  The plan originally stated it was a plan of “unilateral disengagement” openly claiming to be solely an endeavor for the state of Israel with no outside input.[15]  In an attempt to garner more support domestically, Sharon has since backed off that rhetoric, and in its place is the phrase “initiate moves not dependent on Palestinian cooperation” has been substituted.[16]  While the change employs terminology that is more vague, the effects and process remain the same; the overall structure and detail of the plan have remained largely unchanged, and the Israelis have persisted with their belief that there is currently no “Palestinian partner with which [Israel] can make progress in a two-sided peace progress.”[17]

The Disengagement Plan calls for implementation by the Security Cabinet within the Israeli government.[18]  It further calls for the creation of a “Steering Committee” composed of officials from almost every sector of the government including the Prime Minister’s Office , the ministries of Finance, Justice, Foreign Affairs, Industry, Trade and Labor, Agriculture and Rural Development, National Infrastructures, Interior, and Construction and Housing.[19]  It also calls for cooperation with the Jewish Agency for Israel, but there is no mention of the Palestinians or a representative of them despite that the one million plus Palestinians living in Gaza will likely be affected by this move just as much if not more than the 5,000 Jewish settlers involved in it.[20]

This harsh description of the Palestinian leadership, and the fact that the details, goals, and process of the plan have remained largely unchanged indicate that, despite the change in language, the Israelis have not changed the unilateral nature of the Disengagement Plan, nor have they changed their unwillingness to move towards a cooperated peace, despite their commitments in agreements like the “Oslo Agreement” and the “Roadmap”. 

The unilateral nature of the plan, and the absence of cooperation with the Palestinians in the plan, is confirmed by the implementation of it thus far.  As Mohammed Dahlan, Civil Affairs Minister of the Palestinian Authority (PA), and chairman of a committee responsible for preparing for the end of Israel’s occupation of Gaza, commented in speaking of the Disengagement Plan: “As far as I can see there has been no cooperation.”[21]  “[W]hen we declared our willingness to [cooperate], Israel backtracked dozens of steps.” [22]  Similar comments have been made by Israeli politicians, stressing that the plan for disengagement in the Gaza Strip will go forward as the Israelis see fit with Palestinian actions, including democratic elections, having no consequence or effect upon it or its process.[23]

The lack of Palestinian actors within the framework for implementing this plan, even for simply giving input, along with the absolute absence of Palestinian involvement  in the process thus far is clear proof that despite changes in the language employed, the Disengagement Plan has been from the beginning and remains a unilateral plan by the Israelis. The withdrawal is something they plan to do by themselves, and on their own terms whatever the affects on the long term peace process in the region may be, and whatever the affects on the political relationship with the new Palestinian leadership of Mahmud Abbas may be.

II. The Israeli Disengagement Plan violates the “Oslo Agreement” and the “Roadmap”.

A. Israel’s Claims.

Section one paragraph seven of the revised Disengagement Plan, as well as the original, states that “[the unilateral Disengagement Plan] is without prejudice to the relevant agreements between the State of Israel and the Palestinians.”[24]  This claim is aimed at convincing the world that the state of Israel is not hindering the peace process or avoiding it.  This fiction is important to the Israelis in maintaining their image abroad.  Any decline in their image vis-à-vis the Palestinians could lead to not only decreased funding and support for Israel, but also increased funding and support for the Palestinians as well as other Arab nations and institutions.  Such a result would be just as devastating to the Israelis, as any loss of support they sustained. 

Many nations and people would like to see a resolution to the Israeli-Palestinian problem.  If Israel took deliberate steps to halt or discourage this process, or was perceived as doing so, it could strain Israel’s political and economic relations with many countries.  The statement made in section one paragraph seven attempts to avoid this, but it is my contention that when the facts of the Disengagement Plan are analyzed against the “Oslo Agreement” and the “Roadmap”, the two relevant agreements, it is clear that the Disengagement Plan does “prejudice” and violate both of them.[25]

B. The “Oslo Agreement and the “Roadmap” are relevant documents.

The “Oslo Agreement” and the “Roadmap” are relevant documents between Israel and Palestine.  They are both documents that were agreed to by each party aimed at ending the conflict that has been raging between these two parties for over fifty years.  These two documents affect both parties in significant ways, and partially define the relationship between them.

Furthermore, the “Oslo Agreement” and the “Roadmap” are the most recent attempts to solve the Israeli-Palestinian conflict by major international governments that have received support from the Israelis and Palestinians, as well as various levels of support from the international community as a whole.  The fact that both parties have agreed to work with these two plans, and that neither of them has been explicitly rejected by either their creators or any of the parties involved indicates that they deserve our attention and that both parties should still be held accountable to their terms.

At times, the Israeli government has seemed to ignore the “Oslo Agreement”, but they have never explicitly rejected it. The continued acceptance of both documents as relevant can be seen through the words and actions of both the Israeli Government as well as the PA.  The Disengagement Plan itself recognizes that there are multiple agreements, not just the “Roadmap”, that are relevant.  Under section one, paragraph seven, it says that the “relative agreements” (my emphasis) indicating that there is more than one relevant agreement.[26]  Again under section three, paragraph two, it refers to “the Israeli-Palestinian agreements” (my emphasis).[27]  These examples imply that the stance of the Israeli government is that other agreements, like the “Oslo Agreement”, are still in effect and the parties should follow them. 

Further evidence that indicates the “Roadmap” is relevant includes section one, paragraph eight of the Disengagement Plan, which specifically invokes the “Roadmap” as applicable by saying the Disengagement Plan is an important part in the process of ensuring the reforms of the “Roadmap” are implemented.[28]  The fact that they are trying to implement pieces of the roadmap indicates that they feel it is still binding.

The Israeli government could have taken this opportunity to reject the “Oslo Agreement” but it did not.  Instead it has tried, and failed, to make the argument that the Disengagement Plan does not violate the “Oslo Agreement” or any other of their agreements with the Palestinians, implicitly indicating that both the “Oslo Agreement and the “Roadmap” are still relevant.

The Palestinians likewise believe the “Roadmap” is still binding as is evidenced by the Palestinian concerns that the Disengagement Plan is a way for the Israeli’s to avoid the “Roadmap” and its obligations.[29]  This shows that the Palestinians want the terms of the “Roadmap” to be enforced and that they see it as a viable tool for obtaining peace, but only if the Israeli’s do not violate it.  Palestinian Interior Minister, Naser Yousif, has likewise shown that the PA supports the “Roadmap” as well as the “Oslo Agreement” by claiming the Palestinian elections are being undertaken as part of the obligations under both the “Roadmap” and the “Oslo Agreement”.[30]

From an outside perspective, the “Oslo Agreement” is valid and still very much in force as argued by Professor Geoffrey R. Watson of The Catholic University of America Columbus Law School in his article Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory: The “Wall” Decisions in Legal and Political Context.  In the article, he argues the “Oslo Agreement” should apply because it was legally formal and was intended to be binding, and that Palestine, although not a state, is like one; it enjoys observer status at the United Nations, Palestine attempts to follow the Geneva Conventions, it has embassies worldwide, and is recognized by many nations as an independent state.[31]  He continues to explain that even if the “Oslo Agreement” is politically dead, which is not clear given the language employed in the Disengagement Plan, it is likely not legally dead.[32]  While there have been breaches, perhaps even significant ones, of the agreement, that does not render an international agreement void.[33]  The non-breaching party may use material breach by the other as a reason to avoid the agreement, but the agreement is not voided automatically.[34]

According to Professor Watson, neither Israel nor Palestine have taken the prescribed steps to avoid the agreement, consequently, legally, it is still valid and therefore applicable.[35]  All this suggest that the “Oslo Agreement” continues to be an important part of the Israeli-Palestinian conflict and that outside observers and third party players should do all in their ability to ensure that agreements like the “Oslo Agreement” and the “Roadmap”, which are still binding, are fulfilled by both parties.

Since both parties accept both documents, and from a legal perspective they remain valid, both should be considered relevant documents between the State of Israel and the Palestinians.

C. The “Oslo Agreement” is violated by the Disengagement Plan.

The Israel and PLO: Declaration of Principles on Interim Self-Government Arrangements or “Oslo Agreement” was seen as a major break through in the peace process between Israel and the Palestinians when it was created.  Since its signing in 1993, it has not maturated into the agreement many expected it to, nonetheless, as discussed above, it is arguably still a viable document, and if nothing else serves as a monument towards cooperation and is an example providing hope that another agreement can be reached in the future, or the terms of the “Oslo Agreement” itself can be reinvoked.  Unfortunately, these hopes and the viability of this document as a positive symbol may not withstand the unilateral actions that Israel is taking in the formulation and implementation of the Disengagement Plan. 

The Disengagement Plan clearly violates the “Oslo Agreement” in several places, as it spurns the Palestinians and imposes a solution that best fits the needs of Israel rather than both parties.

“The Government of the State of Israel and the P.L.O [will] . . . strive to achieve [a] . . . peace settlement and historic reconciliation through the agreed political process.”[36]  This statement is found in the preamble to the “Oslo Agreement”.  The use of the terms “peace settlement” (my emphasis) and “through the agreed political process” (my emphasis) indicate that the process was to be one of mutual agreement and negotiation, not unilateralism.[37]  The Disengagement Plan avoids a settlement and replaces it with a judgment handed down to the Palestinians by the Israeli government, and thereby violates the agreement.  The Palestinians did not have a say in it, nor did they bargain for it.  The plan was forced upon them, for better or worse, just as a judge forces a sentence upon someone who is criminally convicted, at least in that instance, the accused gets to plead their case, here the Palestinians were not even given that opportunity.

The term “through the agreed political process” can best be put into context by examining the remainder of the agreement, which clearly indicates that the agreed process was one of negotiation between the Palestinians and the Israelis, especially on the important issues like the permanent status of land and boundaries.  Article I points to the idea of a negotiated settlement.  The very title of the article is “Aim of the Negotiations.”[38] It lays out the aim of the “Oslo Agreement”, while simultaneously labeling it a negotiated process.  Since the Disengagement Plan is openly unilateral and bereft of negotiation with the Palestinians, it clearly violates the very idea and agreed process of the “Oslo Agreement”, negotiation.

Article V of the Agreement specifically invokes negotiation as the method for resolving the very issue that the Disengagement Plan seeks to solve unilaterally.  Article V covers permanent status, and says “negotiations shall cover . . . settlements, security arrangements, borders . . . and other issues of common interest.”[39] (my emphasis)  The withdrawal from the Gaza Strip involves each of these areas.  It concerns the Jewish settlements that will be left behind, and while a tentative agreement was reached between the two sides concerning the status of those settlements after withdrawal, the fact remains that the withdrawal itself was not negotiated.  The Disengagement Plan affects the security of both parties, as the IDF is leaving, and recently the Gaza Strip has been a hotbed for attacks against Israeli settlers, prompting retaliation by the IDF.  It also affects the permanent borders of Israel and the future Palestinian state.  The Israelis are unilaterally determining what they are willing to give up and forcing that upon the Palestinians, while simultaneously building a “security fence”, or wall, that solidifies de facto borders that deviate from the Greenline in Israel’s favor.  Finally this plan is obviously of common interest to both parties, and if that could not be recognized beforehand, the amount of comment and protest from both the Palestinians as well as many actors and agencies globally is clear evidence that this is of mutual interest to the Israelis, Palestinians, and the world.

As this affects the permanent status of all these different issues, it should be covered by negotiations according to article V.  The fact that the Disengagement Plan is not being negotiated is a violation of article V.

Article XIV of the “Oslo Agreement” calls for the Israeli withdrawal from The Gaza strip.  The protocol for this withdrawal is laid out in annex II of the “Oslo Agreement”.[40]  The Israeli Disengagement Plan violates the protocol established between the two parties as described in annex II.

The official protocol calls for the Israelis and Palestinians to “conclude . . . an agreement on the withdrawal of Israeli military forces from the Gaza Strip[.]”[41] (my emphasis)  It further calls for the “[e]stablishment of a joint Palestinian-Israeli Coordination and Cooperation Committee for mutual security purposes.”[42]  No agreement has been reached for the withdrawal of military forces; Israel has dictated the entire process to the Palestinians.  Like wise, a “joint Palestinian-Israeli Coordination and Cooperation committee” has not been established for the Israeli withdrawal from Gaza.[43]  The Israelis have ignored the terms they agreed to, and in this instance have not even tried to establish the appearance of acquiescence to the “Oslo Agreement”.  This is a direct violation of the terms of the “Oslo Agreement”, but it is also a violation of the spirit of cooperation and negotiation that permeates the document and that is crucial to the relations between the two parties moving forward.

The protocol does allow some unilateralism, specifically in coordination with other international actors, but it clearly envisions unilateralism as one part amongst many other cooperative and negotiated parts.[44]  The fact that the Israeli plan is completely unilateral ignores and breaches the majority of what the “Oslo Agreement” calls for in withdrawing from the Gaza Strip; it impinges upon the language and the terms of annex II, the protocol for withdrawing from the Gaza Strip in the “Oslo Agreement”.

Any disputes about the “Oslo Agreement” or the interpretation of any of its parts, as some may wish to classify the Disengagement Plan as an interpretation of the “Oslo Agreement” terms, are suppose to be resolved by a “Joint Liaison Committee”.[45]  The Liaison Committee is a “Joint Israeli-Palestinian”[46] one, that is required to be composed of an equal number of members from each side, and it will “reach decisions by agreement.”[47]  Even if Israel could technically classify the Disengagement Plan as an interpretation of the terms of the “Oslo Agreement”, there still has been disagreement over its validity; the Palestinians have protested the legality of the plan. Under the terms of the “Oslo Agreement”, in such a case, the document should be analyzed jointly by the Liaison Committee, and indeed, the Palestinians expected “all outstanding issues relating to permanent status will be resolved through negotiations.”[48]    The Disengagement Plan has not been negotiated and has not been referred to the Liaison Committee.  Thus even if the Israelis can legitimately press a claim that they are merely interpreting the “Oslo Agreement”, they have still violated the protocol and terms of the “Oslo Agreement” by not referring it to the Liaison Committee.

The Disengagement Plan violates the explicit terms and spirit of the “Oslo Agreement” again and again, blatantly ignoring its calls for negotiation and cooperation.  Likewise, the “Roadmap” and its calls for negotiation are systematically ignored and violated by the Israeli Disengagement Plan, through its unilateral qualities.

D. The Roadmap is violated by the Disengagement Plan.

The “Roadmap” is President George W. Bush’s attempt at ending the Israeli-Palestinian conflict.  It calls for cooperation, and tangible steps by each party to the conflict through terms expressly stated in the “Roadmap”, and through invoking past United Nations’ Resolutions and various plans and recommendations that have been developed over the past several years.  The Israeli Disengagement Plan violates both the express language of the “Roadmap” as well as several of the invoked sources.

The first place the Disengagement Plan violates the “Roadmap” is in the preamble.  This part of the document sets out the overall goals and basic principles for the document.[49]  It states in part that the result of the “Roadmap” will be “[a] settlement, negotiated between the parties” (my emphasis).[50]  This phrase is vague, and likely intentionally so; we are not instructed if the entire process must be negotiated, or just parts, or even just the final solution.  Nonetheless the withdrawal from the Gaza Strip and handing it to the Palestinians would likely be considered an important part in the peace process, and one that is a part of any final solution.  If the plan did not want negotiation on an issue of this magnitude, and of this importance, what part would it call for it on?  Because it is a major part of the peace process the “Roadmap” likely intended for an withdrawal from the Gaza Strip to be “negotiated between the parties[.]”[51]  The Disengagement Plan’s lack of all cooperation with the Palestinians is a clear violation of that.

The Disengagement Plan also violates numerous parts of Phase I of the “Roadmap”.  Phase I calls on the Israelis to “end incitement against Palestinians” and to take “no actions undermining the trust [of the Palestinians.]”[52]  The Disengagement Plan has violated these terms.  The plan has created widespread criticism in the Arab world, and is seen by many Palestinians as a ploy to avoid the Roadmap.  There are fears that the Israelis will use this as an excuse to keep settlements in the West Bank permanently.  This has the obvious effect of inciting the average population, and undermining their trust.  Regardless of if this is, or is not, the intentions of the Government of Israel, the effect of the unilateral actions they have undertaken has been to incite the Palestinians and undermine their trust in Israel, both of which violate the “Roadmap”.

To make the situation worse, there have been comments by Israeli Government officials that have incited the people furthermore.  Dov Weisglass, Ariel Sharon’s top aide, has been quoted as saying “The significance of the Disengagement Plan is the freezing of the peace process, and when you freeze that process, you prevent the establishment of a Palestinian state[.]”[53]  This statement clearly has the potential to incite the Palestinians and undermine their trust in the Disengagement Plan and the entire peace process.  Making such a statement is either a clear attempt to do just that, or an incredibly large slip of the tongue, either way the outcome is the same.

Accompanying statements like the one mentioned above is the language of the Disengagement Plan.  The plan claims, in section one, that the state of Israel currently has “no reliable Palestinian partner with which it can make progress in a two-sided peace process.”[54]  This runs the risk of alienating the Palestinians and inciting violence as the Disengagement Plan continues despite recent Palestinian efforts to reform their bureaucracy and hold democratic elections.  This stance, of no viable political partner, could cause the Palestinians to question their reforms, and in the worst case scenario end attempts at negotiating with Israel and return solely to violence.  These unilateral actions by the Israelis clearly have the potential to, and likely have, incited the Palestinians and undermined their trust in the Israelis, both of which violate the “Roadmap”.

Phase II calls for an international conference between Israel, Palestine and the Quartet of the United States, the European Union, the United Nations and Russia.[55]  At this proposed conference, there is to be “multilateral engagement on issues” including arms control and the status of refugees, both of which are key issues related to the withdrawal from The Gaza Strip.[56]  The Disengagement Plan, by operating unilaterally, ignores its obligations under the “Roadmap” not only to the Palestinians, but also to the members of the Quartet.

Additionally, Phase II calls for continuing the “security cooperation” outlined in Phase I.[57]  The term cooperation again indicates that the “Roadmap” envisions a process of negotiation, not unilateralism.  Furthermore, if the Israelis do not perform the cooperation required of them under Phase I, it makes the performance of phase II impossible, since it calls for the continued behavior of Phase I.  In effect the Disengagement Plan creates the possibility of destroying the “Roadmap” by making it impossible to implement the later phases.

Finally, Phase III calls for “[a] final and comprehensive permanent status agreement . . . [reached] through a settlement negotiated between the parties[.]”[58]  The Disengagement Plan attempts to create a new permanent status for the Gaza Strip and its inhabitants, by changing it from occupied and administrated by one state, Israel, to being a part of, and administrated by, another, Palestine, without the negotiated settlement called for in the “Roadmap”.  This is a clear violation of the express terms given in the “Roadmap”, as there is no negotiated settlement, but rather unilateral dictates.

Phases II and III of the “Roadmap” have not begun yet, accordingly it may be argued that they cannot yet be violated.  But these phases and the examples from them clearly indicate that the “Roadmap” is suppose to be about cooperation, and these future phases are, at a minimum, indicative of the tone and spirit of the agreement being one of cooperation and negotiation, and the unilateralism of the Disengagement Plan clearly violates these ideals..

In addition to violating the direct language of the “Roadmap”, the Disengagement Plan also violates several sources that are invoked and incorporated into the “Roadmap”, including United Nation Security Council Resolutions (UNSCR) 338[59], and 1397[60], also the Mitchell Report[61], and the Tenet Work Plan.[62]  The Israeli’s and Palestinians may not have agreed to all of these documents expressly, but by agreeing to the “Roadmap”, which includes these documents, it is implicit agreement with these other documents.  The violation of these extrinsic documents is no better than a violation of the explicit language of the “Roadmap”, and it has the same destabilizing and prejudicial effects as any other violation, as these other sources are integral parts of the “Roadmap”. 

UNSCR 338 calls for “negotiations [to] start between the parties concerned . . . aimed at establishing a just and durable peace[.]”[63]  The resolution does not elaborate on this idea, as a result, it could be interpreted to mean that not everything between the parties need be negotiated as long as there are general negotiations between the parties.  If this interpretation is correct, than the Disengagement Plan is not a literal violation of UNSCR 338.  However, the fact that the resolution does invoke the practice of negotiation suggests that it is the preferred method for ending the conflict, and advocated by the UN.  It further suggests that the UN would encourage and prefer negotiation on important decisions and moves by the respective parties.  The withdrawal from, and handing over of, large pieces of territory would certainly qualify as a large and important move, affecting the self-determination of the Palestinian people, and for which the UN would encourage negotiation.  Support for this idea can be found in comments made by the UNSC when discussing the Roadmap.  Such comments include, the Special Coordinator for the Middle East Peace Process and Personal Representative of the Secretary-General, Terje Roed-Larsen’s “initiatives cannot substitute for the officials of the parties negotiating[.]”[64]  Under-Secretary-General for Political Affairs, Kieran Prendergast holds a similar point of view, stating “unilateral acts by the Government of Israel are not only inconsistent with its obligations under the roadmap, but also in complete contravention of the spirit of that document.”[65]  The unilateral qualities of the Disengagement Plan are therefore at least a violation of the spirit and ideals of UNSCR 338 and those believed in by the UNSC.

Like UNSCR 338, UNSCR 1397 calls for “resuming negotiations on a political settlement[.]”[66]  Again, as in UNSCR 338, it does not elaborate on what must be negotiated and what need not be.  Nevertheless, the idea of negotiation is again invoked as a crucial tool in solving this conflict.  The Disengagement Plan defies the UNSC’s call for cooperation, and violates its resolutions as much as it can given the resolutions’ vague nature.

UNSCR 1397 also invokes UNSCR 338 as well as the Mitchell Report and the Tenet Work Plan, accordingly, any violation of those, as discussed above for UNSCR 338, and discussed below in regards to the Mitchell Report and the Tenet Work Plan, is a violation of it.[67]

The Mitchell Report is invoked by UNSCR 1397; it specifies that the recommendations made by said plan are to be implemented by both sides to the agreement.[68]  The recommendations are replete with calls for cooperation and negotiation.  The major recommendations include rebuilding confidence by “work[ing] together . . . implement[ing] additional confidence building measures” and resuming negotiations.[69]  Again, the Israeli Disengagement Plan is openly unilateral; it is inherently at odds with these calls for negotiations with the Palestinians. Again, this has the effect of undermining the confidence the two sides have in each other and in the agreements created between them.  The Disengagement Plan violates the “Roadmap’s” call to implement the Mitchell Report’s recommendations, by doing the opposite of what is called for in the report.

The Tenet Work Plan was developed by then CIA director George Tenet based on the agreements reached at Sharm el-Sheikh, Egypt in October of 2000.[70]  It went into effect on June 13, 2001 and calls for the immediate resumption of “security cooperation” between the Israelis and Palestinians.[71]

Section one paragraph two of the revised Disengagement Plan states that “[t]he purpose of the plan is to lead to a better security . . . situation.”[72]  Here the plan explicitly indicates that it involves security measures, which means that according to the Tenet Work Plan, which is invoked by the “Roadmap”, there should be cooperation with the Palestinians on this security measure, and the failure of the Israeli Government to cooperate is therefore a blatant violation of the “Roadmap” protocol, which can have nothing but negative effects on the Israeli-Palestinian relationship and the prospects for reaching an agreed settlement between them.  

A clear trend throughout these various documents is that all of them stress negotiation.  By acting unilaterally, the Israelis ignore the collective wisdom of the world and spur these documents, making their future effectiveness questionable at best.

By violating the terms of these agreements, the Israelis have injured and damaged them as documents which mean anything.  The Disengagement Plan ignores the Israeli’s commitments to the Palestinians, and in so doing Israel is saying that these documents mean nothing and that they can change and violate them as they wish.  This in turn hurts the peace process, as it says that the Palestinians and the agreements reached with them are not worth honoring as partners in a quest for peace. The Disengagement Plan violates the express language employed in the “Roadmap” many times from the preamble through Phase I and on into future Phases II and III.  These violations have large implications on the vitality and utility of the “Roadmap” moving forward as a tool for ending the Israeli-Palestinian conflict.  The Israeli actions clearly indicate that they do not feel bound by their agreements and that they are free to do what they want regardless of what they agreed to in the past.  This will have the effect of hampering the Palestinians motivation and willingness to negotiate with the Israelis, as well as undermining the trust in them as a partner in peace and as a neighbor.  In short, the Israeli actions and violations prejudice not only these agreements, but the entire relationship between the Israelis and Palestinians.                    

 III. The unilateral qualities of the Disengagement Plan will have adverse effects on the Israeli-Palestinian relationship and the overall peace process.

The Israeli Disengagement Plan claims that “[the unilateral Disengagement Plan] is without prejudice to the relevant agreements between the State of Israel and the Palestinians.”[73]  As discussed above, the Israelis have and are violating the terms of the “Oslo Agreement” and the “Roadmap” through the implementation of the Disengagement Plan.  Merriam-Webster dictionary describes prejudice as: “injury or damage resulting from some judgment or action of another in disregard of one's rights.”[74]  In the current context, the action is the Israeli Disengagement Plan, which is being done in disregard to the Palestinians’ rights as a people, and their rights under the “Oslo Agreement” and the “Roadmap”.  The result is to damage these two agreements by violating terms of them.

By violating the agreed terms of the “Oslo Agreement” and the “Roadmap”, the Disengagement Plan does in fact prejudice those agreements despite what the Israelis claim in the Disengagement Plan.  Violating the terms of those agreements relegates them to the position of figure heads rather than working documents.  The Israelis’ actions tacitly fail to recognize the documents as meaningful tools and agreements, suggesting that the work and achievements of the past were for naught and are meaningless. Furthermore, the assertion that the Palestinians are not a viable partner in the peace process, could have damaging results on the Israeli-Palestinian relationship, eroding the trust between the two sides and setting back the peace process indefinitely.

It may also have the effect of setting back the peace process by undermining the belief in negotiation in general, as well as the usefulness of the specific documents.  Why should the Palestinians bargain and work at a joint peace process with Israel if the Israelis will not recognize the agreements achieved through those processes?  Furthermore, the Israelis have now set a precedent for ignoring agreements when they feel dissatisfied with their partner in the agreement.  While the Palestinians do have external motivation for abiding by the agreements, such as international perception of them, they will now be more likely and willing to also ignore the negotiated documents when they feel dissatisfied with Israel.  This has the potential to create a situation where each side does what they like when they feel like it.  This would be a significant set back in the joint peace process.  The Israelis claim the Palestinians are not “reliable” as bargaining partners, but theses recent actions suggest that perhaps the Israelis, who will not follow the terms they agreed to, are the ones who are unreliable.[75]

Also, a peace that is dictated does not stand as good a chance of being successful as one that is negotiated and agreed to.  The Palestinians, at all levels, will be quicker to find flaws with it, as it is not something they agreed to or worked to create.  There is even the danger that seemingly reasonable terms, which could potentially have positive consequences for the Palestinians, may be rejected by them simply because the terms were dictated rather than negotiated.  It also has the potential to create the feeling amongst the Palestinian people, that the government of Mahmud Abbas cannot get things done vis-à-vis Israel, potentially turning them away from a moderate style of government, towards radicals like Hamas who openly employ violence as a tool.  Many outside observers would view this as a set back, not only for the Palestinians but for Israel and the entire peace process in the region.

These are just a few of the potential problems that could manifest themselves as a result of the path of unilateralism the Israelis have decided to follow with the implementation of their Disengagement Plan.  The long-term consequences of this plan have the potential to destroy all that has been gained over the past fifty years through the efforts of not only the Palestinians and Israelis, but of the entire international community.  As the drafters to the Mitchell Report suggest, none of the steps in the peace process “will long be sustained absent a return to serious negotiations.”[76]  They continue

[I]n order to provide an effective political context for practical cooperation between the parties, negotiations must not be unreasonably deferred and they must, in our view, manifest a spirit of compromise, reconciliation and partnership.[77] 

These powerful words reiterate the perception that cooperation is a crucial, if not the most crucial, element in establishing peace between these two parties.  The unilateralism of the Disengagement Plan stands in sharp contrast to this, and one must question the wisdom of defying the method that is perceived and embraced internationally as the proper approach to solving this issue.

Conclusion

Neither the “Roadmap” nor the “Oslo Agreement” give either party the right to break away from the agreements and negotiation to act unilaterally if they feel there is no partner with which to negotiate.  At no time since the signing of these agreements has there been this amount reform in the PA and PLO.  With the election of Mahmud Abbas, who is eager to negotiate and who is making efforts to control and consolidate the official security forces and to reign in the independent militias, the argument that there is no reliable partner for negotiations seems to ring hollow.  Despite the recent progress by the Palestinians, the Israelis remain steadfast in their stance that this will be a unilateral action and that it will be implemented as such, indicating that in reality, the Disengagement Plan is not about the Palestinians and what they have and have not done, but about the Israeli government advancing its agenda even when that means violating treaties and agreements reached with the Palestinians, namely the “Oslo Agreement” and the “Roadmap”.

The Israel Disengagement Plan is an openly unilateral move by the Israelis to withdraw from the Gaza Strip.  The plan spurns the Palestinians as a group of people who are not capable of meaningful negotiation through its rhetoric and through the consequences of the plan on past peace agreements with the Palestinians.  Contrary to what the plan claims, it violates the explicit language and terms, as well as the spirit, of both the “Oslo Agreement” and the “Roadmap” numerous times.  These violations prejudice these agreements by calling into question their binding power and purpose, since they and their protocol are not being followed solely at the discretion of one party to them.  What effects these breaches will have exactly is unclear, but it is potentially negative, and these breaches should call into question the Israelis motivations in the peace process, and their viability as a partner in contracts and agreements not only with the Palestinians, but with any potential partner in negotiation.

Disengagement and a withdrawal form the occupied Gaza Strip and West Bank should be positive steps and moments in the peace process between Israel and the Palestinians, but it must be achieved in the proper manner.  A unilateral action by one party is not the proper manner.  Ultimately this process will only be successful if both sides to the party are involved and accept the final decisions, not only at the political level, but throughout all stratums of society.  The Disengagement Plan does not achieve this and therefore must be condemned; the end does not justify the means.

References 

1. Ariel Sharon’s Gaza Disengagement Plan, Pravda.ru, Oct. 7, 2004, available at < http://newsfromrussia.com/world/2004/10/07/56480.html >.

2. Central Intelligence Agency, CIA Director George Tenet, The Tenet Plan: Israeli-Palestinian Ceasefire and Security Plan (Langley: United States, 2001), available at <http://www.yale.edu/lawweb/avalon/mideast/mid023.htm>

3. Disengagement Plan

4. Geoffrey R. Watson, Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory: The “Wall” Decisions in Legal and Political Context, 99 A.J.I.L. 6, 309 (2005).

5. Government of Israel, Prime Minister’s Office Communications Department, Addendum A - Revised Disengagement Plan - Main Principles (Tel Aviv: Israel, 2004),

6. Gaza Strip, The World Factbook 2005, available at <http://www.odci. gov/cia/publications/factbook/geos/gz.html>.

7. Government of Israel, Prime Minister’s Office Communications Department, Addendum C – Format of the Preparatory Work for the Revised Disengagement Plan (Tel Aviv: Israel, 2004

8. “Israel and PLO: Agreed Minutes to the Declaration of Principles on Interim Self-Government Arrangements (September 13, 1993),” Walter Laqueur and Barry Rubin, eds., The Israel-Arab Reader: A Documentary History of the Middle East Conflict, 6th ed., (New York: Penguin, 2001)

9. Israeli Government Will Perform Disengagement Plan Regardless PA Elections, Jerusalemites, May 10, 2005, available at < http://www.jerusalemites.org/news/english/2005/may2005/10.htm >

10. . Israeli Parliament Oks Sharon’s Withdrawal Plan, CNN.com, Tue. Oct. 26, 2004, available at <www.cnn.com/2004/WORLD/meast/10/26/israel.gaza/index.html>.

11. Israel’s High Court Approves Gaza Pullout, BigNewsNewtwork.com, Thur. June 9, 2005, available at <http://feeds.bignewsnetwork.com/?sid=e040078bcea27241>.

12. Jerusalemites

13. John Vause, Cabinet approves Israeli Pullout in Principle, CNN.com, Sun. June 6, 2004, available at <http://www.cnn.com/2004/WORLD/meast/06/06/mideast/index.html>

14. Mitchell Report, supra notes 65, at Recommendations: resume negotiations

15. No Israeli Coordination over Gaza Pullout’, Khaleej Times Online, Tue. June 7, 2005

16.  “Prejudice,” Merriam-Webster OnLine, 2005, available at <http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=prejudice>

17. Revised Disengagement Plan

18. "Six-Day War," Microsoft® Encarta® Online Encyclopedia 2005
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19. Suleyman Demirel, Thorbjoern Jagland, George J. Mitchell, Chmn, Warren B. Rudman, and Javier Solana, Sharm El-Sheikh Fact-Finding Committee Report, April 30, 2001: Recommendations (Sharm El-Sheikh: Sharm El-Sheikh Fact-Finding Committee, 2001), available at < http://www.state.gov/p/nea/rls/rpt/3060.htm>

20. The Associated Press, Israel’s Supreme Court Rules Gaza Withdrawal Plan Legal, International Herald Tribune, Thur. June 9, 2005, available at <http://www.iht.com/articles/2005/06/09/africa/web.0609gaza.php>.

21. The Preamble invokes UNSCR 1397, which invokes Saudi Crown Prince Abdullah’s initiative, which invokes the Mitchell Report.

22. United Nations Security Council 4879th meeting, Fri. December 12, 2003: The Situation in the Middle East, including the Palestinian Question, (New York: United Nations, 2003).

23. United Nations Security Council 4861st meeting, Wed. November 19, 2003: The Situation in the Middle East, including the Palestinian Question, (New York: United Nations, 2003).  

24. United Nations, United Nations Security Council, Resolution 1397 (New York: United Nations, 2002), available at <http://daccessdds.un.org/doc/UNDOC/GEN/N02/283/59/PDF/N0228359.pdf?OpenElement>

25. United Nations Security Council, “Resolution 338,” Walter Laqueur and Barry Rubin, eds., The Israel-Arab Reader: A Documentary History of the Middle East Conflict, 6th ed., (New York: Penguin, 2001) 152

26. United States Department of State, Office of the Spokesman, A Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict (Washington D.C.: United States, 2003), available at <http://www.state.gov/r/pa/prs/ps/2003/20062.htm>

27. West Bank, The World Factbook 2005, available at < http://www.odci.gov/cia/publications /factbook/geos/we.html>.

28. Yoav Appel and John Vause, Sharon Attempts to Regroup After Defeat, CNN.com, Sun. May 23, 2004, available at <http://www.cnn.com/2004/WORLD/meast/05/02/sharon.referendum/index.html>.