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Legal Perspectives on Israel's Legal Rights to Rescind Parts of Its 2005 Disengagement Law

(Jerusalem Center for Public Affairs) Amb. Alan Baker and Lenny Ben David - In a press briefing on March 21, 2023, State Department Principle Deputy Spokesperson Vedant Patel expressed U.S. concern at new Israeli legislation rescinding parts of a 2005 disengagement law. Similar concerns were voiced by Deputy Secretary of State Wendy Sherman to Israel's ambassador Michael Herzog. The 2005 law, which implemented Israel's 2004 Disengagement plan, had called inter alia to remove four Israeli settlements - Homesh, Sa-Nur, Ganim, and Kadim - in the northern part of the West Bank area of Samaria, prohibiting further residence there by Israelis. The new legislation rescinded this 2005 prohibition on residence in the four localities on the principal grounds that it had overlooked the basic property rights of the residents and, as such, was discriminatory, and that it had failed to result in any reduction in Palestinian hostility and terror. The new legislation would enable the return of the residents to their homes and properties after the implementation of requisite legal and security arrangements and the resolution of land ownership claims by Palestinians. (The sites of Ganim and Kadim are reported to now be part of Jenin's municipal boundaries in Area A, effectively putting them off-limits to Israelis.) U.S. spokespersons and former Ambassador to Israel Dan Kurtzer wrongly claim that the new legislation contradicts previous undertakings by the Israeli Government to the U.S. "to evacuate these settlements and outposts in the northern West Bank in order to stabilize the situation and reduce frictions." In fact, the 2004 unilateral and independent Israeli plan to evacuate those villages, even after implementation, failed in its stated purpose to secure and encourage a reduction in Palestinian hostility and violence. Israel's new legislation rescinding the provisions prohibiting residence in the four settlements is distinctly not intended to enable new settlement construction but merely to allow the return of those residents previously removed from their homes and the concomitant restoration of their rights. The reciprocal U.S.-Israeli commitments of 2004, which served as the premise for the implementation of Israel's disengagement plan, contained an essential affirmation by President George W. Bush that "it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949, and all previous efforts to negotiate a two-state solution have reached the same conclusion." Amb. Alan Baker, Director for Diplomatic Affairs at the Jerusalem Center, served as Legal Adviser and Deputy Director-General of Israel's Ministry of Foreign Affairs and participated in the negotiation and drafting of the Oslo Accords with the Palestinians. Lenny Ben David, Director of the Institute for U.S.-Israel Relations at the Jerusalem Center, served as Deputy Chief of Mission in Israel's Embassy in Washington and as Director of AIPAC's Israel office.
2023-03-23 00:00:00
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