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

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. ¹ Similar concerns were voiced by Deputy Secretary of State Wendy Sherman to Israel’s ambassador Michael Herzog² as well as by former U.S. Ambassador to Israel Dan Kurtzer, who described the legislation as “an egregious violation of a commitment to the United States, as well as a reversal of law and policy enacted back in 2005 in the context of the disengagement.”³

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.⁴

The new legislation rescinded this 2005 prohibition on residence in the four localities in northern Samaria on the principal grounds, as set out in the reasoning for the draft law, that it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.)

As expressed by U.S. spokespersons and former Ambassador Kurtzer’s exasperation, the concern appears to interpret this new legislation in an overly broad manner that does not necessarily reflect the actual substance of or reasoning for the legislation.

They wrongly claim that the new legislation would facilitate “creating new settlements, building or legalizing outposts, or allowing the building of any kind on private Palestinian land or deep in the West Bank adjacent to Palestinian communities.” As such, they claim that the legislation contradicts previous undertakings by the Israeli Government to the United States “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, neither did it stabilize the political and economic situation as hoped.

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.

No Return to “1949 Armistice Lines”

It is noteworthy to add that 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.”⁶

Despite this affirmation, President Barack Obama, in remarks regarding the “Middle East and North Africa” on May 19, 2011, distinctly and egregiously retreated from President Bush’s previous affirmation by stating that “…we believe the borders of Israel and Palestine should be based on the 1967 lines with mutually agreed swaps, so that secure and recognized borders are established for both states.”⁷

[Note the purposeful use of Bush’s “1949 Armistice line” versus Obama’s “1967 line.” The letter was not drafted by the State Department but by officials in Secretary of Defense Donald Rumsfeld’s office.]

While the 2004 undertakings in the exchange of letters between President Bush and Prime Minister Sharon did not constitute a formal agreement, they nevertheless constituted independent and critical political statements highly relevant in the circumstances prevailing at the time, as confirmed by Bush Administration officials and Sharon’s successor.

According to Elliott Abrams, a senior White House foreign policy official in Bush’s National Security Council, Sharon and American officials agreed to four principles articulated by Sharon himself in a December 2003 speech: “Israel will meet all its obligations with regard to construction in the settlements. There will be no construction beyond the existing construction line, no expropriation of land for construction, no special economic incentives, and no construction of new settlements.”⁸

President Obama’s retreat from the U.S. commitment regarding borders significantly altered the basic premises that lay at the foundation of the exchange of letters and Sharon’s rationale for withdrawal from Gaza and northern Samaria.

In light of the 2011 retreat by President Obama from President Bush’s 2004 affirmation regarding the permanent status borders, the concern and exasperation voiced by U.S. Administration spokespersons, and especially by Dan Kurtzer, that Israel’s latest legislation contradicts previous undertakings, would appear to be misplaced, especially taking into consideration the altered circumstances of the current, super-charged Palestinian violence and terror activity and the other external threats against Israel.

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Notes