Further Redeployments: Next Stage of the Israeli-Palestinian Interim Agreement

FURTHER REDEPLOYMENTS (FRD)

THE NEXT STAGE OF THE
ISRAELI-PALESTINIAN INTERIM AGREEMENT

Legal Aspects

January 19, 1997

1. Background

The Declaration of Principles (DOP), signed between Israel and the PLO in September 1993, sets out arrangements to govern Israeli-Palestinian relations for an interim period of five years. During this period, the two sides are to conduct negotiations on the permanent status issues, including the issues of Jerusalem, settlements, Israelis, military locations, borders etc., and to implement the results of these negotiations at the end of the five year period.

The DOP provides for a number of stages to take place during the interim period. The most significant of these was the redeployment of Israeli forces throughout the West Bank, in accordance with the Interim Agreement signed in September 1995, followed by the election of a Palestinian Council in January 1996. Following this redeployment, the West Bank comprises three types of area:

Area A comprises the cities of Jenin, Nablus, Tulkarem, Kalkilya, Ramallah, Bethlehem and Jericho and contains 26% of the Palestinian population. In these areas the Palestinian Council has full responsibility for internal security and public order as well as full responsibility for civil affairs. (The City of Hebron is subject to special arrangements set out in the Interim Agreement and the Protocol Concerning Redeployment in Hebron.)

Area B comprises the Palestinian towns and villages in the West Bank. In these areas, which contain some 70% of the Palestinian population, the Council has the responsibility for maintaining public order, while Israel has overriding security responsibility to safeguard its citizens and combat terrorism. The Council has full civil authority as in Area A.

Area C comprises the largely unpopulated areas of the West Bank, areas of strategic importance to Israel, and the Jewish settlements. In these areas Israel retains full responsibility for security and public order, and civil responsibilities related to territory (planning and zoning, archeology etc.). The Council has civil responsibility with regard to all other civil spheres.

2. Further Redeployments (FRD)

The Israel-PLO agreements provide that, in addition to the redeployment effected by Israel prior to the Palestinian elections, there will be further redeployments of Israeli forces in the West Bank. In particular, the Declaration of Principles provides:

"Further redeployments to specified locations will be gradually implemented commensurate with the assumption of responsibility for public order and internal security by the Palestinian police." (DOP Article XIII)

This provision was repeated and amplified in numerous provisions of the Interim Agreement.Error! Reference source not found. Summarizing these provisions, it can be said that the Interim Agreement provides that Israel is required to implement further redeployment in the West Bank in three phases to take place at 6 month intervals. During these phases Israeli forces are to be redeployed to specified military locations and civil powers and responsibilities relating to territory, currently retained by Israel in Area C, are to be transferred to Palestinian jurisdiction. At the conclusion of the FRD process, the Palestinian Council's jurisdiction will cover West Bank and Gaza Strip territory, except for issues that will be negotiated in the permanent status negotiations.

A Note for the Record, prepared at the conclusion of the Hebron Protocol negotiations by the US Special Middle East Coordinator Dennis Ross, records the agreement of the two sides that the first phase of further redeployments will be carried out during the first week of March 1997. As regards the subsequent phases of the FRD, in a letter to Prime Minister Netanyahu at the time of the signing of the Hebron Protocol, US Secretary of State Warren Christopher stated the US belief that the FRD process should be completed within twelve months of the implementation of the first phase, but not later than mid-1998.

3. Nature of "Redeployment"

Neither the DOP nor the Interim Agreement contains a definition of the terms "redeployment" or "further redeployment". However, the use of the term "redeployment" must be distinguished from "withdrawal", as used for example in the context of the withdrawal of Israeli forces from the Gaza Strip and Jericho Area. Unlike "withdrawal", which required the removal of the majority of forces from the areas in question, "redeployment" relates only to the location of the forces; it places no restriction on the number of forces and military equipment or the possibility of introducing further forces and equipment if necessary.

4. Conditions for Implementation of FRD Provisions

The commitment to effect further redeployment is described, in both the Declaration of Principles and the Interim Agreement, as being "commensurate with the assumption of responsibility for public order and internal security by the Palestinian police". The intention of this provision is to ensure that, in a situation in which the Palestinian side is incapable or unwilling to enforce its security responsibility, Israel will not be obliged to endanger itself by transferring additional territory to the Palestinian jurisdiction. In other words, the further redeployments are expressly stated to be a mutual obligation: only if the Palestinian side proves itself capable and willing to comply with its security responsibilities is Israel obliged to transfer additional areas of the West Bank to Palestinian jurisdiction.

5. Extent of Further Redeployments

The DOP and the Interim Agreement are not specific as regards the extent of the territory to be transferred to Palestinian jurisdiction in the FRD process. With regard to the first two redeployments in particular, there is no indication whatsoever of the areas concerned. Moreover, attempts by the Palestinian side in the Interim Agreement negotiations to introduce specific provisions in this regard were not accepted. With regard to the first two stages of redeployment, it is left to Israel to determine in what areas and to what extent to redeploy.

As regards the third stage of redeployment, the Interim Agreement does give some guidance as to the extent of this redeployment. In particular, Article XI.2 provides:

"The two sides agree that West Bank and Gaza Strip territory, except for issues that will be negotiated in the permanent status negotiations, will come under the jurisdiction of the Palestinian Council in a phased manner, to be completed within 18 months from the inauguration of the Council, as specified below."

It should be noted that the provision refers to "West Bank and Gaza Strip territory"; the omission of the definite article (e.g. "the territory of the West Bank and the Gaza Strip") is deliberate and clearly intended to leave open the possibility that there will be areas of the West Bank, in addition to those connected with the permanent status issues, which will not fall under the jurisdiction of the Council. This is in contrast to the Gaza-Jericho arrangements which referred to "withdrawal from the Gaza Strip and Jericho Area" (see, for example, DOP Articles V and VI), and so required withdrawal from the entire area except for those areas connected with the permanent status issues.

6. Permanent Status Issues

In those areas of the West Bank in which the further redeployment process is to take place, the Interim Agreement provides, in Article XI.2, that the redeployment will not cover those areas which are "issues that will be negotiated in the final status negotiations". Article XVII of the Agreement contains a list of issues to be dealt with in these negotiations; the issues that have a specific bearing on territory are settlements, military locations and borders. None of these issues are defined in the agreements and again it seems that it is for Israel to determine the number, location and extent of these areas.

In addition to the permanent status issues, the Interim Agreement indicates that there are also additional areas in which redeployment shall not take place. Article XIII.2.b.(8) defines the exceptions to the FRD process as follo: "except for the issues of permanent status negotiations and of Israel's overall responsibility for Israelis and borders" (emphasis added).

The addition implies that, not only will those areas connected with permanent status issues be retained by Israel, but also those areas required for the exercise of Israel's overall responsibility for Israelis and borders will be excepted from the FRD process.

Accordingly, the provisions of the redeployment in the Interim Agreement provide that the further redeployment process will take place in territory of the West Bank (but not necessarily all the West Bank) and that, in those areas in which it will take place, it will not include settlements, military locations and borders, nor those areas required for the implementation by Israel of its overall responsibility for Israelis and borders. The extent and location of these areas is to be determined by Israel in the light of its security concerns.

7. Location of Israeli Military Forces

The Interim Agreement provides that, in the FRD process, Israeli military forces will redeploy to "specified military locations". These locations are not defined in the Agreement, but rather are to be determined by Israel. This is apparent from Article XI.2.f which states that the specified military locations "will be determined in the further redeployment phases ... and will be negotiated in the permanent status negotiations" (emphasis added). This provision emphasizes that the specified military locations are only to be the subject of negotiations in the context of the permanent status negotiations. Prior to these negotiations they are to be determined by Israel. This understanding was confirmed by Warren Christopher, Secretary of State of the United States, in his letter to Prime Minister Netanyahu following the signing of the Hebron Protocol, in which he wrote of Israel's process of redeploying its forces and "designating specified military locations".

It should also be noted that redeployment to specified military locations, does not restrict the activity of Israeli military forces to these areas. Under the Gaza-Jericho Agreement, which called for the withdrawal of Israeli forces from the Gaza Strip and the Jericho Area, Israeli forces were still permitted to enter these areas when operating in accordance with the security provisions of the Gaza-Jericho Agreement. In the FRD context, where Israeli forces are not required to withdraw but merely to redeploy, it is even more evident that they will be able to move freely outside the areas to which they have redeployed when exercising security responsibility in accordance with the Interim Agreement.

8. Status of Territory in which FRD Takes Place

As noted above, following the redeployment of Israeli forces in the West Bank in January 1996, the areas of the West Bank under Palestinian jurisdiction fall into two areas: Area A, in which there is Palestinian responsibility for both internal security and public order; and Area B, in which the responsibility for public order is Palestinian, while Israel has overriding security responsibility.

The Interim Agreement does not require that all areas transferred in the course of the FRD process will be transferred to the status of Area A. Area B, in which Israel retains overriding security responsibility, is also considered by the agreement to be land transferred to the jurisdiction of the Council. Thus Article XI.1, describing the redeployment which took place prior to the elections, states that "Land in populated areas (Areas A and B) ... will come under the jurisdiction of the Council" (emphasis added), indicating that Area B is also considered, like Area A, to be territory transferred to the jurisdiction of the Council. Similarly, Article XIII.2.a describes the redeployment which took place in Area B as a "complete redeployment", indicating that no FRD in these areas is required. It follows that, at the conclusion of the FRD process, the distinction between Area A and Area B will still remain.

9. Conclusion

In conclusion, the FRD provisions of the Declaration of Principles and the Interim Agreement provide that Israeli forces are to be redeployed in the West Bank in three phases. The redeployments are to be effected alongside, and are dependent upon, the Palestinian police proving itself capable of exercising its security responsibilities. As agreed in the Hebron negotiations, the first phase of FRD is to take place in the first week of March 1997, and the FRD process should be completed not later that mid-1998.

The extent of the first two stages of the redeployment is left to be determined by Israel, while at the conclusion of the third and final phase the jurisdiction of the Palestinian Council is to cover some, but not necessarily all, West Bank and Gaza Strip territory. In those areas in which the FRD takes place, permanent status issues - among them settlements, military locations and borders - will remain under Israeli jurisdiction, as will other areas required for the exercise of Israel's overall responsibility for Israelis and borders.

Following the completion of the FRD process, Israeli forces in the FRD areas will have redeployed to specified military locations to be determined by Israel. The Interim Agreement places no restriction on the number of forces in these areas, or their ability to move outside these areas while fulfilling security responsibilities in accordance with the Agreement.

The Interim Agreement does not require that areas transferred to Palestinian jurisdiction in the FRD process will enjoy the status of Area A. The FRD provisions of the Agreement indicate that there will still be areas with the status of Area B, i.e. Israel will still have the overriding responsibility for security in these areas.

* Article X.2 sets out the Israeli commitment to effect the FRD process:

"Further redeployments of Israeli military forces to specified military locations will commence after the inauguration of the Council and will be gradually implemented commensurate with the assumption of responsibility for public order and internal security by the Palestinian police to be completed within 18 months from the date of inauguration of the Council."

The timetable for this process of further redeployment is set out in Article XI.2.d which provides:

"The further redeployment of Israeli military forces to specified military locations will be gradually implemented in accordance with the DOP in three phases, each to take place after an interval of six months, after the inauguration of the Council, to be completed within 18 months from the date of the inauguration of the Council."

The extent of the jurisdiction of the Palestinian Council following the completion of the FRD process is described in Article XI.2:

* Prepared by the Legal Division of the Israel Ministry of Foreign Affairs.