The Third Phase of the Further Redeployment Process: legal aspects

Communicated by the Israel Foreign Ministry, June 18, 2000

1. Background

The Declaration of Principles (DOP), signed between Israel and the
PLO in September 1993, set out arrangements to govern Israeli-
Palestinian relations during an interim period leading to final
status arrangements. The DOP provided 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 comprised three types of
area:

Area A comprised the cities of Jenin, Nablus, Tulkarem, Kalkilya,
Ramallah, Bethlehem and Jericho and contains 26% of the Palestinian
population. In these areas the Palestinian Council was given 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 comprised the Palestinian towns and villages in the West
Bank, In these areas, which contain some 70% of the Palestinian
population, the Council assumed the responsibility for maintaining
public order, while Israel retained overriding security
responsibility to safeguard its citizens and combat terrorism. The
Council assumed full civil authority as in Area A.

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

2. Further redeployments (FRD)

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

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. Summarizing these provisions, it can be said
that the Interim Agreement provided that Israel was required to
implement further redeployment in the West Bank in three phases to
take place at 6 month intervals. During these phases Israeli forces
were to be redeployed to specified military locations, and civil
powers and responsibilities relating to territory, currently
retained by Israel in Area C, were to be transferred to Palestinian
jurisdiction.

At the conclusion of the FRD process, the Palestinian Council’s
jurisdiction would cover West Bank and Gaza Strip territory, except for issues
that will be negotiated in the permanent status negotiations.

The exact timetable for the implementation of the further
redeployment phases was revised on a number of occasions by the two
sides, most notably in the Wye River Memorandum of 23 October 1998
and the Sharm el-Sheikh Memorandum of 4 September 1999.

Following these agreed revisions Israel completed the first and second
phases of the FRD process in March 2000. As a result of these redeployments
over 18% of West Bank territory is currently designated Area A and over 21%
Area B.

Accordingly a total of some 40% of the West Bank is presently under full
Palestinian civilian control and full or partial security control. Within these areas,
over 98% of the Palestinians of the West Bank now live under Palestinian, not
Israeli, authority.

3. The third phase of FRD

The DOP and the Interim Agreement were 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, they contain no indication whatsoever
of the areas concerned. 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.

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 follows: “except for the issues of permanent
status negotiations and of Israel’s overall responsibility for
Israelis and borders”.

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.

4. Location of Israeli military force

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”.

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.

5. 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 of 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”, 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.

6. Conclusion

Following the implementation of the first and second phases of the
FRD process, Israel is required to implement the third and final
phase of further redeployment. At the conclusion of this phase the
jurisdiction of the Palestinian Council is to cover some, but
certainly not 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 when 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: