The Transfer of Jews Under Prime Minister Sharon’s Unilateral Disengagement Plan

Howard Grief

Policy Paper No. 157, 2005
(Also published in its entirety in NATIV Online,
Vol. 7, March 2005)

December 8, 2004

Executive Summary

Prime Minister Sharon’s Unilateral Disengagement Plan for Gaza and Northern Samaria is a deliberate misnomer and deception to hide the truth of what he really intends to do. Disengagement was never Sharon’s true object since there already exists a separation of Jews and Arabs in these regions of the Land of Israel. What he seeks in the name of security and eventual peace is not disengagement, but an illegal territorial withdrawal from integral parts of the Jewish National Home, the uprooting of flourishing Jewish settlements and the forcible transfer of Jews from their sovereign land. The implementation of this plan will infringe Jewish national and political rights to the Land of Israel under international law, Israeli constitutional law and criminal law, as well as Jewish religious law. The Disengagement Plan would never have seen the light of day, if the Attorney-General had threatened to enforce the relevant law governing this Plan.

The transfer of Jews from the Land of Israel where they are lawfully present has absolutely no legal validity. Such transfer violates the most basic rights of Jews inherited from the Mandate for Palestine which were subsequently implanted into the constitutional law of the State of Israel upon the expiry of the Mandate and the proclamation of the State. Those rights concern immigration and settlement anywhere in the Land of Israel under the rule of the State. The converse of the right of settlement prohibits the uprooting of government-authorized settlements and the displacement of their Jewish residents. Inasmuch as the Jews in Gaza and Northern Samaria are lawfully present in these areas, there are no legal grounds under international law to justify their transfer as defined in the Rome Statute of the International Criminal Court. The transfer of Jews from undisputed parts of the Land of Israel is also a clear violation of the Law of Return passed on July 5, 1950, which also incorporates the previously existing Jewish Right of Return into Israeli constitutional law. The scope of the Right of Return is the Land of Israel in all its dimensions, not merely the limited area of the State of Israel, as evidenced by the use of the word artza (“to the Land”) in the text of the Law of Return, rather than medina. Any restriction placed on the Right of Return which built the State of Israel is a repudiation of Zionism and a staggering blow to the highest value of the State.

The transfer of Jews from Gaza and Northern Samaria also violates the Proclamation of Independence which promotes the return of Jews to the whole of Eretz Israel. Furthermore, the evacuation of Jews from their settlements will impair the sovereignty of the State over all regions of the Land of Israel presently under its control, exposing those responsible for the Disengagement Plan, particularly Prime Minister Sharon, to a charge of treason under article 97(a) of the Penal Code. Since the Disengagement Plan also involves a territorial withdrawal, a charge of treason can also be brought against him under sections 97(b) and 100 of the law. However, this would only take place if and when a true Zionist government comes to power and initiates prosecution. Finally, the rabbinical call to Jewish soldiers and policemen not to obey any order to uproot Jewish settlements and eject settlers from their homes in the Land of Israel is in full accord not only with a widely accepted interpretation of halakha, but also with the most important law of the State, i.e., the Law of Return which embodies the sacred Right of Return of Jews to their ancestral homeland.