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      Op-Ed: Gaza Conflict Sure to Resume

      Published: Thursday, November 22, 2012 8:12 AM
      A lawyer's critical analysis of the Agreement of Understanding document that accompanied the ceasefire.


      One would have to be a supreme optimist to believe the Agreement of Understanding For A Ceasefire in the Gaza Strip (Understanding) will result in anything but a brief lull in what has been a very difficult eight days for the civilian populations in both Israel and the Gaza Strip.

      Ma'an News Agency , Arutz Sheva and many other media outlets have introduced and published the text of what is termed a "ceasefire agreement" in the following identical terms:

      "CAIRO (Reuters) -- Following is the verbatim English text of the ceasefire agreement between Israel and the Palestinians in Gaza that was reached Wednesday with Egyptian mediation.

      The text was distributed by the Egyptian presidency.

      Agreement of Understanding For a Ceasefire in the Gaza Strip

      1: (no title given for this section)

      A. Israel should stop all hostilities in the Gaza Strip land, sea and air including incursions and targeting of individuals.

      B. All Palestinian factions shall stop all hostilities from the Gaza Strip against Israel including rocket attacks and all attacks along the border.

      C. Opening the crossings and facilitating the movements of people and transfer of goods and refraining from restricting residents' free movements and targeting residents in border areas and procedures of implementation shall be dealt with after 24 hours from the start of the ceasefire.

      D. Other matters as may be requested shall be addressed.

      2: Implementation mechanisms:

      A. Setting up the zero hour for the ceasefire understanding to enter into effect.

      B. Egypt shall receive assurances from each party that the party commits to what was agreed upon.

      C. Each party shall commit itself not to perform any acts that would breach this understanding. In case of any observations Egypt as the sponsor of this understanding shall be informed to follow up."

      Analysis:

      There will inevitably be serious differences of opinion as to what the document really means - as the following comments - whilst not exhaustive - indicate:

      1. The document is not an Agreement but merely an Understanding.

      1. The parties to the Understanding are not specifically identified nor has the document been signed by any parties that are supposed to be bound by the Understanding. How does Egypt ensure that it has obtained the assurances from each Palestinian faction that each of them "has agreed to the terms of the document?

      1. What constitutes a "Palestinian faction"?

      1. Israel "should stop" all hostilities - but all Palestinian factions "shall stop" all hostilities.

      Israel is clearly not to be restrained in the same way as the Palestinian factions.


      How does Egypt ensure that it has obtained the assurances from each Palestinian faction that each of them "has agreed to the terms of the document?
      A draft of the document leaked to the BBC indicated the word "shall" was originally inserted in relation to Israel - but has been changed in the above text to "should".

      As a result the need to first identify those firing rockets from Gaza as being "Palestinian factions" acting in breach of the Understanding will not be necessary to stop Israel retaliating without itself being in breach of the Understanding.

      1. While Israel is to stop all hostilities in Gaza by land, sea and air - the Palestinian factions are not so limited from engaging in hostilities from the sea, the Sinai peninsula, Judea and Samaria, or even from terrorist cells that  might be located in Israel. If any such hostilities occur - Israel would be precluded from retaliating in Gaza under the terms of the Understanding.

      1. Persons or groups located in the Gaza Strip such as al-Qaeda, Iranian or other non- Palestinian factions are not bound by the Understanding.

      1. Opening the crossings and facilitating the movements of people and transfer of goods and refraining from restricting residents' free movements provide fertile ground for disagreement.

      Will Israelis be welcomed in Gaza and Gazans allowed to visit Israel? Not quite.

      Ominously the issue has already raised its head before the parties have even started negotiating.

      In Cairo, Hamas chief Khaled Meshaal said all the border crossings between Gaza and Israel had to be opened - not just the Rafah crossing between Gaza and Egypt

      "The [ceasefire] document stipulates the opening of the crossings, all the crossings, and not just Rafah," Mr Meshaal told a news conference in Cairo.

      The Understanding certainly does not contain the word "all". The lawyers will have a field day arguing the meaning of this clause in the Understanding.

      Mr Meshall is no doubt well aware of the furor over the meaning of the words "in Palestine" used in the League of Nations Mandate for Palestine and Winston Churchill's explanation that those words did not mean "all of Palestine" when considering the recognition conferred on the Jewish people to reconstitute the Jewish National Home "in Palestine"

      He may also recall the different interpretations of the meaning of the word "territory" used in Security Council Resolution 242.

      The semantic war is still alive and kicking as a result of this shoddily drafted document.

      1. Hamas is not clearly identified as a party although it constitutes the current Government in Gaza. It has no role to ensure other Palestinian factions comply with the Understanding. Abdication of its role in restraining the firing of rockets from Gaza by all and sundry has been a major contributor to the breakdown of law and order in Gaza. PM Netanyahu gave it the responsibility to ensure compliance of all factions in his TV Press Conference.

      1. There is no time laid down for reaching agreement on the outstanding issues.

      With the ceasefire now in place - the execution of the Understanding will shortly commence.

      Israel will want to see a quick resolution of the conditions of the Understanding resulting in an end once and for all to any rockets being fired indiscriminately into civilian population centres in Israel.

      The Palestinian factions will not be in such a rush - as they take the opportunity allowed by the ceasefire to regroup and restock their depleted store of rockets whilst making continuing demands on Israel that it will find impossible to meet.

      I am afraid that it is only a matter of time - a very short space of time perhaps one month at the most - before the ceasefire is set to disappear in a raft of recriminations as to who was responsible for the demise of the Understanding.

      That in my humble opinion is certainly not rocket science.