Journal Article - Harvard Negotiation Law Review

Politics and the 2005 Gaza and North West Bank Compensation and Assistance Facility

| Winter 2009

Introduction

In the summer of 2005, thirty-eight years after it gained control over the Gaza Strip, Israel left the sandy Mediterranean region. The Disengagement Plan, as the withdrawal was called by the Israeli government, was intended to benefit the state of Israel by finally defining its southern border, helping to secure a Jewish majority within its newly consolidated borders, and allowing Israel to take the lead in a moment of stalemate in the peace process. The plan was further intended to benefit the 1.3 million Palestinians who resided in Gaza by ending foreign control over their lives. One group, however, did not stand to gain from the move, for the Israeli rollback included not only the withdrawal of Israeli armed forces, but also the removal of some 9,000 Israeli settlers, some of whom had resided in their communities for three decades.

This paper explores and analyzes the claims and assistance facility created by Israel in order to compensate and aid these relocated settlers, and makes two contributions. First, it investigates the structural features of the claims and assistance facility. Second, it explores the effect of politics on the development, construction, and implementation of the facility. Rather than creating, as in most facilities, a mechanism to redress an injury already suffered, the Israeli government developed a compensation mechanism for a future injury that the government itself was about to cause. This situation contributed to the politicization of the facility and put the settlers in the impossible position of wanting to prevent the injury in the first place, while still having adequate compensation should the injury be unstoppable. Conversely, this situation allowed the government to use the facility as part of its effort to legitimize the injury. The compensation facility, therefore, had itself become part of the debate and not simply part of the solution.

Specifically, politicization had a number of effects: first, it eroded the facility's "single case" transactional logic as stakeholders viewed the facility as part of a broader conflict. Second, politicization introduced power-based considerations in a facility that was intended to employ an interest-based logic. Third, politicization expanded the number of stakeholders and created disincentives for the injured party to assist in the development of the claims facility. The result was greater inefficiencies: the injured party's interests were not fully met, and the government deployed more resources than originally planned. Finally, the politicized facility created significant personal challenges for both the government’s and the injured party's agents.

By exploring politicization and its effects, this paper bridges two approaches to analyzing dispute systems: functional/institutional and context sensitive. Typological, comparative, and some case-based analysis has created a body of knowledge that illuminates the functional logic of claims facilities and reviews their main features. Ury, Brett, and Goldberg's groundbreaking work, for example, offered a "practical method for achieving savings and gains" in resolving a recurrent conflict in an organization or in a relationship Their six principles were intended to lead to "designing an effective dispute resolution system" with an emphasis on "cutting the costs and achieving the potential gains of a conflict" through utilizing interest-based, power-based, and norms-based approaches to conflict resolution. Other work that falls into the functional/institutional category has addressed issues such as the elements that constitute facilities, the typologies of various facilities, the legal principles and compensation models that govern their design, and the workings of specific cases.

The second approach departs from the functional perspective and offers a perspective that is both narrower and broader. This work is largely based on detailed analysis of specific cases, but one that sets out to explain constitutive questions such as the reasons that a facility is created in some cases and not others, the role facilities play in broader social policies, and the relationship between a facility and other legal frameworks. Bringing in this perspective shows that a claims facility is not simply an entity that "process[es] and resolve[s] claims made against a potential funding source," but rather a social institution that is both shaped and operated to advance a set of policy goals that extends beyond the potential claim.

This paper continues in three sections. In Section II, I present the injuries inflicted on the settlers as a result of their removal. Then I review the core aspects of the claims facility and describe its evolution and implementation. In section III I demonstrate the effect of politics on the shaping and implementation of the facility. In Section IV I conclude by discussing my main findings, their significance and their potential contribution for scholars and practitioners.

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For Academic Citation: Eiran, Ehud. Politics and the 2005 Gaza and North West Bank Compensation and Assistance Facility.” Harvard Negotiation Law Review, vol. 14. (Winter 2009):
101-122
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