There is no such thing as a demilitarized Palestine Arab state

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Prof. Louis Rene Beres

Source: Israel National News, By Prof. Louis Rene Beres, December 17, 2023

Those who seek a Two-State Solution are urging nothing less than the creation of a determinably criminal aggressor state.

Now, in the midst of Israel’s law-enforcing war against Hamas terror- criminals, we are once again hearing demands for a Palestinian state (a so-called Two-State solution). Still, even if an expanding number of presently-sovereign states would argue for immediate or incremental recognition of “Palestine,” these approvals would have no binding legal effect. The Convention on the Rights and Duties of States (1934) – the authoritative treaty defining the requirements of statehood under international law – explicitly identifies the criteria that must be satisfied. These binding standards do not include recognition.

In principle, national declarations of support for Palestinian “self-determination” could be reasonable if the Arab side were actually committed to a “Two-State Solution.” But the Palestinian National Authority (PNA) and Hamas agree that there can be only one legitimate state in these disputed areas, and that state must be “Palestine.” To wit, Palestinian Arab leaders in both ‘West Bank’ (Judea/Samaria) and Gaza support a non-negotiable view that Israel represents prima facie an abomination of the Dar al-Islam (the world of Islam). Always, in this annihilationist view, Israel is nothing more than “Occupied Palestine.”

In effect, therefore, extant states in world politics who seek a Two-State Solution are urging nothing less than the creation of a determinably criminal aggressor state. Earlier, this destabilizing and law-violating urge stemmed from a diplomatic framework known as The Road Map for Implementation of a Permanent Solution for Two States in the Israel-Palestinian Dispute. Together with insistent Palestinian refusal to reject the genocidal “Phased Plan” (Cairo) of June 1974 and a correlative Palestinian Jihad to “liberate” “Occupied Palestine” in increments, the Road Map revealed a largely unforeseen or deliberately overlooked peril. It was that even plausibly well-intentioned states favoring “Palestine” were being misled by overly-optimistic hopes concerning Palestinian demilitarization.

On June 14, 2009, Israeli Prime Minister Benjamin Netanyahu first agreed to accept a Palestinian state. but he also made such agreement contingent on enemy demilitarization.[i] Presently, Mr. Netanyahu, again as Israel’s serving prime minister, opposes Palestinian Arab statehood in any form, even if accompanied by demilitarization. This is an unambiguously correct position.

In law, as a presumptively sovereign state, pre-independence compacts would not generally bind Palestine. But what if the government of Palestine were in fact willing to consider itself bound by any pre-state, non-treaty agreements? Even in such relatively favorable circumstances, the new Arab government of an irredentist terror state would retain legal pretext to identify variously selective grounds for lawful “treaty” termination.

It could, for example, withdraw from the “treaty” because of what it would regard as a “material breach,” an alleged violation by Israel that credibly undermined the object and/or purpose of the agreement. Alternatively, it could point toward what international law calls a “fundamental change of circumstances” (rebus sic stantibus). Here, if a Palestinian state were to declare itself vulnerable to previously unforeseen dangers, perhaps even from forces of other Arab armies, it could lawfully end its previously “guaranteed” commitments to remain demilitarized.

There is another method by which a treaty-like arrangement obligating a new Palestinian Arab state to accept demilitarization could quickly and legally be invalidated. Usual grounds that may be invoked under domestic law to invalidate contracts could apply to treaties under international law. This means that a new state of Palestine could point to alleged errors of fact or to duress as appropriate grounds for terminating the agreements with Israel.

Per the Vienna Convention on the Law of Treaties (1969), any treaty or treaty-like agreement is void if, at the time it was entered into, it conflicts with a “peremptory” rule of general international law. This means a rule accepted and recognized by the international community of states as one from which “no derogation is permitted.” Because the right of all sovereign states to maintain military forces essential to “self-defense” is just such a rule, Palestine, depending upon the particular form of its institutionalized authority, could be well within its rights to abrogate any prior arrangements designed to compel its demilitarization.

Thomas Jefferson, the third American President, wrote interestingly about obligation and international law. While affirming that “Compacts between nation and nation are obligatory upon them by the same moral law which obliges individuals to observe their compacts…,” he also acknowledged: “There are circumstances which sometimes excuse the nonperformance of contracts between man and man; so are there also between nation and nation.” Very specifically, Jefferson continued, “…the law of self-preservation always overrules the law of obligation to others.”

 

Israel should never draw compensatory comfort from any purportedly legal promise of Palestinian demilitarization. Should the government of a new state of Palestine choose to invite foreign armies and/or terrorists onto its territory (possibly after the original government authority is displaced or overthrown by even more militantly Islamic, anti-Israel forces), it could do so without practical difficulties and without violating international law.

In large part, the prevailing plan for Palestinian statehood is still built upon the long-moribund Oslo Accords, ill-founded agreements destroyed by persistent Arab violations. For the Palestinian Arabs, Oslo-mandated expectations were never anything more than a presumptively cost-effective method of dismantling Israel. For the Israelis, these expectations were taken as a more-or-less unavoidable way of averting future Palestinian terror crimes and Arab state aggressions.

The resultant asymmetry in expectations has generally enhanced Arab power while weakening Israel. Even now, annihilationist calls for “Palestine from the River to the Sea” (“incitement to genocide” under international law) have generally failed to dampen international enthusiasm for an irredentist criminal state.

What does all of this ultimately mean, for any alleged Palestinian Arab demilitarization “remedy” and for Israel’s life or death security? In essence, the Arab world and Iran still have only a “One-State Solution” for the Middle East. It is a “solution” that eliminates Israel altogether, it is a physical solution, it is a “Final Solution.” Official Palestinian maps of “Palestine” still show the new Arab state comprising all of the ‘West Bank’ (Judea/Samaria), all of Gaza and all of the State of Israel.

On September 1, 1993, then PLO Chair Yasser Arafat affirmed that the Oslo Accords would remain an intrinsic part of the PLO’s 1974 Phased Plan for Israel’s destruction: “The agreement will be a basis for an independent Palestinian State, in accordance with the Palestinian National Council Resolution issued in 1974.This PNC Resolution calls for “the establishment of a national authority on any part of Palestinian soil from which Israel withdraws or is liberated.” Later, on May 29, 1994, Rashid Abu Shbak, then a senior PA security official, remarked ominously: “The light which has shone over Gaza and Jericho will also reach the Negev and the Galilee.”

Since these early declarations, nothing has changed in the Palestinian Arab definitions of Israel and “Palestine.” This is true for the current leadership of both Hamas and PA. It may make no tangible difference whether one terror group or the other is in power. Both would intend a State of Palestine that is irredentist and crime-centered. By definition, it must be kept in mind, all terrorism is a crime under international law.

Those who are concerned with Palestinian Arab demilitarization and Israeli security ought to consider the following:

The Islamic world contains 50 states with more than one billion people. Islamic states comprise an area 672 times the size of Israel. Israel, together with Judea/Samaria, is less than half the size of San Bernardino County in California. The Sinai Desert, transferred by Israel to Egypt in the 1979 Treaty, is three times larger than the State of Israel.

A presumptively sovereign State of Palestine could lawfully abrogate any pre-independence commitments to demilitarize. In the past, the Palestine National Authority has been guilty of multiple material breaches of Oslo and of “grave breaches” of the law of war. Both PNA/Fatah and Hamas remain determinedly unwilling to rescind their expressly genocidal calls for Israel’s complete elimination. There is more. Any Israeli plan for accepting Palestinian Arab demilitarization on promises of diplomatic comity and regional peace would be built upon sand. It follows that Israel should never base its assessments of Palestinian statehood upon any such illusory jurisprudential foundations.

In the end, no Palestinian Arab leadership would ever accept an Israel-supported idea of “limited” Palestinian statehood. Moreover, Israel’s leaders should always assess the many-sided threat of Palestinian statehood as part of a much larger strategic whole. Among other things, this means not overlooking that criminal Palestinian statehood would become a force-multiplier for Israel’s already-extant state enemies, especially Iran.

In a worst-case but still plausible scenario, the creation of “Palestine” would heighten the probability of a catastrophic unconventional war in the region. At some not-too-distant point in time, this could mean a nuclear war.

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LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971), and is the author of many books and scholarly articles dealing with Israel and international law. His writings have appeared in such publications as JuristThe New York TimesYale Global Online; Harvard National Security Journal (Harvard Law School); The AtlanticU.S. News & World Report;Los Angeles TimesOxford University Press;The Hill; BESA Perspectives; INSS Strategic Assessment (Israel); Herzliya Conference Papers (Israel); The National InterestIsrael National News; and The Jerusalem Post. Dr. Beres’ twelfth and latest book, Surviving Amid Chaos: Israel’s Nuclear Strategy, was published by Rowman & Littlefield in 2016. http://www.israeldefense.co.il/en/content/surviving-amid-chaos-israels-nuclear-strategy 2nd edit., 2018. Louis René Beres was born in Zürich, Switzerland at the end of World War II

Notes:

[i] See, earlier, by Professor Beres, “Demilitarizing Palestine,” at Oxford Yearbook of International Law, Oxford University Press, 2018, pp. 191-206. See also, with Israeli Ambassador Zalman Shoval: Professor Louis René Beres and (Ambassador) Zalman Shoval, “Why a Demilitarized Palestinian State Would Not Remain Demilitarized: A View Under International Law,” Temple International and Comparative Law Journal, Winter 1998, pp. 347-363; and Louis René Beres and Ambassador Shoval, “On Demilitarizing a Palestinian `Entity’ and the Golan Heights: An International Law Perspective,” Vanderbilt Journal of Transnational Law, Vol. 28, No. 5, November 1995, pp. 959-972.