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February 1, 2015 / 12 Shevat, 5775
 
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After Annapolis: A Palestinian State And International Law (Part One)


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Now that the Annapolis “Peace Summit” has concluded, it is likely – that in time – a new terror state will be declared in the region. Strangely, Israel’s Prime Minister Olmert is convinced that the creation of “Palestine” is essential to his country’ssurvival. Of course, this position might make a great deal of sense if the planned Palestinian state were to be led by Buddhist monks, but the intrinsic and endemic violence of both Fatah and Hamas make such a leadership rather implausible.

Nonetheless, developments in the Middle East must take some account of jurisprudence and geopolitics, at least from the standpoint of a grudging obeisance to pertinent treaties and conventions. This means that a twenty-third Arab state called “Palestine” will have to meet certain explicit requirements under international law. Every state, even an aspiring Palestinian state, must satisfy the following four crucial expectations: 1. a permanent population; 2. a defined territory; 3. a government and 4. the capacity to enter into relations with other states.

Here is a fact that is generally unknown.The political existence of a state is always independent of recognition by other states. According to the governing Convention on Rights and Duties of States (Montevideo Convention): “Even before recognition, the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit….” This codified right will certainly be exploited by agents of “Palestine.”

Mahmoud Abbas and his “moderate” Palestinian Authority have made it clear that there really is no “two state solution” in the region. Rather, there is to be only one state, and that state is not Israel. It follows that as soon as Prime Minister Olmert begins to object to the disturbing details of any emerging agreement between the parties – an agreement of basically “Land For Nothing” – new waves of terror will sweep across Israel. Depending upon his precise tactical calculations, and also upon internal pressures from Hamas and other Islamist forces, President Abbas may or may not decide to wait until he has extorted substantial additional territories from Israel before openly declaring his Palestinian state. But whatever he decides in this regard, the codified and customary rights of statehood will be formally invoked and widely acknowledged.

Much as a small number of other states or individuals might seek to challenge this expected declaration on proper jurisprudential grounds, the PA will doggedly counter-argue that its right to declare an independent state is beyond any legal challenge. In this connection, the PA will assuredly cite to certain allegedly fundamental and immutable rights under international law concerning “self-determination” and “national liberation.” In lining up with one position or the other, the overwhelming majority of our “civilized” world will undoubtedly side with the Palestinians.

Let us put things in plain terms: the right of statehood under international law is not in any way contingent upon goodness. There are no moral or ethical considerations that must be taken into account. The expressly-declared and indisputable Palestinian goal of another Jewish genocide (war and genocide are not mutually exclusive under international law) will have no legal bearing on creating a Palestinian state. International law does not insist upon any standard of decency, not even the most minimal rejection of crimes against humanity, but only identifiable demographic, geographic and political facts on the ground.

If a new Palestinian state should become a principal platform for anti-Israel terror – including possibly chemical or biological agents – Israel’s effective rights of reprisal will be extremely limited. Although many pro-”disengagement” Israelis and Americans had once argued foolishly that with Gaza in Palestinian hands, the terrorists will finally have an address, any Israeli self-defense action in that “disengaged” area would now be condemned by most of the “international community” as “aggression.” This is the case even if the Israeli reprisal were altogether permissible under international law.

For years, Israel never troubled itself with the legal aspects of “Palestine.” After all, most Israelis were firmly convinced that Palestinian statehood could never actually become a genuine issue. How often did former Prime Minister Netanyahu and others say that the Palestinians would only be granted “autonomy,” and not full sovereignty?

Legally, politically and militarily, the Jewish State has again been outwitted and outflanked. Worse, it has contributed mightily to its own debility. By continuously agreeing to outrageous and unreciprocated Oslo and Road Map expectations, Israel will now have to deal with President Abbas and his government’s non-negotiable demand that “Arab East Jerusalem” become the capital of Palestine. When this demand is firmly rejected, as it must be, Israel’s buses will once again begin to explode.

(To be continued)

Copyright© The Jewish Press, December 21, 2007. All rights reserved

LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971) and is a long-time expert on international relations. The author of ten books dealing with international law, he is Strategic and Military Affairs columnist for The Jewish Press.

About the Author: Louis René Beres (Ph.D., Princeton, 1971) is professor of political science and international law at Purdue University and the author of many books and articles dealing with international relations and strategic studies.


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