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August 2, 2015 / 17 Av, 5775
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Bibi’s First Big Mistake: Why A Palestinian State Can Never Be Made Contingent On Palestinian “Demilitarization”


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Everyone who reads The Jewish Press fully understands that Judea and Samaria are the very heartland of the Jewish People. We also know that no Israeli government has the right to surrender this sacred land to any other sovereign body, least of all to an Arab/Islamic authority that openly seeks Israel’s total destruction. Significantly, as I have indicated many times in previous columns in The Jewish Press, Israel’s biblical claims to Judea/Samaria are fully and unambiguously supported by pertinent international law.

These points notwithstanding, Prime Minister Benjamin Netanyahu agreed on Sunday to the creation of a Palestinian state. Strategically, but in a stance that does not really diminish his utterly fundamental and antecedent violation of both Jewish and jurisprudential obligation (that is, agreeing to carve an enemy state from the still-living body of Israel), he made this agreement dependent upon Palestinian demilitarization. “In any peace agreement,” said Netanyahu, “the territory under Palestinian control must be disarmed, with solid security guarantees for Israel.” To be sure, this position of attempting to satisfy all sides will end up satisfying no one. Already, it is clear that an intrinsically wrongful policy – turning Judea/Samaria into “Palestine” – has absolutely no chance of success by any measure.

Let us consider the Netanyahu offer on “Palestine” from the other side. Neither Hamas nor Fatah would ever negotiate for anything less than full Arab sovereignty. Supporters of full Palestinian statehood know that they can even find proper legal support in certain major international treaties. For example, international lawyers, seeking to “discover” helpful sources of legal confirmation, could cleverly cherry-pick self-serving provisions of the (1) Convention on the Rights and Duties of States (the 1933 treaty on statehood, sometimes called the Montevideo Convention), and the (2) 1969 Vienna Convention on the Law of Treaties.

International law is not a suicide pact. Israel has the unquestioned right to endure. It was entirely correct, legally as well as biblically, for Mr. Netanyahu to previously oppose a Palestinian state in any form. Now, with an overriding and possibly unforgivable Israeli concession already on the table, any related Israeli arguments for Palestinian demilitarization will assuredly fall on deaf ears.

International law would not necessarily expect Palestinian compliance with pre-state agreements concerning armed force. This is true even if these agreements had included certain U.S. guarantees. Also, because authentic treaties can be binding only upon states, a non-treaty agreement between the Palestinians and Israel could prove to be of no real authority.

What if the government of a new Palestinian state were willing to consider itself bound by the pre-state, non-treaty agreement? Even in these very improbable circumstances, the new Arab government would have ample pretext to identify various grounds for lawful treaty termination. It could withdraw from the “treaty” because of what it regarded as a “material breach” (a reported violation by Israel that had allegedly undermined the object or purpose of the agreement). Or it could point toward what international law calls a “fundamental change of circumstances.” Here, should Palestine declare itself vulnerable to previously unforeseen dangers, perhaps even from the forces of other Arab armies, it could lawfully end its commitment to stay demilitarized.

There is another factor that explains why a treaty-like arrangement obligating Palestine to accept demilitarization could quickly and legally be invalidated after independence. The usual grounds that may be invoked under domestic law to invalidate contracts also apply under international law to treaties and treaty-like agreements. This means that a Palestinian state could point to errors of fact or to duress as appropriate grounds for termination.

Any treaty is void if, at the time of entry, it was in conflict with a “peremptory” rule of international law, a rule accepted by the community of states as one from which “no derogation is permitted.” Because the right of sovereign states to maintain military forces for self-defense is such a rule, “Palestine” could be within its lawful right to abrogate any agreement that had previously compelled its demilitarization.

Mr. Netanyahu should therefore take little comfort from any legal promise of Palestinian demilitarization. Should the government of any future Palestinian state choose to invite foreign armies or terrorists on to its territory (possibly after the original government had been overthrown by more militantly Islamic forces), it could do so not only without practical difficulties, but also without violating international law.

Of course, the core danger to Israel of presumed Palestinian demilitarization is always more practical than legal. In the final analysis, the Washington-driven Road Map plan of land for nothing stems from a persistent misunderstanding of widely codified Palestinian goals. Mr. Obama should recall that the Palestine Liberation Organization (PLO) was formed in 1964, three years before there were any “occupied territories.” What, exactly, was the PLO then trying to “liberate”?

Mr. Netanyahu, offering to create an enemy state in the Jewish heartland of Judea/Samaria was not only wrong on its face, it was also a foolish ploy from that same enemy’s point of view. The Palestinian leadership understands that this ploy was meant to suppress further criticisms from Washington. Agreeing to negotiations for Palestinian demilitarization was plainly a non-starter, whether Netanyahu intended them to sabotage “Palestine” or instead to create genuine opportunities for subsequent peace proposals.

Insisting upon demilitarization won’t make a Palestinian state any less dangerous to Israel. This is because the Palestinian side knows that it would be under no legal or other obligation to actually demilitarize.For Prime Minister Netanyahu, it would have been better to remain true to the fixed obligations of Jewish law and international law than to curry favor with U.S. President Barack Obama. In the end, Obama – like his White House predecessors – will value his own personal reputations and fortunes far more highly than Jewish survival in the Land of Israel.

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LOUIS RENÉ BERES (Ph.D. Princeton) is the author of many books and articles dealing with Israel and 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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