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December 29, 2014 / 7 Tevet, 5775
 
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Israel And Palestine: Critical Intersections of Law and Strategy (Part I)


Beres-Louis-Rene

            Oddly enough, even Shimon Peres, the unrelenting Israeli champion of a “two state solution” in the Middle East, initially identified Palestinian statehood as an existential threat to Israel. In his book, Tomorrow is Now(1978), Peres had warned: “The establishment of such a state means the inflow of combat-ready Palestinian forces into Judea and Samaria (West Bank); this force, together with the local youth, will double itself in a short time. It will not be short of weapons or other military equipment, and in a short space of time, an infrastructure for waging war will be set up in Judea, Samaria and the Gaza Strip . In time of war, the frontiers of the Palestinian state will constitute an excellent staging point for mobile forces to mount attacks on infrastructure installations vital for Israel’s existence .”
            Today, Prime Minister Benjamin Netanyahu, however reluctantly, is likely willing to go along with creating a Palestinian state, so long as its prospective leaders first agree to some apt form of demilitarization.
            Ironically, especially in view of their current ideological positions, Netanyahu should take heed of Peres’ earlier warning, and begin to recognize the impending and very dangerous intersections of international law and national strategy. For Israel, certain legal mistakes and misunderstandings could quickly give rise to irreversible strategic harms. Significantly, the underlying conceptual issues here are longstanding and generic and are not necessarily limited only to Israel.
            From the formal beginnings of the state system in 1648, following the Peace of Westphalia, states have negotiated treaties to provide security. To the extent that they are executed in good faith, these agreements are always fashioned and tested according to pertinent international law. Often, of course, disputes arise whenever particular signatories determine that continued compliance is no longer in their own particular national interest.
           
            For Israel, its 1979 peace treaty with Egypt remains very important. As we see though, further regime change in Cairo can spell the sudden abrogation of this agreement. The same risks apply to the extant military governing council, should its leaders decide, for whatever reason, that the treaty with Israel should now be terminated.
            To be sure, any post-Mubarak regime that would extend some governing authority to the Muslim Brotherhood, or to its proxies, could result in a prompt Egyptian abrogation. Although any such willful cessation of treaty obligations by the Egyptian side would almost certainly be in violation of The Vienna Convention on the Law of Treaties, the governing “treaty on treaties,” there is also very little that either Israel or the international community would be able to do in response. In preserving strategic stability, international law may always have distinctly far-ranging weaknesses and determinative flaws.
            For Israel, prospective treaty compliance issues with Egypt ought to bring to mind the multiple and (still unrecognized) corollary dangers of Palestinian statehood. In June 2009, Prime Minister Netanyahu first officially agreed to the creation of a Palestinian state.  But, as already indicated, and with an apparent nod to prudence, he had conditioned this acceptance upon Palestinian demilitarization. More precisely, said the prime minister: “In any peace agreement, the territory under Palestinian control must be disarmed, with solid security guarantees for Israel.”
            This agreement seemingly represented a smart concession, but only if there can ever be some reasonable expectations of corollary Palestinian compliance. In fact, however, any such expectations are implausible. This is the case not only because all treaties and treaty-like agreements can be broken, but also because, in this specific case, any post-independence Palestinian insistence upon militarization would likely be lawful.
             Neither Hamas nor Fatah, now forged together in a new unity pact, would ever negotiate for anything less than full sovereignty.
            International lawyers seeking to discover any Palestine-friendly sources of legal confirmation could conveniently cherry-pick pertinent provisions of the 1934 Convention on the Rights and Duties of States, the treaty on statehood, sometimes called the Montevideo Convention. They could apply the very same strategy of selection to the 1969 Vienna Convention on the Law of Treaties.
             International law is not a suicide pact. Indisputably, Israel has a peremptory right to remain “alive.” It was entirely proper for Mr. Netanyahu to have previously opposed a Palestinian state in any form. After all, both Fatahand Hamasstill see all of Israel as part of Palestine. This past July, Palestinian Authority television rebroadcast songs with lyrics that depicted all of Israel as part of “my country Palestine.” Some of the specific Israeli cities included in these songs are Jaffa, Safed, Tiberias, Acre, Nazareth, Beit Shean, Ramie, and Haifa. Of course, all of the official PA maps of Palestine similarly continue to include all of Israel.

            In the strict Islamic view, not merely in the more narrowly Jihadior Islamist perspectives, Israel must always be seen as the individual Jew in macrocosm. The Jewish state, therefore, must be despised precisely on account of this relationship, because of the allegedly innate evil of each individual Jew. This grotesque prejudice is a very far cry from the widely fashionable idea that Israel is despised in the region only because it is an occupier.

 

            LOUIS RENÉ BERES (Ph.D. Princeton, 1971) is the author of many books and several hundred scholarly articles dealing with Israel and international law. Chair of Project Daniel (Israel, 2003), 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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