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January 31, 2015 / 11 Shevat, 5775
 
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Israel and Palestine: Critical Intersections of Law and Strategy (Part II)


Beres-Louis-Rene

Generally, the Israeli is despised in the Islamic world because he or she is a Jew, a condition of presumed infirmity that can never be “remedied.” Consider the following facts:

A current Egyptian textbook of “Arab Islamic History,” used widely in teacher training colleges, expresses utterly hideous sentiments:

The Jews are always the same, every time and everywhere. They will not live save in darkness. They contrive their evils clandestinely. They fight only when they are hidden; because they are cowards .The Prophet enlightened us about the right way to treat them, and succeeded finally in crushing the plots they had planned. We today must follow this way, and purify Palestine from their filth.

In an earlier article in Al-Ahram, by Dr. Lufti Abd al-Azim, the famous commentator urges, with complete seriousness:

The first thing that we have to make clear is that no distinction must be made between the Jew and the Israeli .The Jew is a Jew, through the millennia .in spurning all moral values, devouring the living, and drinking his blood for the sake of a few coins. The Jew, the Merchant of Venice, does not differ from the killer of Deir Yasin or the killer of the camps. They are equal examples of human degradation. Let us therefore put aside such distinctions, and talk only about Jews.

Writing also on the “Zionist Problem,” Dr. Yaha al-Rakhawi remarked openly in Al-Ahram:

We are all once again face to face with the Jewish Problem, not just the Zionist Problem; and we must reassess all those studies which make a distinction between “The Jew” and “The Israeli.” And we must redefine the meaning of the word “Jew” so that we do not imagine that we are speaking of a divinely revealed religion, or a minority persecuted by mankind .we cannot help but see before us the figure of the great man Hitler, may God have mercy on him, who was the wisest of those who confronted this problem .and who out of compassion for humanity tried to exterminate every Jew, but despaired of curing this cancerous growth on the body of mankind.

Finally, we may consider what Israel’s first Oslo peace partner, Yasir Arafat, had to say on January 30, 1996, while addressing forty Arab diplomats at the Grand Hotel in Stockholm. Speaking with the title, “The Impending Total Collapse of Israel,” Arafat remarked unhesitatingly:

We Palestinians will take over everything; including all of Jerusalem . All the rich Jews who will get compensation will travel to America . We of the PLO will now concentrate all our efforts on splitting Israel psychologically into two camps. Within five years, we will have six to seven million Arabs living in the West Bank, and in Jerusalem . You understand that we plan to eliminate the State of Israel, and establish a purely Palestinian state .I have no use for Jews; they are and remain, Jews.

Notwithstanding these plainly intolerant Arab views of Israel’s physical existence, international law still need not expect Palestinian compliance with any pre-state agreements concerning armed force. This is true, moreover, even if these agreements were to include certain explicit U.S. security guarantees to Israel. Also, because authentic treaties can be binding only upon states, a non-treaty agreement between the Palestinians and Israel could quickly prove to be of little or no real authority, or effectiveness. This is to say nothing of the still utterly byzantine connections between Fatah, Hamas, al-Qaeda, Hezbollah, the Islamic Resistance Movement and the (Egyptian) Muslim Brotherhood.

What if the government of a new Palestinian statewere somehow willing to consider itself bound by the pre-state, non-treaty agreement? Even in these very improbable circumstances, the new Arab government could still have ample pretext, and opportunity, to identify relevant grounds for lawfultreaty termination.

Palestine could withdraw from the treaty because of what it regarded as a “material breach,” a purported violation by Israel that had allegedly undermined the object or purpose of the agreement. Or it could point toward what international law calls Rebus sic stantibus, in English, the doctrine known as a “fundamental change of circumstances.” Here, for example, if Palestine should declare itself vulnerable to previously unforeseen dangers, perhaps even from the interventionary or prospectively occupying forces of certain other Arab armies, it could lawfully end its codified commitment to remain demilitarized.

After declaring independence, a new Palestinian state government, one likely sharing the prospectively genocidal sentiments of some of the writers quoted herein, could point to particular pre-independence errors of fact,or to duress, as appropriate grounds for agreement termination. The usual grounds that may be invoked under domestic law to invalidate contracts can also apply under international law, both to actual treaties, and to treaty-like agreements.

Any treaty is void if, at the time of entry, it is 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 always such a rule, Palestine could be fully within its lawful right to abrogate any agreement that had, before independence, compelled its demilitarization.

Mr. Netanyahu should take no comfort from anylegal promises 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 Jihadist/Islamic forces, it could do so not only without practical difficulties, but also without necessarily violating international law.

In the final analysis, the core danger to Israel of any presumed Palestinian demilitarization is more practical than legal. The Washington-driven road map, always a one-sided plan of land for nothing, stems from a persistent misunderstanding of Palestinian history and goals, and of the long legal history of Jewish life and title to disputed areas in Judea/Samaria (West Bank) and Jerusalem. For a start, President Obama should finally recognize that the Palestine Liberation Organization (PLO) was formed in 1964; three years before there were any occupied territories.

Exactly what, the president should answer, did the PLO plan to “liberate?”

In earlier years, Shimon Peres was correct. A Palestinian state, any Palestinian state, would represent an utterly mortal danger to Israel. This danger could not be relieved, inter alia, by any legal Palestinian pre-independence commitments to demilitarize.

For Israel, whether the particular security issue is Egypt, or Palestine, or both, it will now be critical to identify, wherever pertinent, the potentially perilous intersections of jurisprudence and national strategy. For the beleaguered Jewish state, any promised protective benefits offered by treaties and treaty-like agreements under international law will necessarily remain starkly limited.

 

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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