web analytics
September 17, 2014 / 22 Elul, 5774
At a Glance
InDepth
Sponsored Post
Apartment 758x530 Africa-Israel at the Israel Real Estate Exhibition in New York

Africa Israel Residences, part of the Africa Israel Investments Group led by international businessman Lev Leviev, will present 7 leading projects on the The Israel Real Estate Exhibition in New York on Sep 14-15, 2014.



Syria (Today) and ‘Palestine’ (Tomorrow) II

Easily misrepresented or abused, international law can generally be manipulated to serve virtually any preferred geo-political strategy.
Louis Rene Beres

Louis Rene Beres

As I noted last week, what is currently taking place in Syria closely resembles what we can ultimately expect in a future “Palestine.”

In principle, and contrary to his beleaguered country’s overriding legal rights and security interests, Israeli Prime Minister Benjamin Netanyahu agreed to a Palestinian state back in June 2009. Yet Mr. Netanyahu, more or less prudently, conditioned this concessionary agreement on prior Palestinian “demilitarization.” More specifically, said the prime minister: “In any peace agreement, the territory under Palestinian control must be disarmed, with solid security guarantees for Israel.”

In fact and in law, this published expectation offers no effective obstacle to Palestinian statehood, or to any subsequent Palestinian war against Israel.

Neither Hamas, now subtly closing ranks with its once more powerful Muslim Brotherhood mentors in post-Morsi Egypt, nor Fatah, whose “security forces” were recently trained by American General Keith Dayton in nearby Jordan at very great American taxpayer expense, will ever negotiate for anything less than full sovereignty. Why should they? Supporters of Palestinian statehood can readily discover authoritative legal support for their stance in binding international treaties.

Easily misrepresented or abused, international law can generally be manipulated to serve virtually any preferred geo-political strategy, a jurisprudential twisting sometimes referred to as “lawfare.” For example, pro-Palestinian international lawyers, seeking to identify self-serving sources of legal confirmation, could conveniently cherry-pick pertinent provisions of the (1) Convention on the Rights and Duties of States (the 1933 treaty on statehood, sometimes called the Montevideo Convention), and/or (2) the 1969 Vienna Convention on the Law of Treaties.

Israel, as an existing sovereign state, has a basic or “peremptory” right to survive. From the standpoint of the government’s responsibility to assure citizen protection, a responsibility that goes back in modern political thought to the 16th century French philosopher, Jean Bodin, and also to the seventeenth-century English theorist, Thomas Hobbes, this right is also a fixed obligation. It was, therefore, entirely proper for Netanyahu to have originally opposed a Palestinian state in any form, an opposition, incidentally, once shared by Shimon Peres, himself the proudest Israeli champion of a “two-state solution.”

To wit, in his otherwise incoherent book, Tomorrow is Now (1978), Peres had said the following about Palestinian statehood:

The establishment of such a state means the inflow of combat-ready Palestinian forces into [Judea and Samaria]: 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.

In writing about “time of war,” this former prime minister had neglected to mention that Israel is already locked in a permanent condition of war. The war, not “tomorrow” (whatever that was intended to signify) is now. Pertinent target “infrastructure installations” could include Dimona, and also a number of other presumably vulnerable Israel nuclear reactor facilities.

Any Israeli arguments for Palestinian demilitarization, however vehement and well intentioned, are certain to fail. International law would not even expect Palestinian compliance with any pre-state agreements concerning the right to use armed force. This is true even if these compacts were to include certain explicit U.S. guarantees. Moreover, per the Vienna Convention on the Law of Treaties, because authentic treaties can only be binding upon states, a non-treaty agreement between the Palestinians and Israel could prove to be of little or no real authority.

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

A new Palestinian government could withdraw from the treaty-like agreement because of what it regarded as a “material breach,” a reputed violation by Israel that allegedly undermined the object or purpose of the agreement. Or it could point toward what Latinized international law calls Rebus sic stantibus. In English, this doctrine is known as a “fundamental change of circumstances.”

Here, if Palestine should declare itself vulnerable to unforeseen dangers, perhaps even from the interventionary or prospectively occupying forces of other Arab armies, it could lawfully end its previously codified commitment to remain demilitarized.

Another factor explains why Netanyahu’s hope for Palestinian demilitarization was, and still is, ill-founded. After declaring independence, a new Palestinian national government could point to certain pre-independence errors of fact or to duress as fully 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 or similar agreement 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 within its lawful right to abrogate any compact that had previously, before independence, compelled its demilitarization.

Netanyahu should take no comfort from any legal 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 even more militantly jihadist/Islamic forces, it could do so not only without practical difficulties but also without violating international law.

The core danger to Israel of any presumed Palestinian demilitarization is more practical than legal. The U.S.-driven Road Map stems from a very basic misunderstanding of Palestinian history and goals. At a minimum, President Obama should recall that the Palestine Liberation Organization was formed in 1964 – three years before there were any “occupied territories.”

Inevitably, any Palestinian state would be ridden by inequality, violence, and strife. To get an idea of what this boiling cauldron would actually look like, one need only look today at Syria.

If you like Syria, you’ll love Palestine.

About the Author: Louis René Beres, strategic and military affairs columnist for The Jewish Press, is professor of Political Science at Purdue University. Educated at Princeton (Ph.D., 1971), he lectures and publishes widely on international relations and international law and is the author of ten major books in the field. In Israel, Professor Beres was chair of Project Daniel.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

No Responses to “Syria (Today) and ‘Palestine’ (Tomorrow) II”

Comments are closed.

SocialTwist Tell-a-Friend

Current Top Story
ISIS's response to President Obama's warnings came in the form of a movie trailer.
ISIS Sends Obama Fiery Video Response [video]
Latest Indepth Stories
A Gaza building, reportedly used by Hamas, destroyed by the IDF on August 26, 2014.

For too long the media and international community have been preaching that “Palestinians” bear no responsibility for the consequences of their decisions and they are passive victims of the conflict.

The Iron Dome was called on for the first time in 2013 to intercept a missile fired by terrorists in Sinai at Eilat.

Iron Dome intercepted over 1,000 rockets aimed at Israel with a success rate of over 90% in 2014

IDF lone soldier and Ohio native David Menachem Gordon (z"l).

We talked about the responsibility that comes with the pen, its potential to influence and inspire.

Amnesty International:The crippling of the power station was “collective punishment of Palestinians”

Originally scheduled to be held elsewhere, the hotel canceled, pressured by local missionary groups

It’s likely that some of the rebel factions, including US clients, have indeed made pacts with ISIS

Imam Tafsirli of the Harlem Islamic center: “You cannot be a Muslim without believing in Jesus”

If simple fuel choice were implemented, the power of petroleum and those who sell it would cease.

Value of IS: It enables people to see the place to which all other Islamist fascism is headed.

“When Frank does something he does it well and you don’t have to worry about dotting the i’s or crossing the t’s.”

President Obama: “ISIL is not Islamic. No religion condones the killing of innocents”

he time of the Uman pilgrimage is upon us, and we dare not ignore the opportunity to highlight the danger.

Healing requires that the victim be validated for being harmed and the guilty assume responsibility.

During the war, not once was Hashem’s name mentioned to the nation by Israel’s PM or gov’t officials

More Articles from Louis Rene Beres
Louis Rene Beres

President Obama’s core argument on a Middle East peace process is still founded on incorrect assumptions.

Louis Rene Beres

Once upon a time in America, every adult could recite at least some Spenglerian theory of decline.

President Obama’s core argument is still founded on incorrect assumptions.

Specific strategic lessons from the Bar Kokhba rebellion.

Still facing an effectively unhindered nuclear threat from Iran, Israel will soon need to choose between two strategic options.

For states, as for individuals, fear and reality go together naturally.

So much of the struggle between Israel and the Arabs continues to concern space.

An undifferentiated or across-the-board commitment to nuclear ambiguity could prove harmful to Israel’s’s overall security.

Printed from: http://www.jewishpress.com/indepth/columns/louis-bene-beres/syria-today-and-palestine-tomorrow-ii/2013/09/18/

Scan this QR code to visit this page online: