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The Problem Of Palestinian ‘Demilitarization’ An International Law Perspective


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When I first wrote in The Jewish Press about the problems of Palestinian demilitarization in February 1998, Benjamin Netanyahu was Israel’s prime minister. Today, he has again assumed the same position, and is still on record against full statehood for “Palestine.” He continues to speak more or less obliquely of Palestinian “self-rule,” “autonomy,” or “attributes of restricted sovereignty.”

From a domestic standpoint, Mr. Netanyahu’s position on this critical issue is certainly sensible. Internationally, however, it is clear that neither main Palestinian faction (Hamas nor Fatah) would ever negotiate for anything less than full sovereignty. This is because Palestinian statehood is recognizably favored throughout the world, and because such sentiment could even find convenient support in carefully selected terms of pertinent international treaties. For example, experienced international lawyers, seeking to “discover” helpful sources of legal confirmation, could cleverly cherry-pick provisions of (1) Convention on the Rights and Duties of States (the 1933 treaty on statehood, sometimes called the Montevideo Convention), and (2) 1969 Vienna Convention on the Law of Treaties.

For a variety of compelling legal and security reasons, a Palestinian state should be opposed by Mr. Netanyahu. Nonetheless, any expected Israeli arguments for Palestinian autonomy or restricted sovereignty would be a non-starter. It is the actual Palestinian position that will need to be acknowledged by the prime minister before Palestinian statehood can be effectively countered.

The most likely scenario in this matter will confront Netanyahu with a stark decision: To agree completely to a Palestinian state, or to reject it outright. But as neither polar prospect could work easily for Israel – one option would create intolerable strategic threats, while the other would elicit unbearable global condemnation – a “compromise” position is apt to emerge. Most likely, this position would involve Israel’s formal acceptance of Palestinian statehood, but contingent upon the new Arab state’s “demilitarization.”

Assuming that the Palestinian side would even agree to such an arrangement, could Palestinian demilitarization be acceptable to Israel? Or would a demilitarized Palestinian state in Judea/Samaria (West Bank) and Gaza still represent an existential peril to Israel? These are important questions to raise here with my readers in The Jewish Press.

Leaving aside increasing pressures from President Obama and Secretary of State Clinton, Mr. Netanyahu should understand that demilitarization could turn out to be a problematic compromise. There are hidden and very significant dangers to demilitarization. The grave threat to Israel of any Palestinian state would lie not only in the presence or absence of a particular national armed force, but also in the many other enemy armies and insurgents that would inevitably compete for power in the new Arab country.

There is another less obvious reason why a demilitarized Palestine would present Israel with a substantial security threat: International law would not necessarily expect Palestinian compliance with pre-state agreements concerning armed force. As a new state, Palestine might not be bound by any pre-independence compacts, even if these agreements had included certain U.S. guarantees to Israel. Also, because authentic treaties can be binding only upon states, a non-treaty agreement between the Palestinians and Israel could be of no real authority and little real effectiveness.

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 relatively favorable circumstances, the new Arab government would have ample pretext to identify various strong grounds for lawful treaty termination. It could, for example, withdraw from the “treaty” because of what it regarded as a “material breach” (a 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” (rebus sicstantibus). In this connection, should Palestine declare itself vulnerable to previously unforeseen dangers – perhaps even from the forces of other Arab armies – it could lawfully end its codified commitment to remain 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 perfectly appropriate grounds for termination.

Any treaty is void if, at the time it was entered into, it was in conflict with a “peremptory” rule of general international law (jus cogens) – a rule accepted and recognized by the international community of states as one from which “no derogation is permitted.” Because the right of sovereign states to maintain military forces essential to self-defense is certainly such a rule, “Palestine” could be entirely within its lawful right to abrogate any agreement that had previously compelled its demilitarization.

Mr. Netanyahu should take little comfort from the 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 national government had been displaced or overthrown by more militantly Islamic anti-Israel forces), it could do so not only without practical difficulties, but also without necessarily violating international law.

The overriding danger to Israel of Palestinian demilitarization is more practical than legal. In the final analysis, this Oslo/Road Map-driven pattern of intermittent territorial surrender, and also freeing of terrorists, stems from a deep misunderstanding of Palestinian goals. While Israeli supporters of Oslo/Road Map continue to believe in a “Two-State Solution,” (now also a mantra in Obama’s Washington), the Palestinian Authority has other ideas.

For the PA, as for most of the rest of the Arab world, Palestine includes the entire State of Israel. For them, there can only be a “One-State Solution.” This annihilatory remedy is effectively the same as a Final Solution.

Mr. Netanyahu, Palestinian demilitarization wouldn’t make a Palestinian state any less dangerous. If you continue to oppose Palestinian statehood, as indeed you should, “Palestine” should be rejected in any and all of its potential forms. On this issue, as my faithful readers here in The Jewish Press have heard so often, there is absolutely no room for “compromise.”

Copyright © The Jewish Press, May 22, 2009.

All rights reserved.

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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