Latest update: January 10th, 2013
Today, conventional wisdom maintains that the George W. Bush administration had been a good friend to Israel and, unlike the Obama administration, had fought mightily against the creation of a Palestinian state. With this “wisdom” in mind, I ask readers to consider the following column of mine that originally appeared in The Jewish Press in August 2007.
The more things change, the more they remain the same. In Washington, the president and his secretary of state [George W. Bush and Condoleezza Rice] have recently reinvigorated their incomprehensible “Road Map/Quartet” call for a Palestinian state. Such a polarized political entity would be manifestly unstable and viscerally anti-American, but our leaders persist in fashioning a Middle East foreign policy that indefatigably patronizes itself.
Don’t these leaders realize that this 23rd Arab state would unhesitatingly allow its territory to become a base of operations for al Qaeda and kindred jihadist groups? Aren’t they at all apprehensive that unconventional weapons fabricated in “Palestine” would eventually find their way not only to Tel Aviv, but also to Washington, Los Angeles and New York? Even a cursory glance at the official maps of the Palestinian National Authority would reveal the futility of any proposed “two state solution.”
On these maps, a cartographic rendering of the 1974 “Phased Plan” codified in Cairo, Israel simply does not exist. Is anyone looking?
President Bush and Secretary Rice would be well advised to consider the valuable insights of Zalman Shoval. Already back on February 14, 2006, in an opinion column for The Jerusalem Post (“Put Palestinian Statehood on Hold”), Israel’s former two-term ambassador to the United States argued unassailably that a Palestinian state remains contrary to “Israel’s supreme interest.” Because of the then-recent Hamas victory in the Palestinian elections, he pointed out, Israel had a timely and unique opportunity to make this clear and compelling. After all, said Ambassador Shoval, “Hamas’s very raison d’etre is the destruction of Israel, replacing it with an Islamic state reaching from the Mediterranean to the Jordan River, and beyond.”
Then, as now, the Palestinian authorities, busily engaged in internecine slaughter whenever they were not firing rockets at Israeli civilians, could make no authentic claims for peace. We still should not reasonably expect Israel to be complicit in its own Palestinian-planned annihilation.
Both legally and factually, the distinguished Israeli diplomat was (and still is) on the mark. In the best of all possible worlds, Shoval’s wisdom would already have been heeded. In the best of all possible worlds, the so-called Quartet – not just the United States – would already have taken seriously its own unambiguous and codified conditions for Palestinian statehood.
But national leaders, lest we forget, are generally politicians, not logicians, and even the reign of Hamas seems to have had little effect on the global momentum for a two-state solution. Lest anyone think that joint U.S.-Israeli support for Fatah against Hamas now represents a more prudent path to a stable and productive Palestinian state, a path that circumvents Hamas terrorism, incontestable facts would suggest otherwise. In essence, Fatah and Hamas are two sides of the same coin. Before anything more positive could emerge from a Fatah-led “Palestine,” a gravedigger would have to wield the forceps.
There are substantial ironies to the present situation. Assorted governments of Israel are hardly blameless. For the most part, from the Oslo Agreements to the present policy expressions of a Middle East “peace process,” the plausibility and legitimacy of a Palestinian state have often been encouraged, more or less, by Jerusalem. From Rabin to Olmert, self-delusion about Palestinian “moderation” has played a large part in sustaining Washington’s foolish mantra about statehood.
For Bush, Rice and Olmert to change course now, however imperative, will be problematic. First, Israel’s narrowly technical legal objections will have absolutely no effect on Palestinian intentions, or even on worldwide sympathies for a Palestinian state. Second, and somewhat less obviously, Israel’s formal legal objections will be countered easily at the technical jurisprudential level.
The first problem with Israel’s perfectly valid denial of the Palestinian “right” to declare a state needs little discussion. As was the case before Hamas’s electoral victory and before the slide of Fatah and Hamas into open warfare, the entire Palestinian side is firmly and irreversibly committed to sovereignty and independence. In this commitment it will not be influenced by anything Israel might offer in the way of objections.
This commitment is largely the predictable and tragic outcome of a peace process advanced and accepted in one form or another by six successive Israeli governments. For Rabin or Peres or Netanyahu or Barak or Sharon or Olmert to ever have believed the Palestinians would be content with a non-state “entity” (Netanyahu had spoken with notable naiveté of a quasi-sovereign actor like “Andorra or Puerto Rico”) is beyond intelligent understanding.
A second problem with Israel’s denial of legal right to declare a Palestinian state is that such a denial would overlook broader pertinent issues of authoritative international law. These are issues to which the Palestinian side, however fragmented, can now be expected to cite meticulously as its divided elements seek to legalize an already agreed-upon course of political action. Though Israel would be entirely correct that the Declaration of Principles (DOP) was originally intended to establish an “autonomy,” not a state, and that (according to Ambassador Shoval), “Palestinian statehood is contingent on the Palestinians destroying their terrorist infrastructure, of which Hamas itself is an integral part,” the Palestinians themselves will certainly understand something very different, something distinctly helpful to their common cause: There are applicable norms supporting statehood that exist outside the narrow legal context of the specific Israeli-Palestinian agreements.
For example, both Fatah and Hamas will certainly assert that the right to “self-determination” is a peremptory or jus cogens norm under international law, a rule that permits “no derogation.” Hence, they will maintain, even a formal agreement that denies the right of Palestinian statehood is null and void, to the extent that it might prevent Palestinian “self-determination.”
Do the Palestinians actually have such a peremptory right? They assuredly do not. In Israel’s official judgment, one hopes, they do not.
More important, in the effective judgment of a majority of the world’s states, they do have such a right. In the end, despite what international law calls “the general principles of law recognized by civilized nations,” few states will likely act contrary to Palestinian statehood. This is true even if the Israeli contra position remains firmly grounded in the underlying texts of Oslo/Road Map and in the June 24, 2002 landmark statement of President George W. Bush: “If Palestinians embrace democracy, confront corruption and firmly reject terror they can count on American support for the creation of a provisional state of Palestine.”
The original Oslo Agreements made it perfectly clear that, pending the outcome of final status negotiations, all options must remain open. Hence, the DOP, at Article V.4, provided that the “outcome of the permanent status negotiations should not be prejudiced or preempted by agreements reached for the interim period.” The Interim Agreement, at Article XXXI.6 added: “Neither party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions.”
Pending the outcome of the permanent status negotiations, neither side was permitted to engage in any attempt to change the legal status of Judea/Samaria/West Bank. (Gaza, of course, is already a moot issue after Prime Minister Sharon’s unilateral “disengagement.”) This was provided explicitly at Article XXI.7 of the Interim Agreement.
These points notwithstanding, Israel’s argument will likely be countered by the larger and more “flexible” context of international law. The norms that would bind Palestinians and Israelis are determined not only by the precise written agreements negotiated between them, but also by the broader body of relevant international norms and principles. Within this more expansive body lies a number of peremptory rules that can override Oslo/Road Map expectations.
These rules can be used decisively to Palestinian advantage and to Israeli disadvantage. Most important, perhaps, is that the world generally wants to focus on such particular rules because it still desires, for a variety of different reasons, to justify the creation of “Palestine.”
Zalman Shoval was right to argue that Israel must make every effort to prevent a Palestinian state. Whether or not Israel still actually “holds the keys to the very idea of Palestinian statehood,” as the ambassador had argued, is now rather doubtful. Such doubt, of course, has been enlarged by Washington’s steadfast refusal to call things by their correct names, and to resolutely demand that Palestinian statehood actually be contingent on Palestinian compliance with the binding legal rules of civilized international relations.
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.Louis Rene Beres
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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