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April 28, 2015 / 9 Iyar, 5775
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Why A Palestinian State Would Never Be ‘Demilitarized': A Jurisprudential And Strategic Perspective


Beres-Louis-Rene

U.S. President Barack Obama will not back away from his so-called “Road Map to Peace in the Middle East.” Even now, a plainly self-defeating “Two-State Solution” remains the cornerstone of this twisted cartography. Understanding all this, Israeli Prime Minister Benjamin Netanyahu seemingly continues to harbor hopes that, somehow, any Palestinian state would be suitably demilitarized. Such hopes, of course, would necessarily rest upon a problematic antecedent assumption that demilitarization could actually work.

Mr. Netanyahu, of course, is mistaken. There exists no basis for any such assumption. Neither major Palestinian faction (Hamas or Fatah) would ever negotiate for anything less than full sovereignty. Why should they?

Regrettably, Palestinian statehood is widely favored throughout the world. Jurisprudentially, any rejection of demilitarization could find fully authoritative support in pertinent international treaties. For example, experienced international lawyers, seeking to “discover” helpful sources of legal confirmation, could readily cherry-pick assorted 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.

A Palestinian state, any Palestinian state, would present an intolerable threat to Israel’s physical continuance. It should, therefore, be strenuously opposed by Mr. Netanyahu, whatever its proposed form. Any Israeli arguments for Palestinian autonomy or restricted sovereignty would be promptly defeated, and quickly become geopolitically and jurisprudentially moot.

Assuming, in principle, that the Palestinian side would agree to some form of demilitarization, could such a relatively satisfactory arrangement be judged acceptable to Israel? Or would even a demilitarized Palestinian state in Judea/Samaria (West Bank) and Gaza still represent an intolerable existential peril to Israel?

From the start, Mr. Netanyahu would have to understand that negotiated demilitarization could turn out to be a trick. There are hidden and very significant dangers to demilitarization. This is because 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 and fragile 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 contracts, 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 have 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 in 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 road map-driven pattern of intermittent territorial surrender stems from a deep misunderstanding of Palestinian goals. While Israeli supporters of the road map continue to believe in a “Two-State Solution,” the Palestinian Authority has other ideas.

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

Palestinian demilitarization couldn’t possibly make a Palestinian state any less dangerous. If Prime Minister Netanyahu were to oppose Palestinian statehood, as indeed he should, Palestine should be rejected in any and all of its potential forms. On this point, it must also be recalled that a nuclear Iran is now almost inevitable, and that the expected synergy between Iranian nuclearization and Palestinian statehood would render the latter far more dangerous. Further exacerbating this especially perilous synergy would be any attempt by Mr. Obama to compel Israel’s participation in a 2012 conference designed to establish a “nuclear-free Middle East.”

LOUIS RENÉ BERES (Ph.D. Princeton, 1971) 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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