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September 19, 2014 / 24 Elul, 5774
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Posts Tagged ‘Oslo Road Map’

The Problem Of Palestinian ‘Demilitarization’ An International Law Perspective

Wednesday, May 20th, 2009

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.

On ‘Disengagement’ And Disobedience (Second Of Two Parts)

Wednesday, March 9th, 2005

Can the Sharon government protect Israel’s citizens? Clearly, “disengagement” will open the door widely to “Palestine.” In consequence, once deprived of its remaining strategic depth, Israel will become an irresistibly tempting object for aggression by certain enemy states. In view of what is already known about enemy state nuclearization, and about ballistic missile developments in these states – especially Iran, Syria and Egypt – multi-state aggression could even come to Israel as an unconventional war. Here the predictable end result of “disengagement” would come in the form of chemical, biological and/or nuclear attack.

It is with these grave dangers in mind that Israeli opponents of Sharon’s “disengagement” will soon undertake civil and military disobedience. Recognizing that victimization by words can set the stage for subsequent victimization by force, they shall soon seek, perhaps desperately, to “stop the machine” while there is still time. Will they be acting correctly?

To “stop the machine!” This telling phrase is taken directly from Thoreau’s classical explorations of civil disobedience. In his famous essay on the subject, the American transcendentalist spoke persuasively of such opposition as an act of “counter friction.” Confronted with dreadful harms of the sort now suffered and anticipated by so many Israelis, harms generated by the Oslo/”Road Map” Peace Process and soon-to-be magnified by Sharon’s “disengagement,” Thoreau would urge, as he once did about policy deformations in this country: “Let your life be a counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.”

This is precisely what Israel’s protestors MUST now seek, not to lend themselves to the insupportable risks of the Rabin/Peres/Netanyahu/ Barak/Sharon agreements with the PLO. Among these wrongs are the Israeli government’s sustained legitimization of a terrorist organization and its corollary unwillingness or incapacity to adequately punish terrorist crimes. At this very moment, for example, the Sharon government is, once again, freeing a number of Arab terrorists and is offering amnesties to other terrorists not yet captured.

The underlying rationale of such illegal behavior is, ironically, a cessation of Palestinian terror. Naturally, the net effect will be exactly the opposite, not only because of the release and revitalization of many criminals, but also because this action may accelerate the “Peace Process,” and thereby the creation of “Palestine.” Once a Palestinian state is actually born, it will become a permanent staging area for new waves of anti-Israel and anti-American terror.

Israel’s agreements with the Palestinian Authority/PLO contravene the binding obligation to punish acts that are crimes under international law. Known formally as Nullum crimen sine poena, “No crime without a punishment,” this requirement points unambiguously to the multiple acts of killing and torture ordered directly by Palestinian leaders over these many years of barbarous Arab terror. To not only ignore this requirement, but to legitimize the criminality by making Arafat successor Mahmoud Abbas a “partner” in the Oslo/”Road Map” agreements, is a clear violation of the Nuremberg Principles.

The meaning is manifest. Israel’s citizens who now support and sustain the “disengagement” policies are in violation of international law (and therefore of Israel’s national law as well, which necessarily incorporates international law), while those who oppose these policies within the proper bounds of civil disobedience and military resistance are acting in support of both forms of law.

These informed views of law and civil disobedience in Israel, however disturbing they may seem, warrant a much broader public understanding. Now embarked upon policies that threaten Israel’s very existence while they simultaneously undermine authoritative expectations of justice, the Sharon government should fully expect to be confronted with mounting protests and with correlative military refusals. Were it not so confronted, citizens of that beleaguered state would have already consented to their own national dismemberment. As even David Ben-Gurion understood, they have no right to give such consent – none at all.

International law, which is based upon a variety of higher law foundations, including Jewish Law, forms part of the law of all nations. This is the case whether or not the incorporation of international law into national law is codified, explicitly, as it is in the Supremacy Clause (Article VI) of the United States Constitution. The government of Israel is bound by settled norms of international law concerning punishment of terrorist crimes and physical survival of the state. Where this government fails to abide by these rules, as is very much the case today, civil and military disobedience is not only permissible, it is required.

We began with a look at the Jewish Law bases of Higher Law and civil disobedience. Jewish law rests always upon two principles: the overriding sovereignty of G-d and the derivative sacredness of the individual person. Both principles, intertwined and interdependent, underlie the reasoned argument for civil disobedience in Israel. From the sacredness of the person, which stems from each individual’s resemblance to divinity, flows the freedom to choose. The failure to exercise this freedom, which is evident wherever a response to political authority is merely automatic, represents a betrayal of individual legal responsibility.

For Jews, our human freedom cannot be properly detached from our human reason. The particular relevance of reason to judgment – including legal judgment – was altogether central in ancient Israel. Indeed, reason is distinctly accommodated within the Jewish concept of revealed law. In essence, the Jewish idea of law offers a transcending order revealed by the Divine word as interpreted by human reason. Consider Ecclesiastes (32.23; 37.16; 13-14): “Let reason go before every enterprise and counsel before any action….And let the counsel of thine own heart stand….For a man’s mind is sometimes wont to tell him more than seven watchmen that sit above in an high tower….” From this unassailable Jewish standpoint, it should not be difficult to determine what reason suggests to us about “disengagement.”

Finally, we must also be reminded that Jewish law is democratic in the sense that it belongs to all of the people, a principle reflected in the Talmudic position that each individual can approach G-d in prayer without priestly intercessions. Hence, a fundamental goal of law must always be to encourage initiative, to act meaningfully on behalf of improving both state and society. When this criterion is applied to impending instances of civil disobedience and military refusals in Israel, it should be apparent that the protesting opponents of Sharon’s “disengagement” – so long as their opposition is measured and responsible – will be acting according to law.

LOUIS RENE BERES (Ph.D., Princeton, 1971) is the author of many books and articles dealing with Israel’s security. His writings on international law appear regularly in more than two dozen major law journals, and are well-known in Israel’s academic, political, military and intelligence communities. Professor Beres is Strategic and Military Affairs columnist for The Jewish Press.

Printed from: http://www.jewishpress.com/indepth/columns/louis-bene-beres/on-disengagement-and-disobedience-second-of-two-parts/2005/03/09/

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