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April 19, 2014 / 19 Nisan, 5774
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Posts Tagged ‘treaty’

Egyptian Cancellation of Gas Supply Threatens Treaty with Israel

Monday, April 23rd, 2012

Egypt’s sudden cancellation of its natural gas treaty with Israel is a flagrant violation of the Israeli-Egyptian peace treaty, according to Israeli officials.

Egypt claims that Israel is in “violation of contractual agreements” of the 2005 Egypt-Israel gas deal, a pact decried by leaders of the Arab Spring uprising in Egypt.

Since the beginning of the uprising on January 25, 2011, the pipelines supplying gas to Israel have been sabotaged 14 times.

Israel called the Egyptian decision “unlawful and in bad faith”, and a failure to meet obligations. Egypt, said Israel is four months in arrears on payment, a charge Israel denies.

Over 70% of Egyptians Oppose US Aid

Tuesday, February 7th, 2012

According to a recent Gallup poll surveying attitudes of Egyptians in December 2011,  71% oppose US economic aid to Egypt, and 74% oppose the US sending direct aid to civil society groups in Egypt, underscoring populist suspicion of Western intentions.

Egyptians are far more receptive to aid from Arab governments, with 68% of respondents in favor.

The US is slated to provide $1.3 billion in military aid and $250 million in economic aid for the current fiscal year. But the fact that the aid is conditioned on Egypt’s compliance with its peace treaty with Israel is unpopular in Egypt, and may present a quandary for Egypt’s new leaders as they try to rectify Egypt’s financial predicament.

 

Muslim Brotherhood Reiterates Refusal to Conduct Dialogue with Israel

Thursday, January 26th, 2012

Mahmoud Ghazlan, spokesman for Egypt’s Muslim Brotherhood, said in an interview with Arabic newspaper Asharq Alawsat Wednesday that the group “is not prepared to conduct dialogue with Israel.”

“It is illogical to open dialogue, any dialogue, given the current Israeli policies against the Arab peoples,” Ghazlan said. “We will reject any request from the Israeli embassy to meet with leaders of the group.”

He added that the group’s “position is consistent and clear, and is not up for discussion.”

Israeli Foreign Ministry spokesman Yigal Palmor said on Tuesday that Israel “would be happy to conduct dialogue with anyone prepared to talk with us.”

Earlier this month, the deputy leader of the Brotherhood’s Freedom and Justice Party (FJP), Rashad Bayoumi, was quoted as saying said “[t]he Brotherhood respects international conventions, but we will take legal action against the peace treaty with the Zionist entity.”

FJP scored well in recent Egyptian parliamentary elections, winning 47% of the seats.  Its officials have proposed to put the Israel-Egypt peace treaty to a popular referendum.

Leading Egyptian Presidential Candidate: Peace Treaty Will Remain ‘in place’

Tuesday, January 17th, 2012

Former Arab League Secretary-General and Current Egyptian presidential hopeful, Amr Moussa, said in an interview with the Arabic Daily Asharq Al-Awsat that he did “not think there are any circumstances that will lead to [the Egyptian-Israeli peace treaty's] cancellation.”

He added: “I do not think this will happen, and I do not think it would be wise for this treaty to be cancelled. The treaty will continue so long as each party respects it.”

Egyptian Islamists win first round

Saturday, December 3rd, 2011

With the first of three rounds of parliamentary elections completed in Egypt, it’s estimated that Islamic fundamentalists have won some 65% of the vote.

The Muslem Brotherhood’s Freedom and Justice Party won approximately 40% of the vote, while the Salafis Party, an even more extremist Islamic party came in second with 25% of the vote.

While the Muslim Brotherhood have only talked about modifying parts of the Israel-Egypt peace treaty of 1979, the Salfis have talked about opening up the entire treaty to a national referendum.

Israel And Palestine: Critical Intersections of Law and Strategy (Part I)

Wednesday, October 5th, 2011
            Oddly enough, even Shimon Peres, the unrelenting Israeli champion of a “two state solution” in the Middle East, initially identified Palestinian statehood as an existential threat to Israel. In his book, Tomorrow is Now(1978), Peres had warned: “The establishment of such a state means the inflow of combat-ready Palestinian forces into Judea and Samaria (West Bank); 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 .”
            Today, Prime Minister Benjamin Netanyahu, however reluctantly, is likely willing to go along with creating a Palestinian state, so long as its prospective leaders first agree to some apt form of demilitarization.
            Ironically, especially in view of their current ideological positions, Netanyahu should take heed of Peres’ earlier warning, and begin to recognize the impending and very dangerous intersections of international law and national strategy. For Israel, certain legal mistakes and misunderstandings could quickly give rise to irreversible strategic harms. Significantly, the underlying conceptual issues here are longstanding and generic and are not necessarily limited only to Israel.
            From the formal beginnings of the state system in 1648, following the Peace of Westphalia, states have negotiated treaties to provide security. To the extent that they are executed in good faith, these agreements are always fashioned and tested according to pertinent international law. Often, of course, disputes arise whenever particular signatories determine that continued compliance is no longer in their own particular national interest.
           
            For Israel, its 1979 peace treaty with Egypt remains very important. As we see though, further regime change in Cairo can spell the sudden abrogation of this agreement. The same risks apply to the extant military governing council, should its leaders decide, for whatever reason, that the treaty with Israel should now be terminated.
            To be sure, any post-Mubarak regime that would extend some governing authority to the Muslim Brotherhood, or to its proxies, could result in a prompt Egyptian abrogation. Although any such willful cessation of treaty obligations by the Egyptian side would almost certainly be in violation of The Vienna Convention on the Law of Treaties, the governing “treaty on treaties,” there is also very little that either Israel or the international community would be able to do in response. In preserving strategic stability, international law may always have distinctly far-ranging weaknesses and determinative flaws.
            For Israel, prospective treaty compliance issues with Egypt ought to bring to mind the multiple and (still unrecognized) corollary dangers of Palestinian statehood. In June 2009, Prime Minister Netanyahu first officially agreed to the creation of a Palestinian state.  But, as already indicated, and with an apparent nod to prudence, he had conditioned this acceptance upon Palestinian demilitarization. More precisely, said the prime minister: “In any peace agreement, the territory under Palestinian control must be disarmed, with solid security guarantees for Israel.”
            This agreement seemingly represented a smart concession, but only if there can ever be some reasonable expectations of corollary Palestinian compliance. In fact, however, any such expectations are implausible. This is the case not only because all treaties and treaty-like agreements can be broken, but also because, in this specific case, any post-independence Palestinian insistence upon militarization would likely be lawful.
             Neither Hamas nor Fatah, now forged together in a new unity pact, would ever negotiate for anything less than full sovereignty.
            International lawyers seeking to discover any Palestine-friendly sources of legal confirmation could conveniently cherry-pick pertinent provisions of the 1934 Convention on the Rights and Duties of States, the treaty on statehood, sometimes called the Montevideo Convention. They could apply the very same strategy of selection to the 1969 Vienna Convention on the Law of Treaties.
             International law is not a suicide pact. Indisputably, Israel has a peremptory right to remain “alive.” It was entirely proper for Mr. Netanyahu to have previously opposed a Palestinian state in any form. After all, both Fatahand Hamasstill see all of Israel as part of Palestine. This past July, Palestinian Authority television rebroadcast songs with lyrics that depicted all of Israel as part of “my country Palestine.” Some of the specific Israeli cities included in these songs are Jaffa, Safed, Tiberias, Acre, Nazareth, Beit Shean, Ramie, and Haifa. Of course, all of the official PA maps of Palestine similarly continue to include all of Israel.

            In the strict Islamic view, not merely in the more narrowly Jihadior Islamist perspectives, Israel must always be seen as the individual Jew in macrocosm. The Jewish state, therefore, must be despised precisely on account of this relationship, because of the allegedly innate evil of each individual Jew. This grotesque prejudice is a very far cry from the widely fashionable idea that Israel is despised in the region only because it is an occupier.

 

            LOUIS RENÉ BERES (Ph.D. Princeton, 1971) is the author of many books and several hundred scholarly articles dealing with Israel and international law. Chair of Project Daniel (Israel, 2003), he is Strategic and Military Affairs columnist for The Jewish Press.

Israel, Egypt And Palestinian ‘Demilitarization’: Some Unseen Perils Of Treaty Law

Wednesday, August 17th, 2011
             I am a professor of international law. In my columns, therefore, I focus from time to time on distinctly legal aspects of Israel’s foreign relations. Nonetheless, I am always deeply attentive to examining these particular aspects within a genuinely realistic geopolitical or geostrategic context.
            Throughout history, states and empires have routinely negotiated formal agreements in order to secure themselves. These agreements, usually in treaty form, are typically fashioned according to pertinent international law. Problems arise, however, whenever particular signatories decide that continued compliance is no longer in their own presumed “national interest.” This means that treaties can be useful when there exists an enduring mutuality of interest, but can also become useless or even perilous whenever such mutuality is expected to disappear.
            For the moment, Israel’s 1979 Peace Treaty with Egypt, at least in the strict jurisprudential sense, remains in place. Surely, however, any still-ongoing regime change in Cairo that would extend some measure of governing authority to the Muslim Brotherhood, or even to its proxies, could sometime result in a prompt Egyptian abrogation. Although any such willful termination of treaty obligations by the Egyptian side would almost certainly be in violation of The Vienna Convention on the Law of Treaties, there is little that Israel or the international community would be able to do about it.
            For Israel, this prospect should ring warning bells on the closely related issues of Palestinian statehood. Back in June 2009, Prime Minister Netanyahu officially agreed to the creation of a Palestinian state.  But, with an apparent nod to prudent diplomacy, he also conditioned this acceptance upon Palestinian demilitarization. More precisely, said the Prime Minister: “In any peace agreement, the territory under Palestinian control must be disarmed, with solid security guarantees for Israel.”
            This agreement seemingly represented a smart concession, but only if there can be any reasonable expectations of Palestinian compliance. In fact, such expectations are thoroughly implausible. This is the case not only because treaties and treaty-like agreements can easily be broken, but because, in this particular case, any post-independence Palestinian insistence upon militarization would likely be lawful.
             Neither Hamas nor Fatah (now in the aftermath of their recent reconciliation) will ever negotiate for anything less than full sovereignty. Why should they?
            International lawyers seeking to discover “Palestine-friendly” sources of legal confirmation could conveniently cherry-pick pertinent provisions of the 1934 Convention on the Rights and Duties of States, the treaty on statehood, sometimes called the Montevideo Convention. They could apply the same strategy to the 1969 Vienna Convention on the Law of Treaties.
             Israel has a peremptory right to remain alive. It was, therefore, entirely proper for Mr. Netanyahu to have previously opposed a Palestinian state in any form.
            International law would not necessarily expect Palestinian compliance with any pre-state agreements concerning armed force.  This statement is true even if these agreements were to include certain explicit U.S. guarantees to Israel.  Also, because authentic treaties can only be binding upon states, a non-treaty agreement between the Palestinians and Israel could quickly prove to be of little or no real authority or effectiveness. And this is to say nothing of the prominent and potentially synergistic connections between Hamas, the Islamic Resistance Movement, and the Egyptian Muslim Brotherhood.

             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 Palestinian Arab government could have ample pretext and opportunity to identify relevant grounds for lawful treaty termination. 

           Palestine could withdraw from the treaty because of what it regarded as a “material breach,” a purported violation by Israel that had allegedly undermined the object or purpose of the agreement.  Or it could point toward what international law calls Rebus sic stantibus, or, in English, the doctrine known as a “fundamental change of circumstances.”  Here, if Palestine should declare itself vulnerable to previously unforeseen dangers, perhaps even from the interventionary or prospectively occupying forces of certain other Arab armies, it could lawfully end its codified commitment to remain demilitarized.
            There is another factor that explains why Prime Minister Netanyahu’s alleged hope for Palestinian demilitarization remains ill-founded. After declaring independence, a new Palestinian state government could point to certain pre-independence errors of fact, or to duress, as appropriate grounds for agreement termination. In other words, 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 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 fully within its lawful right to abrogate any agreement that had previously (pre-independence) compelled its demilitarization.
             It follows from all this that Mr. Netanyahu and the people of Israel 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 more militantly Jihadist/Islamic forces, it could do so not only without practical difficulties, but also without violating international law.
             In the final analysis, of course, the core danger to Israel of any presumed Palestinian demilitarization is far more practical than legal.  The Washington-driven Road Map, a one-sided plan of land for nothing, stems from a persistent misunderstanding of Palestinian history and goals.  Mr. Obama should finally understand that the Palestine Liberation Organization (PLO) was formed in 1964; three years before there were any “occupied territories.” 
            What, exactly, was the PLO then trying to “liberate?”
             Today, facing protracted uncertainty in Cairo, Israel could soon have to deal with a new Egyptian regime’s abrogation of the 1979 peace treaty. With this particular regional portent in mind, Israel must ensure that yet another determined enemy state will not be carved out of its own, steadily diminishing, territory.
            A Palestinian state – any Palestinian state – would represent a mortal danger to Israel. This danger would not be relieved or removed by any legal Palestinian pre-independence commitments to demilitarize.
             For Israel, whether the issue is Egypt, or Palestine, or both together, it is essential to bear in mind the potentially limited benefits of certain formal legal agreements.


 

LOUIS RENÉ BERES (Ph.D. Princeton, 1971) is the author of many books and several hundred articles dealing with Israel and international law. Chair of Project Daniel (Israel, 2003), he was born in Zürich, Switzerland, on August 31, 1945. Professor Beres is Strategic and Military Affairs columnist for The Jewish Press.

Why A Palestinian State Would Never Be ‘Demilitarized’: A Jurisprudential And Strategic Perspective

Tuesday, September 28th, 2010

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.

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