Why “Palestine” Would be a Dangerous Fiction

By Louis René Beres

“The first general law, which is to be found in the very end of the society of Nations, is that each Nation should contribute as far as it can to the happiness and advancement of other Nations.”

Emmerich de Vattel, The Law of Nations (1758)

In candor, few if any states can ever claim to meet the high standard established by Emmerich de Vattel, one of the great founders of modern international law, back in the eighteenth century. Nonetheless, any such lofty jurisprudential expectation would be especially ironic in the prospective case of “Palestine.” This is the case because of the complete absence of any expressly cooperative or collaborative ethos in the Palestine Authority (PA).

There are both legal and practical problems associated with ongoing Palestinian demands for enhanced formal statehood. To begin with the first set of problems, even if an expanding number of existing states should argue tenaciously for recognition of a 23rd Arab state, these actions would have no properly authoritative effect. Inter alia, the governing treaty on statehood – the Convention on the Rights and Duties of States (1934) – stipulates a number of distinctly explicit criteria that must always be satisfied, irrespective of recognition.

Other substantial problems must be acknowledged. In principle, at least, further declarations of support for Palestinian “self-determination” might not be per se unreasonable if the Palestinian side were more authentically committed to a “Two-State Solution.” Yet, both Palestinian Authority (PA) and rival Hamas, even as they periodically struggle against each other, still manage to agree on one overriding point. This is the ritualized and unchanging annihilatory mantra that: (1) Israel represents an irremediably intolerable abomination of the Dar al-Islam (the world of Islam) on fundamental religious grounds, and: (2) Israel is nothing more than “Occupied Palestine.”

Bearing in mind Emmerich de Vattel’s generic expectation for statehood – an incontrovertibly reasonable expectation, to be sure – all states searching more-or-less seriously for Middle East peace are effectively urging the creation of another pro-terror state. Earlier, this destabilizing advocacy position had stemmed from a diplomatic framework then known generally as The Road Map for Implementation of a Permanent Solution for Two States in the Israel-Palestinian Dispute. Together with an openly insistent Palestinian refusal to reject the “Phased Plan” (Cairo) of June 1974, and an associated no-compromise Jihad to “liberate” all of “Occupied Palestine” in increments, the Road Map revealed another largely unforeseen or deliberately unacknowledged “cartographic” danger.

It is this. Perhaps lacking full understanding of pertinent international law, and also of antecedent Natural Law, certain states favoring “Palestine” that are plausibly well-intentioned are still being misled by overly-optimistic hopes concerning Palestinian “demilitarization.”

On June 14, 2009, Israeli Prime Minister Benjamin Netanyahu first agreed to accept a Palestinian state, but at that time also made any such agreement contingent upon prior 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.”

Although, at the time, this formal Israeli position represented a considerable concession, one arguably intended to contribute to the generalized “happiness” and “advancement,” it never really had any tangible chance of success. Oddly, therefore, the Prime Minister repeated this profoundly unrealistic expectation in his UN General Assembly speech on September 27, 2012, and also on several subsequent occasions.

Under the very best assumptions for Israel, basic security could be suitably maintained if Palestine were actually demilitarized. But, in view of expected Palestinian manipulations of all relevant international law (“law fare”) -manipulations deducible from all major policy statements and codified platforms – these assumptions remain unpersuasive. Conveniently for the PA, it could always be made to appear that such law does not necessarily require Palestinian compliance with “pre-state” agreements concerning the use of armed force.

In this regard, the seemingly recalcitrant Palestine position on proposed demilitarization could actually prove correct.

In essence, as a now presumptively independent state, pre-independence compacts might not legally bind Palestine, even if the particular agreements in question had included expressly relevant UN and/or US assurances to the contrary. This is the most likely argument, even though unrestricted Palestinian claims of statehood would never have actually satisfied the four very plainly codified expectations of “Montevideo.” Moreover, this would be the predictable Palestinian argument even though Palestine would have earned no proper legal entitlement to invoke any such authentically sovereign rights of abrogation.

There are some antecedent legal problems here. Because true treaties can be binding only upon states, an agreement between a still non-state Palestinian Authority (PA), and an authentic sovereign state (Israel), would have little real or tangible effectiveness.

What if the government of Palestine were in fact willingly adhering to Emmerich de Vattel’s core expectations for states, that is, prepared to consider itself properly bound by the pre-state, non-treaty agreement? Even in these relatively favorable circumstances, the new Arab government of Palestine would still retain ample legal pretext to identify grounds for lawful “treaty” termination. It could, for example, withdraw from the “treaty” because of what it would then regard as a “material breach,” an alleged violation by Israel that credibly undermined the object and/or purpose of the agreement.

Alternatively, it could point toward what international law calls a “fundamental change of circumstances” (rebus sic stantibus). In this connection, if a Palestinian state were to declare itself vulnerable to previously unforeseen dangers, perhaps even from the forces of other Arab armies, it could lawfully end its previously sworn commitment to remain demilitarized.

There is another method by which a treaty-like arrangement obligating a new Palestinian state 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. This means that the new state of Palestine could point to alleged errors of fact, or to duress, as perfectly appropriate grounds for terminating the problematic agreement.

There is more. Any treaty or treaty-like agreement is void if, at the time it was entered into, it conflicts 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 all sovereign states to maintain military forces essential to “self-defense” is certainly such a peremptory <a “href=”http://www.jus.uio.no/lm/un.law.of.treaties.convention.1969/28.html”>rule, Palestine, depending upon its particular form of selected authority, could seemingly be within its right to abrogate any arrangement that had earlier compelled its demilitarization.

Thomas Jefferson, an American President who likely read Epicurus, Cicero and Seneca, as well as Voltaire, Montesquieu, Holbach, Helvetius and Beccaria, wrote interestingly about obligation and international law. While affirming that “Compacts between nation and nation are obligatory upon them by the same moral law which obliges individuals to observe their compacts…,” he also acknowledged the following: “There are circumstances which sometimes excuse the nonperformance of contracts between man and man; so are there also between nation and nation.” Very specifically, Jefferson continued, if performance of contractual obligation becomes “self-destructive” to a party, “…the law of self-preservation overrules the law of obligation to others.”

Here it must be remembered that, at least historically, demilitarization is a principle applied to various “zones,” and not to the entirety of emergent states. Hence, a new state of Palestine might have yet another legal ground upon which to permissibly evade compliance with pre-independence commitments to demilitarization. It could be alleged, inter alia, that these commitments are inconsistent with traditional or Westphalian bases of authoritative international law – rudiments found in treaties and conventions, international custom, and the general principles of law recognized by “civilized nations.”

These commitments would therefore display no binding character.

Israel should draw no compensatory comfort from the purportedly legal promise of Palestinian demilitarization. Indeed, should the government of a new state of Palestine choose to invite foreign armies and/or terrorists onto its territory (possibly after the original government authority is displaced or overthrown by even more militantly Islamic, anti-Israel forces), it could do so without any practical difficulties, and without violating international law.

Strangely, the still-prevailing plan for Palestinian statehood is built upon the patently moribund Oslo Accords, ill-founded agreements now unambiguously destroyed by persistent and egregious Arab-state violations. By now, the basic problem with the Oslo Accords that underlies these violations should be obvious. On the Arab side, Oslo-mandated expectations were really never anything more than an optimally cost-effective method of dismantling Israel. On the Israeli side, these expectations were taken, more or less, as an unavoidable way of averting further Palestinian terrorism, and, as corollary, of preventing catastrophic Arab aggression.

The resultant asymmetry in expectations, never acknowledged by the UN, has generally enhanced Arab power, while it has systematically weakened and degraded Israel. Even now, even after “Operation Iraqi Freedom” and the endless war in Afghanistan – even after the rise of ISIS, and the ongoing Syrian genocide – undisguised Palestinian calls to “Slaughter the Jews” have generally failed to dampen international enthusiasm for what amounts to another irredentist terrorist state. Even now, when much of the “international community” plans to midwife the birth of such a prospectively refractory state, its multiple representatives refuse to understand that only a lascivious gravedigger could wield the forceps.

What does all of this mean, for any alleged Palestinian demilitarization “remedy,” and for Israeli security? Above all, it demands that Israel make rapid and far-reaching changes in the manner in which it conceptualizes the critical continuum of cooperation and conflict. Israel, ridding itself of injurious wishful thinking, of always hoping, of hoping too much, should recognize the relentlessly zero-sum calculations of its enemies. Accordingly, Jerusalem must finally begin to acknowledge that this doctrinally-based struggle in the Middle East – a Palestinian doctrine of Islamic supremacy and “purity” – must inevitably be fought at the conflict end of the range.

The enemy-sustained struggle, in other words, must generally be conducted, however reluctantly and painfully, in starkly zero-sum terms. Understood in terms of international law and world order, this could mean, among other things, a recurrent willingness in Jerusalem to accept the right and corresponding obligation of “anticipatory self-defense.”

Unambiguously, the Arab world and Iran still have only a “One-State Solution” for the Middle East. It is a “solution” that ultimately eliminates Israel altogether, a physical solution, a “Final Solution.” The official PA maps of “Palestine” still show the new Arab state comprising all of the West Bank (Judea/Samaria), all of Gaza, and all of the State of Israel.

These maps also exclude any references to an indigenous Jewish population, and list the holy sites of only Christians and Muslims. One official cartographer, Khalil Tufakji, was commissioned by the Palestine National Authority to design and to locate a proposed Palestinian Capitol Building. This was drawn to be located on the Mount of Olives in Jerusalem, directly on top of an ancient Jewish cemetery.

On September 1, 1993, Yasser Arafat loudly reaffirmed that the then new Oslo Accords would remain an intrinsic part of the PLO’s 1974 Phased Plan for Israel’s destruction: “The agreement will be a basis for an independent Palestinian State, in accordance with the Palestinian National Council Resolution issued in 1974. This PNC Resolution calls for “the establishment of a national authority on any part of Palestinian soil from which Israel withdraws or is liberated.” Later, on May 29, 1994, Rashid Abu Shbak, then a senior PA security official, remarked ominously: “The light which has shone over Gaza and Jericho will also reach the Negev and the Galilee.”

Since these declarations, which bear little resemblance to Emmerich de Vattel’s classic cornerstone expectations of statehood, nothing has changed in the Palestinian definitions of Israel and “Palestine.” This is true for the current leadership of both Hamas and PA. Significantly, it may make no palpable difference whether one terror group or the other is more-or-less in power.

In his sermon, presented on official PA Television on December 12, 2014 – and in the presence of PA President Mahmoud Abbas – Mahmoud- Al-Habbash, the PA Supreme Shari’ah Judge, and President Abbas’ Advisor on Religious and Islamic Affairs, stated candidly: “All of this land will return to us, all our occupied land, all our rights in Palestine – our state, our peoples’ heritage, our ancestors’ legacy – all of it will return to us, even if it takes time.”

Earlier, on October 22, 2014, Al-Habbash had already reaffirmed that any acceptance of Israel’s physical existence is firmly forbidden under Islamic law: “The entire land of Palestine (i.e., territory that includes all of Israel) is waqf (an inalienable religious endowment under Islamic law), and is a blessed land. It is prohibited to sell, bestow ownership, or facilitate the occupation of even a millimeter of it.”

Those who are concerned with Palestinian demilitarization and Israeli security ought to also consider the following: The Arab world is presently comprised of 22 states of nearly five million square miles and substantially more than 150,000,000 people. The Islamic world generally contains 50 states with more than one billion people. The Islamic states comprise an area 672 times the size of Israel. Israel, with a population of more than six million Jews, is, together with Judea/Samaria, less than half the size of San Bernardino County in California. The Sinai Desert alone, which Israel transferred to Egypt in the 1979 Treaty, is three times larger than the entire State of Israel.

A presumptively sovereign Palestinian state could lawfully abrogate its pre-independence commitments to demilitarize. In the past, the Palestine Authority has been guilty of multiple material breaches of Oslo, and also of certain “grave breaches” of the law of war. Further, both PA and Hamas remain determinedly unwilling to rescind expressly genocidal calls for Israel’s annihilation.

Any plan for accepting Palestinian demilitarization on grounds of comity (“happiness” and “advancement” in the world community) would be built upon sand. It follows that Israel should never base its geo-strategic assessments of Palestinian statehood upon any such illusory jurisprudential foundations.

No doubt, Prime Minister Benjamin Netanyahu, by his earlier announced acceptance of a Palestinian state that had formally agreed upon its own demilitarization, believed that he had just taken a concessionary step toward reconciliation – one that would “contribute as far as it can to the happiness and advancement” of both Israel and “the other nations.” Yet, as we have just seen, the Palestinian leadership will never accept or even consider any Israel-proposed idea of “limited” statehood, particularly of a state lacking even the utterly core prerogatives of national self-defense. Whether Jerusalem likes it or not, this means that if Israel should ever be willing to accept a genuinely sovereign Palestinian state, it would have to base this reluctant acceptance upon an expectedly intransigent enemy state endowed with all normal and unhindered military rights.

At the “bottom line,” this effectively unassailable conclusion does not suggest or imply any future Israeli surrenders or capitulation to “Palestine,” but only that Jerusalem fashion its own indispensable security policies at preeminently pragmatic rather than wishfully jurisprudential levels.

This article was first published in JURIST/2017

Louis René Beres was educated at Princeton (Ph.D., 1971), and is Emeritus Professor of International Law at Purdue. His twelfth book, Surviving Amid Chaos: Israel’s Nuclear Strategy, was published in 2016. His other writings have been published in Harvard National Security Journal; Yale Global Online; World Politics (Princeton); Bulletin of the Atomic Scientists; Israel Defense; Parameters: Journal of the US Army War College; Special Warfare; Oxford University Press; The Jerusalem Post; Infinity Journal; BESA Perspectives; US News & World Report; The Hill; and The Atlantic.