by Louis René Beres (Ph.D., Princeton, 1971), Emeritus Professor of International Law, Purdue University
“Men as a rule wittingly believe what they want to believe.”
Julius Caesar, The Gallic War
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In the midst of an unpredictable Gaza War, even well-intentioned calls for a “two-state solution” are sorely misplaced and cumulatively lethal. No matter how many existing states would ever align formally with such renewed calls – and irrespective of any organizational United Nations involvement – Palestine would fail to meet the codified legal standards of sovereignty. Among other things, the state-defining Convention on the Rights and Duties of States (the Montevideo Convention of 1934) identifies the criteria that would require “satisfaction” by Palestine.
Details matter. These intersecting criteria include certain strict expectations on government, population, territory and diplomatic capacity. They do not include recognition by other states.
There is no legal or moral justification to erect Palestinian statehood on the corpse of Israel. In principle, multistate declarations of support for Palestinian “self-determination” could be reasonableif the Arab side were authentically committed to a “Two-State” formula. But the Palestinian National Authority (PNA) and Hamas both make abundantly clear (an ironic clarification for any proposed two-state solution) that there can be only one legitimate state in the disputed areas. That singular state must be “Palestine.”
In this conspicuously annihilationist view, Israel can never be anything other than “Occupied Palestine.”
It’s not complicated. Ipso facto, the extant states in world politics who seek a Two-State Solution are urging nothing less than the creation of a new criminal state, a state malum in se (evil in itself). Wittingly or unwittingly, this refractory urge had been destabilizing and law-violating in its origins. More precisely, it stemmed from a diplomatic framework known as The Road Map for Implementation of a Permanent Solution for Two States in the Israel-Palestinian Dispute.
Together with insistent Palestinian refusals to reject the genocidal “Phased Plan” (Cairo) of June 1974 and the correlative Palestinian Jihad to “liberate” “Occupied Palestine” (in increments), the Road Map had already revealed a largely unforeseen or deliberately overlooked security peril for Israel. This peril, prospectively existential, was the abundantly false promise of Palestinian demilitarization. Today, this peril is plausibly more worrisome.
On June 14, 2009, Israeli Prime Minister Benjamin Netanyahu first agreed to accept a Palestinian state. But he carefully made such agreement contingent on enemy demilitarization. Presently, however, Mr. Netanyahu, again as Israel’s serving prime minister, opposes Palestinian statehood in any form, even if conditioned on Palestinian demilitarization.
From the standpoint of Israel’s literal survival, this last position is correct. For Israel, Palestinian promises of demilitarization could never ensure national survival. Significantly, this is the case whether or not the government of Palestine were to adhere to its antecedent (pre-independence) guarantees.
In law, as a presumptively sovereign state, pre-independence compacts would not generally bind Palestine. But what if the government of Palestine were in fact willing to consider itself bound by its pre-state, treaty-like agreements? Even in such relatively favorable circumstances, the new Arab government of an irredentist terror state would retain ample legal pretext to identify permissible grounds for lawful agreement termination.
Palestine could withdraw from the agreement because of what it would regard as a “material breach,” an alleged violation by Israel that credibly undermined the object and/or purpose of the pact. Alternatively, it could point toward what international law calls a “fundamental change of circumstances” (rebus sic stantibus). If a newly-born Palestinian state were to declare itself vulnerable to previously unforeseen dangers, perhaps even to forces of other Arab armies, it could lawfully end its previously “guaranteed” commitments to remain demilitarized.
There is another method by which a treaty-like arrangement obligating a new Palestinian state to accept demilitarization could be legally invalidated. The usual grounds that may be invoked under domestic law to invalidate contracts could apply to treaties under international law. This means that a new state of Palestine could point to alleged errors of fact or duress as appropriate grounds for terminating the agreements with Israel.
Per the Vienna Convention on the Law of Treaties (1969), 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. This means 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 exactly such a rule, Palestine, depending upon the particular final form of its institutionalized authority, could be within its rights to abrogate any prior arrangements intended to compel its demilitarization.
There is more. Thomas Jefferson 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: “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, “…the law of self-preservation always overrules the law of obligation to others.”
Israel should never draw any compensatory comfort from a purportedly legal promise of Palestinian demilitarization. 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 were displaced or overthrown by more militantly Islamic, anti-Israel forces), it could do so without foreseeable practical difficulties and without violating pertinent international law.
In part, at least, the prevailing plans for Palestinian statehood are still built upon the effectively-moribund Oslo Accords, ill-founded agreements destroyed by persistent Arab violations. For the Palestinians, Oslo-mandated expectations were never anything more than a presumptively cost-effective method of dismantling Israel. For the Israelis, these expectations were taken as a more-or-less unavoidable way of averting future Palestinian terror crimes and (derivatively) Arab state aggressions.
Where are the principal players today? The blatant asymmetry of national expectations has generally enhanced Arab power while weakening Israel. Even now, annihilationist calls for “Palestine from the River to the Sea” (an “incitement to genocide” under international law) have generally failed to dampen international enthusiasm for an irredentist criminal state.
What does all of this ultimately mean, for international law-enforcement, for a Palestinian demilitarization “remedy” and for Israel’s life or death security? In essence, the Arab world and Iran still have only a “One-State Solution” for the Middle East. It is a “solution” that eliminates Israel altogether. It is a physical solution. It is a “Final Solution.”
Official Palestinian maps of “Palestine” show the new Arab state comprising all of the West Bank (Judea/Samaria), all of Gaza and all of the State of Israel.
No ambiguity here.
On September 1, 1993, then PLO Chair Yasser Arafat affirmed that the 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 early declarations, nothing has changed in Palestinian definitions of Israel and “Palestine.” This is true for the current leadership of both Hamas and PNA/Fatah. Consequently, it may make no tangible difference whether one terror group or another comes to power in Palestine. Both would intend a state that is irredentist, irreconcilable and crime-centered. By definition, all terrorism is inherently a crime under authoritative international law.
Those who are concerned with Palestinian demilitarization and Israeli security ought to consider the following: The Islamic world contains 50 states with more than one billion people. Islamic states comprise an area 672 times the size of Israel. Israel, together with Judea/Samaria (West Bank), is less than half the size of San Bernardino County in California. The Sinai Desert, transferred by Israel to Egypt in the 1979 Treaty, is three times larger than the entire State of Israel.
There is more. A presumptively sovereign State of Palestine could lawfully abrogate any pre-independence commitments to demilitarize. In the past, the Palestine National Authority has been guilty of multiple material breaches of the Oslo Accords and “grave breaches” of the law of war. Both PNA/Fatah and Hamas remain determinedly unwilling to rescind their expressly genocidal calls for Israel’s complete elimination. Any Israeli plan for accepting Palestinian demilitarization on promises of diplomatic comity and regional peace would be built upon sand. It follows, inter alia, that Israel should never base its assessments of Palestinian statehood upon such illusory jurisprudential foundations.
In the end, no Palestinian leadership would ever accept an Israel-supported idea of Palestinian statehood limited by demilitarization. Moreover, Israel’s leaders would always need to assess the many-sided threat of Palestinian statehood as a single prominent part of a much larger strategic whole. Among other things, this means not overlooking that a Palestinian state – any Palestinian state – would become a force-multiplier for Israel’s present day state enemies, especially Iran.
In a worst-case but still plausible scenario, the creation of “Palestine” would significantly heighten the probability of an unconventional war in the region. At some not-too-distant point in time, a point where Israel and Iran would compete during potentially existential crises for “escalation dominance,” this could even mean a nuclear war. Should such a scenario seem farfetched, Israel’s leaders would need only to be reminded that Hamas, its barbarous terrorist enemy in the current Gaza War, is encouraged, nurtured and sustained by Iran.
And all this would represent the irreversible outcome of misplaced Israeli hopes for Palestinian demilitarization. In this escalating matter of Palestinian statehood, the government and people of Israel should heed the ancient admonition of Julius Caesar: Never base survival beliefs on what you “want to believe.” There could be no more credible advice.
LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and scholarly articles dealing with Israel and international law. His writings have appeared in such publications as Jurist; The New York Times; Yale Global Online; Harvard National Security Journal (Harvard Law School); The Atlantic; U.S. News & World Report; Los Angeles Times; Oxford University Press; The Hill; BESA Perspectives; INSS Strategic Assessment (Israel); Herzliya Conference Papers (Israel); Jewish Website; Jewish Business News; The National Interest; International Security (Harvard); Parameters (Pentagon); Air-Space Operations Review (USAF); Modern War Institute (West Point); The War Room (Pentagon); and The Jerusalem Post. Dr. Beres’ twelfth and latest book, Surviving Amid Chaos: Israel’s Nuclear Strategy, was published by Rowman & Littlefield in 2016. http://www.israeldefense.co.il/en/content/surviving-amid-chaos-israels-nuclear-strategy (2nd edit., 2018).Louis René Beres was born in Zürich, Switzerland at the end of World War II.
