Israel And A Palestinian State: A Look Behind The News (First of Two Parts)

Louis Rene Beres

Oddly enough, even Israeli politicians can change course abruptly. Shimon Peres, unambiguously the proudest Israeli champion of a “two state solution” in the Middle East, at one time called Palestinian statehood an existential threat to Israel. In his book Tomorrow is Now (1978), Peres, currently the country’s president, had presciently warned against this plan: 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…

Prime Minister Benjamin Netanyahu is apparently willing to go along with a Palestinian state, but only so long as its prospective leaders agree first to “demilitarization.”

Ironically, Netanyahu the hawk should take heed of Peres the dove’s earlier warning and acknowledge the pertinent intersections of law and strategy. For Israel, legal mistakes and misunderstandings could quickly give rise to irreversible strategic harms. In the matter of “Palestine,” the underlying conceptual issues are synergistic (interpenetrating), longstanding, and potentially global.

History can help us to understand. From the formal beginnings of the state system in 1648, following the Thirty Years’ War and the Peace of Westphalia, states have negotiated treaties to provide security. To the extent that they are executed in good faith, these agreements, in written form, are fashioned and tested according to relevant international law. Often, disputes arise whenever particular signatories determine that continued compliance is no longer in their own presumed and particular “national interest.”

For Israel, its 1979 peace treaty with Egypt remains important. Still, continuing regime change and Islamist ascendancy in Cairo could signal abrogation of this agreement. The same risks could apply even to a more secular military governing council, should its leaders decide, for any reason, that the treaty with Israel should be terminated.

Any post-Mubarak regime that would extend some governing authority to the Muslim Brotherhood or its proxies could result in a sudden or prompt Egyptian abrogation. Plainly, although such a 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 little if anything that Israel or the “international community” could do in effective response.

Following the Arab Spring, prospective treaty compliance issues with Egypt ought to bring to mind the myriad dangers of Palestinian statehood. Already, in June 2009, Netanyahu had agreed to a Palestinian state. But, with an apparent nod to prudence, he had carefully conditioned this public 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 could be some 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 Netanyahu to have previously opposed a Palestinian state in any form. Both Fatah and Hamas still see all of Israel as part of “Palestine.”

Last summer, 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 were Jaffa, Safed, Tiberias, Acre, Nazareth, Beit Shean, Ramie, and Haifa. All of the official PA maps of “Palestine” continue to include all of Israel.

http://www.jewishpress.com/indepth/columns/louis-rene-beres/israel-and-a-palestinian-state-a-look-behind-the-news-second-of-two-parts/2012/02/22/
Israel And A Palestinian State: A Look Behind The News (Second of Two Parts)
By: Louis Rene Beres
Published: February 22nd, 2012
Beres-Louis-Rene

In the strict Islamic view, not merely in the more narrowly Jihadi or Islamist perspectives, Israel must be seen as the individual Jew in macrocosm. The Jewish state must be despised on account of this relationship – that is, because of the allegedly “innate evil” of each individual Jew.

This insidious understanding is a far cry from the widely fashionable idea that Israel is despised in the region only because it is an “occupier.” Generally, the Israeli is despised in the Islamic world because he or she is a Jew, a condition of presumed infirmity, and one that can never be “remedied.”

A current Egyptian textbook of Arab Islamic history, used widely in teacher training colleges, expresses these sentiments:

“The Jews are always the same, every time and everywhere. They will not live save in darkness. They contrive their evils clandestinely. They fight only when they are hidden; because they are cowards…. The Prophet enlightened us about the right way to treat them, and succeeded finally in crushing the plots they had planned. We today must follow this way, and purify Palestine from their filth.”

In an earlier article in Al-Ahram, by Dr. Lufti Abd al-Azim, the famous commentator urges, with complete seriousness:

“The first thing that we have to make clear is that no distinction must be made between the Jew and the Israeli…. The Jew is a Jew, through the millennia…. in spurning all moral values, devouring the living, and drinking his blood for the sake of a few coins. The Jew, the Merchant of Venice, does not differ from the killer of Deir Yasin or the killer of the camps. They are equal examples of human degradation. Let us therefore put aside such distinctions, and talk only about Jews.”

Writing also on the “Zionist Problem,” Dr. Yaha al-Rakhawi remarked openly in Al-Ahram:

“We are all once again face to face with the Jewish Problem, not just the Zionist Problem; and we must reassess all those studies which make a distinction between “The Jew” and “The Israeli.” And we must redefine the meaning of the word “Jew” so that we do not imagine that we are speaking of a divinely revealed religion, or a minority persecuted by mankind…. we cannot help but see before us the figure of the great man Hitler, may God have mercy on him, who was the wisest of those who confronted this problem…. and who out of compassion for humanity tried to exterminate every Jew, but despaired of curing this cancerous growth on the body of mankind.”

Finally, we may consider what Israel’s first Oslo “peace partner,” Yasir Arafat, had to say on January 30, 1996, while addressing forty Arab diplomats at the Grand Hotel in Stockholm. Speaking with the title “The Impending Total Collapse of Israel,” Arafat remarked, without hesitation:

“We Palestinians will take over everything; including all of Jerusalem…. All the rich Jews who will get compensation will travel to America…. We of the PLO will now concentrate all our efforts on splitting Israel psychologically into two camps. Within five years, we will have six to seven million Arabs living in the West Bank, and in Jerusalem…. You understand that we plan to eliminate the State of Israel, and establish a purely Palestinian state…. I have no use for Jews; they are and remain, Jews.”

Despite these plainly intolerant and potentially genocidal Arab views of Israel’s physical existence, international law still need not expect Palestinian compliance with any pre-state agreements concerning armed force. This is true even if these agreements were to include certain explicit U.S. security guarantees to Israel. Also, because authentic treaties can be binding only upon states, a non-treaty agreement between the Palestinians and Israel could quickly prove to be of little or no real authority, or effectiveness. This is to say nothing of the still critical connections between Fatah, Hamas, al Qaeda, Hizbullah, 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 Arab government could still have ample pretext, and opportunity, to identify fully usable grounds for lawful treaty termination.

Palestine could withdraw from the “treaty” because of what it would regard as a “material breach,” a purported violation by Israel that had allegedly undermined the “object or purpose” of the agreement. It could also point toward what international law calls Rebus sic stantibus. In English, this doctrine is known formally as a “fundamental change of circumstances.” Here, if Palestine should decide to declare itself vulnerable to previously unforeseen dangers, perhaps even from the interventionary or prospectively occupying forces of other Arab armies, it could lawfully end its previous commitment to remain demilitarized.

There is another factor that explains why Prime Minister Netanyahu’s hope for Palestinian demilitarization remains misconceived. After declaring independence, a new Palestinian government, one likely displaying openly genocidal sentiments, could point to particular pre-independence errors of fact, or duress, as appropriate grounds for agreement termination. Significantly, the usual grounds that may be invoked under domestic law to invalidate contracts can apply equally 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, before its independence, compelled demilitarization.

Benjamin Netanyahu should take no comfort from any legal promises of Palestinian demilitarization. Should the government of a 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 necessarily violating international law.

The core danger to Israel of any presumed Palestinian demilitarization is more practical than legal. The Road Map to “Palestine” favored by President Obama and almost all European leaders stems from a persistent misunderstanding of Palestinian history, and also of the long legal history of Jewish life and title to disputed areas in Judea/Samaria (West Bank) and Jerusalem.

At a minimum, President Obama should finally recognize that the PLO was formed in 1964; three years before there were any “occupied territories.”

Exactly what did the PLO plan to “liberate” at its inception?

In his earlier years, Shimon Peres was correct. A Palestinian state – any Palestinian state – would represent an utterly mortal danger to Israel. This danger could not be relieved, inter alia, by any legal Palestinian pre-independence commitments to “demilitarize.”

As I have indicated in several of my previous Jewish Press columns, international law is never a suicide pact.

Louis René Beres, strategic and military affairs columnist for The Jewish Press, is professor of political science at Purdue University. Educated at Princeton (Ph.D., 1971), he lectures and publishes widely on international relations and international law and is the author of ten major books in the field. In Israel, Professor Beres was chair of Project Daniel.