RUTHFULLY YOURS

With the ongoing revelations about Syrian regime atrocities, regional and global attention has seemingly shifted from more usual concerns about Palestinian statehood. Nonetheless, the two issues are closely related, especially in their common reflection of irremediable fragmentations in the Arab world and in their resultant propensities for escalating violence and cruelty.

To be sure, in a Palestinian state – any Palestinian state – the internecine rivalries now so starkly evident in Syria would be quickly replicated, or even exceeded, by what would be ignited between Hamas, Fatah, and assorted splinter terror factions.

If you like Syria, you’ll love “Palestine.” Once such an entity is carved out of the still-living body of Israel, rocket bombardments on Israeli cities from Gaza will be augmented by multiple coordinated missile assaults from Lebanon. Oddly, Sunni Hamas and Shiite Hizbullah would collaborate in their joint war against “The Jews,” while at the same time Fatah will be under attack from its Sunni “partners” in Palestine. And this is to say nothing about what can still be expected in Iran and, more urgently, from Iran.

By now it should be plain that Israel, a country half the size of Lake Michigan, has had nothing to do with causing persistent regional conflict, backwardness and squalor. If Israel had never even been formally reestablished in 1948, these disabling conditions would likely still be ubiquitous and full-blown. Nonetheless, though Washington fully understands the long and destabilizing history of scapegoating Israel, an almost atavistic mantra that echoes ritually from Morocco to Iran, President Obama remains stubbornly committed to the “Road Map.”

In principle, and contrary to his country’s overriding legal rights and security interests, Israeli Prime Minister Benjamin Netanyahu had already agreed to a Palestinian state back in June 2009. Yet Netanyahu, more or less prudently, conditioned this concessionary agreement 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.”

In fact and in law, this position offered absolutely no obstacle to Palestinian statehood and subsequent anti-Israel war.

Neither Hamas, now expressly closing ranks with its “parent” Muslim Brotherhood mentors in post-Mubarak Egypt, nor Fatah, whose security forces were recently trained by American General Keith Dayton in nearby Jordan, at very great American taxpayer expense, will ever negotiate for anything less than full sovereignty. Why should they? After all, supporters of Palestinian statehood can discover authoritative legal support for their stance in binding international treaties.

Pro-Palestinian international lawyers seeking to identify self-serving sources of legal confirmation could conveniently cherry-pick pertinent provisions of the Convention on the Rights and Duties of States (the 1933 treaty on statehood, sometimes called the Montevideo Convention), and the 1969 Vienna Convention on the Law of Treaties.

Israel has a basic or peremptory right to survive. It was, therefore, proper for Netanyahu to have originally opposed a Palestinian state in any form, an opposition, by the way, once shared by Shimon Peres, the proudest Israeli champion of a “two-state solution.” In his book, Tomorrow Is Now (1978), Peres said the following about Palestinian statehood:

“The establishment of such a state means the inflow of combat-ready Palestinian forces into Judea and Samaria: 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.”

In writing about “time of war,” this former prime minister neglected that Israel is locked into a permanent condition of war. The war is now. And the target “infrastructure installations” could include Dimona and other vulnerable Israel nuclear reactor facilities.

Moreover, any Israeli arguments for Palestinian demilitarization, however vehement and well-intentioned, are certain to fail. International law would not even expect Palestinian compliance with any pre-state agreements concerning the right to use armed force. This is true even if these agreements were to include certain explicit U.S. guarantees. Also, per the Vienna Convention on the Law of Treaties, because authentic treaties can only be binding upon states, a non-treaty agreement between the Palestinians and Israel could also prove to be of little or no real authority.

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 would have ample pretext to identify relevant grounds for lawful treaty termination.

A new Palestinian government could withdraw from the treaty because of what it regarded as a “material breach,” a reputed violation by Israel that had allegedly undermined the object or purpose of the agreement. Or it could point toward what Latinized international law calls Rebus sic stantibus. In English, this doctrine is known as a “fundamental change of circumstances.” Here, if Palestine should declare itself vulnerable to unforeseen dangers, perhaps even from the interventionary or prospectively occupying forces of certain other Arab armies, it could lawfully end its previously codified commitment to stay demilitarized.

Another factor explains why Netanyahu’s hope for Palestinian demilitarization was and 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. 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 within its lawful right to abrogate any agreement that had previously, before independence, compelled its demilitarization.

Netanyahu 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 even more militantly Jihadist/Islamic forces, it could do so not only without practical difficulties, but also without violating international law.

The core danger to Israel of any presumed Palestinian demilitarization is more practical than legal. The American-driven Road Map stems from a very basic misunderstanding of Palestinian history and goals. At a minimum, Obama should finally recall that the Palestine Liberation Organization was formed in 1964; three years before there were any “occupied territories.”

Exactly what, during those first three years, was the PLO trying to “liberate”? The answer was the same then as it is now: all of Israel.

If you like Syria, you’ll love Palestine.

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.

About the Author: 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.