Planning an end-run around international law

Under authoritative international law, both the general principles of statehood codified in various treaties and the more specific expectations of binding bilateral Oslo agreements with Israel, the latest Palestinian plans for UN support are illegitimate.

Still, these plans were formally set in motion on November 8, when the Palestinian Authority first circulated a draft resolution to the 193 UN member states.

This draft requested a change from current “Observer” status to the substantially elevated position of a “Nonmember Observer State.”

Significantly, any vote on this draft resolution would bypass the Security Council, and would take place entirely in the General Assembly, where there exist no Charter-based possibilities of a veto. As for the actual text, there is no ambiguity regarding the objective. It makes very explicit and conspicuous reference to a “State of Palestine.”

The core strategy here is to secure a presumptively authoritative declaration of Palestinian sovereignty. By implementing this plan in the General Assembly, rather than in the Security Council, the PA needn’t worry at all about the United States and Israel. For their parts, both Washington and Jerusalem openly oppose this cynical “end-run” around international law.

Where exactly is “Palestine?” Any UN-sanctioned declaration would comprise the West Bank (Judea/Samaria), Gaza and east Jerusalem. Oddly enough, in view of the firm treaty-based legal requirement for states; that they maintain “governmental” control over “a defined territory” and over a “permanent population,” the PA still has no effective authority over Gaza. Instead, this Palestinian area remains tightly under an opposing Hamas jurisdiction which is at war with Israel.

The PA strategy, even if it should “work,” mocks all codified expectations of the principal international treaty on statehood, The Convention on the Rights and Duties of States (1934).

Nonetheless, leaving aside the generally unacknowledged legal requirements of the “Montevideo Convention,” requirements which underscore that statehood can never be determined by recognition, the main problem would lie in the consequences.

More precisely, once accepted by the United Nations, in whatever format, a Palestinian state, any Palestinian state, would enlarge the determinable risks of mass-destruction terrorism, and regional nuclear war. Ultimately, these widely unforeseen risks of Palestinian statehood could dwarf the more routinely expressed fear of incrementally-created Palestinian harms, that is, of an aggressor Palestine that would systematically displace and destroy Israel “in stages.”

Any new state of Palestine would be carved out of Israel. Predictably, this 23rd Arab state would embark upon sequential territorial expansions. In difficult to oppose and more-or-less audacious phases, Palestine would then bore deeply into the now too-porous boundaries of a residual and truncated Israel.

Despite the plain evidence of legitimizing a new Arab state aggressor, the “international community,” already deeply complicit in Palestine's creation, would look away. By then, after all, Israel will once again have been criticized as an alien presence in the otherwise homogeneous Dar al Islam, the “world of Islam.” In this part of the world at least, we would learn from the international community that there is really no place for “diversity.”

Cartographically, perhaps, the PA should be credited with commendable candor. For years, the PA map has presented all of Israel as a part of Palestine.

Notwithstanding, the United States, although correctly opposed to any premature resolution of support for Palestinian statehood in the United Nations, has spent several hundred million dollars for the advanced military training of Palestinian “security forces” in Jordan.

By treating PA’s Fatah as a future US subcontractor against Hamas, courtesy of the utterly unwitting American taxpayer, this Pentagon training will have the ironic effect of supporting new waves of both anti-Israel and anti-American terror. These assaults could involve chemical, biological, or even nuclear weapons.

A Palestinian state – any Palestinian state – would have an injurious impact on American strategic interests, as well as on Israel’s sheer physical survival. After Palestine, Israel would require greater self-reliance in all existential military matters.

In turn, such self-reliance would demand: 1) a more comprehensive and explicit nuclear strategy, involving refined deterrence, preemption, and war fighting capabilities; and 2) a corresponding and thoroughly updated conventional war fighting strategy.

The birth of Palestine could affect these two interpenetrating strategies in important ways. Immediately, it would enlarge Israel’s need for what strategists call “escalation dominance.” This is the capacity to fully control sequential moves toward greater military power. As any Palestinian state would render Israel’s conventional capabilities more urgent and problematic, the IDF national command authority would, among other things, need to make the country’s still-implicit nuclear deterrent less ambiguous.

For a limited period, making the “bomb” less “opaque,” or taking the “bomb out of the basement,” could enhance Israel’s overall security. Still, over time, ending “deliberate ambiguity” could also heighten the chances of actual nuclear weapons use. If Iran is allowed to “go nuclear,” which now appears almost certain, any resultant nuclear violence might not necessarily be limited to the immediate areas of Israel and Palestine. In some plausible scenarios, it could even take the form of an unprecedented nuclear exchange.

With a Palestinian state in place, a nuclear war could arrive in Israel not only as a “bolt-from-the-blue” surprise missile attack, but also as a result, intended or inadvertent, of escalation. If an enemy state were to initiate “only” conventional and/or biological attacks upon Israel, Jerusalem might respond, sooner or later, with fully nuclear reprisals. Even if this enemy state were to begin with solely conventional attacks upon Israel, Jerusalem’s conventional reprisals might still be met, in the always-uncertain strategic future, with certain enemy nuclear counterstrikes.

For now, such scenarios could become possible only if a still-nuclearizing Iran were spared an Israeli and/or American preemptive attack. It follows that a genuinely persuasive Israeli conventional deterrent, at least to the extent that it would prevent enemy state conventional and/or biological attacks in the first place, could significantly reduce Israel’s risk of any escalatory exposure to nuclear war.

Why should Israel need a conventional deterrent at all? Even after Palestinian statehood, wouldn’t rational enemies desist from launching conventional or biological attacks upon Israel for well-founded fears of an Israeli nuclear retaliation? Not necessarily. Calculating that Israel would cross the nuclear threshold only in extraordinary circumstances, these enemy states could be convinced, rightly or wrongly, that as long as their own attacks remained determinably non-nuclear, Israel would respond “proportionately,” or in kind.

To be sure, a Palestinian state would itself be non-nuclear. But this obvious fact has no bearing upon the predictably expanded post-Palestine nuclear threat to Israel. Concerning this threat, what matters is only that, after Palestine, the resultant correlation of armed forces in the region would be cumulatively less favorable to Israel.

The only credible way for Israel to effectively deter large-scale conventional attacks following any UN creation of Palestine would be by maintaining visible and large-scale conventional capabilities.

Those enemy states contemplating any first-strike attacks upon Israel using chemical and/or biological weapons would be apt to take more seriously Israel’s nuclear deterrent. Whether or not this nuclear deterrent had remained undisclosed or ambiguous could also seriously affect Israel’s credibility, as could perceptions of Israel’s corollary capabilities for anti-missile defense (especially Arrow and Iron Dome) and cyber-warfare.

A continually upgraded conventional capability is needed by Israel to deter or to preempt conventional attacks, enemy aggressions that could ultimately lead, via escalation, to assorted forms of unconventional war. Here, Palestine’s presence would critically impair Israel’s strategic depth, and thereby its indispensable capacity to wage conventional warfare.

These prospectively grave debilities should now be fully understood in Washington as well as in Jerusalem, not only for Israel’s sake, but also because any Palestinian state could be more-or-less hospitable to assorted jihadi preparations for anti-American terror.

In post-Mubarak Egypt, there remains an accelerating danger of freer terrorist movement in and out of Gaza, especially between interpenetrating elements of Hamas and the “parent” Muslim Brotherhood.

Even if large contingents of Egyptian troops could somehow succeed in controlling such militant movements by imposing a vast re-militarization of Sinai (illegal under the terms of the 1979 Israel-Egypt Peace Treaty), the deployments could then imperil Israel because of the growing Egyptian military forces themselves.

Both the United States and Israel should understand that recent and ongoing revolutionary events in Libya and Syria will significantly enlarge the theft and black-market trafficking of chemical and biological weapons stocks in the region. Depending upon where these very dangerous materials would wind up, in the Middle East and North Africa, or even in cities of North America, they could enlarge the already-expected harms of any UN-supported “State of Palestine.”

Creating a Palestinian state by launching an end-run around international law in the General Assembly would be illegitimate on its face. More importantly, however, it would also be destabilizing, and potentially catastrophic, for the entire region of states.

The writer, who holds a PhD from Princeton, lectures and publishes widely on Israeli security matters. He is the author of 10 books, and several hundred journal articles, on international relations and international law. The chair of Project Daniel in Israel (2003), Professor Beres was born in Zürich, Switzerland, on August 31, 1945. His columns appear regularly in many leading US and Israeli newspapers and magazines.