Agreeing to a toothless state would be no less of a danger

Int'l law would not necessarily require Palestinian compliance with pre-state accords about armed force.

Palestinian police 248 88 (photo credit: )
Palestinian police 248 88
(photo credit: )
When I first wrote about problems of Palestinian demilitarization in February 1998, Binyamin Netanyahu was prime minister. Today, he is again and - once again - he is on record against full sovereignty for "Palestine." Instead, he continues to speak either of a Palestinian "autonomy" or of various "attributes of restricted sovereignty." From a domestic political standpoint, of course, Netanyahu's position on this issue is quite sensible. Internationally, however, it is clear that neither main Palestinian faction (Hamas, Fatah - it makes no difference) would negotiate for anything less than complete statehood. This is because full statehood would be widely supported throughout the world, and because such support could arguably be enhanced by authoritative terms of (1) the Convention on the Rights and Duties of States (the 1933 treaty on statehood, sometimes called the Montevideo Convention) and (2) the 1969 Vienna Convention on the Law of Treaties. Any expected Israeli arguments for Palestinian autonomy or restricted sovereignty would be certain non-starters. It is only the actual Palestinian position that will need to be acknowledged by the prime minister before Palestinian statehood can be effectively countered. The most likely scenario in this matter will confront Prime Minister Netanyahu with a seemingly stark decision: to agree completely to creating a Palestinian state, or to reject it outright. But as neither polar prospect could work easily - one option would create intolerable strategic threats while the other would elicit intolerable global condemnation - a "compromise" position is apt to emerge. This position would involve Israel's formal acceptance of Palestinian statehood, yet only contingent upon the new Arab state's "demilitarization." Assuming that the Palestinian side would even agree to such an arrangement, could Palestinian demilitarization be acceptable to Israel? Or would a demilitarized Palestinian state in Judea/Samaria (West Bank) and Gaza still represent an unbearable peril? LEAVING aside expected pressures from US President Barack Obama and Secretary of State Hillary Clinton, Netanyahu should understand that demilitarization could turn out to be a very problematic compromise. There are hidden and significant dangers to the demilitarization route. The existential threat to Israel of any Palestinian state would lie not only in the presence or absence of a particular national armed force, but also in the many other enemy armies and insurgents that would inevitably compete for power in the new Arab country. There is another, less obvious, reason why a demilitarized Palestine would present a substantial security threat: International law would not necessarily expect Palestinian compliance with pre-state agreements concerning armed force. As a new state, Palestine might not be bound by any pre-independence compacts, even if these agreements had included certain US guarantees to Israel. Also, because authentic treaties can be binding only upon states, a non-treaty agreement between the Palestinians and Israel could be of no real authority and little real effectiveness. What if the government of a new Palestinian state were willing to consider itself bound by the pre-state, non-treaty agreement? Even in these relatively favorable circumstances, the new Arab government would have ample pretext to identify various strong grounds for lawful treaty termination. It could, for example, withdraw from the "treaty" because of what it regarded as a "material breach" (a violation by Israel that had allegedly undermined the object or purpose of the agreement). Or it could point toward what international law calls a "fundamental change of circumstances" (rebus sic stantibus). In this connection, should Palestine declare itself vulnerable to previously unforeseen dangers - perhaps even from the forces of other Arab armies - it could lawfully end its codified commitment to remain demilitarized. THERE is another factor that explains why a treaty-like arrangement obligating Palestine 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 and treaty-like agreements. This means that a Palestinian state could point to errors of fact or to duress as perfectly appropriate grounds for termination. Any treaty is void if, at the time it was entered into, it was in conflict 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 sovereign states to maintain military forces essential to self-defense is certainly such a rule, "Palestine" could be entirely within its lawful right to abrogate any agreement that had previously compelled its demilitarization. Netanyahu should thus take little comfort from the legal promise of Palestinian demilitarization. Should the government of any future Palestinian state choose to invite foreign armies or terrorists onto its territory (possibly after the original national government had been displaced or overthrown by more militantly Islamic anti-Israel forces), it could do so not only without practical difficulties, but also without necessarily violating international law. The overriding danger to Israel of Palestinian demilitarization is more practical than legal. In the final analysis, this Oslo/road map-driven pattern of intermittent territorial surrender, and also the freeing of terrorists, stems from a very deep misunderstanding of Palestinian goals. While Israeli supporters of Oslo or the road map continue to believe in a "two-state solution" (now also a mantra in Obama's Washington), the Palestinian Authority has other ideas. For the PA, as for most of the rest of the Arab/Iranian world, Palestine includes the entire State of Israel. For them, there can only be a "one-state solution." This annihilatory remedy is effectively the same as a final solution. Mr. Netanyahu, Palestinian demilitarization wouldn't make a Palestinian state any less dangerous. If you plan to oppose Palestinian statehood, as indeed you should, "Palestine" should be rejected in any and all of its potential forms. The writer is a professor of international law in the Department of Political Science at Purdue University and has written many books and articles on Israel and international law. He was chair of Project Daniel.