Why ‘Palestine’ Would Be a Dangerous Fiction
“The first general law, which is to be found in the very end of the society of Nations, is that each Nation should contribute as far as it can to the happiness and advancement of other Nations.” Emmerich de Vattel, The Law of Nations (1758)
In candor, few if any states can ever claim to meet the high standard established by Emmerich de Vattel, one of the great founders of modern international law. Nonetheless, any such lofty jurisprudential expectation would be especially ironic in the prospective case of “Palestine.” This is the case because of the complete absence of any expressly cooperative or collaborative ethos in the Palestine Authority (PA).
There are both legal and practical problems associated with ongoing Palestinian demands for enhanced formal statehood. To begin with the first set of problems, even if other states should argue tenaciously for recognition of a 23rd Arab state, these actions would have no authoritative effect. The governing treaty on statehood — the Convention on the Rights and Duties of States (1934) — stipulates a number of distinctly explicit criteria that must always be satisfied, irrespective of recognition.
Other substantial problems must be acknowledged. In principle, at least, further declarations of support for Palestinian “self-determination” might not be per se unreasonable — if the Palestinian side were more authentically committed to a “Two-State Solution.” Yet, both the PA and its rival Hamas, even as they periodically struggle against each other, still manage to agree on two overriding points: (1) Israel represents an irremediably intolerable interloper in the Dar al-Islam (the world of Islam) on fundamental religious grounds, and (2) Israel is nothing more than “Occupied Palestine.”
Perhaps lacking full understanding of pertinent international law, and also of antecedent Natural Law, certain states favoring “Palestine” that are plausibly well-intentioned are being misled by overly-optimistic hopes concerning Palestinian “demilitarization.”
On June 14, 2009, Israeli Prime Minister Benjamin Netanyahu first agreed to accept a Palestinian state, but at that time also made any such agreement contingent upon prior Palestinian “demilitarization.” More precisely, said Netanyahu, “In any peace agreement, the territory under Palestinian control must be disarmed, with solid security guarantees for Israel.”
Although this formal Israeli position represented a considerable concession, it never really had any tangible chance of success. Oddly, therefore, Prime Minister Netanyahu repeated this profoundly unrealistic expectation in his UN General Assembly speech on September 27, 2012, and also on several subsequent occasions.
Under the very best assumptions for Israel, basic security could be suitably maintained if Palestine were actually demilitarized. But, in view of expected Palestinian manipulations of all relevant international law (“lawfare”) — manipulations deducible from all major policy statements and codified platforms — these assumptions remain unpersuasive. Conveniently for the PA, it could always be made to appear that such law does not necessarily require Palestinian compliance with “pre-state” agreements concerning the use of armed force.
In this regard, the seemingly recalcitrant Palestine position on proposed demilitarization could actually prove correct.
In essence, as a now presumptively independent state, pre-independence compacts might not legally bind Palestine, even if the particular agreements in question had included expressly relevant UN and/or US assurances to the contrary.
There are some antecedent legal problems here. Because true treaties can be binding only upon states, an agreement between a still non-state PA and an authentic sovereign state (Israel), would have little real or tangible effectiveness.
The PA could, for example, withdraw from the “treaty” because of what it would then regard as a “material breach,” an alleged violation by Israel that credibly undermined the object and/or purpose of the agreement. Alternatively, it could point toward what international law calls a “fundamental change of circumstances” (rebus sic stantibus). In this connection, if a Palestinian state were to declare itself vulnerable to previously unforeseen dangers, perhaps even from the forces of other Arab armies, it could lawfully end its previously sworn commitment to remain demilitarized.
Israel should draw no compensatory comfort from the purportedly legal promise of Palestinian demilitarization. Indeed, should the government of a new state of Palestine choose to invite foreign armies and/or terrorists on to its territory (possibly after the original government authority is displaced or overthrown by even more militantly Islamic, anti-Israel forces), it could do so without any practical difficulties, and without violating international law.
Strangely, the still-prevailing plan for Palestinian statehood is built upon the patently moribund Oslo Accords, ill-founded agreements now unambiguously destroyed by persistent and egregious Arab-state violations. By now, the basic problem with the Oslo Accords that underlies these violations should be obvious. On the Arab side, Oslo-mandated expectations were really never anything more than an optimally cost-effective method of dismantling Israel. On the Israeli side, these expectations were taken, more or less, as an unavoidable way of averting further Palestinian terrorism, and, as corollary, of preventing catastrophic Arab aggression.
The resultant asymmetry in expectations, never acknowledged by the UN, has generally enhanced Arab power, while it has systematically weakened and degraded Israel. Even now, even after “Operation Iraqi Freedom” and the endless war in Afghanistan, even after the rise of ISIS and the ongoing Syrian genocide, undisguised Palestinian calls to “Slaughter the Jews” have generally failed to dampen international enthusiasm for what amounts to another irredentist terrorist state. Even now, when much of the “international community” plans to midwife the birth of such a prospectively refractory state, its multiple representatives refuse to understand that only a lascivious gravedigger could wield the forceps.
What does all of this mean for any alleged Palestinian demilitarization “remedy” and for Israeli security? Above all, it demands that Israel make rapid and far-reaching changes in the manner in which it conceptualizes the critical continuum of cooperation and conflict. Israel, ridding itself of injurious wishful thinking, of always hoping, of hoping too much, should recognize the relentlessly zero-sum calculations of its enemies. Accordingly, Jerusalem must finally begin to acknowledge that this doctrinally-based struggle in the Middle East — a Palestinian doctrine of Islamic supremacy and “purity” — must inevitably be fought at the conflict end of the range.
The enemy-sustained struggle, in other words, must generally be conducted, however reluctantly and painfully, in starkly zero-sum terms. Understood in terms of international law and world order, this could mean, among other things, a recurrent willingness in Jerusalem to accept the right and corresponding obligation of “anticipatory self-defense.”
Unambiguously, the Arab world and Iran still believe in a “One-State Solution” for the Middle East. It is a “solution” that ultimately eliminates Israel altogether, a physical solution, a “Final Solution.” The official PA maps of “Palestine” still show the new Arab state comprising all of the West Bank (Judea/Samaria), all of Gaza, and all of the State of Israel.
These maps also exclude any references to an indigenous Jewish population, and list the holy sites of only Christians and Muslims. One official cartographer, Khalil Tufakji, was commissioned by the Palestine National Authority to design and locate a proposed Palestinian Capitol Building. This was drawn to be located on the Mount of Olives in Jerusalem, directly on top of an ancient Jewish cemetery.
On September 1, 1993, Yasser Arafat loudly reaffirmed that the then-new 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 declarations, which bear little resemblance to Emmerich de Vattel’s classic cornerstone expectations of statehood, nothing has changed in the Palestinian definitions of Israel and “Palestine.” This is true for the current leadership of both Hamas and the PA. Significantly, it may make no palpable difference whether one terror group or the other is more-or-less in power.
In his sermon, presented on official PA television on December 12, 2014 — and in the presence of PA President Mahmoud Abbas — Mahmoud Al-Habbash, the PA’s Supreme Shari’ah Judge, and President Abbas’ Adviser on Religious and Islamic Affairs, stated candidly: “All of this land will return to us, all our occupied land, all our rights in Palestine — our state, our peoples’ heritage, our ancestors’ legacy — all of it will return to us, even if it takes time.”
Earlier, on October 22, 2014, Al-Habbash had already reaffirmed that any acceptance of Israel’s physical existence is firmly forbidden under Islamic law: “The entire land of Palestine (i.e., territory that includes all of Israel) is waqf (an inalienable religious endowment under Islamic law), and is a blessed land. It is prohibited to sell, bestow ownership, or facilitate the occupation of even a millimeter of it.”
Those who are concerned with Palestinian demilitarization and Israeli security ought to also consider the following: The Arab world is presently comprised of 22 states of nearly five million square miles and substantially more than 150,000,000 people. The Islamic world generally contains 50 states with more than one billion people. The Islamic states comprise an area 672 times the size of Israel. Israel, with a population of more than six million Jews, is together with Judea/Samaria less than half the size of San Bernardino County in California. The Sinai Desert alone, which Israel transferred to Egypt in the 1979 Treaty, is three times larger than the entire State of Israel.
A presumptively sovereign Palestinian state could lawfully abrogate its pre-independence commitments to demilitarize. In the past, the Palestine Authority has been guilty of multiple material breaches of Oslo, and also of certain “grave breaches” of the law of war. Further, both the PA and Hamas remain determinedly unwilling to rescind expressly genocidal calls for Israel’s annihilation.
Any plan for accepting Palestinian demilitarization on grounds of comity (“happiness” and “advancement” in the world community) would be built upon sand. It follows that Israel should never base its geo-strategic assessments of Palestinian statehood upon any such illusory jurisprudential foundations.
No doubt, Prime Minister Benjamin Netanyahu, by his earlier announced acceptance of a Palestinian state that had formally agreed upon its own demilitarization, believed that he had just taken a concessionary step toward reconciliation — one that would “contribute as far as it can to the happiness and advancement” of both Israel and “the other nations.”
Yet, as we have just seen, the Palestinian leadership will never accept or even consider any Israel-proposed idea of “limited” statehood, particularly of a state lacking even the utterly core prerogatives of national self-defense. Whether Jerusalem likes it or not, this means that if Israel should ever be willing to accept a genuinely sovereign Palestinian state, it would have to base this reluctant acceptance upon an expectedly intransigent enemy state endowed with all normal and unhindered military rights.
At the “bottom line,” this effectively unassailable conclusion does not suggest or imply any future Israeli surrenders or capitulation to “Palestine,” but only that Jerusalem fashion its own indispensable security policies at preeminently pragmatic rather than wishfully jurisprudential levels.
Louis René Beres was born in Zürich, Switzerland, at the end of World War II and educated at Princeton (Ph.D., 1971). He is the author of many books and scholarly articles dealing with Israel and international law. The original and expanded version of this article originally appeared at JURIST.