WarSclerotic

There is no lack of irony in the endless discussions of Israel and a Palestinian state.

One oddly neglected example is the complete turnaround of former Israeli prime minister Shimon Peres. Recognized today as perhaps the proudest Israeli champion of a “Two State Solution” — sometimes also referred to as a “Road Map to Peace in the Middle East” — Peres had originally considered Palestinian sovereignty to be an intolerable existential threat to Israel. More precisely, in his book, Tomorrow is Now (1978), Mr. Peres unambiguously warned:

“The establishment of such a (Palestinian) 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…”

Now, Prime Minister Benjamin Netanyahu, in apparent agreement with this original position of Peres on Palestine, is nonetheless willing to go along with some form or another of a Palestinian state, but only so long as its prospective leaders should first agree to “demilitarization.” Netanyahu, the “hawk,” is now in agreement with the early, original warning of Peres, the “dove.” Peres’s assessment has been Netanyahu’s firm quid pro quo.

For Israel, as Mr. Netanyahu understands, legal mistakes and misunderstandings could quickly give rise to potentially irreversible harms. With reference to the particular matter of “Palestine,” the underlying hazards are complex, longstanding, and possibly global. These hazards would also only be exacerbated by any newly mandated (by the U.S., Russia, and/or United Nations) Israeli return of the Golan Heights to Syria. Then, armed militants could once again start shooting down at the farmers below, laboring on the Israeli plain.

History can help us better to understand the real outcome of any “Two-State Solution.” From the beginnings of the state system, in 1648, following the Thirty Years’ War, and the Peace of Westphalia, states have routinely negotiated treaties to provide security. To the extent that they have been executed in good faith, these agreements are fashioned and tested according to international law. Often, of course, disputes arise when signatories have determined that continued compliance is no longer in their presumed national interest.

For Israel, its 1979 Peace Treaty with Egypt remains fundamental and important. Still, any oscillating regime change or Islamist ascendancy in Cairo could easily signal an abrogation of this agreement. These same risks of deliberate nullification could apply to an openly secular Egyptian government, should its leaders (today, this would mean President el-Sisi) decide, for absolutely any reason, that the historic treaty with Israel should now be terminated.

Any post-Sisi regime that would extend some governing authority to the Muslim Brotherhood, to its proxies, or to its jihadist successors (such as ISIS), could produce a sudden Egyptian abrogation. Although the cessation of treaty obligations by the Egyptian side would almost certainly represent a serious violation of the 1969 Vienna Convention on the Law of Treaties, the governing “treaty on treaties,” there is little if anything that Israel or the so-called “international community” could do in response. In the still-insightful words of seventeenth-century English philosopher, Thomas Hobbes: “Covenants, without the sword, are but words….” (Leviathan).

Back to Palestine. As recently as last Friday, Palestinian Authority (PA) television, not Hamas, threatened the Jews, not just Israelis, with genocide:

PA TV Preacher: “Allah, punish Your enemies, the enemies of religion, count their numbers and kill them to the last one, and bring them a black day. Allah, punish the wicked Jews, and those among the atheists who help them. Allah, we ask that You bestow upon us respect and honor by enabling us to repel them, and we ask You to save us from their evil.” [Official PA TV, April 22, 2016]

That is just part of a wider security problem. Under law, Israel has a “peremptory” (irrefutable, not open to challenge or appeal) right to remain “alive.” It was, therefore, entirely proper for Mr. Netanyahu to have previously opposed a Palestinian state in any form. After all, both Fatah and Hamas have always considered, and still consider, Israel as simply part of “Palestine.” On their current official maps, all of Israel — not just West Bank, Judea and Samaria — is prominently identified as “Occupied Palestine.” As for Jerusalem, an April 15, 2016, UNESCO resolution was expressly dismissive of “so-called” Jewish sites, including the Western Wall.

Palestine, while not yet a fully sovereign state, is still a “nonmember observer state” of the United Nations. In that more limited capacity, “Palestine” had already been admitted into UNESCO, and, unsurprisingly, joined enthusiastically in the April 15, 2016 resolution calling into question all “Jewish sites.”

In the strict Islamic view, and not merely in narrowly jihadi or Islamist perspectives, Israel is described as the individual Jew writ large. The Jewish State, in this doctrinal view, must be despised and uprooted on account of the allegedly innate and irremediable “evil” that purportedly lurks within each and every individual Jew. This insidiously murderous viewpoint is a far cry from the more fashionable idea that Israel is somehow despised in the region “only” for legitimate political reasons, that it is supposedly an “occupier.” In reality, the Israeli is routinely despised in the Islamic world because its people do not submit to Islam. This alleged Jewish infirmity can never hope to be “healed.”

A current Egyptian textbook of “Arab Islamic History,” used widely in teacher training colleges, expresses these basic and crudely determinative 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.”[1]

In an earlier article in Al-Ahram by Dr. Lutfi Abd al-Azim, the famous commentator urged, 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.”[2]

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.”[3]

Finally, consider what Israel’s original Oslo Accords “peace partner,” Yasser Arafat, said on January 30, 1996, while addressing forty Arab diplomats at the Grand Hotel in Stockholm. Speaking under the title, “The Impending Total Collapse of Israel,” Arafat remarked unapologetically, and without any 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.”

Israeli Prime Minister Yitzhak Rabin, U.S. President Bill Clinton, and PLO chairman Yasser Arafat at the Oslo Accords signing ceremony on September 13, 1993. In 1996, Arafat publicly stated: “We Palestinians will take over everything … 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.” (Image source: Vince Musi / The White House)

In view of these repeatedly intolerant Arab views on Israel’s existence, international law should not expect Palestinian compliance with any pre-state agreements, including those concerning use of armed force. This is true even if these agreements were to include certain explicit U.S. security guarantees to Israel. Also, authentic treaties can be binding only upon states, therefore any inherently non-treaty agreement between a pre-state “Palestine” and Israel could quickly prove to be of little or no real standing or effectiveness.

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 functioning Palestinian government could still have ample pretext, and opportunity, to lawfully terminate the agreement. Palestine, for example, 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 (“fundamental change of circumstances”).

Here, if Palestine might decide to declare itself vulnerable to previously unforeseen dangers — perhaps even not from Israel but from other Arab armies or their sub-state proxies — it could lawfully end its previous commitment to remain demilitarized.

There is another factor that explains why Prime Minister Netanyahu’s conditioned hope for Palestinian demilitarization remains misconceived, and why Prime Minister Peres’s earlier pessimism remains well-founded. After declaring independence, a new Palestinian government, one possibly displaying the same openly genocidal sentiments, could point to particular pre-independence “errors of fact,” or “duress,” as appropriate grounds to terminate the agreement. 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 less authoritative agreements.

Any treaty or treaty-like agreement 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 deviation is permitted. Because the right of sovereign states to maintain military forces for self-defense is always such a rule, “Palestine” could be well within its lawful rights to abrogate any agreement that had, before its independence, compelled demilitarization.

In short, 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 or other Islamic forces, it could do so not only without practical difficulties, but also without necessarily violating pertinent international rules.

The core danger to Israel of any presumed Palestinian demilitarization is always far more practical than legal. The “Road Map” to “Palestine” still favored by U.S. President Barack Obama and most European leaders, stems from a persistent misunderstanding of Palestinian history, and, simultaneously, of the long legal history of Jewish life and title to disputed areas in Judea and Samaria (the West Bank) and Jerusalem. At a minimum, President Obama and, even more importantly, his successor, should finally recognize that the Palestine Liberation Organization (PLO) was formed in 1964; three years before there were any “occupied territories.” Exactly what, then was the PLO planning to “liberate”? This is a primary question that still cries out for a reasonable response.

A Palestinian state, any Palestinian state, would represent a mortal danger to Israel. This danger could not be relieved, even by the stipulated requirements of Israel’s current prime minister, or by any pre-independence Palestinian commitments to “demilitarize.”

Ironically, if by chance, a new state of Palestine would actually choose to abide by such pre-state commitments, it could then become more susceptible to a takeover by a jihadist organization such as ISIS.

In a staggeringly complicated region, filled with ironies, there are legal truths that should assist Israeli leaders to choose a more promising remedy to war and terror than an illusory “Two-State Solution.” Shimon Peres’s early warnings about “Palestine” were on-the-mark and should be heeded today.

Louis René Beres is Emeritus Professor of International Law at Purdue University. He can be reached at: lberes@purdue.edu