Israel Report

November 2001         



Palestinian Demilitarization: An Analysis

Professor Louis Rene Beres - November 19, 2001
Now that a Palestinian state is altogether inevitable, Prime Minister Sharon argues publicly that Israel´s security could still be safeguarded by Palestinian demilitarization. There is no need to worry, says the Prime Minister, the authoritative expectations of international law will be able to protect Israel. However, Sharon is sorely mistaken. International law will not necessarily require Palestinian compliance with pre-state agreements concerning the use of armed force. From the standpoint of international law, enforcing demilitarization upon a state of Palestine would be enormously problematic.

As a fully sovereign state, Palestine will not necessarily be bound by any pre-independence compacts, even if these agreements were to include U.S. guarantees. Because treaties can be binding only upon states, an agreement between a non-state Palestine Liberation Organization (PLO) or even a Palestinian National Authority (PNA) and an extant state would have little real effectiveness.

What if the government of "Palestine" were willing to consider itself bound by the pre-state, non-treaty agreement? In other words, what if it were willing to treat this agreement as if it were an authentic treaty? Even in these relatively favorable circumstances, the new government would have ample pretext to identify various grounds for lawful "treaty" termination. It could, for example, withdraw from the "treaty" because of what it would regard as a “material breach”, an alleged violation by Israel that seemingly undermined the object or purpose of the agreement. Alternately, it could point toward what international law calls a "fundamental change of circumstances" (rebus sic stantibus). In this connection, if a Palestinian state declared 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 method by which a treaty-like arrangement obligating a new Palestinian state 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. This means that the new state of Palestine could point to errors of fact or to duress as perfectly appropriate grounds for terminating the agreement. Moreover, any treaty is void if, at the time it was entered into, it conflicts 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 peremptory rule, Palestine, depending upon its particular form of authority, could be entirely within its right to abrogate a treaty that had compelled its demilitarization.

Thomas Jefferson, an early President of the United States who had read Epicurus, Cicero and Seneca, as well as Voltaire, Montesquieu, Holbach, Helvetius and Beccaria (and who became something of a philosopher himself), wrote the following about obligation and international law: “The Moral duties which exist between individual and individual in a state of nature, accompany them into a state of society and the aggregate of the duties of all the individuals composing the society constitutes the duties of that society towards any other, so that between society and society the same moral duties exist as did between the individuals composing them while in an unassociated state, their maker not having released them from those duties on their forming themselves into a nation.” Compacts, then, between nation and nation are obligatory on them by the same moral law which obliges individuals to observe their compacts. There are circumstances, however, which sometimes excuse the nonperformance of contracts between man and man and between nation and nation. When performance, for instance, becomes impossible, nonperformance is not immoral. So if performance becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation to others.

Here it must be remembered that, historically, demilitarization is a principle applied to various "zones," not to the entirety of emergent states. Hence, a new state of Palestine might have yet another legal ground upon which to evade compliance with pre-independence commitments to demilitarization. It could be alleged, inter alia, that these commitments are inconsistent with traditional bases of authoritative international law - bases found in treaties and conventions, international custom, and the general principles of law recognized by "civilized nations" - and that therefore they are commitments of no binding character.

It follows from all of this that Israel should draw no comfort from the allegedly legally binding promise of Palestinian demilitarization. Indeed, should the government of a new state of Palestine choose to invite foreign armies and/or terrorists onto its territory (possibly after the original government authority is displaced or overthrown by more militantly Islamic, anti-Israel forces), it could do so without practical difficulties and without necessarily violating international law. Ironically, if the original PLO/PNA government of Palestine perceived a threat of aggression from outside Arab forces, demilitarization could even result in Palestine inviting Israel to protect the new Arab state from mutual enemies. The prospect of such an ironic invitation is not as strange as it appears. Because acceptance of such an invitation could likely be perceived by Israel as being in its own interests, Jerusalem´s requested military involvement in Palestine could assuredly occur. Significantly, this involvement could bring Israel into a much wider war, which is exactly the intolerably dangerous kind of condition that a demilitarized Palestine would be intended to prevent in the first place. If such an outcome results from the Israeli attempt to stabilize a new and demilitarized Arab state neighbor, it would add yet another irony to the tragedy, a tragedy based in part upon a misunderstanding of pertinent international law.

In the final analysis, of course, the overriding danger to Israel of Palestinian statehood and demilitarization is more practical than jurisprudential and stems from Israel´s self-inflicted abrogation of essential security needs codified in Oslo I and II. The basic problem with the Oslo Accords should now be obvious to everyone. On the Arab side, Oslo-mandated expectations are nothing more than an optimally cost-effective method of dismantling Israel. On the Israeli side, these expectations are taken, more or less, as an unavoidable way of averting catastrophic war. The resultant asymmetry in expectations enhances Arab-Islamic power while it degrades and immobilizes Israel. Hence, Israel may soon face a carefully orchestrated assault on multiple fronts - internal convulsions spawned by Palestinians on both sides of the Green Line joined with external (possibly unconventional) attacks led by Syria, Egypt, Iraq and Iran.

At its heart, the problem of Israel´s existential vulnerability lies in the Jewish State´s basic assumptions concerning war and peace. While Israel´s regional enemies, state and non-state, believe that any power gains for Israel represent a power loss for them - that is, that they coexist with Israel in a condition of pure conflict - Israel assumes something very different. For Israel, relations with Arab/Islamic states and organizations are not, as these enemies believe, zero-sum relations, but rather a mutual-dependence connection, a nonzero-sum relationship where conflict is mixed with cooperation. Israel, unlike its enemies, currently believes that any gain for these enemies is not necessarily a loss for itself. Indeed, since Oslo, Israel has sometimes been unwilling even to identify its enemies as enemies. Israel believes that its enemies also reject zero-sum assumptions about the strategy of conflict. Israel´s enemies, however, do not make such erroneous judgments about congruence with Israeli calculations. These enemies know that Israel is wrong in its belief that Arab/Islamic states and organizations also reject the zero-sum assumption, but they pretend otherwise. There is, therefore, a dramatic and most consequential disparity between Israel and its multiple enemies. Israel´s strategy of conflict is founded upon miscalculations and false assumptions and upon an extraordinary unawareness of (or indifference to) enemy manipulations. The pertinent strategic policies of Israel´s enemies, on the other hand, are grounded upon correct calculations and assumptions and upon an astute awareness of Israeli errors.

What does all of this mean, for the demilitarization "remedy" and for Israeli security in general? Above all, it positively demands that Israel make rapid and far-reaching changes in the manner in which it conceptualizes the continuum of cooperation and conflict. Israel, ridding itself of wishful thinking - of always hoping too much – should recognize immediately the zero-sum calculations of its enemies and should begin to recognize that the struggle in the Middle East must still be fought overwhelmingly at the conflict end of the continuum. The struggle, in other words, must be conducted - however reluctantly and painfully – in zero-sum terms. Next, Israel should acknowledge immediately that its support for Oslo is fully inconsistent with zero-sum assumptions. By continuing to sustain Oslo, Israel, in effect, rejects correct zero-sum notions of the Middle East conflict and accepts the starkly incorrect idea that its enemies also reject these notions.

Furthermore, by a rejection of Oslo, Israel would also be acting in accord with international law. The Palestinian side has made multiple material breaches of Oslo in that, in practice, it rejects Israel’s existence. For example, the latest official map of "Palestine" shows the State of Palestine as comprising all of the West Bank (Judea/Samaria), all of Gaza and all of the State of Israel. Additionally, it excludes any reference to a Jewish population and lists holy sites of Christians and Muslims only. Also, the official cartographer, Khalil Tufakji, has been commissioned by the Palestine National Authority to design and to locate a proposed Capitol Building, which he has drawn to be located on the Mount of Olives in Jerusalem, on top of an ancient Jewish cemetery. Right from the start, on September 1, 1993, Yasser Arafat asserted that the Oslo Accords are 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....The PNC Resolution issued in 1974 calls for the establishment of a national authority on any part of Palestinian soil from which Israel withdraws or which is liberated." Later, on May 29, 1994, Rashid Abu Shbak, a senior PNA security official, remarked, "The light which has shone over Gaza and Jericho will also reach the Negev and the Galilee."

We have seen that a fully-sovereign Palestinian state could lawfully abrogate pre-independence commitments to demilitarize. It should also be noted that the Palestine National Authority is guilty of multiple material breaches of Oslo and that it remains altogether unwilling to rescind genocidal clauses of the PLO Covenant calling for Israel´s annihilation. It follows from all this that Prime Minister Sharon´s plan for accepting Palestinian demilitarization is built upon sand. Israel would do well not to base strategic assessments of Palestinian statehood upon such an unstable foundation.

Louis Rene Beres, professor of international law at Purdue University, is the author of twelve books and many articles dealing with international law.

©2001 - Arutz Sheva


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