Louis Rene Beres
A Palestinian state -- any Palestinian state -- would represent a mortal danger to Israel
From the beginning, from the moment a primal swerve toward human fragmentation in world politics first became apparent, states and empires have negotiated treaties to provide security. Strictly speaking, these formal agreements, in written form, are always fashioned and tested according to pertinent international law. Oftentimes, of course, disputes will arise whenever particular signatories should decide that continued compliance is simply no longer in their own "national interest."
For the moment,
Anypost-Mubarak regime that would extend some governing authority to the Muslim Brotherhood, or to its proxies, could result in a prompt Egyptian abrogation. Although any such willful cessation of treaty obligations by the Egyptian side would almost certainly be in violation of
For Israel, this should bring to mind the particular dangers of Palestinian statehood. In
This agreement seemingly represented a "smart" concession, but only if there can ever be any reasonable expectations of corollary Palestinian compliance. In fact, such expectations are entirely implausible. This is the case not only because all treaties and treaty-like agreements can be broken, but because, in this specific case, any post-independence Palestinian insistence upon militarization would likely be lawful.
International lawyers seeking to discover any "Palestine-friendly" sources of legal confirmation could conveniently cherry-pick pertinent provisions of the 1934
International law is not a suicide pact. Israel has a "peremptory" right to remain "alive." It was proper for Mr. Netanyahu to have previously opposed a Palestinian state in any form. After all, both
International law need not expect Palestinian compliance with any pre-state agreements concerning armed force. This is true even if these agreements were to include certain explicit U.S. security guarantees to Israel. Also, because authentic treaties can be binding only upon states, a non-treaty agreement between the Palestinians and Israel could quickly prove to be of little or no real authority, or effectiveness. This is to say nothing of the byzantine connections between
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 new Palestinian Arab government could still have ample pretext, and opportunity, to identify relevant grounds for lawful treaty termination.
Palestine could withdraw from the "treaty" because of what it regarded as a "material breach," a purported violation by Israel that had allegedly undermined the "object or purpose" of the agreement. Or it could point toward what international law calls Rebus sic stantibus; in English, the doctrine known as a "fundamental change of circumstances." Here, for example, if Palestine should declare itself vulnerable to previously unforeseen dangers, perhaps even from the interventionary or prospectively occupying forces of certain other Arab armies, it could lawfully end its codified commitment to remain demilitarized.
Another factor explains why Prime Minister Netanyahu's hope for Palestinian demilitarization remains ill-founded. After declaring independence, a new Palestinian state government could point to certain pre-independence errors of fact, or to duress, as appropriate grounds for agreement termination. The usual grounds that may be invoked under domestic law to invalidate contracts can also apply under international law, both to actual treaties, and to treaty-like agreements.
Any treaty 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 derogation is permitted." Because the right of sovereign states to maintain military forces for self-defense is always such a rule, "Palestine" could be fully within its lawful right to abrogate any agreement that had, before independence, compelled its demilitarization.
Mr. Netanyahu should take no comfort from any legal promises 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 government had been overthrown by more militantly Jihadist/Islamic forces, it could do so not only without practical difficulties, but also without necessarily violating international law.
In the final analysis, the core danger to Israel of any presumed Palestinian demilitarization is more practical than legal. The
A Palestinian state -- any Palestinian state -- would represent a mortal danger to Israel. This danger would not be relieved by any legal Palestinian pre-independence commitments to "demilitarize."
Louis René Beres is professor of political science and international law at
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