Why "Palestine" Would Be a Dangerous Legal Fiction
by Louis René Beres (January 2015)
This is because, inter alia, the governing treaty on statehood – the Convention on the Rights and Duties of States (1934) stipulates a number of explicit criteria that always must be satisfied, irrespective of recognition.i
Ironically, European and other states searching (more-or-less) for Middle East peace, are effectively urging the creation of another terror state. Most recently, this destabilizing advocacy position stems from a diplomatic framework known generally as The Road Map for Implementation of a Permanent Solution for Two States in the Israel-Palestinian Dispute. Together with an openly insistent Palestinian refusal to reject the “Phased Plan” (Cairo) of June 1974, and an associated no-compromise Jihadiv to “liberate” all of “Occupied Palestine” in increments,v the Road Map reveals still another largely unforeseen or deliberately unacknowledged danger.
On Sunday, June 14, 2009, Israeli Prime Minister Benjamin Netanyahu first agreed to accept a Palestinian state, but then also made this agreement contingent upon prior Palestinian “demilitarization.” Said the Prime Minister: “In any peace agreement, the territory under Palestinian control must be disarmed, with solid security guarantees for Israel.”
Although this position represented a very considerable concession on his part, it never had any real chance of success. It is odd, therefore, that the Prime Minister repeated this unrealistic expectation in his UN General Assembly speech on September 27, 2012.
There are antecedent legal problems here. Because true treaties can be binding only upon states,viii an agreement between a still non-state Palestinian Authority (PA), and an authentic sovereign state (Israel),ix would also have little real effectiveness.x
armies, it could “lawfully” end its sworn 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 alleged errors of fact, or to duress, as perfectly appropriate grounds for terminating the agreement.
the law of self-preservation overrules the law of obligation to others.”xv
Israel should draw no comfort from the purportedly legal promise of Palestinian demilitarization.xx Indeed, should the government of a new state of Palestine choose to invite foreign armies and/or terroristsxxi onto 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 practical difficulties, and without apparently violating international law.
Strangely, the plan for Palestinian statehood is still built upon the patently moribund Oslo Accords, ill-founded agreements unambiguously destroyed by persistent and egregious Arab violations. The basic problem with the Oslo Accords that underlies these violations should now be obvious. On the Arab side, Oslo-mandated expectations were 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,xxii and catastrophic Arab aggressions.xxiii
The enemy-sustained struggle, in other words, must generally be conducted, however reluctantly and painfully, in zero-sum terms. Understood in terms of international law and world order,xxvii this could mean, inter alia, a recurrent willingness in Jerusalem to accept the right,xxviii and corollary obligations of “anticipatory self-defense.”xxix
Additionally, they exclude any reference to a Jewish population, and list holy sites of Christians and Muslims only. One official cartographer, Khalil Tufakji, was commissioned by the Palestine National Authority to design and to locate a proposed Capitol Building. This was drawn to be located on the Mount of Olives in Jerusalem, directly on top of an ancient Jewish cemetery.
Since these declarations, nothing has changed in Palestinian definitions of Israel and Palestine. This is true for the current leadership of both Hamas and Fatah. It makes no difference which group is more-or-less in power.xxxii
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 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 around five 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.xxxiv
Sources:
[iv] Note, above, core “pacific settlement” expectations at Article 10 of the Convention on the Rights and Duties of States. For best current discussions of Jihad, see: Andrew G. Bostom, ed., THE LEGACY OF JIHAD: ISLAMIC HOLY WAR AND THE FATE OF NON-MUSLIMS (New York: Prometheus Books, 2005, 759 pp. This magisterial collection, using extensive primary and secondary source materials, reveals that for centuries, jihad sought to expand Islamic dominance by massacre, pillage, enslavement and deportation. The argument reproduces extensive quotations from the Qu’ran and the Hadith, along with Qu’ranic exegeses by the best-known classical and modern commentators.
[v] An expressly codified expectation of the Convention on the Rights and Duties of States is identified at Art. 10: “The primary interest of states is the conservation of peace. Differences of any nature which arise between them should be settled by recognized pacific methods.”
[vi] Antecedent Natural Law is based upon acceptance of certain principles of right and justice that prevail because of their own intrinsic merit. Eternal and immutable, they are external to all acts of human will and interpenetrate all human reason. This notion and its attendant tradition of human civility runs almost continuously from Mosaic Law and the ancient Greeks and Romans to the present day. The Stoics regarded nature itself as the supreme legislator in a moral order where man, through his divinely granted capacity to reason, can commune directly with the gods. As set forth in De Republica and De Legibus, Cicero’s classical concept of natural law underscores a principle that is now very much a part of the United States Constitutional foundation: that is, the imperative quality of the civil law is always contingent upon being in perfect harmony with reason. According to Cicero, justice is not – as the Epicureans claimed – a mere matter of utility. Rather, it is a distinct institution of nature that always transcends expediency and that must be embodied by positive law before such normative obligations can ever claim any proper human loyalties.
[vii] An earlier example of erroneous legal assumptions by Israel can be found in the Israel-Egypt Peace Treaty of 1979. (See: Treaty of Peace, March 26, 1979, Egypt-Israel, 18 I.L.M.). When vast portions of the worldwide Islamic community criticized then-President Sadat for his “traitorous” agreements with “the Jews,” Sadat reassured them that the Treaty was merely a tactical expedient to buy time until Egypt could fight another war against Israel. This was done when he stated, openly, that the Egypt-Israel Peace Treaty “is founded on Islamic rules, because it arises from a position of strength, after the holy war and victory Egypt achieved on 10th Ramadan 1393” (October 1973). See: Robert S. Wistrich, Anti-Semitism: The Longest Hatred (New York: Pantheon Books, 1991), p. 231.
[ix] On the State of Israel and Jewish sovereignty, see: Theodore Herzl, THE JEWISH STATE (Dover Publications, 1988). This Dover edition is an unabridged reproduction of the work published in 1946 by the American Zionist Emergency Council, which was, in turn, based on the first English-language edition. A JEWISH STATE, published in London, England, in 1896. The Herzl text was originally published in Vienna, in 1896, under the title: Der Judenstaat. Recognizing that “the nations in whose midst Jews live are all either covertly or openly anti-Semitic,” Herzl put the Jewish Question in the briefest possible form: “Are we to `get out’ now, and where to? Or, may we yet remain? And, how long?” Herzl, supra, at 86.
[xiii] This right extends to both the customary right of anticipatory self-defense and to the codified right of post-attack self-defense. Regarding the right of anticipatory self-defense, states do not always have to wait until after an attack is absorbed before embarking upon self-defense. Rather, where the threat is sufficiently imminent in point of time, they can choose to strike first, provided, of course, that the strike falls within the parameters of discrimination, proportionality and military necessity. Regarding the codified right of post-attack self-defense, see: U.N. Charter, art. 51.
[xv] See Jefferson’s “Opinion on the French Treaties” (April 28, 1793) in Merrill D. Peterson, ed., THE POLITICAL WRITINGS OF THOMAS JEFFERSON (Thomas Jefferson Memorial Foundation: 1993), pp. 113-114.
[xvi] For a source containing detailed provisions on demilitarized zones, see: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature, Dec. 12, 1977, 1125 U.N.T.S. 3, 16, I.L.M. 1391 (Protocol I).
[xviii] Article 38(1)(b) of the STATUTE OF THE INTERNATIONAL COURT OF JUSTICE describes international custom as “evidence of a general practice accepted as law.” The essential significance of a norm’s customary character is that the norms bind even those states that are not parties to the pertinent codification. Even where a customary norm and a norm restated in treaty form are apparently identical, these norms are treated as jurisprudentially discrete. During the merits phase of MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, the International Court of Justice (ICJ) stated: “Even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.” See: MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, Nicar. V. US., Merits, 1986 ICJ, Rep. 14 (Judgment of 27 June).
[xix] These authoritative bases of international law are drawn from art. 38 of the Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, T.S. 993.
[xxiv] For a discussion of authoritative international law criteria to distinguish permissible insurgencies from impermissible ones, see: Louis René Beres, “The Legal Meaning of Terrorism for the Military Commander,” CONNECTICUT JOURNAL OF INTERNATIONAL LAW, Vol. 11, No. 1., Fall 1995, pp. 1-27.
[xxviii] The customary right of anticipatory self-defense, which is the legal expression of preemption, has its modern origins in the Caroline Incident. This was part of the unsuccessful rebellion of 1837 in Upper Canada against British rule. (See: Beth Polebau, “National Self-Defense in International Law: An Emerging Standard for a Nuclear Age,” 59 N.Y.U. L. REV. 187, 190-191 (noting that the Caroline Incident transformed the right of self-defense from an excuse for armed intervention into a customary legal doctrine). Following the Caroline, even the threat of an armed attack has generally been accepted as justification for a militarily defensive action. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then-U.S. Secretary of State Daniel Webster outlined a framework for self-defense that does not actually require a prior armed attack. (See Polebau, op. cit., citing to Jennings, “The Caroline and McLeod Cases,” 32 AM. J. INT’L L., 82, 90 (1938).) Here, a defensive military response to a threat was judged permissible as long as the danger posed was “instant, overwhelming, leaving no choice of means and no moment for deliberation.” (See Polebau. supra, 61).
[xxxiii] See Palestinian Media Watch, Bulletin, Itamar Marcus and Nan Jacques Zilberdik, December 16, 2014.
[xxxv] These breaches include various forms of “perfidy.” Deception can certainly be legal under the law of armed conflict, but the Hague Regulations clearly disallow any placement of military assets or personnel in populated civilian areas. Prohibition of perfidy is codified at Protocol 1 of 1977, additional to the Geneva Conventions of 1949, and at Geneva IV, Art. 28. It is widely recognized that these rules are also binding on the basis of customary international law. Perfidy represents an especially serious violation of the law of war, one that is identified as a “Grave Breach” at Article 147 of Geneva Convention IV. Significantly, in our current context, the legal effect of perfidious behavior is always to immunize the preempting state from any unavoidable harm done to the perfidious party’s noncombatant populations. See, by this author, Louis René Beres, “Religious Extremism and International Legal Norms: Perfidy, Preemption and Irrationality,” CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW, Vol. 39, No. 3., 2007-2008, pp. 709-730.
[xxxvii] This term is used here in the most literal jurisprudential sense. (See: Convention on the Prevention and Punishment of the Crime of Genocide, Done at New York: December 9, 1948. Entered into force, January 12, 1951. 78 U.N.T.S. 277.) The Genocide Convention criminalizes not only the various stipulated acts of genocide, but also (Article III) conspiracy to commit genocide and direct and public incitement to commit genocide. Articles II, III and IV of the Genocide Convention are fully applicable in all cases of direct and public incitement to commit genocide. For the Convention to be invoked, it is sufficient that any one of the State parties call for a meeting, through the United Nations, of all the State parties (Article VIII).
First published in Israel National News.
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