Thursday, June 27, 2013

A Necessary Talk About the Palestinian Treaty Problem

A Necessary Talk About the Palestinian Treaty Problem

Posted: 26 Jun 2013 11:56 AM PDT

...More specifically, said the prime minister, "In any peace agreement, the territory under Palestinian control must be disarmed, with solid security guarantees for Israel." This was a very daunting condition. On the surface, of course, such a contingent agreement seemed to represent a manifestly "smart" concession, but only if there were also certain reasonable expectations of Palestinian compliance. In fact, such expectations were implausible. 

Louis René Beres..
U.S. News and World..
24 June '13..

From the beginning, the state of nations has been the state of nature. Always, states and empires are poised for war. Normally, in order to secure themselves within this condition of protracted peril, they have fashioned assorted written agreements under international law. These formal codifications, expressed as treaties, have sought to smooth over the dreadfully harsh realities of anarchic world politics.

Still, on a fragmenting planet, law insistently follows power politics. Throughout history, more or less grievous problems have arisen whenever particular signatories had determined that lawful compliance is no longer in the "national interest." The overriding takeaway here is that treaties can be useful whenever there is a conspicuous mutuality of interest, but they can also become worthless whenever such mutuality is expected to disappear.

For the moment, Israel's 1979 Peace Treaty with Egypt – Muslim Brotherhood rule in Cairo notwithstanding – remains in place. But, at literally any moment, should President Mohamed Morsi decide to shore up his popularity with important Islamist constituencies, this could change. While any willful abrogation of treaty obligations by the Egyptian side would almost certainly be in violation of The Vienna Convention on the Law of Treaties (1969), there is little that the United Nations or the wider "international community" could actually do about it.

For Israel, this prospect should raise a critical warning about certain related issues of Palestinian statehood. Already, in June 2009, Prime Minister Benjamin Netanyahu had agreed to the creation of a Palestinian state. Yet, with an apparent nod to presumptively prudent diplomacy, he also conditioned this acceptance upon Palestinian "demilitarization." More specifically, said the prime minister, "In any peace agreement, the territory under Palestinian control must be disarmed, with solid security guarantees for Israel."

This was a very daunting condition. On the surface, of course, such a contingent agreement seemed to represent a manifestly "smart" concession, but only if there were also certain reasonable expectations of Palestinian compliance. In fact, such expectations were implausible. This is not only because virtually all treaties and treaty-like agreements can easily be broken – an incontestable historical conclusion - but also because, more particularly, any post-independence Palestinian insistence upon militarization would likely be lawful.

Neither Hamas nor Fatah would ever accept anything less than full sovereignty. And why should they?

Consider this. International lawyers seeking to discover "Palestine-friendly" sources of legal confirmation could conveniently cherry-pick pertinent provisions of the Convention on the Rights and Duties of States (1934), the treaty on statehood. Moreover, they could apply the very same strategy of selective interpretation to the Vienna Convention on the Law of Treaties.

Israel has a "peremptory" or incontrovertible right to remain "alive." Originally, therefore, it was altogether reasonable for Netanyahu to have strenuously opposed a Palestinian state in any form, militarized or demilitarized. After all, the leaders of both Hamas and Fatah still regard all of Israel as "occupied Palestine." Moreover, they say this routinely, almost as an incantation, and without any reservation or obfuscation.

International law would not necessarily support Netanyahu’s insistence upon Palestinian demilitarization. These binding rules would not automatically expect Palestinian compliance with any pre-state agreements concerning armed force. This sobering statement remains correct even if these agreements were to include certain explicit U.S. guarantees to Israel.

There is more. Because authentic treaties can only be binding upon states, a non-treaty agreement between the Palestinians and Israel could quickly prove to be of little or no real authority or effectiveness. And this is to say nothing of the prominent and potentially synergistic connections between Hamas, the Islamic Resistance Movement, and the newly-strengthened Egyptian Muslim Brotherhood.

For the sake of argument, let us make the best case assumptions for Israel. What if the government of a new Palestinian state were somehow willing to consider itself bound by a pre-state, non-treaty demilitarization agreement? Here, even in these very improbably auspicious circumstances, the new Palestinian Arab government could still have ample pretext and opportunity for undertaking 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 termination doctrine known as a "fundamental change of circumstances." In this case, if Palestine should declare itself vulnerable to previously unforeseen dangers, perhaps even from the interventionary or prospectively occupying forces of other Arab armies, it could lawfully end its earlier and codified commitment to remain demilitarized.

There is another factor that explains why Netanyahu's alleged hope for Palestinian demilitarization remains misconceived. After declaring independence, a new Palestinian state government could point to any pre-independence errors of fact or to duress as perfectly appropriate grounds for agreement termination. In other words, the usual grounds that may be invoked under domestic law to invalidate contracts can also be applied under international law, whether to actual treaties or to merely treaty-like agreements. 

Any treaty is void if, at the time of entry, it conflicts 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 pre-independence agreement that had previously compelled its demilitarization.

It follows that Netanyahu should take no comfort from any ostensibly legal promises of Palestinian demilitarization. Indeed, should the government of any future Palestinian state choose to invite foreign armies or terrorists on to its territory, possibly even after the original government had been overthrown by more militantly Jihadist/Islamic forces, it could do so without any evident practical difficulties, and without violating relevant international law.

The core danger to Israel of any presumed Palestinian demilitarization is more practical than legal. The Washington-driven Road Map, a one-sided plan of land for nothing, stems from a persistent misunderstanding of Palestinian history and goals. At a minimum, President Barack Obama should finally understand that the Palestine Liberation Organization was formed in 1964. Significantly, this was three years before there were any "occupied territories." 

What, exactly, was the PLO trying to "liberate?"

Today, facing protracted uncertainty in Cairo, Israel might soon have to deal with the Morsi regime's abrogation of the 1979 peace treaty. Jerusalem, therefore, must take prompt steps to ensure that yet another determined enemy state will not be legitimized and imposed.

Sometimes, seeing requires distance. A Palestinian state - any Palestinian state - would represent a mortal danger to Israel. This danger would not be removed, or even relieved, by any Palestinian pre-independence commitments to demilitarize.

It's not all that complicated. In essence, the harmonizing promise of Palestinian demilitarization is pure subterfuge, both operationally and jurisprudentially. Accepting this promise as a reliable path toward Middle East peace would only bring the region to an even more corrosive condition of conflict. To stubbornly birth "Palestine" on such an illusory contingency, only a myopic gravedigger could expectantly wield the forceps.


Louis Rene Beres is a professor of International Law at Purdue University. Born in Zurich, Switzerland at the end of World War II, he is the author of many major books and articles dealing with world politics, law, literature, and philosophy.


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