WHY A DEMILITARIZED PALESTINIAN STATE WOULD NOT REMAIN DEMILITARIZED
A VIEW ACCORDING TO INTERNATIONAL LAW
Louis Rene Beres
Professor of International Law
Department of Political Science
West Lafayette IN 47907
Former Ambassador of Israel to the United States
Member of Knesset: 1970-1981; 1988-1990
E MAIL BERES@POLSCI.PURDUE.EDU
Let there be no mistake. Though Israel's Prime Minister Netanyahu may deny it, or perhaps even oppose it, Palestinian statehood is now a distinct probability. New attention is being focused on the alleged security advantages, for Israel, of demilitarization. Would a demilitarized Palestinian state in Judea/Samaria (West Bank) and Gaza represent a serious threat to Israel?
Not at all, say most supporters of the "Two State Solution" to this seemingly endless intercommunal conflict. Surely, argue proponents of this position, such a Palestinian state would likely be the weakest military entity on earth. From a purely tactical and political perspective, the fragility of this argument is clear. The hidden dangers of demilitarization are clear and compelling. If there were to be a Palestinian state in the transitional territories, its threat to the Jewish state would not only lie in the presence or absence of an Arab national armed force, but also in the many other Arab armies and insurgents that would inevitably compete for power in the new country.
There is another reason why a demilitarized Palestine would present Israel with a substantial security threat: International law would not necessarily expect Palestinian compliance with agreements concerning armed force. From the standpoint of international law, enforcing demilitarization upon Palestine would be problematic. As a sovereign state Palestine might not be bound by any pre-independence compacts, even if these agreements included U.S.guarantees. Because treaties can be binding only upon states, a non-treaty agreement between the P.L.O. and Israel would be of no real authority and little real effectiveness.
But what if the government of a new Palestinian state were willing to consider itself bound by the pre-state, non-treaty agreement, i.e., to treat this agreement as if it were an authentic treaty? Even in these relatively favorable circumstances, the new Arab 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 regarded as a "material breach" (a violation by Israel that allegedly undermined the object or purpose of the agreement). Or it could point toward what international law calls a "fundamental change of circumstances" (rebus sic stantibus). In this connection, should Palestine declare itself vulnerable to previously unforseen dangers - perhaps even from the forces of other Arab armies - it could lawfully end its codified commitment to remain demilitarized.
There is another factor that explains why a treaty-like arrangement obligating Palestine 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 and treaty-like agreements. This means that a Palestinian state could point to errors of fact or to duress as perfectly appropriate grounds for termination.
Moreover, any treaty is void if, at the time it was entered into, it was in conflict 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 rule, Palestine would be entirely within its right to abrogate any agreement that had compelled its demilitarization.
It follows from all this that Israel should take little comfort from the legal promise of Palestinian demilitarization. Indeed, should the government of a future Palestinian state choose to invite foreign armies or terrorists on to its territory (possibly after the original national government had been displaced or overthrown by more militantly Islamic anti-Israel forces), it could do so not only without practical difficulties but also without necessarily violating international law.
The overriding danger to Israel of Palestinian demilitarization is more practical than legal, stemming from Jerusalem's self-inflicted abrogation of Israel's national security. In the final analysis, this Oslo-driven abrogation derives from a profound misunderstanding of Palestinian goals and expectations. While Israeli supporters of Oslo and even some of its original opponents continue to believe in a "Two-State Solution," the Palestinian Authority has other ideas. For the PA, which has recently published an official map of "Palestine" that includes the area of the entire state of Israel, the "Two-State" formula may thus be no more than an interim solution.
LOUIS RENE BERES (Ph.D. Princeton) is the author of many books and articles dealing with Israel and international law.
AMB. ZALMAN SHOVAL, a former Member of Knesset, holds an advanced degree in political science and international relations from the Graduate Institute of International Studies, University of Geneva, Switzerland.