Most Israelis acknowledge that a Palestinian state would pose intolerable risks for the Jewish state. Nonetheless, many might be less concerned about a demilitarized Palestine. Would such diminished concern be justified?
In 1995 and 1998, Zalman Shoval, a two-time Israeli ambassador to the United States, and I published several law journal articles clarifying the “demilitarization” trap. We argued that even if an impressive number of states would recognize “Palestine,” such recognition would still not satisfy long-settled expectations of international law. Among other things, the Convention on the Rights and Duties of States (1934), the treaty that defines all legal requirements of statehood, does not include recognition.
In principle, declarations of support for Palestinian “self-determination” could be considered reasonable if the Palestinian side were committed to a “two-state solution.” But the Palestinian Authority, Hamas and all the other “liberation movements” insist that there can be only one legitimate state in the area and that this state must be “Palestine.” It follows that anyone now seeking a “two-state solution” would be arguing for the creation of a criminal aggressor state.
Under international law, a state of Palestine would not necessarily be bound by its pre-independence compacts. Palestine could withdraw from agreements because of a “material breach,” an alleged violation by Israel that credibly undermined the object and/or purpose of the accord. Alternatively, it could point toward what international law calls rebus sic stantibus, a “fundamental change of circumstances.” If a Palestinian state were to declare itself vulnerable to previously unforeseen dangers, then it could lawfully end its previously “guaranteed” commitments to remain demilitarized.
There is another method by which a treaty-like arrangement obligating a new Palestinian state to accept demilitarization could be invalidated. Here, the usual grounds that can be invoked under domestic law to invalidate contracts would apply as well to treaties and treaty-like agreements under international law. This means that an openly irredentist Palestine could point to “errors of fact” or “duress” as permissible grounds for terminating negotiated pacts with Israel.
Following the Vienna Convention on the Law of Treaties (1969), any treaty or treaty-like agreement is considered void if, at the time it was entered into, it conflicts with a “peremptory” rule of general international law. This means a rule accepted and recognized by the worldwide community of states as one from which “no derogation is permitted.” Because the right of all sovereign states to maintain military forces essential to “self-defense” is precisely such a rule, Palestine, depending on the particular form of its institutionalized authority, could be within its rights to abrogate any prior arrangements to accept demilitarization.
In crafting a comprehensive post-Gaza war accord, Israel should draw no reassurance from earlier Palestinian promises to demilitarize. Should the government of a new state of Palestine ever choose to invite foreign armies or terrorists onto its territory—after the original government authority was displaced or overthrown by more militantly Islamist forces, for example—it could do so without practical difficulties and without violating international law.
What does all this ultimately mean for any Palestinian demilitarization “remedy?”
On Sept. 1, 1993, Palestinian leader Yasser Arafat affirmed that the Oslo Accords would remain an integral 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.” This resolution calls for “the establishment of a national authority on any part of Palestinian soil from which Israel withdraws or is liberated.”
Later, on May 29, 1994, Rashid Abu Shbak, then a senior P.A. security official, remarked straightforwardly: “The light which has shone over Gaza and Jericho will also reach the Negev and the Galilee.”
Since these early declarations, nothing has changed in authoritative Palestinian definitions of Israel and “Palestine.” This is true for the leaderships of both Hamas and P.A. It makes no tangible difference which jihadi terror group is in power, both would intend a state of Palestine that is irredentist and violence-centered.
The threat of Palestinian statehood is many-sided, part of a much larger and more portentous danger. This suggests, ipso facto, that any crime-based jihadi state would become a potent “force multiplier” for Israel’s enemies.
In a worst-case but still realistic scenario, the creation of Palestine would heighten the probability of catastrophic war in the region. Such a war could be global or inadvertent, and could become unconventional, meaning chemical, biological or nuclear. Moreover, a nuclear war could take place even if only one belligerent had nuclear weapons and if these nuclear weapons were merely radiological.
