Louis René Beres
Louis René BeresPR

As an Israel-Hamas agreement is beginning to be carried out, participants and observers are again discussing Palestinian Arab statehood. To blunt the conspicuous perils of such an enemy state for Israel, proponents insist that a mutually-satisfactory remedy could lie in Palestinian Arab demilitarization. But even if an impressive number of existing states would argue forcefully for recognition of “Palestine,” these approvals would not satisfy the authoritative expectations of international law. The Convention on the Rights and Duties of States (1934) – the treaty that defines all requirements of statehood – explicitly identifies all pertinent criteria.

These binding standards do not include recognition.

In principle, perhaps, national declarations of support for “self-determination” could be reasonable if the Palestinian Arab side were authentically committed to a “Two-State Solution.” Yet the Palestinian Authority (PA) and Hamas still agree unambiguously that there can be only one legitimate state in the disputed areas; that state must be “Palestine.”

Respecting jihadi underpinnings for their new state, Palestinian Arab leaders in 'West Bank'(Judea/Samaria) and Gaza continue to support the view that Israel per se represents an abomination of the Dar al-Islam (the world of Islam). Always, in this non-negotiable and inherently annihilationist view, Israel remains nothing more than "Occupied Palestine.” It follows that states in world politics that will now seek a Two-State Solution would be urging nothing less than the creation of a predictably criminal aggressor state, one for whom the barbarism of October 7, 2023 represents a reliable template for future actions against Israel.

Much earlier, this wittingly lawless urging stemmed from a diplomatic framework known as The Road Map for Implementation of a Permanent Solution for Two States in the Israel-Palestinian Dispute. Together with Palestinian Arab refusal to reject the genocidal “Phased Plan” (Cairo) of June 1974 and a correlative Palestinian jihad to “liberate” “Occupied Palestine” in increments, the Road Map revealed a largely unforeseen peril. Even those plausibly well-intentioned states favoring "Palestine" were being misled by overly-optimistic hopes concerning “demilitarization.”

Back on June 14, 2009, Israeli Prime Minister Benjamin Netanyahu agreed to accept another enemy state. but also made such agreement contingent on Palestinian Arab demilitarization. Presently, Mr. Netanyahu, again as prime minister, joined by a majority of Israelis, opposes Palestinian Arab statehood in any form, even if accompanied by demilitarization. This is a correct position because Israel’s survival could not possibly coincide with such a bestowal of sovereignty.

In law, now as a presumptively sovereign state, 'Palestine' would not be bound by pre-independence compacts. Nonetheless, what if the government of 'Palestine' were in fact willing to consider itself bound by its pre-state agreements? Even in such relatively favorable circumstances, the Arab government of an openly irredentist terror state would retain legal pretext to implement lawful agreement terminations.

It’s time for greater specificity. For example, 'Palestine' could withdraw from the agreement 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 a "fundamental change of circumstances" (rebus sic stantibus). Here, if a Palestinian Arab state were to declare itself vulnerable to previously unforeseen dangers, even from forces of other Arab or Islamist armies, it could lawfully end its previously “guaranteed” commitments to stay demilitarized.

There is another method by which a treaty-like arrangement obligating a new Palestinian Arab state to accept demilitarization could lawfully be invalidated. In essence usual grounds that may be invoked under domestic law to invalidate contracts could apply equally to treaties and treaty-like agreements under international law. This means that a new state of 'Palestine' could point to alleged errors of fact or to duress as appropriate grounds for terminating any negotiated pacts with Israel.

Per the Vienna Convention on the Law of Treaties (1969), any treaty or treaty-like agreement is 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 international 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 such a rule, 'Palestine', depending upon the particular form of its institutionalized authority, could be within its rights to abrogate any prior arrangements designed to compel its demilitarization.

Thomas Jefferson, the third American President, wrote interestingly about obligation and international law. While affirming that "Compacts between nation and nation are obligatory upon them by the same moral law which obliges individuals to observe their compacts...," he also acknowledged: "There are circumstances which sometimes excuse the nonperformance of contracts between man and man; so are there also between nation and nation." Very specifically, Jefferson continued, "...the law of self-preservation always overrules the law of obligation to others."

In crafting a post-Gaza accord with Hamas and PA, Israel should draw no reassurances from any promises of Palestinian Arab demilitarization. Should the government of a new state of Palestine choose to invite foreign armies and/or terrorists 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 violating international law.

In significant measure, any prevailing plan for Palestinian Arab statehood would still be built on the moribund Oslo Accords, the ill-founded agreements destroyed by persistent Arab violations. To the point, for the Palestinian Arabs, Oslo-mandated expectations were never anything more than a cost-effective method of dismantling Israel. For the Israelis, these expectations were always taken as a more-or-less unavoidable way of averting future Palestinian Arab terror crimes and Islamist aggressions.

What does all of this ultimately mean, for any alleged Palestinian Arab demilitarization "remedy" and for Israel’s life or death security? In essence, the Arab world and Iran still have only a "One-State Solution" for the Middle East. It is a "solution" that eliminates Israel altogether, it is unassailably a "Final Solution." Even today, official Palestinian Authority maps of "Palestine" show the new jihadi state comprising all of the "West Bank" (Judea/Samaria), all of Gaza and all of the State of Israel itself.

On September 1, 1993, 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 PNC 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 senior PA 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 the Palestinian Arab definitions of Israel and "Palestine." This is true for the leaderships of both Hamas and PA. It may make no tangible difference whether one terror group or the other is in power. Both would intend a State of Palestine that is irredentist and crime-centered. The egregious crimes of October 7, 2023 would remain a proud symbol of Palestinian “self-determination.”

There is more. Those who would consider accepting Palestinian statehood in any form should consider the following: The Islamic world contains 50 states with more than one billion people. Islamic states comprise an area 672 times the size of Israel. Israel, together with Judea/Samaria, is less than half the size of San Bernardino County in California. The Sinai Desert, transferred by Israel to Egypt in the 1979 Treaty, is three times larger than the State of Israel.

Any Israeli plan for accepting Palestinian Arab demilitarization on promises of diplomatic comity and regional peace would be built upon sand. Accordingly, Israel should never base its assessments of Palestinian Arab statehood on any such illusory foundations. In the end, no Palestinian Arab leadership would ever accept the idea of demilitarization. an Israel-supported idea of “limited” Palestinian Arab statehood.

There is one last point: The many-sided threat of Palestinian Arab statehood is part of a larger and more portentous strategic whole.

This means, ipso facto, that such a crime-based jihadi state would become a tangible “force-multiplier” for Israel’s extant enemies, both state and sub-state. In a worst-case but still realistic scenario, the creation of “Palestine” would heighten the probability of a catastrophic international war in the region. At some not-too-distant point in time, this could mean a no-holds-barred unconventional conflict, including a nuclear war

LOUIS RENÉ BERES was was born in Zürich at the end of World War II, educated at Princeton (Ph.D., 1971) and is the author of many books and scholarly articles dealing with Israel and international law. His writings have appeared in Jurist; The New York Times; Yale Global; Harvard National Security Journal (Harvard Law School); The Atlantic; U.S. News & World Report; Los Angeles Times; Oxford University Press; The Hill; BESA Perspectives; INSS Strategic Assessment (Israel); Herzliya Conference Papers (Israel); The National Interest; Israel National News; and The Jerusalem Post. Dr. Beres' twelfth and latest book, Surviving Amid Chaos: Israel's Nuclear Strategy, was published by Rowman & Littlefield in 2016, 2nd edit., 2018. In Israel, he was Chair of Project Daniel (Iranian nuclear weapons, 2003-2004).