ISRAEL, PALESTINIAN DEMILITARIZATION AND INTERNATIONAL LAW

An Informed Response to MK Yossi Beilin

By Louis Rene Beres

Two versions of the so-called Beilin-Mazen Plan are currently being discussed in Israel and the Middle East generally. The Beilin or Israeli version calls for an independent Palestinian state that will be "demilitarized." The Palestinian or Mazen version calls for a fully-sovereign Palestinian state with the right of self-defense but with certain as yet unarticulated restrictions on armaments. The following response by Professor Beres offers jurisprudential reasons why the Beilin version should be rejected as naive and unsound. There is no reason for Professor Beres to respond to the Mazen version as the Palestinian side "makes no bones" about its intent to militarize.

Now that a Palestinian state is all but inevitable, both Israeli and Arab supporters of such a state argue confidently that Israel's security could be entirely safeguarded by demilitarization. There is no need to worry, say these supporters. The authoritative expectations of international law will be able to protect Israel.

But those who support the creation of a Palestinian state for this reason are mistaken. International law will not necessarily require Palestinian compliance with pre-state agreements concerning use of armed force. From the standpoint of international law, enforcing demilitarization upon a state of Palestine would be enormously problematic. As a fully sovereign state (and Palestinian authorities will settle for nothing short of full sovereignty), Palestine will not necessarily be bound by any pre-independence compacts, even if these agreements were to include U.S. guarantees. Because treaties can be binding only upon states, an agreement between a nonstate Palestine Liberation Organization (PLO) and an extant state would have no real authority and little real effectiveness.

What if the government of Palestine were willing to consider itself bound by the prestate, nontreaty agreement, i.e., if it were willing to treat this agreement as if it were an authentic treaty? Even in these relatively favorable circumstances, the new 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 would regard as a "material breach," an alleged violation by Israel that seemingly 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, if a Palestinian state declared 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 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 errors of fact or to duress as perfectly appropriate grounds for terminating the agreement. Moreover, any treaty is void if, at the time it was entered into, it conflicts 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 peremptory rule, Palestine, depending upon its particular form of authority, could be entirely within its right to abrogate a treaty that had compelled its demilitarization.

Thomas Jefferson, an early President of the United States who had read Epicurus, Cicero and Seneca, as well as Voltaire, Montesquieu, Holbach, Helvetius and Beccaria (and who became something of a philosophe himself) wrote the following about obligation and international law:

The Moral duties which exist between individual and individual in a state of nature, accompany them into a state of society and the aggregate of the duties of all the individuals composing the society constitutes the duties of that society towards any other, so that between society and society the same moral duties exist as did between the individuals composing them while in an unassociated state, their maker not having released them from those duties on their forming themselves into a nation. Compacts then between nation and nation are obligatory on them by the same moral law which obliges individuals to observe their compacts. There are circumstances however which sometimes excuse the nonperformance of contracts between man and man: so are there also between nation and nation. When performance, for instance, becomes impossible, nonperformance is not immoral. So if performance becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation to others.

Here it must be remembered that, historically, demilitarization is a principle applied to various "zones," not to the entirety of emergent states. Hence, a new state of Palestine might have yet another legal ground upon which to evade compliance with pre-independence commitments to demilitarization. It could be alleged, inter alia, that these commitments are inconsistent with traditional bases of authoritative international law - bases found in treaties and conventions, international custom, and the general principles of law recognized by "civilized nations" - and that therefore they are commitments of no binding character.

It follows from all of this that Israel should draw no comfort from the allegedly legal promise of Palestinian demilitarization. Indeed, 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 more militantly Islamic, anti-Israel forces), it could do so without practical difficulties and without necessarily violating international law. Ironically, if the original PLO government of Palestine perceived a threat of aggression from outside Arab forces, demilitarization could even result in Palestine inviting Israel to protect the new Arab state from mutual enemies.

The prospect of such an ironic invitation is not as strange as it appears. Because acceptance of such an invitation could likely be perceived by Israel as being in its own interests, Jerusalem's requested military involvement in Palestine could assuredly occur. Significantly, this involvement could bring Israel into a much wider war, which is exactly the intolerably dangerous kind of condition that a demilitarized Palestine would be intended to prevent in the first place. If such an outcome results from the Israeli attempt to stabilize a new and demilitarized Arab state neighbor, it would add yet another irony to the tragedy, a tragedy based in part upon a misunderstanding of pertinent international law. In the final analysis, of course, the overriding danger to Israel of Palestinian statehood and demilitarization is more practical than jurisprudential, and stems from Israel's self-inflicted abrogation of essential security needs codified in Oslo I and II.

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LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) Professor of International Law, Department of Political Science, Purdue University and is the author of fourteen books and several hundred journal articles dealing with international law. His work is very well-known to Prime Minister Netanyahu, the Legal Adviser's Office, and to the Prime Minister's Spokesman, David Bar-Illan.


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