AFTER WYE RIVER

POLITICS, PALESTINIAN DEMILITARIZATION AND INTERNATIONAL LAW

By Louis Rene Beres

Now that the Wye River summit is behind us, Benjamin Netanyahu knows that he shall have to accept some form of Palestinian state next May. But in order to avert strong condemnation from Israeli and American opponents of Oslo, not to mention averting another major regional war, the Prime Minister will have to present this new Arab state as one that is effectively harmless to the Jewish State. It is now increasingly likely that such a fragile presentation will be founded upon prior Israeli agreement with Yasir Arafat on demilitarization.

There would be no reason for Arafat to refuse such an agreement. Not only would it allow him to declare his state without opposition from neighboring Israel, the presumed military constraints upon Palestine would be utterly toothless, a convenient fiction. In the end, the "demilitarization" of Palestine might save Netanyahu's government, but it would not save Israel.

Those Israelis whose support for the creation of a Palestinian state is contingent upon Palestinian demilitarization are sorely confused. International law will not necessarily require Palestinian compliance with pre-state agreements concerning weaponry and the 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, Palestine would not necessarily be bound by any preindependence 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 Authority (PA) and an extant State of Israel 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 an authentic treaty? Even in these seemingly 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 agreement because of what it would describe as a "material breach," an alleged violation by Israel that reportedly 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 agreement 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 and treaty-like compacts. 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 or treaty-like agreement 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 an agreement that had compelled its demilitarization.

Thomas Jefferson, who had read Epicurus, Cicero and Seneca, as well as Voltaire, Montesquieu, Holbach, Helvetius and Beccaria 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 preindependence 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. Israel, therefore, 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 violating international law. In the final analysis, of course, the overriding danger to Israel of accepting Palestinian statehood contingent upon demilitarization is more practical than legal, and stems preeminently from Israel's incomprehensible commitment to codified national suicide under Oslo.

At its heart, the problem of Israel's survival now lies in the Jewish State's basic assumptions concerning war and peace. While Israel's regional enemies, state and nonstate, believe that any power gains for Israel represent a power loss for them - that is, that they coexist with Israel in a condition of pure conflict - Israel assumes something very different. For Israel, relations with Arab/Islamic states and organizations are not, as these enemies believe, zero-sum relations, but rather a mutual- dependence connection, a nonzero-sum relation where conflict is mixed with cooperation. Israel, unlike its enemies, currently believes that any gain for these enemies is not necessarily a loss for itself. Indeed, since Oslo, Israel is generally unwilling even to identify its enemies as enemies.

Israel believes that its enemies also reject zero-sum assumptions about the strategy of conflict. Israel's enemies, however, do not make such erroneous judgments about conformance with Israeli calculations. These enemies know that Israel is wrong in its belief that Arab/Islamic states and organizations also reject the zero-sum assumption, but they pretend otherwise. There is, therefore, a dramatic and most serious disparity between Israel and its multiple enemies. Israel's strategy of conflict is founded upon miscalculations and false assumptions, and upon an extraordianry unawareness of (or indifference to) enemy manipulations. The pertinent strategic policies of Israel's enemies, on the other hand, are grounded upon correct calculations and assumptions, and upon an astute awareness of Israeli errors.

What does all of this mean, for the demilitarization "remedy" and for Israeli security in general? Above all, it positively demands that Israel make rapid and far-reaching changes in the manner in which it conceptualizes the continuum of cooperation and conflict. Israel, ridding itself of wishful thinking - of always hoping, hoping too much - should recognize immediately the zero-sum calculations of its enemies and should begin to recognize itself that the struggle in the Middle East must still be fought overwhelmingly at the conflict end of the continuum. The struggle, in other words, must be conducted - however reluctantly and painfully - in zero-sum terms.

Next, Israel should acknowledge immediately that its support for Oslo is fully inconsistent with both the zero-sum calculations of its enemies and with its own newly-recognized imperative to relate on the basis of zero-sum assumptions. By continuing to sustain Oslo, Israel, in effect, rejects correct zero-sum notions of Middle East conflict and accepts the starkly incorrect idea that its enemies also reject these notions. By rejecting Oslo, Israel would accept correct zero-sum notions of Middle East conflict and accept the correct idea that its enemies base their policies upon exactly these notions. By such rejection, Israel would also be acting in support of international law.

The newly-official map of "Palestine" shows the State of Palestine as comprising all of the West Bank (Judea/Samaria), all of Gaza, all of the State of Israel, and a slice of Jordan. Additionally, it excludes any reference to a Jewish population, and lists holy sites of Christians and Muslims only. The official cartographer, Khalil Tufakji, has been commisioned by the Palestine Authority (PA) to design and to locate a proposed Capitol Building, which he has drawn to be located on the Mount of Olives in Jerusalem, on top of an ancient Jewish cemetery.

On September 1, 1993, Yasser Arafat reaffirmed that the Oslo Accords are an intrinsic 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....The PNC Resolution issued in 1974 calls for the establishment of a national authority on any part of Palestinian soil from which Israel withdraws or which is liberated." Later, on May 29, 1994, Rashid Abu Shbak, a senior PA security official, remarked: "The light which has shone over Gaza and Jericho will also reach the Negev and the Galilee."

Speaking of maps, those who are concerned with Palestinian demilitarization and Israeli security ought to consider the following: The Arab world is comprised of 22 states of nearly five million square miles and 144,000,000 people. The Islamic world contains 44 states with one billion people. The Islamic states comprise an area 672 times the size of Israel. Israel, with a population of fewer than five million Jews, is - together with Judea/Samaria and Gaza - less than half the size of San Bernardino County in California. The Sinai Desert alone, which Israel transferred to Egypt in pursuance of the 1979 Treaty, is three times larger than the entire State of Israel.

We have seen that a fully-sovereign Palestinian state could lawfully abrogate preindependence commitments to demilitarize. It should also be noted that the Palestine Authority is guilty of multiple material breaches of Oslo and that it remains altogether unwilling to rescind genocidal clauses of the PLO Covenent calling for Israel's annihilation. It follows from all this that any plan for Palestinian demilitarization must be built upon sand.

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LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is Professor of International Law at Purdue University. His work on Israeli security matters is known widely in Israeli political, military and intelligence circles. He is Strategic and Military Affairs Analyst for THE JEWISH PRESS and THE MACCABEAN. The only son of Austrian Jewish survivors, he was born in Switzerland in 1945.

E-MAIL the author at: BERES@POLSCI.PURDUE.EDU



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