Few observers seem able to recognize noteworthy predictive connections between the unraveling situation in Syria and the likely outcomes of Palestinian statehood. Still, this overlooked linkage is significant. In essence, the whole abhorrent panoply of war crimes and crimes against humanity revealed in Syria, including perhaps the use of chemical weapons against civilians, is what we might also expect in "Palestine."
There, openly fratricidal warfare between Hamas, Fatah and several other Palestinian splinter groups could effectively replicate what we are witnessing today between pro- and anti-Assad forces in Syria.
There is more. With a newly emerging geostrategic polarity between Russia and the United States, the old Cold War antagonists could quickly line up on opposite warring sides in Palestine. Among other things, including possibly parallel cleavages in a steadily nuclearizing Iran, this polarity could portend substantially enlarged instabilities in the Middle East.
For all of its predictable liabilities, both national and regional, Palestine would represent an historically new state. While still not generally understood, there has never been a Palestinian state. Never.
Within all contending Palestinian factions, there is agreement on one central objective: that all prospective Palestinian leaders seek statehood because of an alleged right under international law to "self-determination." For them, the November 29, 2012 upgrade of the Palestinian Authority to the status of a "nonmember observer state" at the United Nations was merely an intermediary and partial achievement. Now, Hamas, Fatah and assorted sister groups will agree, there still needs to be a follow-on grant of full sovereignty.
Ironically, should this legally upgraded condition actually be realized, it would likely represent the juridical beginning of another Syria. Somehow, it has become customary to explain the Arab-Israeli conflict in terms of a purported absence of Palestinian "sovereign equality." More precisely, so proceeds this conventional narrative, the Middle East plainly requires the decently enhanced juridical symmetry of a "two-state solution." Only when a Palestinian state is created alongside the existing Jewish state, goes this contrived argument, can there be "peace."
To be sure, a great many evident holes puncture this feeble explanation, many of which have to do with its most utterly core assumptions. By now, we should all readily understand, no major Palestinian leader or faction could ever be content with "coexistence. " Rather, for this person or group, peace can be expected only when all of Israel has finally been incorporated into Palestine.
Seeing requires distance. The movement for Palestinian statehood has never really been about land. It has always been about God. In its modern form, moreover, the grotesque and ultimately genocidal Palestinian view of Israel stems from Hajj Amin el-Husseini's canonical Jew hatred, and the World War II-era Arab Muslim leader's corresponding promulgation of Jihad.
The 1988 "Hamas Covenant," a documentary wellspring of any future Palestinian state, explicitly ties the irreducible obligations of Jihad to Islamic rules: "It is necessary to establish in the minds of all the Muslim generations, that the Palestinian issue is a religious issue, and that it must be dealt with as such."
This recalcitrant view remains unhidden. Today, on any Palestinian Authority or Hamas map of the region, Israel is unambiguously identified as "Occupied Palestine." Naturally, such a conspicuously irredentist view does not bode well for area diplomacy. As recently as October 19, 2013, Hamas Prime Minister Ismail Haniyeh urged "armed resistance" as the only correct Palestinian orientation to Israel.
Enter Syria. With the Syrian civil war continuing to rage, even as President Bashar al-Assad is praised by U.S. President Barack Obama for reportedly complying with the destruction of his chemical weapons, we can get a palpable sense of what Palestine would look like. Although rarely considered in this manner, the current situation in Syria is actually a reliably portentous omen of what ultimately awaits in "Palestine."
To stalwart supporters of the "two-state solution," therefore, one ought to respond: "If you like Syria, you'll love Palestine."
The issues of Syrian disintegration and Palestinian statehood are closely related. This is true especially in their common reflection of irremediably deep rifts and fragmentations in the larger Arab world, and in their roughly analogous propensities for violence and cruelty. To be sure, in a Palestinian state, the internecine rivalries now so starkly evident in Syria could be quickly replicated between Hamas, Fatah and other assorted terror-group factions.
Once it is carved out of the still-living body of Israel, Palestine would almost certainly escalate its regular rocket bombardments upon Israeli cities. These terror attacks, from Gaza and elsewhere could then be augmented by multiple, coordinated missile assaults from Lebanon. Oddly enough, in such virulent circumstances, Sunni Hamas and Shiite Hezbollah would gleefully collaborate in a joint war. At the same time, Fatah could find itself under sustained attack from some of its Sunni "partners."
This is to say nothing about what might also be expected from Iran.
Israel, a country half the size of Lake Michigan, has had nothing to do with causing incessant regional conflict, backwardness and squalor. Undoubtedly, if Israel had never even been formally re-established in 1948, these disabling conditions would still be ubiquitous and full-blown. Nonetheless, although Washington fully understands the long and destabilizing history of scapegoating Israel, an almost atavistic mantra that echoes loudly from Morocco to Iran, U.S. President Barack Obama remains stubbornly committed to the unavoidable dead end of the "Road Map."
Israeli Prime Minister Benjamin Netanyahu reluctantly agreed to a Palestinian state in June, 2009. Still, he conditioned this apparently concessionary agreement upon prior Palestinian "demilitarization." Said the prime minister: "In any peace agreement, the territory under Palestinian control must be disarmed, with solid security guarantees for Israel."
In principle, it had sounded like a perfectly sensible and prudent position. The problem, however, is that in both geopolitical fact and in law, it offered no real obstacle to a fully-militarized Palestine or to a subsequent Palestinian war against Israel.
Neither Hamas, nor Fatah, whose "security forces" were trained by American General Keith Dayton in Jordan (at considerable American taxpayer expense), will ever negotiate for anything less than full sovereignty. Why should they? After all, supporters of Palestinian statehood can readily discover authoritative legal support for a dedicated military stance in certain binding international treaties.
Pro-Palestinian international lawyers seeking to identify self-serving sources of legal confirmation could conveniently cherry-pick pertinent provisions of the (1) Convention on the Rights and Duties of States (the 1933 treaty on statehood, sometimes called the Montevideo Convention), and (2) the 1969 Vienna Convention on the Law of Treaties.
As with any other state, Israel has a basic or "peremptory" right to survive. Originally, it had been perfectly proper for Netanyahu to strongly oppose a Palestinian state in any form, an opposition once even shared by Shimon Peres, himself the most conspicuously ardent Israeli champion of a "two-state solution." In his book, "Tomorrow is Now," Peres warned against accepting any form of Palestinian statehood.
Any Israeli arguments for Palestinian demilitarization, however carefully-fashioned and well-intentioned,are destined to fail. Jurisprudentially, international law would not expect Palestinian compliance with any pre-state agreements concerning the right to use armed force. It's that simple.
This position holds true even if these legal agreements were to include explicit U.S. guarantees. Per the Vienna Convention on the Law of Treaties, because authentic treaties can only be binding upon states, an inherently non-treaty agreement between the Palestinians and Israel could prove to be of little reliability and of no genuine legal authority.
What if the government of Palestine were somehow willing to consider itself bound by its pre-state, non-treaty agreement? Even in these very improbable circumstances, the new Arab administration would retain ample grounds for lawful treaty termination.
More precisely, a new Palestinian government could withdraw from the agreement because of what it would regard as a "material breach," that is, a reputed violation by Israel that had allegedly undermined the object or purpose of the agreement. It could also point toward what Latinized international law calls Rebus sic stantibus. In English, this relevant doctrine is known more clearly as a "fundamental change of circumstances."
If Palestine should declare itself vulnerable to unforeseen dangers, perhaps even from the interventionary or prospectively occupying forces of certain other Arab armies, it could lawfully end its previously-codified commitment to remain demilitarized.
Still another factor explains why Netanyahu's apparent hopes for Palestinian demilitarization are ill-founded. After declaring independence, any new Palestinian government could point to pre-independence errors of fact, or to duress, as appropriate grounds for agreement termination. Here, the usual grounds that may be invoked under ordinary domestic law to invalidate contracts could also be applied to treaties, or to treaty-like agreements.
Any treaty is void if, at the time of entry into force, it is in conflict with a "peremptory" rule of international law. This is a norm accepted by the community of states as one from which "no derogation is permitted." Because the right of sovereign states to maintain national military forces for self-defense is always such a rule, Palestine could be entirely within its lawful right to abrogate any agreement that had previously, before independence, compelled its demilitarization.
Netanyahu should take no comfort from any legal promises of Palestinian demilitarization. Should the government of any future Palestinian state choose to invite foreign armies or terrorists on to its territory, possibly after the original government had been overthrown by even more militantly Jihadist or Islamic forces, it could do so not only without practical difficulties, but also without violating international law.
The core danger to Israel of any promised Palestinian demilitarization is always more geopolitical than legal. The U.S.-driven Road Map stems from a consistently basic misunderstanding of Palestinian history and goals. At a minimum, Obama should finally recall that the Palestine Liberation Organization as formed in 1964. Significantly, this was three years before there were any "occupied territories."
What, then, were the Palestinians seeking to "liberate?" The answer, of course, was and still remains, all of Israel.
Louis Rene Beres is a professor of International Law at Purdue University. Born in Zurich, Switzerland at the end of World War II, he is the author of many major books and articles dealing with world politics, law, literature and philosophy.
- Read Michael Shank and Kimaris Toogood: Elections in Tajikistan Have Implications for U.S. Policy in Afghanistan
- Read Eric Hannis: China Challenges American Primacy in Central America With Nicaraguan Canal
- Check out U.S. News Weekly, now available on iPad