- - Thursday, March 6, 2014


With increasing desperation, Secretary of State John F. Kerry hopes to secure success for a long-elusive Middle East peace process. During all of his recent negotiations, the secretary has reiterated Israeli Prime Minister Benjamin Netanyahu’s unconditional demand that any Palestinian state be “demilitarized.”

While commendable for its faithful commitment to stipulated Israeli requirements, Mr. Kerry’s position on this particular element of settlement remains fanciful at best. This is because Palestinian demilitarization can never happen.

In essence, international law wouldn’t necessarily expect Palestinian compliance with any negotiated agreement limitations concerning armed force. What if the government of a fully sovereign Palestinian state were nonetheless willing to consider itself bound by a pre-state, demilitarization agreement? Even in these very improbable circumstances, the new Palestinian Arab government could still identify ample pretext and opportunity for lawful “treaty” termination.

Palestine could withdraw from any such agreement because of what it would regard as a “material breach,” a purported violation by Israel, one that had allegedly undermined the object or purpose of the accord. It could also point toward what international law calls “clausula rebus sic stantibus,” or a fundamental change of circumstances, which results in a “permissible abrogation.”

If Palestine should declare itself vulnerable to previously unforeseen dangers, perhaps even from the interventionary or prospectively occupying forces of certain other Arab armies, it could then lawfully end its previously codified commitment to stay demilitarized.

There is another reason why Mr. Netanyahu’s alleged hope for Palestinian demilitarization remains unsupportable. After declaring independence, a Palestinian government could point to any pre-independence errors of fact or to duress as appropriate grounds for selective agreement termination. Here, the usual grounds that may be invoked under domestic law to invalidate contracts could also apply under international law, whether to actual treaties or, as in this particular case, to lesser treaty-like agreements.

Strictly speaking, recalling the Vienna Convention on the Law of Treaties (1969), an authentic treaty must always be “between states.”

Any treaty or treaty-like compact is void if, at the time of entry into force, it conflicts with a “peremptory” rule of international law. This is a rule accepted by the community of states as one from which “no derogation is permitted.” Because the right of sovereign states to maintain military forces for self-defense is always such a rule, Palestine would be fully within its lawful right to abrogate any pre-independence agreement that had impermissibly compelled its own demilitarization.

Therefore, it follows that Mr. Netanyahu and Mr. Kerry should take no meaningful comfort from any purportedly legal promises of Palestinian demilitarization. Indeed, should the government of any future Palestinian state choose to invite foreign armies or terrorists on to its territory, even after the original government had been overthrown by more militantly jihadist/Islamic forces, it could do so not only without practical difficulties, but also without violating international law.

In the end, the core danger to Israel of any presumed Palestinian demilitarization would be more practical than legal. The current road map version of the Middle East peace process stems from a persistent misunderstanding of Palestinian history and goals. From the start, for example, all Palestinian factions have regarded all of Israel as “Occupied Palestine.” From the beginning, not a single Palestinian faction has expressed content with a state relegated to the West Bank (Judea and Samaria) and Gaza.

The Palestine Liberation Organization was formed in 1964, three years before there were any “Israel Occupied Territories.” What, then, was the PLO originally planning to “liberate?” The answer is plain.

Moreover, the Palestinians remain as divided and as fractionated as ever. It remains entirely unclear precisely who can speak with real authority for any still-plausible Palestinian state. For Israel and the United States, this irremediable condition of fragmentation further complicates any residual hopes hope for Palestinian post-state demilitarization.

Inevitably, a Palestinian state — any Palestinian state — would represent a mortal danger to Israel. This danger could not be removed or even reduced by Palestinian pre-independence commitments to demilitarize.

Mr. Kerry and Mr. Netanyahu should take heed.

Louis Rene Beres is a professor of international law at Purdue University.

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