Notwithstanding US President Donald Trump's repeated campaign promises to Israel that he would not favor Palestinian statehood, these pledges (following certain other Israel-related promises he subsequently disregarded) are apt to go by the wayside. More precisely, Mr. Trump's pertinent military advisors are currently looking closely at a plan drafted by Gen. John Allen during the Obama years. Among other things, including a proposed IDF withdrawal from the Jordan Valley, the so-called "Allen Plan" is premised largely upon the purported security advantages to Israel of Palestinian demilitarization.
This core premise is unfounded. To be sure, the idea of somehow allowing a state of Palestine on the exceptional contingency of not having usual military forces was articulated and supported earlier by Israeli Prime Minister Benjamin Netanyahu: "In any peace agreement," said the Prime Minister on June 14, 2009, "the territory under Palestinian control must be disarmed, with solid security guarantees for Israel."
At first hearing, this contingent requirement would appear to be "exculpatory" for the Allen Plan, and more generally, "smart." After all, there should be no logical reason for Israel to fear a Palestinian state that had agreed in advance to its own ongoing demilitarization. As a practical matter, however, there could never be any persuasive hopes for Palestinian compliance with such a requirement. The reason is not only because treaties and treaty-like agreements can be too-easily broken, but also because virtually any post- independence insistence upon Palestinian militarization could prove inherently and indisputably lawful.
On November 29, 2012, UN General Assembly Resolution 11317 expressly conferred upon the Palestinian Authority (PA) the quasi-sovereign status of a "non-member observer state." Once this intermediary or de facto status were superseded by any actual cession of sovereignty, however, Palestine could find ample and arguably legal grounds for refusing any previous agreement to demilitarize. Sympathetic lawyers seeking to discover assorted "Palestine-friendly" sources of legal confirmation could conveniently cherry-pick pertinent provisions of the Convention on the Rights and Duties of States (1934), the governing treaty on statehood.
They could then apply the very same crudely selective strategy to entirely self-serving applications of the similarly-foundational Vienna Convention on the Law of Treaties (1969).
Reciprocally, of course, Israel always has a "peremptory" or incontrovertible legal right to exist. It was, therefore, entirely proper for Prime Minister Netanyahu to have originally opposed Palestinian statehood in any form. Unambiguously, the Palestinian Authority still regards all of Israel as "occupied Palestine." Moreover, they affirm this corrosively irredentist view routinely, cartographically, and without any efforts at obfuscation.
The Palestine Liberation Organization (PLO) was first formed in 1964, three years before there were any "occupied territories." What, exactly, were the Palestinians trying to "liberate?" It's not a difficult question.
Whatever else might be supposed in Washington, International law could never reliably support Mr. Netanyahu’s expected insistence upon Palestinian demilitarization. These binding global rules would not necessarily expect authoritative Palestinian compliance with any pre-state agreements concerning armed force. Further, this critical non-support would obtain even if these agreements were somehow to include thoroughly explicit and altogether recognizable US security guarantees to Israel.
Looking forward, it is increasingly problematic that the Trump administration would ever meaningfully link US security to the safety of the Jewish State. Also evident is that President Donald Trump is far more apt to be guided by the pertinent wishes and expectations of Russian President Vladimir Putin than by those of Israel's Benjamin Netanyahu.
Because authentic treaties can only be binding upon states, a non-treaty agreement between the Palestinians and Israel could quickly prove to be of little real authority or effectiveness. And this is to say nothing of the earlier de jure demise of the Palestinian Authority. Technically, following the Palestine Liberation Organization (PLO) Decree of January 3, 2013, the Palestinian Authority ceased even to exist. On all official documents, seals, signs, and letterheads, the term Palestinian Authority was to have been replaced by "State of Palestine."
For the most part, such linguistic (but not substantive) replacement has been implemented.
While still a legal fiction from the standpoint of fulfilling earlier Oslo Agreements and certain derivative obligations of the Middle East Peace Process, a State of Palestine could preclude the plausibility of any further negotiations. It would also mock any residual optimism concerning some sort of Two-State Solution. Of course, if the State of Palestine were already consistent with broader sovereignty-related expectations of international law – especially, the Convention on the Rights and Duties of States – there would then be no need for any ongoing Middle East Peace Process in the first place.
But what if the government of a genuine Palestinian state (one created in direct consequence of a formal agreement between Israel and the current "State of Palestine") was somehow willing to consider itself credibly bound by a pre-state, non-treaty demilitarization agreement? Significantly, even in these very improbable circumstances, the new Palestinian Arab government could still identify ample pretext and opportunity to execute lawful "treaty" termination.
More specifically, Palestine could withdraw from the agreement because of what it would then regard as a "material breach," an alleged violation by Israel, one that had allegedly undermined the "object or purpose" of the accord. Or it could point toward what international law calls Rebus sic stantibus. In English, this doctrine of "permissible abrogation" is known more popularly as a "fundamental change of circumstances." If Palestine should ever declare itself vulnerable to previously unforeseen dangers, perhaps even from the interventionary or prospectively occupying forces of certain other Arab armies or terror organizations (e.g., ISIS), it could lawfully end its codified commitment to remain demilitarized.
Another factor can help to explain why any supposed hopes for Palestinian demilitarization should remain ill advised. After declaring independence (again), a now newer Palestinian government could point to any pre-independence errors of fact, or to duress, as fully appropriate grounds for agreement termination. Such usual grounds that may be invoked under domestic or municipal law to invalidate contracts can also apply under international law, whether to actual treaties, or, as in this particular case, to lesser "treaty-like" agreements.
Strictly speaking, to recall the Vienna Convention on the Law of Treaties, a true treaty must always be "between states."
There is more. Any treaty is void if, at the time of entry, it conflicts with a "peremptory" rule of international law, that 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 invariably such a rule, Palestine could be fully within its lawful right to abrogate any pre-independence agreement that had previously compelled its own demilitarization.
Seekers of a Middle East peace should take no comfort from any 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, possibly after the original government had itself been overthrown by more militantly Jihadist/Islamic forces, it could likely do so not only without any overriding practical difficulties, but also without violating relevant international law.
In the end, the core danger to Israel of any presumed Palestinian demilitarization would be far more practical than legal. The recycled Two-State Solution apt to be favored by US President Trump still stems from a persistent misunderstanding of Palestinian history and goals. Inevitably, a Palestinian state – any Palestinian state – would present a mortal danger to Israel. This existential peril could never be removed or even diminished by codified Palestinian pre-independence commitments to demilitarize, even if all perfectly legal.
For the foreseeable future, a demilitarized Palestinian state must represent an utterly stark contradiction in terms. Accordingly, any proposed acceptance of the "Allen Plan," however well-intentioned, and whatever its final permutation, would represent another move backward for both Israel, and the still-dissembling Middle East.
Louis René Beres, a frequent contributor to Israel Defense, is Emeritus Professor of International Law at Purdue. He is the author of many books and articles dealing with Israel and international law.