It is usual to explain the Arab-Israeli conflict in terms of presumably unfair penalties imposed upon Palestinians. More precisely, so goes this conventional narrative, there has been a steady, deliberately-engineered, and incremental erosion of Palestinian sovereign equality with Israel. What is allegedly required, therefore, is clear. All parties should accept the enhanced legal symmetry offered by a “two-state solution.” Then, concludes the narrative, only after a Palestinian state has been "re-created" alongside the existing Jewish State, and in a fully remediating condition of lawful parity, can there be peace. It all sounds quite reasonable. Still, there are fundamentally serious problems with this argument. Most of these difficulties have to do with the incorrectness of its most critical factual assumptions. Undoubtedly, the most egregious error is the narrative's willful failure to acknowledge that a legal state of Palestine never existed. The entire Palestinian narrative is a contrivance. It is constructed upon an elaborate historical fiction. Only because it has been repeated, again and again, ritualistically, like a religious incantation, do so many now believe that it absolutely must be true. Even today, now several years after the UN General Assembly declared Palestine to be a non-member observer state, there is still no tangible evidence that Palestine is able to meet any of the minimal requirements of statehood. These standards are most plainly expressed at the authoritative Convention on the Rights and Duties of States (1934), sometimes also called the "Montevideo Convention." They are not appropriately subject to political rather than legal interpretation.The conventional Palestinian narrative on statehood contains another very basic flaw. Incontestably, in all present and future matters concerning Israel, no effective Palestinian leader or faction will ever be content with "coexistence." Rather, for this person or group, peace could be expected only after Israel has been fully incorporated into Palestine. This utterly refractory view is unhidden. On any Palestinian Authority or Hamas map of the region, Israel is identified as “Occupied Palestine.” What more need be said by the Palestinian leaders about "compromise"? An expressly retrograde and irredentist perspective cannot possibly offer a promising beginning for purposeful diplomacy.Enter Syria. With civil war continuing to rage in that tormented country, we can get an accurate and disturbingly palpable sense of what any aspiring Palestinian state would look like. In essence, the current situation in Syria is a premonition, a reliably portentous omen of what might still await in “Palestine.” It follows that, If you like Syria, you will love Palestine. This position would not be gratuitously cynical, or narrowly partisan. It could, in fact, be altogether well-reasoned, and also darkly compelling.More than may first meet the eye, the two issues of ongoing Syrian disintegration and developing Palestinian statehood are closely related. This is especially noteworthy: (1) in their common reflection of deep rifts and fragmentation in the larger Arab world; and (2) in their roughly analogous propensities for mass casualty violence and cruelty. In a Palestinian state, any Palestinian state, the internecine rivalries now so starkly corrosive in Syria would be replicated, between Hamas, Fatah, and other assorted terror-group factions.Once it is literally carved out of Israel, in a zero-sum excision which remains the so-called Road-Map's only proposed path to "self-determination," Palestine would escalate rocket bombardments upon Israeli cities. These terrorizing attacks, from Gaza, and elsewhere in the new country, could be augmented by multiple, coordinated missile assaults originating from Lebanon. In such probable circumstances, Sunni Hamas and Shiite Hezbollah would gleefully collaborate in a joint war against “the Jews.” At the same time, Fatah would likely fall under a sustained attack from certain of its Sunni “partners.” This is to say nothing about direct attacks that could also be expected from Iran.Israel, a country half the size of Lake Michigan, has had nothing to do with creating incessant regional conflict, backwardness, and squalor. Undoubtedly, if Israel had never even been formally re-established in 1948, these disabling area conditions would still be ubiquitous and full-blown. Although Washington should understand the long and destabilizing history of scapegoating Israel, an almost atavistic history that continues to echo loudly from Morocco to Iran, US President Barack Obama remains stubbornly committed to the “Road Map.”This is a very twisted piece of cartography. It can lead Israel and the United States only to various detours and dead ends. Before a 23rd Arab state could be born from the still-living body of Israel, an unwitting American gravedigger would need to wield the forceps.In June 2009, Prime Minister Binyamin Netanyahu agreed to a Palestinian state. But, Mr. Netanyahu carefully 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, at least, it had sounded like a perfectly sensible and prudent condition. The problem, however, is that in both fact and law, it offered no real obstacle to a fully-militarized Palestine, or to any subsequent war of aggression that might still be mounted against Israel.Neither Hamas, now closing ranks with its “parent” Muslim Brotherhood mentors in post-Mubarak and post-Morsi Egypt, nor Fatah, whose “security forces” were recently trained by American General Keith Dayton in Jordan, will negotiate for anything less than full sovereignty. Why should they? Supporters of Palestinian statehood can readily discover legal support for unconditional militarization in binding international treaties.Palestinian and pro-Palestinian international lawyers seeking to identify self-serving sources of legal confirmation could conveniently cherry-pick pertinent provisions of the (1) the 1934 Convention on the Rights and Duties of States; and (2) the 1969 Vienna Convention on the Law of Treaties.Every state, including Israel, has a basic or "peremptory" right to survive. Originally, therefore, it was proper for Mr. Netanyahu to have opposed a Palestinian state in any form. Such strenuous opposition was once even shared by Shimon Peres, the most ardent current Israeli champion of a “two-state solution.” In his book, Tomorrow is Now (1978), Peres had warned correctly against any form of Palestinian statehood.Any Israeli arguments on behalf of Palestinian demilitarization, however carefully-fashioned and well-intentioned, are destined to fail. Jurisprudentially, international law could not rightfully expect Palestinian compliance with any pre-state agreements concerning the resort to use armed force. This is true even if these formal agreements were to include certain explicit US guarantees. Recalling, again, 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 quickly prove to be of little evident reliability, and of no useful legal authority.Now, what if the government of a new Palestinian state were somehow willing to consider itself bound by a pre-state, non-treaty agreement? Even in these very improbable circumstances, the new Arab administration would retain ample pretext to identify fully defensible grounds for lawful treaty termination. A new Palestinian government could withdraw from the agreement because of what it now regarded as a "material breach," a reputed violation by Israel that had purportedly undermined the object or purpose of the agreement. Or it could point toward what Latinized international law calls Rebus sic stantibus. In English, this major termination doctrine is known 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 other Arab armies, it could lawfully end its previously-codified commitment to remain demilitarized.Still another factor explains why Prime Minister 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, and, very significantly, to treaty-like agreements. Any treaty or treaty-like agreement 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 seemingly (before independence) compelled its demilitarization.Mr. 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 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 is more practical than legal. The American-driven "Road Map" stems from a very basic misunderstanding of Palestinian history and goals. At a minimum, Mr. Obama should finally consider that the Palestine Liberation Organization (PLO) was first formed in 1964. What does this mean?1964 was three years before there were any “occupied territories.” What, then, were the Palestinians seeking to “liberate?”What would a Palestinian state actually look like? For starters, Syrian chaos is a good place to consider.Louis René Beres (Ph.D. Princeton, 1971), Professor of International Law at Purdue, is the author of many books, monographs, and articles dealing with Israel. Chair of Project Daniel (Israel, 2003), he was born in Zürich, Switzerland, on August 31, 1945.
