Israel Matzav

Netanyahu not the first to demand that a 'Palestinian state' be demilitarized

Contrary to the impression you may be getting from the media, the demand that any future 'Palestinian state' be demilitarized is not a new demand.

The matter was raised in Ehud Barak's talks at Camp David in July 2000 and during Ariel Sharon's discussions with George W. Bush between the announcement of the road map and the Gaza disengagement.

From Israel's viewpoint, the main aspects of demilitarization are: internal Palestinian security forces only; no offensive weaponry; no military alliances that would bring a foreign army west of the Jordan; and maintenance of Israel's superiority in the electro-magnetic field (to prevent a takeover of military wave-lengths).

...

It was no coincidence that Netanyahu chose to stress the missile threat, which encompasses central Israel and Ben-Gurion International Airport. Israelis perceive the post-disengagement Qassam rockets launched from Gaza as Sharon's great failure. It is important to Netanyahu not to allow any further withdrawals from the West Bank without assurances that no rockets will be fired from any evacuated areas.

Even Netanyahu's coalition partner Barak frequently mentions the missile threat on the airport.

The problem is how to ensure that the 'Palestinian state' really is demilitarized. According to Purdue University International Law professor Louis Rene Beres, it cannot be done.

International law would not necessarily require Palestinian compliance with pre-state agreements concerning the use of armed force.[vi] From the standpoint of relevant norms, enforcing demilitarization upon a state of Palestine would be very problematic. As a fully sovereign state, any preindependence compacts would not legally bind Palestine, even if these agreements were to include fully codified Quartet assurances. Because treaties can be binding only upon states,[vii] an agreement between a non-state Palestinian National Authority (PNA)[viii] and an authentic sovereign state (Israel) [ix] would have little real effectiveness.[x]

What if the government of "Palestine" were willing to consider itself bound by the pre-state, non-treaty agreement, i.e., if it were willing to treat this agreement as if it were a real treaty? Even in these relatively favorable circumstances, the new Arab government would still have ample pretext to identify various grounds for lawful "treaty" termination. It could, for example, withdraw from the "treaty" because of what it would regard as a "material breach," an alleged violation by Israel that seemingly 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).[xi] In this connection, if a Palestinian state declared itself vulnerable to previously unforeseen dangers—perhaps even from the forces of other Arab armies—it could lawfully end its sworn commitment to remain demilitarized.

There is another method by which a treaty-like arrangement 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. This means that the new state of Palestine could point to alleged errors of fact or to duress as perfectly appropriate grounds for terminating the agreement.

Moreover, any treaty 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."[xii] Because the right of sovereign states to maintain military forces essential to "self-defense"[xiii] is certainly such a peremptory rule,[xiv] Palestine, depending upon its particular form of authority, could be entirely within its right to abrogate a treaty that had compelled its demilitarization.

Read the whole thing.

posted by Carl in Jerusalem @ 8:15 AM