The long-simmering issue of Palestinian statehood is back on the front burner. Recently, over one-third of British Parliament members signed a letter urging Prime Minister Keir Starmer to recognize “Palestine.” Earlier, France, Spain, Ireland and Norway had announced plans to offer the same acknowledgment. Though these plans may be well-intentioned, they plainly disregard binding international law.
In law, all law,[1] language matters. According to the Convention on the Rights and Duties of States (1934), the governing treaty on statehood: “The political existence of the state is independent of recognition by the other states.” This treaty (aka the “Montevideo Convention”) stipulates that sovereignty requires (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter into relations with other states.
To date, all national endorsements of “Palestine” have failed to meet a single one of these requirements. Moreover, whatever their motives, governments that support sovereignty for “Palestine” are effectively welcoming a lawless aggressor state.[2] Over time, this terror-state[3] could become an existential hazard for Israel, directly and/or in collaboration with other irredentist states.
In world politics, law is indispensable.[4] Accordingly, even as leaders of just a “nonmember observer state,”[5] Palestinian leaders of every ideological stripe proudly proclaim “criminal intent” (mens rea) vis-à-vis Israel. But what if the new Arab sovereignty were “demilitarized?”[6]
There is a clear answer to this question: A fully sovereign state of “Palestine” could evade any pre-independence security promises made to Israel, including those made in apparent good-faith.[7] Because treaties are binding only on states, any agreement between a non-state Palestinian authority and a sovereign State of Israel might have no foreseeable effectiveness.[8] This is the case even if a “government of Palestine” were somehow willing to consider itself bound by pre-state assurances.
There is more to consider. Even in such presumptively favorable circumstances, rulers of Palestine could retain law-based grounds for agreement termination. For example, they could withdraw from the pact on account of a supposed “material breach.” In all likelihood, this withdrawal would stem from an alleged violation by Israel that allegedly undermined the object and/or purpose of the agreement.
Further opportunities for Palestinian manipulation would arise. Palestinian decision-makers could point toward what international law calls a “fundamental change of circumstances” (rebus sic stantibus). If a Palestinian state were to declare itself vulnerable to previously unforeseen dangers, perhaps even to forces of other Arab armies or jihadist insurgencies, it could lawfullyend its original commitment to remain demilitarized. A new state of Palestine could also point to “errors of fact”or “duress” as permissible grounds for agreement termination.
On its face, any treaty or treaty-like agreement is void if, at the time of entry into force, it conflicts with a “peremptory” rule of general international law – a“jus cogens” rule accepted and recognized by the international community of states as one from which “no derogation is permitted.” Because the right of sovereign states to maintain military forces essential to self-defense is precisely such a rule, Palestine could credibly argue its right to abrogate an arrangement that had “forced its demilitarization.”
In the 18th century, Thomas Jefferson, an American president, wrote knowledgably about obligation and international law.[9] While affirming that “Compacts between nation and nation are obligatory upon them by the same moral law which obliges individuals to observe their compacts…,” he simultaneously acknowledged that “There are circumstances which sometimes excuse the nonperformance of contracts between man and man; so are there also between nation and nation.” Specifically, Jefferson continued, if performance of contractual obligation becomes “self-destructive” to a party, “…the law of self-preservation overrules the law of obligation to others.”
Summing up, a presumptive Palestinian state could lawfully abrogate any pre-independence commitments to Israel to demilitarize. Recent declarations of recognition by France and other major states have no legal bearing on the creation of such a state. On the contrary, these declarations seriously undermine the authority of law-based international relations, generally, and in particular reference to Israel.
In the final analysis, Jerusalem needs to assess the existential threat of Palestinian statehood as part of a larger strategic whole; that is, in tandem with the continuously intersecting perils of conventional and unconventional war. More precisely, this points to a comprehensive analytic focus on potential synergies between enemy state aggressions[10] and Israel’s nuclear doctrine.[11] Already, recent victories over Iran, Hamas and Hezbollah notwithstanding, Israeli leaders need to calibrate incremental shifts from “deliberate nuclear ambiguity” to “selective nuclear disclosure.” Although recent declarations of national support for Palestinian statehood can be countered on a legal level, even a non-state “Palestine” could remain intolerable.
International law is not a suicide pact.[12] Ipso facto, Israel has no legal obligation to carve an enemy state aggressor from its own still-living body. Though expressed in the stirring syntax of high moral authority, recent recognition of “Palestine” by major states avoids larger justice issues altogether.
Assigning formal statehood to violence-centered entities that openly seek an existing state’s elimination violates both justice and logic. In the case of Israel and the Palestinians, such assignment is wrongheaded on several levels and signals an evident contradiction in terms. Instead of accepting ad hoc policy prescriptions drawn from non-legal sources, the community of states needs to display “good faith” by upholding law-based rules.
[1] According to William Blackstone’s Commentaries (Book IV, “Of Pubic Wrongs,” Chapter V): “All law results from those principles of natural justice in which all the learned of every nation agree….” In legal philosophy, the classic definition of Natural Law is given by Cicero in The Republic: “True law is right reason, harmonious with nature, diffused among all, constant, eternal….” Both the Commentaries and referenced natural law lie at the jurisprudential heart of the US Constitution.
[2] Punishment of aggression is a longstanding expectation of international criminal law. The peremptory principle of Nullum Crimen sine poena, “No crime without a punishment,” has its origins in the Code of Hammurabi (c. 1728 – 1686 B.C.E.); the Laws of Eshnunna (c. 2000 B.C.E.); the even-earlier Code of Ur-Nammu (c. 2100 B.C.E.) and the law of exact retaliation, or Lex Talionis, presented in three separate passages of Torah.
[3] Under international law, all terror actors and actions are criminal per se. Terrorist movements are always hostes humani generis, or “common enemies of mankind.” See: Research in International Law: Draft Convention on Jurisdiction with Respect to Crime, 29 AM J. INT’L L. (Supp. 1935) 435, 566 (quoting King V. Marsh (1615), 3 Bulstr. 27, 81 Eng. Rep 23 (1615) (“a pirate est hostes humani generis”)).
[4] The origins of modern international law lie in the Peace of Westphalia (1648), the agreement that ended the Thirty Years’ War. See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; and Treaty of Peace of Osnabruck, Oct. 1648, 1., Consol. T.S. 119. Together, these two treaties comprise the Peace of Westphalia.
[5] This status was conferred by UN General Assembly resolution in 2012. It offers “Palestine” certain rights of deliberation in pertinent UN organs, but no corresponding voting rights.
[6] For earlier assessments of this question see: Louis René Beres and (Ambassador) Zalman Shoval, “Why a Demilitarized Palestinian State Would Not Remain Demilitarized: A View Under International Law,” Temple International and Comparative Law Journal, Winter 1998, pp. 347-363; and Louis René Beres and Ambassador Shoval, “On Demilitarizing a Palestinian `Entity’ and the Golan Heights: An International Law Perspective,” Vanderbilt Journal of Transnational Law, Vo. 28., No.5., November 1995, pp. 959-972. Zalman Shoval was twice Israel’s ambassador to the United States.
[7] Under international law, issues of “good faith” fall under the principle of pacta sunt servanda: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” See Vienna Convention on the Law of Treaties, May 23, 1969, art. 26, 1155 U.N.T.S. 344; reprinted in 8 I.L.M. 679 (1969).
[8] Regarding relevant obligations of a sub-state Palestinian Authority, Israel should remain wary about all such asymmetrical legal agreements. In this connection, several well-known U.S. federal court decisions affirm that legal agreements between sub-state and state parties may sometime impose unequal compliance expectations. In the prominent case of Tel-Oren v. Libyan Arab Republic, a 1981 civil suit in U.S. federal court wherein the plaintiffs were Israeli survivors and representatives of persons murdered in a terrorist bus attack in Israel in 1978, Circuit Judge Harry T. Edwards opined: “…I do not believe the law of nations imposes the same responsibility or liability on non-state actors, such as the PLO, as it does on states and persons acting under color of state law.”
[9] From the beginning, even from the time of the American Revolution, international law has been part of US domestic law. In exact words used by the U.S. Supreme Court in The Paquete Habana, “International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.” See The Paquete Habana, 175 U.S. 677, 678-79 (1900). See also: The Lola, 175 U.S. 677 (1900); Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 781, 788 (D.C. Cir. 1984) (per curiam) (Edwards, J. concurring) (dismissing the action, but making several references to domestic jurisdiction over extraterritorial offenses), cert. denied, 470 U.S. 1003 (1985) (“concept of extraordinary judicial jurisdiction over acts in violation of significant
[10]For the crime of aggression under international law, see: Resolution on the Definition of Aggression, adopted by the UN General Assembly, Dec. 14, 1974. U.N.G.A. Res. 3314 (XXIX), 29 UN GAOR, Supp. (No. 31), 142, UN Doc A/9631 (1975) reprinted in 13 I.L.M., 710 (1974).
[11] Regarding the prospective impact of Israeli nuclear doctrine on United States security, see monograph (Israel/Tel Aviv University) by Professor Louis René Beres, postscript by General (USA/ret.) Barry R. McCaffrey
https://sectech.tau.ac.il/sites/sectech.tau.ac.il/files/PalmBeachBook.pdf
[12] Though international law may allow certain imperiled states a resort to carefully measured preemptions, an act of “preemptive” self-defense (or “anticipatory self-defense) is never the same as one of “preventive” self-defense. Preemption is a military strategy of striking an enemy first in the expectation that the only alternative is to be struck first oneself. A preemptive attack is launched by a state that believes enemy forces are about to attack. A preventive attack is launched not out of genuine concern for “imminent” hostilities, but rather for fear of longer-term deterioration in a particular military balance. In a preemptive attack, the length of time by which the enemy’s action is anticipated is very short, while in a preventive strike the interval is considerably longer. A problem for Israel, in this regard, is not only the practical difficulty of determining “imminence,” but also that delaying a defensive strike could prove fatal.
