Why There Can Be No “Demilitarized” Palestinian State
by Louis René Beres
August 24, 2016
The Palestinian Authority (PA), now officially a Nonmember Observer State to the United Nations General Assembly, will likely seek next month a Security Council resolution favoring full Palestinian sovereignty, probably as part of a cooperative Security Council initiative with France. Following such an initiative, the current U.S. president, or the next U.S. president could then be moved to accept the PA position on the grounds of some prior Palestinian “demilitarization.” Unfortunately, any such acceptance would be without any legal or practical value; therefore, no state of Palestine should ever be approved because of any apparent promise of demilitarization.
Whoever wins the November election, the next U.S. president will have to deal with the continuing issue of Palestinian statehood. For the moment, agreeing to any such new Arab sovereignty — a 23rd Arab state — would appear to be contingent upon some prior acceptance of Palestinian “demilitarization.” After all, for a new president to disregard this seemingly prudent contingency would immediately place the United States in stark opposition to Israel.
More precisely, it would put Washington at odds with the core requirements already laid down explicitly by Israel’s Prime Minister Benjamin Netanyahu.
Nonetheless, there is substantial irony to this obligation. Simply put, meaningful Palestinian demilitarization could never take place. In essence, international jurisprudence could not allow it. First, international law would not necessarily expect Palestinian compliance with any limitations on negotiated agreements concerning national armies and armed forces.
But what if the government of a fully sovereign Palestinian state were in fact willing to consider itself bound by some pre-state agreement to demilitarize? There is still a big problem. Even in these improbable circumstances, the new Palestinian Arab government could likely identify ample pretext and opportunity to invoke lawful “treaty” termination. Here are some specific examples:
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 to what international law calls Rebus sic stantibus:”permissible abrogation,” known more popularly as a “fundamental change of circumstances.” If Palestine should declare itself vulnerable to previously unforeseen dangers, perhaps even from interventionary forces, or the forces of other Arab armies or insurgencies that it could claim might be trying to occupy it, it could lawfully end its previously codified commitment to stay demilitarized.
There is another reason why any hopes for Palestinian demilitarization must remain unsupportable. After declaring independence, a Palestinian government — any Palestinian government — could point to particular pre-independence errors of fact, or to duress, as appropriate grounds for invoking selective agreement termination. In this regard, the 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-likeagreements.