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It's farewell to the drawing-room's civilized cry,
The professor's sensible whereto and why,
The frock-coated diplomat's social aplomb,
Now matters are settled with gas and with bomb.
W.H. Auden, Danse Macabre
Israel has elected a new prime minister. From the start and even before he begins to consider assorted specific issues for negotiation with other governments and organizations Benjamin Netanyahu will have to determine whether any form of diplomacy is actually indicated. Although, on the surface, such advice may appear distinctly odd or foolish at best, there will be clear benefits to Israel of proceeding diplomatically only after first cultivating genuine understanding.
From the very start, from its imperiled beginnings in May 1948 and indeed, even before statehood Israel sought heroically to negotiate with its enemies. Always, always Jerusalem has preferred peace to war. Nonetheless, challenged by relentless and interminable Arab aggressions, diplomacy has almost always failed Israel. Significantly, this lamentable conclusion is pretty much incontestable. So, the new prime minister is now obligated to ask: What real chance is there that, somehow, things might be different?
Although ultimately settling upon Operation Cast Lead, a manifestly correct policy choice, previous Prime Minister Olmert, of course, had determined to seek Israel's basic security in diplomacy. Although there was assuredly nothing inherently wrong with such a conciliatory posture, especially as Israel had remained under constant pressure from Washington to negotiate, there was also very good reason for skepticism. From Oslo to the so-called "Road Map," diplomacy over Israel's rights and obligations has always been a determinably asymmetrical process. "Land for nothing" In essence, this unspoken mantra has been Israel's persistent "marching order" from the "civilized world."
Ironically, Israel's principal enemies remain candid. On some things they actually do not lie. On their irremediable intention to annihilate the Jewish state, for example, they are utterly sworn to truth. Israel's new prime minister should listen to them.
The key disputing Palestinian factions (Fatah or Hamas, it makes little effective difference) and Iran will never accept anything less than Israel's destruction. This is obvious to anyone who cares to pay attention. They say this every day, either openly or obliquely. Moreover, in a corroborating bit of cartography, every "official" PA or Iranian map of "Palestine" already includes all of Israel.
Toward the end of his corrupted and ill-fated regime, then Prime Minister Olmert had released several hundred Palestinian terrorists as a "goodwill gesture." Together with then U.S. President George W. Bush, he had aided Fatah against Hamas with outright transfers of weapons and information. Soon after (surprise, surprise) the American and Israeli guns were turned against Israel. As for Mr. Olmert's graciously extended "goodwill," it only served to elicit the next round of rocket fire. Matters were not helped at all by Washington's corollary support for a Palestinian state, thoroughly misconceived support now extended by new U.S. President Barack Obama.
Let Prime Minister-Designate Netanyahu take note. Regarding formal diplomacy, the more things change, the more they remain the same. Rooted deeply in Jihadist interpretations of Islam, there is an obvious and enduring inequality of objectives between Israel and its principal enemies. For both Palestinian insurgents and Iran's president, conflict with Israel is always an all or nothing proposition. In this starkly polarizing view of incessant strife between "the world of war" and "the world of Islam," there can be no place for authentic treaties or settlements with the Jewish State, save as a temporary tactical expedient.
For Israel, on the other hand, a negotiated peace with its Arab "neighbors" and Iran persists as an elusive but desperate hope. This is true even when the prospect of Islamic reciprocity is plainly preposterous and historically unimaginable.
A truly fundamental inequality is evident in all expressions of the Middle East Peace Process. On the Palestinian and Iranian side, Oslo and "Road Map" expectations have never been seen as anything more than a cost-effective method of dismantling Israel. On the Israeli side, these expectations have generally been taken, quite differently, as a presumably indispensable way of averting further war and terror.
Israel's new prime minister should take note: The core problem of Israel's life or death vulnerability lies in the Jewish State's ongoing assumptions on war and peace. While certain of Israel's regional enemies, state and nonstate, believe that any power gains for Israel represent a power loss for them that is, that they coexist with Israel in a condition of pure conflict Israel assumes something else. For Mr. Netanyahu's several immediate predecessors, relations with certain Arab states, the Palestinian Authority/Hamas and Iran were not taken to be pure "zero-sum," but rather a mutual-dependence connection. In this view, conflict is always mixed with cooperation.
For no identifiable reason, it would seem, Israel may still believe that certain of its Arab enemies and Iran reject zero-sum assumptions about the strategy of conflict. Israel's enemies, however, do not make such erroneous judgments about conformance with Israeli calculations. These enemies know further that Israel is wrong in its belief that certain Arab states, Iran and the Palestinians also reject the zero-sum assumption, but they shrewdly pretend otherwise. There has remained, therefore, a dramatic and consequential strategic disparity between Israel and certain of its frontline Islamic enemies.
Israel's strategy of conflict has, at least in part, been founded upon multiple theoretical miscalculations and upon an indifference to certain primary and flagrant enemy manipulations. The barbarous policies of Israel's enemies, on the other hand, have been and remain founded (a) upon correct calculations and assumptions; and (b) upon an astute awareness of Israel's strategic naiveté. This means that Israel's new prime minister should now make certain far-reaching changes in the way that Israel conceptualizes the continuum of cooperation and conflict. A "new Israel," ridding itself of injurious wishful thinking, should finally acknowledge the zero-sum calculations of its enemies, and thus begin to accept that the constant struggle must still be fought largely at the conflict end of the spectrum. Right now, this means, especially (and somewhat belatedly, in the particular case of Iran) attention to several preemption imperatives.
Left unchallenged by its new prime minister, Israel's mistaken assumptions, and the combining of these assumptions with correct premises of its enemies, could undermine Israel's very survival. These still-remediable Israeli errors have had the additional effect of creating an odd "alliance" between Israel and its enemies. This is surely not the sort of coalition that can ever help the Jewish State, but is rather a one-sided and unreciprocated "pact" in which Israel actively and ironically serves its enemies.
To be sure, the new prime minister should not become the best ally that Israel's Arab enemies and Iran could hope to have. Instead, he should now seek to serve Israel's long-term survival with real wisdom, supplanting the false assumptions that stem from misguided hopes with correct premises based upon sound reasoning. In the end, it is all about logic.
What does this really mean? In the language of formal logic, invalid forms of argument are fallacies. The basic problem with Israel's continuous search for "peace" through negotiated surrenders (Land for nothing!) has been its persistent commission of fallacies. Unlike simple instances of falsity, these particular arguments are especially insidious because they could involve a devastating policy outcome. Distinguishable from singular mistakes, these deviations from correct thinking ensure that all subsequent calculations will also result in error. This means that it is in the very process of strategic thinking, and not in the assessment of particular facts and issues, that Israeli policy changes are now most sorely needed.
When I first wrote about problems of Palestinian demilitarization in February 1998, Binyamin Netanyahu was prime minister. Today, he is again and once again he is on record against full sovereignty for "Palestine." Instead, he continues to speak either of a Palestinian "autonomy" or of various "attributes of restricted sovereignty."
From a domestic political standpoint, of course, Netanyahu's position on this issue is quite sensible. Internationally, however, it is clear that neither main Palestinian faction (Hamas, Fatah it makes no difference) would negotiate for anything less than complete statehood. This is because full statehood would be widely supported throughout the world, and because such support could arguably be enhanced by authoritative terms of (1) the Convention on the Rights and Duties of States (the 1933 treaty on statehood, sometimes called the Montevideo Convention) and (2) the 1969 Vienna Convention on the Law of Treaties.
Any expected Israeli arguments for Palestinian autonomy or restricted sovereignty would be certain non-starters. It is only the actual Palestinian position that will need to be acknowledged by the prime minister before Palestinian statehood can be effectively countered.
The most likely scenario in this matter will confront Prime Minister Netanyahu with a seemingly stark decision: to agree completely to creating a Palestinian state, or to reject it outright. But as neither polar prospect could work easily one option would create intolerable strategic threats while the other would elicit intolerable global condemnation a "compromise" position is apt to emerge. This position would involve Israel's formal acceptance of Palestinian statehood, yet only contingent upon the new Arab state's "demilitarization." Assuming that the Palestinian side would even agree to such an arrangement, could Palestinian demilitarization be acceptable to Israel? Or would a demilitarized Palestinian state in Judea/Samaria (West Bank) and Gaza still represent an unbearable peril?
LEAVING aside expected pressures from US President Barack Obama and Secretary of State Hillary Clinton, Netanyahu should understand that demilitarization could turn out to be a very problematic compromise. There are hidden and significant dangers to the demilitarization route. The existential threat to Israel of any Palestinian state would lie not only in the presence or absence of a particular national armed force, but also in the many other enemy armies and insurgents that would inevitably compete for power in the new Arab country.
There is another, less obvious, reason why a demilitarized Palestine would present a substantial security threat: International law would not necessarily expect Palestinian compliance with pre-state agreements concerning armed force. As a new state, Palestine might not be bound by any pre-independence compacts, even if these agreements had included certain US guarantees to Israel. Also, because authentic treaties can be binding only upon states, a non-treaty agreement between the Palestinians and Israel could be of no real authority and little real effectiveness.
What if the government of a new Palestinian state were willing to consider itself bound by the pre-state, non-treaty agreement? Even in these relatively favorable circumstances, the new Arab government would have ample pretext to identify various strong grounds for lawful treaty termination. It could, for example, withdraw from the "treaty" because of what it regarded as a "material breach" (a violation by Israel that had allegedly 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). In this connection, should Palestine declare itself vulnerable to previously unforeseen dangers perhaps even from the forces of other Arab armies it could lawfully end its codified commitment to remain demilitarized.
THERE is another factor that explains why a treaty-like arrangement obligating Palestine 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 and treaty-like agreements. This means that a Palestinian state could point to errors of fact or to duress as perfectly appropriate grounds for termination.
Any treaty is void if, at the time it was entered into, it was in conflict 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." Because the right of sovereign states to maintain military forces essential to self-defense is certainly such a rule, "Palestine" could be entirely within its lawful right to abrogate any agreement that had previously compelled its demilitarization.
Netanyahu should thus take little comfort from the legal promise of Palestinian demilitarization. Should the government of any future Palestinian state choose to invite foreign armies or terrorists onto its territory (possibly after the original national government had been displaced or overthrown by more militantly Islamic anti-Israel forces), it could do so not only without practical difficulties, but also without necessarily violating international law.
The overriding danger to Israel of Palestinian demilitarization is more practical than legal. In the final analysis, this Oslo/road map-driven pattern of intermittent territorial surrender, and also the freeing of terrorists, stems from a very deep misunderstanding of Palestinian goals.
While Israeli supporters of Oslo or the road map continue to believe in a "two-state solution" (now also a mantra in Obama's Washington), the Palestinian Authority has other ideas.
For the PA, as for most of the rest of the Arab/Iranian world, Palestine includes the entire State of Israel. For them, there can only be a "one-state solution." This annihilatory remedy is effectively the same as a final solution.
Mr. Netanyahu, Palestinian demilitarization wouldn't make a Palestinian state any less dangerous. If you plan to oppose Palestinian statehood, as indeed you should, "Palestine" should be rejected in any and all of its potential forms.
Benjamin Netanyahu, the new Prime Minister of Israel, intends to honor those portions of the Oslo Accords that have already become "facts on the ground." Although this intention would appear to support the authoritative expectations of international law, exactly the opposite is true. As the following argument makes clear, international law now requires abrogation, not compliance, with these invalid and illegal agreements.
The Oslo Accords between Israel and the PLO are in violation of international law. Israel, therefore, is now obligated to abrogate these nontreaty agreements. A comparable argument could be made regarding PLO obligations, but this would make little jurisprudential sense in light of that particular nonstate party's intrinsic incapacity to enter into a legal arrangement with Israel.
Taken by itself, the fact that the Oslo accords do not constitute authentic treaties under the Vienna Convention because they link a state with a nonstate party does not call for abrogation. But as the nonstate party in this case just happens to be a terrorist organization whose leaders must be punished for their egregious crimes, any agreement with this party that offers rewards rather than punishments is entirely null and void. Significantly, in view of the peremptory expectation known in law as Nullum crimen sine poena, "No crime without a punishment," the state party in such an agreement here the State of Israel violates international law by honoring the agreement.
According to Principle I of the binding Nuremberg Principles: "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment." It is from this principle, which applies with particular relevance to Hostes humani generis ("Common enemies of humankind") and which originates in three separate passages of the Jewish Torah, that each state's obligation to seek out and prosecute terrorists derives. Hence, for Israel to honor agreements with terrorists agreements that require, among other pertinent violations the release of thousands of other terrorists is to dishonor the very meaning of international law.
Is Yasser Arafat personally a terrorist? In the U.S. case of Klinghoffer v. Palestine Liberation Organization, the court answered in the affirmative. In the Israeli courts, a petition to charge Yasser Arafat with terrorist crimes was submitted to Israel's High Court of Justice in May 1994. This petition, filed by Shimon Prachik, an officer in the IDF reserves, and Moshe Lorberaum, who was injured in a 1978 bus bombing carried out by the PLO, called for Arafat's arrest. The petition noted that Arafat, prima facie, had been responsible for numerous terror attacks in Israel and abroad, including murder, airplane hijacking, hostage-taking, letter-bombing and hijacking of ships on the high seas. The petitioner's allegation of Arafat's direct personal responsibility for terrorism was seconded and confirmed by Dr. Ahmad Tibi, Arafat's most senior advisor: "The person responsible on behalf of the Palestinian people for everything that was done in the Israeli-Palestinian conflict is Yasser Arafat," said Dr. Tibi on July 13, 1994, "and this man shook hands with Yitzhak Rabin."
Terrorism is not the only crime in which Arafat and many of the released Palestinian prisoners are complicit. Related Nuremberg-category crimes, including crimes of war and crimes against humanity, were also committed by these persons. In this connection, the new Prime Minister should recall that units of the Palestine Liberation Army (PLA) served with Saddam Hussein's forces in occupied Kuwait, making them, and Yasser Arafat personally (the legal principle of command responsibility is known as respondeat superior, or "Let the Master Answer") responsible for multiple crimes of extraordinary horror and ferocity. And if these offenses were not enough of an affront to world law, many of the terrorists now being released from Israeli jails in furtherance of the Oslo accords are immediately accepting high positions in the Palestine Authority's security forces.
Even if the nonstate party to the Oslo accords were not a terrorist organization, Israel would have entered into an agreement of unequal obligations, an agreement where the PLO would not be held under international law to the same standards of accountability. Several recent federal court decisions in the United States reaffirm that agreements between nonstate and state parties impose asymmetrical compliance expectations. For example, in a concurring statement in the case of Tel-Oren v. Libyan Arab Republic, a 1981 civil suit in U.S. federal courts in which the plaintiffs were Israeli survivors and representatives of persons murdered in a terrorist bus attack in Israel in 1978, Circuit Judge Harry T. Edwards stated: "../...I do not believe the law of nations imposes the same responsibility or liability on nonstate actors, such as the PLO, as it does on states and persons acting under color of state law."
The PLO, of course, is a terrorist organization, and Israel has no right to honor the Oslo accords' requirement to release convicted members of that organization. No government, in fact, has the right to lawfully pardon or grant immunity to terrorists with respect to criminally sanctionable violations of international law. In the United States, it is evident from the Constitution that the President's power to pardon does not encompass violations of international law, and is limited to "Offenses against the United States." This limitation derives from a broader prohibition that binds all states, including Israel, namely the overriding claims of pertinent peremptory rules stemming from Higher Law or the Law of Nature. These claims are identified in Blackstone's Commentaries, which acknowledge that all law "results from those principles of natural justice, in which all the learned of every nation agree../..../.."
In its apprehension and incarceration of terrorists, Israel acted, however unintentionally, not only for itself, but on behalf of the entire community of states. Moreover, because some of the jailed terrorists had committed crimes against other states as well as against Israel, the government in Jerusalem cannot possibly pardon these offenses against other sovereigns. The Jewish State, therefore, possesses absolutely no right to grant immunity for terrorist violations of international law. No matter what might be permissible under its own Basic Law and the Oslo accords, any freeing of terrorists is legally incorrect. By its freeing of terrorists, Israel is guilty of what is known in law as a "denial of justice."
Israel's obligation to abrogate the Oslo accords, as we have seen, stems from certain peremptory expectations of international law. Israel, however, has substantial rights of abrogation here apart from such expectations. These rights derive from the doctrine of Rebus sic stantibus. Defined literally as "So long as conditions remain the same," this doctrine of changed circumstances now augments Israel's obligations to cease compliance with Oslo. This is because Israel's traditional obligations to the accords ended promptly when a fundamental change occured in those circumstances that existed at the effective dates of the accords and whose continuance formed a tacit condition of the accords' ongoing validity. This change, of course, involved multiple material breaches by the PLO, especially those concerning control of anti-Israel terrorism and extradition of terrorists. In short, Rebus sic stantibus has become pertinent for Israeli abrogation because of the profound change created by the PLO in the very circumstances that formed the cause, motive and rationale of consent.
According to Oslo expectations, Arafat should be actively committed to control of anti-Israel terrorism. Yet, as The Jerusalem Post pointed out correctly in a mid-March 1996 editorial, "Arafat not only shelters terrorists; he lets them incite, recruit, organize, train, arm, raise funds, and launch operations from areas under his control. This is now indisputable."
The "head of the snake," admitted former Prime Minister Shimon Peres, "is in Gaza." And it is in Gaza, PLO-controlled Gaza, that Hamas allegedly at odds with PLO has been fomenting much of its terror campaign against Israel. It is the Palestinian security services that sustain this Hamas campaign. In the words of The Jerusalem Post:
"It was the Hamas leadership in Gaza which decided on terrorist strikes and issued operational orders for the bus bombings. It was in Gaza that the Hamas military organization trained suicide bombers and assembled explosives. It was in Gaza that "the engineer" Yihye Ayyash found shelter until he was killed, and where his successor Mohammed Dief has been living openly. It was in Gaza that Arafat's Preventive Security chief was negotiating with Dief a close friend both before and after the first bus bombing. He knew of Dief's involvement in the bombing and did nothing either to detain him or prevent the next outrage."
Israel's obligation to terminate the Oslo accords stems also from a related principle of national self-preservation. Under this peremptory norm, any agreement may be terminated unilaterally following changes in conditions that make performance of the agreement injurious to fundamental rights, especially the rights of existence and independence. Known in law as "rights of necessity," this norm was explained with particular lucidity by none other than Thomas Jefferson. In his "Opinion on the French Treaties," written on April 28, 1793, Jefferson stated that when performance, in international agreements, "becomes impossible, nonperformance is not immoral. So if performance becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation to others." Later, in that same document, Jefferson wrote: "The nation itself, bound necessarily to whatever its preservation and safety require, cannot enter into engagements contrary to its indispensable obligations." Israel, the reader should recall, has an "indispensable obligation" to endure.
How, exactly, do the Oslo accords impair this obligation? Here is what The Jerusalem Post had to say about the expected consequences of Oslo II:
" ../...the implementation of Oslo II signals the relinquishment of Israel's security control over the territories and the assumption of such control by the PLO. For the first time, there will be a large PLO army on the outskirts of Israel's major population centers, and it will be in control of strategic areas which dominate Israel's heartland. Soon, Israel will be able to control neither the influx of Palestinians from refugee camps in neighboring countries nor the importation of arms. To expect such an arrangement to bring anything but unrest, terrorism and ultimately war, is to live in a world of make believe."
To better understand this "world of make believe," it is instructive to consider the Charter of Hamas, another terrorist organization that is central to current difficulties in implementing "peace." According to this Charter:
Peace initiatives, the so-called peaceful solutions, and the international conferences to resolve the Palestinian problem, are all contrary to the beliefs of the Islamic Resistance Movement. For renouncing any part of Palestine means renouncing part of the religion; the nationalism of the Islamic Resistance Movement is part of its faith, the movement educates its members to adhere to its principles and to raise the banner of Allah over their homeland as they fight their Jihad../..../..There is no solution to the Palestinian problem except by Jihad../..../..In order to face the usurpation of Palestine by the Jews, we have no escape from raising the banner of Jihad../..../..We must imprint on the minds of generations of Muslims that the Palestinian problem is a religious one, to be dealt with on this premise../..../.."I swear by that who holds in His Hands the Soul of Muhammad! I indeed wish to go to war for the sake of Allah! I will assault and kill;, assault and kill, assault and kill.
Regarding relationships with the Palestine Liberation Organization (PLO), the Hamas Charter offers the following:
"The PLO is among the closest to the Hamas, for it constitutes a father, a brother, a relative, a friend. Can a Muslim turn away from his father, his brother, his relative of his friend? Our homeland is one, our calamity is one, our destiny is one and our enemy is common to both of us../..../.."
On the primacy of hatred toward Judaism, not Israel (i.e., Israel is despised because it is Jewish), the Hamas Charter states:
"Israel, by virtue of its being Jewish and of having a Jewish population, defies Islam and the Muslims. `Let the eyes of the cowards not fall asleep.'"
After the assassination of terrorist Yechya Ayyash, known widely as "The Engineer," Yasser Arafat delivered a eulogy in Dura, near Hebron. Speaking before a large crowd of Hamas supporters, Arafat praised all "Palestinian martuyrs," including those who had murdered Israeli women and children in schools, buses and homes. Referring to the imminent takeover of Jerusalem from the Jews, Arafat expressed confidence that, "in a few months, we will pray together at the Al-Aksa mosque," adding that "those who don't like it can go and drink the water of the Dead Sea."
At a eulogy given on June 15, 1995, for Abed Al Karim Al Aklok, a former PLO official, Arafat remarked: "We are all seekers of martyrdom in the path of truth and right toward Jerusalem the capital of the State of Palestine../..../..We will continue this difficult Jihad, this long Jihad, this arduous Jihad, in the path of martyrs via death the path of sacrifice../..../.." On January 30, 1996, speaking to 40 Arab diplomats at the Grand Hotel in Stockholm, Sweden, Arafat's topic was: "The Impending Total Collapse of Israel." Said Arafat, "We Palestinians will take over everything, including all of Jerusalem../..../..All the rich Jews who will get compensation will travel to America." Further: "We of the PLO will now concentrate all our efforts on splitting Israel psychologically into two camps. Within five years we will have six to seven million Arabs living on the West Bank and in Jerusalem../..../..You understand that we plan to eliminate the State of Israel and establish a purely Palestinian State../..../..I have no usefor Jews; they are and remain Jews. We now need all the help we can get from you in our battle for a united Palestine under total Arab-Moslem domination."
Regarding the Oslo accords and Israel's vulnerability to war, Israeli security is now increasingly dependent upon nuclear weapons and strategy. Faced with a codified and substantial loss of territories a loss that might still be enlarged by transfer to Syria of the Golan Heights the Jewish State will have to decide on how to compensate for its diminished strategic depth. While this shrinkage does not necessarily increase Israel's existential vulnerability to unconventional missile attack, it surely does increase that state's susceptibility to attacking ground forces and to subsequent enemy occupation. And the loss of strategic depth will almost certainly be interpreted by enemy states as a significant weakening of Israel's overall defense posture, an interpretation that could lead to great enemy incentives to strike first.
Should Israel's sacrifice of strategic depth occasioned by the Oslo accords result in a Palestinian state, the geostrategic victory of the Islamic world would be complemented by something less tangible but no less critical: an Arab and Iranian perception of an ongoing and unstoppable momentum against the Jewish State, a jihad-centered perception of military inevitability that would reiterate the policies of war. Recognizing such perceptions, Israel could be forced to take its bomb out of the "basement," and/or it could have to accept a greater willingness to launch preemptive strikes against enemy hard targets.
For their part, certain Arab states and/or Iran would respond to such Israeli decisions. Made aware of Israel's policy shifts shifts that would stem from both Israel's Oslo-generated territorial vulnerabilities and from its awareness of enemy perceptions spawned by the Oslo-generated creation of Palestine, these enemy states could respond in more or less parallel fashion. Here, preparing openly for nuclearization and aggression against Israel, these states would illustrate dramatically certain far-reaching results of the Oslo accords results that are still generally unrecognized and that provide, together with other above-listed rationales, a fully authoritative basis for permissible abrogation. There is one last point that would need to be emphasized by Israel's new Government. Contrary to widely disseminated but wholly erroneous allegations, a Palestinian state did not exist before 1967 or 1948. A state of Palestine was not promised by authoritative U.N. Security Council Resolution # 242. Indeed, a state of Palestine has never existed.
As a nonstate legal entity, Palestine ceased to exist in 1948, when Great Britain relinquished its League of Nations mandate. When, during the 1948-49 War of Independence, Judea/Samaria and Gaza came under illegal control of Jordan and Egypt respectively, these aggressor states did not put an end to an already-existing state. Fromn the Biblical Period (ca.1350 BCE to 586 BCE) to the British Mandate (1918-48), the land named by the Romans after the ancient Philistines (a naming intended to punish and demean the Jews) was controlled exclusively by non-Palestinian elements. Significantly, however, a continuous chain of Jewish possession of the land was legally recognized after World War I at the San Remo Conference of April 1920. There, a binding treaty was signed in which Great Britain was given mandatory authority over Palestine (the area had been ruled by the Ottoman Turks since 1516) to prepare it to become the "national home for the Jewish People."
Palestine, according to the treaty, comprised territories encompassing what are now the states of Jordan and Israel, including Judea/Samaria and Gaza. Present-day Israel, including Judea/Samaria and Gaza, comprises only twenty-two percent of Palestine as defined and ratified at the San Remo Peace Conference. In 1922, Great Britain unilaterally and illegally split off 78 percent of the lands promised to the Jews all of Palestine east of the Jordan River and gave it to Abdullah, the non-Palestinian son of the Sharif of Mecca. Eastern Palestine now took the name Transjordan, which it retained until April 1949, when it was renamed as Jordan.
From the moment of its creation, Transjordan was closed to all Jewish migration and settlement, a clear betrayal of the British promise in the Balfour Declaration of 1917 and a patent contravention of its Mandatory obligations. On July 20, 1951, a Palestinian assassinated King Abdullah because of his hostility to Palestinian nationalist aspirations. Several years prior to Abdullah's killing, in 1947, the newly-formed United Nations, rather than designate the entire land west of the Jordan River as the Jewish National Homeland, enacted a second partition. Ironically, because this second fission again gave unfair advantage to the Arabs, Jewishleaders accepted the painful judgment while the Arab states rejected it.
On May 15, 1948, exactly one day after the State of Israel came into existence, Azzam Pasha, Secretary General of the Arab League, declared to the tiny new nation founded upon the ashes of the Holocaust: "This will be a war of extermination and a momentous massacre../..../.." This genocidal declaration has been and remains to this day at the heart of all subsequent Arab orientations toward Israel. In 1967, almost twenty years after Israel's entry into the community of nations, the Jewish State as a result of its stunning military victory over Arab aggressor states gained unintended control over Judea/Samaria and Gaza. Although the idea of the inadmissibility of the acquisition of territory by war is enshrined in the U.N. Charter, there existed no authoritative sovereign to whom the territories could be "returned." Israel could hardly have been expected to transfer these territories back to Jordan and Egypt, which had exercised unauthorized and cruel control since the Arab-initiated war of extermination in 1948-49. Moreover, the idea of Palestinian "self-determination" was only just beginning to emerge after the Six-Day War, and was not even codified in U.N. Security Council Resolution #242, which was adopted on November 22, 1967. For their part, the Arab states convened a summit in Khartoum in August 1967, concluding "No peace with Israel, no recognition of Israel, no negotiations with it../..../.."
Prime Minister Netanyahu, please take heed. International law does
not require compliance with the Oslo Accords. It requires abrogation
of these illegal agreements.
Part I was published in the Jewish Press in March 2009;
Part II was published in the Jewish Press April 17, 2009.
Louis René Beres is Professor of International Law at Purdue and Strategic and Military Affairs columnist for The Jewish Press. He has lectured and published widely in Israel, Europe and the United States on war, terrorism and strategies of conflict.
Part I was published in the Jewish Press in March 2009; Part II was published in the Jewish Press April 17, 2009.
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