Why Military Limitations on a "Palestinian" State Will Fail

WHY MILITARY LIMITATIONS ON A "PALESTINIAN" STATE WILL FAIL:
A LEGAL ASSESSMENT

Howard Grief

Policy Paper No. 52, from the book
ISRAEL AND A PALESTINIAN STATE: ZERO SUM GAME?, 2001

Executive Summary

It is widely assumed that the new Barak government will make a final status agreement with the "Palestinian Authority" and that as a result of it, a new Palestinian Arab state will be proclaimed by Yasser Arafat. To contain the damage this will cause to Israel's security, the Government will attempt to impose maximum restraints on the new state's military capabilities equivalent to demilitarization. Limitations will be imposed on the nature and accumulation of arms, on the size of the "Palestinian" armed forces and, most importantly, on the right of the new state to contract alliances with other states which are sworn enemies of Israel, particularly Iran, Iraq and Libya. No foreign army will be permitted to operate within the boundaries of the new state.

What needs to be determined is whether Israel can legally impose these limitations on a state that will assert it has sovereign rights and which will be admitted into the United Nations. Under Israeli constitutional law, which reflects Jewish law in this matter, no foreign sovereignty can ever be legally established in the Land of Israel, but this point will be entirely ignored even by the government of Israel. The "Palestinian" Arab state that will be proclaimed will qualify as a state under international law because it will satisfy four specific conditions set out in the Montevideo Convention of December 26, 1933 for the establishment of states, namely having a permanent population, a defined territory, a government and the capacity to enter into relations with other states. The new state can be expected to be recognized by more states than recognize the Jewish state.

Once the "Palestinian" Arab state comes into existence and becomes a full-fledged member of the United Nations, it will enjoy the same rights and duties as all other states who are members. If the new state then discards all the limitations that were previously imposed by Israel under the final status agreement, which is a foregone conclusion in light of PLO non-compliance with all agreements so far concluded with Israel, there will be no method of enforcement except by Israel resorting to military action.

In examining the legal aspects of the matter, there will be a clash between Israel's right under international law to impose military limitations on a "sovereign" state and the right of that state to enjoy self-determination and full independence and freedom. As a result of this clash, war will become inevitable unless Israel foregoes its vital security interests.

Israel's right to place limitations on the independence of the "Palestinian" Arab state is allowed under international law, although enforcement is a separate question. The practice of placing limitations on sovereign states by means of treaty obligations is part and parcel of the modern state system. It dates back to at least the Peace Treaties of Westphalia, which ended the Thirty Years War, 1618-1648, that engulfed most of Europe. The new sovereign states which emerged after the peace agreements were forbidden to make any alliances directed against the ruling Hapsburg Empire, known as the Holy Roman Empire.

Military limitations on the embryonic "Palestinian" Arab state already exist in the Interim Agreement concluded with the PLO on September 28, 1995. Under the agreement (Article 14-3), no armed forces may be established or operate in the "West Bank" apart from the "Palestinian Police" or the Israel military forces. In addition, the "Palestinian Authority" has no power and responsibility in the realm of external security (Articles 10-4 and 12-1) and cannot conduct foreign relations with other states (Article 9, paragraph 5[a]). Israel will seek to inject into the final status agreement similar limitations on "Palestinian independence" with regard to defense and security which will effectively demilitarize the state.

The questions of Israel imposing military limitations on another state which has become independent also raise the issue of sovereignty and to what extent it can be diminished without losing its meaning. In the modern world, state sovereignty can never be absolute. All states are limited to some degree in what they are allowed to do. These limitations may emanate from a treaty or international agreement, from the rules of customary international law or by resolutions or decisions taken by international organizations, in particular the United Nations. Further limitations are now placed on states in the way they treat their own citizens or minorities, as the world has just witnessed in the case of Yugoslavia and Kosovo.

Israel's imposition of military limitations on the nascent Arab state under Arafat's rule therefore does not violate international law nor the norms of sovereignty as they are understood today. However, the reverse side of the coin allows any sovereign state to rid itself of onerous restrictions that unduly harm its freedom or equality. Once the "Palestinian" Arab state is established, it may seek to enlarge its territory and attack nearby Jewish settlements or engage in or permit acts of terrorism from the territory it controls. For this purpose it will first amass a large stock of weapons, even prohibited weapons such as missiles, and ask for military assistance from other Muslim states. It will also denounce the military limitations which Israel imposed on it as an infringement of its status as a sovereign independent state. Arafat will declare all these limitation to be incompatible with the Palestinian right of self-determination and the rights of the "Palestinians" as a free people in their own land, quoting the exact words of US President Clinton when he visited Gaza in December 1998. To justify his actions further, Arafat may quote from the American Declaration of Independence when the Thirteen Colonies broke away from the control of Great Britain on the ground that they were entitled to be "free and independent" with the power to contract alliances and to do all other acts and things which independent states may, of right, do.

Faced with Arafat's open violation of his undertakings in the final status agreement, Israel will be free to act against the "Palestinian" Arab state. But then Israel will be accused of violating the territorial integrity of a UN member state, contrary to international law. If Israel still decides to stop the pending and imminent danger to its existence, it could be threatened with UN sanctions and counter-action. Israel will also be pilloried in the world media as the aggressor, even though it will be acting in self-defense. The likely outcome will be a new Israeli-Arab war.