“For by wise counsel, thou shalt make thy war.”
Proverbs 24:6
Though one might think otherwise, there is no Palestinian state at present, nor has there ever been such a state in the past. Still, once the current Gaza War comes to an end – and whatever the tangible correlates of any war termination agreements – the contrived issue of Palestinian sovereignty will be raised yet again. When this happens, various state and sub-state authorities will soberly urge Palestinian demilitarization as the correct diplomatic compromise to bring Israel and its neighbors peace.
Almost certainly, these authorities, whether witting or unwitting in such an endorsement, would include both Arab and Israeli voices. The problem is that Palestinian demilitarization would falsify any promised security benefits for Israel. In essence, it could benefit only the Palestinian side.
For Arab and European supporters of “Palestine,” the falsifying process has already begun. In late November 2023, Egyptian President Abdel Fattah al-Sisi told a news conference in Cairo: “We said that we are ready for this state to be demilitarized, and there can be guarantees of forces – whether NATO forces, UN forces or Arab or American forces – until we achieve security for both states, the nascent Palestinian state and the Israeli state.” As a practical matter, al-Sisi’s alleged expectations are unlikely ever to be met. There exist multiple reasons to explain why Palestinian demilitarization in any form would fail to protect Israel. All of these reasons concern a security issue for Israel that is openly existential.
Analysts and policy-makers ought to begin at the beginning; that is, with the origins of the existing state system at the Peace of Westphalia.[1] Since the legal (treaty-based) termination of the Thirty Years’ War in 1648, a global state of nature, a “war of all against all,” has continuously shaped world politics. More precisely, it is only within the broad and unpredictable structures of “Westphalia” that any negotiable plans for Palestinian demilitarization would need to fashioned.
Even after such demilitarization was more-or-less implemented, the core arrangements for managing global power would remain what they have always been: National security vainly sought through military threat, war fighting and “escalation dominance.” What we are witnessing today in the Islamic Middle East, and what we could expect to witness in this region post-Palestinian demilitarization, is the explosion of humankind’s most incessantly primal inclinations to aggression and terror.
There would be many significant details. In the context of a post-Gaza War search for Middle East peace, the Palestinian side would promise stable coexistence with Israel as the quid pro quo for Palestinian statehood. A tentative and partial beginning was made on 29 November 2012, when the UN General Assembly voted to declare “Palestine” a “nonmember observer state.” Though this declaration was not in any way a proper legal substitute for the “peremptory” rules and criteria identified at the Convention on the Rights and Duties of States (the governing “Montevideo Convention” of 1934), it still had the effect of legitimizing an evolving or “nascent” state of Palestine.
Any such UN-clad legitimization remains worrisome to Israel. Even after several previous Gaza wars, including Israel’s Operation Protective Edge,[2] the so-called international community remains substantially steadfast in its support of a Palestinian state. This is the case though Palestinian terror has been steadily expanded and magnified without any regard for international criminal law.
Earlier, Israeli Prime Minister Benjamin Netanyahu had affirmed that his beleaguered country could be willing to accept a Palestinian state, but only one that had first been “demilitarized.” Such a contingent but consequential acceptance would remain an integral part of any formal Israeli inclinations to accept a “Two-State Solution.” Accordingly, present day Prime Minister Netanyahu would be less likely to be persuaded by “neutral” advocates of Palestinian demilitarization, but he or his successor could one day find himself with little real choice.
There are several substantive and foreseeable problems with Palestinian demilitarization. The first such problem has to do with conspicuously unchanging Palestinian commitments to an Arab State that would replace Israel.[3] The second concerns certain critical expectations of international law – binding expectations that could conceivably allow any Palestinian State to abrogate its pre-independence commitments to remain “demilitarized.”[4]
In his first term, then-U.S. President Barack Obama proudly declared his commitment to a Palestinian state. In principle, at least from a narrow security perspective, this earlier American presidential declaration of support for Palestinian “self-determination”[5] might not have been illogical or unreasonable if the Palestinian side had meaningfully committed itself to a genuine “Two-State Solution.”[6] Yet, both Fatah (Palestinian National Authority) and Hamas, even as they periodically warred against each other, continued to agree on one central deal-breaking point. This point was their commonly-ritualized mantra that: (1) Israel’s existence is intolerable on purely religious grounds (on these grounds, any Jewish State, even one that would cease all “settlement activity,” represents an irremediable “abomination”); and (2) Israel, in its entirety, is nothing more than “Occupied Palestine.”
However unwittingly, the then-American president, searching more or less hopefully for a Middle East peace, had urged the creation of an intractable terror state in the region. Fashioned officially by the so-called “Quartet” – the United States; Russia; the European Union and the United Nations – this perilous urging stemmed from a diplomatic framework known as The Road Map for Implementation of a Permanent Solution for Two States in the Israel-Palestinian Dispute. Together with an openly recalcitrant Palestinian refusal to reject the “Phased Plan” (Cairo) of June 1974 and an associated no-compromise “Jihad”[7] to “liberate” all of “Occupied Palestine” in increments, the Road Map revealed another generally unrecognized demilitarization danger. Lacking a necessary appreciation of pertinent international law, and antecedent Natural Law,[8] both the United States and Israel could have been misled by such a devious cartography to accept erroneous demilitarization assurances.
There is additional history here. On June 14, 2009, Benjamin Netanyahu first agreed publicly to accept a Palestinian state but simultaneously linked this agreement to prior Palestinian demilitarization. Said the Prime Minister exactly: “In any peace agreement, the territory under Palestinian control must be disarmed, with solid security guarantees for Israel.” Could the world reasonably expect such “disarmament” at the conclusion to the current Israel-Hamas Gaza War? In reply, the very best case argument for Israel would be founded upon unsupportable legal presumptions. Notwithstanding al-Sisi promised “guarantees,” the relevant norms of international law would be unable to protect Israel prima facie.
Therein lies the jurisprudential core of the Palestinian demilitarization problem: International law would not necessarily require Palestinian compliance with any pre-state agreements concerning the use of armed force. From the standpoint of such authoritative law, enforcing demilitarization upon a sovereign state of Palestine would be sorely problematic.
Technically, genuine Palestinian statehood could not be conferred until the Palestinian National Authority, more or less reconciled with Hamas, had gone beyond its current status of “nonmember observer State” and managed to meet the more demanding expectations of the 1934 Convention on the Rights and Duties of States. These expectations include a defined territory; a permanent population; a viable government; and an ascertainable capacity to enter into relations with other States. In reality, however, even if these more stringent law-based expectations were not met, virtually all member states of the United Nations would still agree to recognize “Palestine” as a sovereign State.
It follows, even at its presently limited level of formal national legitimization, that a UN-enacted level of a nonmember observer State could effectively renounce any “pre-independence” commitments that it had made earlier to demilitarize. As a nominally independent State, any pre-independence compacts would not necessarily bind Palestine, even if these agreements were to include fully codified legal assurances. Because authentic treaties can be binding only upon states,[9] any agreement between a non-State Palestinian National Authority (presumably in tangible concert with Hamas) and a sovereign state of Israel [10] would garner little respect.[11]
A new question dawns. What if the government of Palestine were actually 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 such relatively favorable circumstances for Israel, the new Arab government of Palestine would still have ample pretext to identify multiple grounds for lawful “treaty” termination.
It could, for example, withdraw from the “treaty” because of what it would then 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).[12] In this connection, if a Palestinian State were ever to declare itself vulnerable to previously unforeseen dangers, perhaps even from the forces of other Arab state armies or Iran, it could lawfully end its 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. The usual grounds that may be invoked under domestic law to invalidate contracts also apply under international law to treaties. This means that a new State of Palestine could point to variously alleged errors of fact or duress as law-based grounds for terminating the agreement.
There is more. 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.”[13] Because the right of sovereign States to maintain military forces essential to “self-defense”[14] is such a peremptory rule,[15] Palestine, depending upon its particular form of authority, could be entirely within its right to abrogate any pre-independence agreement that had compelled its demilitarization.
Thomas Jefferson, who read Epicurus, Cicero, and Seneca, as well as Vattel, Locke, Voltaire, Rousseau, Montesquieu, Holbach, Helvetius and Beccaria, wrote insightfully about obligation and international law. 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 also acknowledged the following: “There are circumstances which sometimes excuse the nonperformance of contracts between man and man; so are there also between nation and nation.” Very 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.”[16]
Historically, demilitarization is a principle that can be applied to various “zones,”[17] and not to the entirety of emergent states. Accordingly, a new State of Palestine might have another legal ground upon which to evade compliance with any pre-independence commitments to demilitarization. It could be alleged, among other things, that because these commitments are inconsistent with traditional or Westphalian bases of authoritative international law, bases found in treaties and conventions, international custom,[18] and the general principles of law recognized by “civilized nations,”[19] they represent commitments of no binding character.
Following completion of its current “Operation Swords of Iron, Israel should draw no comfort from the purportedly legal promise of Palestinian demilitarization. Should the government of a new state of Palestine choose to invite foreign armies and/or terrorists[20] onto its territory (possibly after the original Palestinian government authority is displaced or overthrown by even more militantly Islamic, anti-Israel forces), it could do so without practical difficulties and without violating international law.
Earlier, the “Quartet’s” Road Map was built upon the already-moribund Oslo Accords, earlier ill-founded agreements destroyed by persistent and egregious Arab violations. The basic problem with the Oslo Accords that allowed these violations should now be apparent. On the Arab side, Oslo-mandated expectations were never anything more than an optimally cost-effective method of dismantling Israel. On the Israeli side, these expectations were taken, more or less, as an unavoidable way of averting further Palestinian terrorism[21] and also catastrophic Arab aggressions. [22]
The resultant asymmetry in expectations generally enhanced Arab power while it systematically weakened and degraded Israel. Soon, even after Israel’s necessary “Operation Swords of Iron,” undisguised Palestinian calls for Palestine “from the river to the sea”[23] will fail impair regional enthusiasm for creating another terrorist State.[24]
What does all of this mean, for the alleged demilitarization “remedy,” and for Israeli security in general? Above all, it positively demands that Israel make rapid and far-reaching changes in the manner in which it conceptualizes the critical continuum of cooperation and conflict. Israel, ridding itself of wishful thinking, of always hoping, and hoping too much, should recognize immediately the zero-sum calculations of its enemies, and should begin to recognize itself that the struggle in the Middle East must still be fought overwhelmingly at the conflict end of the range.[25]
The struggle must sometimes be conducted, however reluctantly and painfully, in zero-sum terms. Understood in terms of international law and world order, [26] this means an occasional willingness in Jerusalem to accept the right[27] and corollary obligations of “anticipatory self-defense.” [28]
Unhidden, both the Arab world and Iran still have only a “One-State Solution” for the “Israel Problem.” It is a “solution” that eliminates Israel altogether, a physical solution, a “Final Solution.”[29] Even today, official Arab maps of “Palestine” (PNA and Hamas) show the prospective Arab State comprising all of the West Bank (Judea/Samaria), all of Gaza and all of Israel. They knowingly exclude any references to a Jewish population and list “holy sites” of Christians and Muslims only. Years ago, one official cartographer, Khalil Tufakji, was commissioned by the Palestine National Authority to design and to locate a proposed Palestine Capitol Building. This plan was drawn to be located on the Mount of Olives in Jerusalem, directly on top of an ancient Jewish cemetery.
On September 1, 1993, Yasser Arafat openly reaffirmed that the then-new Oslo Accords would become an intrinsic part of the PLO’s 1974 Phased Plan for Israel’s destruction: “The agreement will be a basis for an independent Palestinian State, in accordance with the Palestinian National Council Resolution issued in 1974…The PNC Resolution issued in 1974 called for the establishment of a national authority on any part of Palestinian soil from which Israel withdraws or which is liberated.” Later, on May 29, 1994, Rashid Abu Shbak, then a senior PNA security official, remarked: “The light which has shone over Gaza and Jericho will also reach the Negev and the Galilee.”
Since these declarations, nothing has changed in Palestinian definitions of Israel and Palestine. This is true for the current leadership of both Hamas and Fatah. In the final analysis, it may make little difference which terror group is effectively in power. [30]
Inter alia, all those who are concerned with Palestinian demilitarization and Israeli security ought to consider that the Islamic states comprise an area 672 times the size of Israel. Israel, together with Judea/Samaria (West Bank), is less than half the size of San Bernardino County in California. The Sinai Desert, which Israel transferred to Egypt as part of the 1979 Treaty, is itself three times larger than the entire State of Israel.
There is more. A fully or even partially sovereign Palestinian State could lawfully abrogate any pre-independence commitments to demilitarize. Before Hamas and the current Gaza War, the Palestine National Authority was guilty of multiple material breaches of the Oslo Accords[31] and of “grave breaches” of the law of war. [32] Even today, in late 2023, both Fatah and Hamas remain unwilling to rescind expressly genocidal[33] calls for Israel’s extermination. [34]
Following the Gaza War, any plan for accepting Palestinian demilitarization would be built upon sand. Neither Israel nor the United States should ever base its geo-strategic assessments of Palestinian statehood upon such an illusory foundation. Following any implemented form of post-Gaza War independence, neither the PNA nor Hamas would accept the idea of a “limited” form of Palestinian statehood.
By any Arab world definition, such an idea would be considered unreasonable and humiliating. This would obtain whether Palestine were identified as a “nonmember observer State” (current status of the Palestinian National Authority) or as a fully sovereign entity that allegedly met all authoritative criteria listed at the governing Montevideo Convention.
In the best case scenario, Israel could sometime face Palestinian authorities who would formally accept reasonable demilitarization proposals. But what could Israel then expect of a resultant Palestinian state that chose not to live up to its pre-state commitments under these accepted proposals? Plausibly, in Israel, and within hours of any proper declaration of Palestinian independence, Israeli Arabs, expressing core loyalties to Palestine rather than Israel, would begin to transform initially benign celebrations into full-scale anti-Israel riots and aggressions. Here, more than likely, most Israeli Arabs wouldn’t feel any need to actually move to this new Arab state because they will already have been convinced that (in a matter of weeks or months) all of Israel would be forcibly absorbed into Palestine. For Israel, among other things, the associated security costs of these riots and aggressions would be inter-penetrating and force-multiplying, and involve intra-national civil disturbances/terror attacks and more-or-less simultaneous border incursions from Palestine.
What happens then? In the short run, the security dangers to Israel would center upon enhancing domestic defense and safety from the internal Palestinian attacks and from externally-fired Palestinian rockets. In the longer term, and in more narrowly military calculations, Israel would confront a steadily deteriorating “correlation of forces,” a situation which could then heighten the probability of a conventional war with other Arab states and/or Iran. In the even longer term, there would be unique risks of escalation from a conventional war (war which could include chemical and/or biological weapons) to an unconventional war (war which could include nuclear terrorism and/or nuclear war).[35]
In any resultant “endgame,” such unprecedented or sui generis risks would compel Israel to expand and refine its presumptive nuclear deterrence posture.
What would happen next? What are the foreseeable outcomes? The answer to this overriding question lies in variously underlying issues of Palestinian statehood and in the precise ways that Jerusalem eventually decides to negotiate these existential issues. For Israel’s political leadership, one conclusion should trump all component considerations of diplomacy, law and power: A Palestinian state could never be consistent with long-term Israeli survival, even if its pre-independence agreements with the State of Israel “guaranteed” demilitarization.
Louis René Beres was educated at Princeton (Ph.D., 1971) and is the author of 12 books and several hundred journal articles dealing with world politics and international law. Professor Beres was an original member of the World Order Models Project at Princeton and Yale in the 1960s. He is a five-time contributor to Oxford University Press Yearbook of International Law and Jurisprudence. His pertinent writings can be found at The New York Times; The Atlantic; The Bulletin of the Atomic Scientists; The American Political Science Review; The Hudson Review; Yale Global Online (Yale); Harvard National Security Journal (Harvard Law School); JURIST; World Politics (Princeton); American Journal of International Law; International Security (Harvard); Modern Diplomacy; Modern War Institute (Pentagon); The War Room (Pentagon); Parameters (Pentagon); Special Warfare (Pentagon); Israel Defense (Tel Aviv); The Hill; Horasis (Zürich); Air and Space Operations Review (USAF); The National Interest; and International Journal of Intelligence and Counterintelligence. He was born in Zürich at the end of World War II.
[1] See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; Treaty of Peace of Osnabruck, Oct. 1648, 1 Consol. T.S. 119. Together, these two treaties comprise the “Treaty of Westphalia.”
[2] This earlier Israeli operation in Gaza ended formally on August 26, 2014, when the two sides agreed in Cairo on a ceasefire and to hold future talks on Palestinian demands to end an eight-year blockade of Gaza. But an antecedent jurisprudential question should arise today: Can there ever be a proper “cease-fire” between a sovereign national government (Israel) and an inherently illegal organization (Hamas)? An immediate effect of any such cease-fire must be to bestow upon a terror organization (1) a generally enhanced position under international law; and (2) the status of formal legal equivalence with its terror victim. Regarding the inherent organizational illegality of Hamas, this may be deduced from the far-reaching criminalization of terrorism under authoritative international law.
[3] On this point, note especially the currently fashionable Palestinian mantra: “From the river to the sea, Palestine will be free.” Prima facie, this is an annihilationist mantra, one expressing “incitement to genocide,” an egregious crime under pertinent international law.
[4] An antecedent problem has to do with the “Westphalian” world legal order’s de facto sanctification of states. Noteworthy contra views are offered by Nietzsche’s Zarathustra and Jose Ortega y’ Gasset’s The Revolt of the Masses. Both philosophers were prophetic in recognizing the prospectively great dangers produced by states. Nietzsche says in Zarathustra that “…it is for the superfluous that the state was invented,” and Ortega, in his classic Revolt, identifies the state as “the greatest danger,” mustering its immense and unassailable resources “to crush beneath it any creative minority which disturbs it – disturbs it in any order of things: in politics, in ideas, in industry.” Set in motion by individuals whom it has already rendered anonymous, the state – we learn further from Ortega – establishes its machinery “above society,” so that its inhabitants come to live for the state.
[5] See, by this author: Louis René Beres, “Self-Determination, International Law and Survival on Planet Earth,” ARIZONA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, Vol. 11, No. 1., 1994, pp. 1-26. See also: Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance With the Charter of the United Nations (The Principle of Equal Rights and Self-Determination of Peoples), G.A. Res. 2625, U.N. GAOR, 25th Sess., and Supp. No. 28 at 121, U.N. Doc. A/8028 (1970), reprinted in 9 I.L.M. 1292; Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66, U.N. Doc. A/4684 (1960); Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called For Under Article 73e of the Charter, G.A. Res. 1541, U.N. GAOR, 15th Sess., Supp. No. 16, at 29, U.N. Doc. A/4684 (1960).
[6] From the standpoint of genuinely still-binding international law that was codified during the British Mandatory period, West Bank (Judea/Samaria) is an altogether integral part of the State of Israel. Hence, both the prior Oslo Agreements and the “Road Map” – which identified Judea/Samaria as “Palestinian Territories”) – were constructed upon opportunistic and geopolitical (rather than jurisprudential) foundations.
[7] For informed discussion of Jihad, see: Andrew G. Bostom, ed., THE LEGACY OF JIHAD: ISLAMIC HOLY WAR AND THE FATE OF NON-MUSLIMS (New York: Prometheus Books, 2005, 759 pp. This collection, using extensive primary and secondary source materials, reveals that for centuries, jihad has sought to expand Islamic dominance by massacre, pillage, enslavement and deportation. The argument reproduces extensive quotations from the Qu’ran and the Hadith, along with Qu’ranic exegeses by the best-known classical and modern commentators. The book credibly overturns the position that it is merely by radical misinterpretation that jihad been justified.
[8] Antecedent Natural Law is based upon acceptance of certain principles of right and justice that prevail because of their own intrinsic merit. Eternal and immutable, they are external to all acts of human will and interpenetrate all human reason. This notion and its attendant tradition of human civility runs almost continuously from Mosaic Law and the ancient Greeks and Romans to the present day. The Stoics regarded nature itself as the supreme legislator in a moral order where man, through his divinely granted capacity to reason, can commune directly with the gods. As set forth in De Republica and De Legibus, Cicero’s classical concept of natural law underscores a principle that is now very much a part of the United States Constitutional foundation: that is, the imperative quality of the civil law is always contingent upon being in perfect harmony with reason. According to Cicero, justice is not – as the Epicureans claimed – a mere matter of utility. Rather, it is a distinct institution of nature that always transcends expediency, and that must be embodied by positive law before such normative obligations can ever claim any proper human loyalties.
[9].A treaty is always an international agreement “concluded between states….” Vienna Convention on the Law of Treaties, May 23, 1969, art. 2(1)(a), 1155 U.N.T.S. 331, 8 I.L.M. 679. For the requirements of statehood under international law, see: Convention on the Rights and Duties of States, Dec. 26, 1933, art. [9]1, 49 Stat. 3097, 165 L.N.T.S. 19.
[10] On the State of Israel and Jewish sovereignty, see: Theodore Herzl, THE JEWISH STATE (Dover Publications, 1988). This Dover edition is an unabridged reproduction of the work published in 1946 by the American Zionist Emergency Council, which was, in turn, based on the first English-language edition. A JEWISH STATE, published in London, England, in 1896. The Herzl text was originally published in Vienna, in 1896, under the title: Der Judenstaat. Recognizing that “the nations in whose midst Jews live are all either covertly or openly anti-Semitic,” Herzl put the Jewish Question in the briefest possible form: “Are we to `get out’ now, and where to? Or, may we yet remain? And, how long?” Herzl, supra, at 86.
[11].Technically, an agreement on demilitarization under international law must always be “between states.” Hence, any agreement on demilitarization that would include a non-state party would be prima facie null and void. See: e.g., Karl Liko, DEMILITARIZED ZONE, in 2 INTERNATIONAL MILITARY AND DEFENSE ENCYCLOPEDIA 736, 736 (Trevor N. Dupuy, ed., 1993) (defining “demilitarized zone” as “a term used in international law to designate an area in which, according to a formal treaty or an informal agreement between states, the maintenance of military forces and installations is prohibited.” (emphasis added).
[12].Defined literally as “so long as conditions remain the same,” the doctrine of rebus sic stantibus has a long history. For an informed scholarly treatment of this doctrine, see generally; Arie E. David, THE STRATEGY OF TREATY TERMINATION 3-55 (1975). In the traditional view, the obligation of a treaty terminates when a change occurs in those circumstances that existed at the effective date of the agreement and the continuance of which formed a tacit condition of the ongoing validity of the treaty. Id. The function of the doctrine therefore is to execute the shared intentions of the parties. Id. Rebus sic stantibus becomes operative when there is a change in the circumstances that formed the cause, motive or rationale of consent. Id.
[13].See: Vienna Convention, supra, art. 53. Even a treaty is subordinate to peremptory expectations: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.” Id.
[14].This right extends to both the customary right of anticipatory self-defense, and to the codified right of post-attack self-defense. Regarding the right of anticipatory self-defense, states do not always have to wait until after an attack is absorbed before embarking upon self-defense. Rather, where the threat is sufficiently imminent in point of time, they can choose to strike first, provided, of course, that the strike falls within the parameters of discrimination, proportionality and military necessity. Regarding the codified right of post-attack self-defense, see: U.N. Charter, art. 51.
[15].One theory stipulates that any treaty obligation may be terminated unilaterally following changes in conditions that make performance of the treaty injurious to fundamental rights, especially the rights of existence, self-preservation and independence. Some areas of law summarize these rights as “rights of necessity.” See David, supra, at 19. See generally: LAW OF TREATIES, art. 28, Doctrine section in 29 AM.J.INT’L L. 653, 1100-02 (Supp. 1935) (presenting the doctrinal background for article 28, entitled “Rebus Sic Stantibus,” in this draft convention prepared for the codification of international law.
[16] See Jefferson’s “Opinion on the French Treaties” (April 28, 1793) in Merrill D. Peterson, ed., THE POLITICAL WRITINGS OF THOMAS JEFFERSON (Thomas Jefferson Memorial Foundation: 1993), pp. 113-114.
[17].For a source containing detailed provisions on demilitarized zones, see: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature, Dec. 12, 1977, 1125 U.N.T.S. 3, 16, I.L.M. 1391 (Protocol I).
[18] Article 38(1)(b) of the STATUTE OF THE INTERNATIONAL COURT OF JUSTICE describes international custom as “evidence of a general practice accepted as law.” The essential significance of a norm’s customary character is that the norms bind even those states that are not parties to the pertinent codification. Even where a customary norm and a norm restated in treaty form are apparently identical, these norms are treated as jurisprudentially discrete. During the merits phase of MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, the International Court of Justice (ICJ) stated: “Even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.” See: MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, Nicar. V. US., Merits, 1986 ICJ, Rep. 14 (Judgment of 27 June).
[19].These authoritative bases of international law are drawn from art. 38 of the Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, T.S. 993.
[20] There could even be a danger of WMD terrorism, especially nuclear terrorism. For very early writings by this author on nuclear terrorism, see: Louis René Beres, “The Threat of Palestinian Nuclear Terrorism in the Middle East,” 15 INT’L PROBS. 48 (1976); Louis Rene Beres, “Is Nuclear Terrorism Plausible?’ in NUCLEAR TERRORISM: DEFINING THE THREAT 45 (Paul Leventhal and Yonah Alexander, eds, 1986); Louis René Beres, “Preventing Nuclear Terrorism: Responses to Terrorist Grievances,” in PREVENTING NUCLEAR TERRORISM: THE REPORT AND PAPERS OF THE INTERNATIONAL TASK FORCE ON PREVENTION OF NUCLEAR TERRORISM 146 (Paul Leventhal and Yonah Alexander, eds, 1987); Louis René Beres, “Responding to the Threat of Nuclear Terrorism,” in INTERNATIONAL TERRORISM: CHARACTERISTICS, CAUSES, CONTROLS 228 (Charles W. Kegley, Jr., ed, 1990); Louis René Beres, “Terrorism and International Law,” 3 FLA. INT’L L.J., 291 (1988); Louis René Beres, “International Terrorism and World Order: The Nuclear Threat,” 12 STAN. J. INT’L STUD. 131 (1977); Louis René Beres, “Terrorism and International Security: The Nuclear Threat,” 26 CHITTY’S L.J., 73 (1978); Louis René Beres, “Hic Sunt Dracones: The Nuclear Threat of International Terrorism,” PARAMETERS: J. U.S. ARMY WAR C., June 1979, at 11; Louis René Beres, “International Terrorism and World Order: The Nuclear Threat,” in STUDIES IN NUCLEAR TERRORISM 360 (Augustus R. Norton and Martin H. Greenberg, eds., 1979); Louis René Beres, TERRORISM AND GLOBAL SECURITY: THE NUCLEAR THREAT (Boulder and London: Westview Special Studies in National and International Terrorism, 1987), 2nd edition, 156 pp; Louis René Beres, APOCALYPSE: NUCLEAR CATASTROPHE IN WORLD POLITICS (Chicago and London: The University of Chicago Press, 1980), 315 pp; Louis René Beres, “Confronting Nuclear Terrorism,” 14 HASTINGS INT’L & COMP. L. REV 129 (1990); Louis René Beres, “On International Law and Nuclear Terrorism,” 24 GA. J. INT’L & COMP. L 1 (1994); Louis René Beres, “Israel, the `Peace Process,’ and Nuclear Terrorism: A Jurisprudential Perspective,” 18 LOY. L.A. INT’L &, “The United States and Nuclear Terrorism in a Changing World: A Jurisprudential View,” 12 DICK. J. INT’L L. 327 (1994). COMP. L.J. 767 (1996); Louis René Beres, “Preventing the `Blood-Dimmed Tide: How To Avoid Nuclear Terrorism Against the United States,” 24 STRATEGIC REV. 76 (1996).
[21].For core conventions in force concerning terrorism, see especially CONVENTION ON THE PREVENTION AND PUNISHMENT OF CRIMES AGAINST INTERNATIONALLY PROTECTED PERSONS, INCLUDING DIPLOMATIC AGENTS. Adopted by the U.N. General Assembly, Dec. 14, 1973. Entered into force for the United States, Feb. 20, 1977. 28 U.S.T. 1975, T.I.A.S., No. 8532. Reprinted in 13 I.L.M. 43 (1974); VIENNA CONVENTION ON DIPLOMATIC RELATIONS. Done at Vienna, April 18, 1961. Entered into force for the United States., Dec. 13, 1972. 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95; CONVENTION ON OFFENSES AND CERTAIN OTHER ACTS COMMITTED ON BOARD AIRCRAFT (TOKYO CONVENTION), September 14, 1963, entered into force for the United States on December 4, 1969, 704 U.N.T.S. 219, 20 U.S.T. 2941; CONVENTION FOR THE SUPPRESSION OF UNLAWFUL SEIZURE OF AIRCRAFT (Hague Convention) of December 16, 1970, entered into force for the United States on Oct. 14, 1971, 22 U.S.T. 1641; CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF CIVIL AVIATION (MONTREAL CONVENTION) of September 23, 1971, entered into force for the United States on Jan. 26, 1973. 24 U.S.T. 564; INTERNATIONAL CONVENTION AGAINST THE TAKING OF HOSTAGES, Adopted by General Assembly Resolution 34/146 of December 17, 1979. U.N. Gen. Assbly. Off. Rec. 34th Sess. Supp. No. 46 (A/34/46), p. 245; entered into force on June 3, 1983, entered into force for the United States on December 7, 1984; EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM OF JANUARY 27, 1977, entered into force on August 4, 1978, E.T.S. 90. On December 9, 1985, the U.N. General Assembly unanimously adopted a resolution condemning all acts of terrorism as “criminal.” Never before had the General Assembly adopted such a comprehensive resolution on this question. Yet, the issue of particular acts that actually constitute terrorism was left largely unaddressed, except for acts such as hijacking, hostage taking and attacks on internationally protected persons that were criminalized by previous custom and conventions. See UNITED NATIONS RESOLUTION ON TERRORISM, General Assembly Resolution 40/61 of December 9, 1985, and U.N. Gen. Assbly. Off. Rec 40th Sess., Supp. No. 53 (A/40/53), p. 301.
[22] See: RESOLUTION ON THE DEFINITION OF AGGRESSION, Dec. 14, 1974, U.N.G.A. Res. 3314 (XXIX), 29 U.N. GAOR, Supp. (No. 31) 142, and U.N. Doc. A/9631, 1975, reprinted in 13 I.L.M. 710, 1974; and CHARTER OF THE UNITED NATIONS, Art. 51. Done at San Francisco, June 26, 1945. Entered into force for the United States, Oct. 24, 1945, 59 Stat. 1031, T.S. No. 993, Bevans 1153, 1976, Y.B.U.N. 1043.
[23] For a discussion of authoritative international law criteria needed to distinguish permissible insurgencies from impermissible ones, see: Louis René Beres, “The Legal Meaning of Terrorism for the Military Commander,” CONNECTICUT JOURNAL OF INTERNATIONAL LAW, Vol. 11, No. 1., Fall 1995, pp. 1-27.
[24] This presidential refusal to understand should call to mind the continuing relevance of Natural Law and of Emmerich de Vattel’s classic argument on the obligation of each nation to every other nation. THE LAW OF NATIONS (1758) gave important emphasis to the natural law origins of all international law, and reasoned that nations are no less subject to the laws of nature than are individuals. He concluded that what one man owes to other men, one nation, in turn, owes to all other nations: “Since Nations are bound mutually to promote the society of the human race, they owe one another all the duties which the safety and welfare of that society require.” With this in mind, Vattel proceeded to advance a permanent standard by which we can distinguish between lawful and unlawful practices in global affairs: “Since, therefore, the necessary Law of Nations consists in applying the natural law to States, and since the natural law is not subject to change, being founded on the nature of things and particularly upon the nature of man, it follows that the necessary Law of Nations is not subject to change. Since this law is not subject to change, and the obligations, which it imposes, are necessary and indispensable, Nations cannot alter it by agreement, nor individually or mutually release themselves from it. (See: Vattel, THE LAW OF NATIONS (1758), Introduction to Book I, p. 4.)
[25] On this point, see earlier: Louis René Beres, “Israel’s Nuclear Doctrine: Clarification, Codification, and Disclosure,” The Jerusalem Post, 7 September, 2014; Louis René Beres and Admiral (USN/ret.) Leon “Bud” Edney, “Israel’s Nuclear Strategy: A Larger Role for Submarine-Basing,” The Jerusalem Post, 17 August 2014; and Louis René Beres and Admiral Leon “Bud” Edney, “A Sea-Based Nuclear Deterrent for Israel,” The Washington Times, 5 September 204. Earlier, see: Louis René Beres, “Olmert’s Approach to Israel’s Enemies,” The Washington Times, August 8, 2007. See also, by the same author, Louis René Beres, AFTER THE FALLING ROCKETS FROM LEBANON: INTERRELATED COMMENTARIES ON ISRAEL’S PERFORMANCE AND SURVIVAL, Ariel Center for Policy Research (ACPR), Policy Paper No. 166, January 2007, 79 pp; and Louis René Beres, “International Law and the Killing of Imad Mughniyeh,” THE ISRAEL JOURNAL OF FOREIGN AFFAIRS, Vol. 2., No. 2., 2008, pp. 79-84.
[26]The concept of “world order” as both an organizing dimension of scholarship and as a normative goal of international affairs has its contemporary intellectual origins in the work of Harold Lasswell and Myres McDougal at the Yale Law School, Grenville Clark and Louis Sohn’s WORLD PEACE THROUGH WORLD LAW (1966) and the body of writings by Richard A. Falk and Saul H. Mendlovitz. For early works by this author, who was an original participant in the World Law Fund’s World Order Models Project (WOMP), see especially: Louis René Beres and Harry R. Targ, CONSTRUCTING ALTERNATIVE WORLD FUTURES: REORDERING THE PLANET (1977); Louis René Beres and Harry R. Targ., eds., PLANNING ALTERNATIVE WORLD FUTURES: VALUES, METHODS AND MODELS (1975); Louis René Beres, PEOPLE, STATES AND WORLD ORDER (1981); Louis René Beres, REASON AND REALPOLITIK: US FOREIGN POLICY AND WORLD ORDER (1984); and Louis René Beres, AMERICA OUTSIDE THE WORLD: THE COLLAPSE OF US FOREIGN POLICY (1987).
[27] The customary right of anticipatory self-defense, which is the legal expression of preemption, has its modern origins in the Caroline Incident. This was part of the unsuccessful rebellion of 1837 in Upper Canada against British rule. (See: Beth Polebau, “National Self-Defense in International Law: An Emerging Standard for a Nuclear Age,” 59 N.Y.U. L. REV. 187, 190-191 (noting that the Caroline Incident transformed the right of self-defense from an excuse for armed intervention into a customary legal doctrine). Following the Caroline, even the threat of an armed attack has generally been accepted as justification for a militarily defensive action. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then-U.S. Secretary of State Daniel Webster outlined a framework for self-defense that does not actually require a prior armed attack. (See Polebau, op. cit., citing to Jennings, “The Caroline and McLeod Cases,” 32 AM. J. INT’L L., 82, 90 (1938).) Here, a defensive military response to a threat was judged permissible as long as the danger posed was “instant, overwhelming, leaving no choice of means and no moment for deliberation.” (See Polebau. supra, 61).
[28]. See, earlier, by Louis René Beres, “On Assassination, Preemption and Counterterrorism: The View From International Law,” INTERNATIONAL JOURNAL OF INTELLIGENCE AND COUNTERINTELLIGENCE, Vol. 21. Issue 4., December 2008, pp. 694-725. For earlier writings by this author on anticipatory self-defense under international law, see: Louis René Beres, Chair, The Project Daniel Group, ISRAEL’S STRATEGIC FUTURE: PROJECT DANIEL, ACPR Policy Paper No. 155, ACPR (Israel), May 2004, 64pp (this paper was prepared for presentation to then Israeli Prime Minister Ariel Sharon, and transmitted by hand on January 16, 2003); Louis René Beres, SECURITY THREATS AND EFFECTIVE REMEDIES: ISRAEL’S STRATEGIC, TACTICAL AND LEGAL OPTIONS, ACPR Policy Paper No. 102, ACPR (Israel), April 2000, 110 pp; Louis René Beres, ISRAEL’S SURVIVAL IMPERATIVES: THE OSLO AGREEMENTS IN INTERNATIONAL LAW AND NATIONAL STRATEGY, ACPR Policy Paper No. 25, ACPR (Israel), April 1998, 74 pp; Louis René Beres, “Assassinating Saddam Hussein: The View From International Law,” INDIANA INTERNATIONAL AND COMPARATIVE LAW REVIEW, Vol. 13, No. 3, 2003, pp. 847- 869; Louis René Beres, “The Newly Expanded American Doctrine of Preemption: Can It Include Assassination,” DENVER JOURNAL OF INTERNATIONAL LAW AND POLICY, Vol. 31, No. 2., Winter 2002, pp. 157-177; Louis René Beres and (Col/IDF/Ret.), Yoash Tsiddon-Chatto, “Reconsidering Israel’s Destruction of Iraq’s Osiraq Nuclear Reactor,” TEMPLE INTERNATIONAL AND COMPARATIVE LAW JOURNAL, Vol. 9, No. 2., 1995, pp. 437-449; Louis René Beres, “Striking `First’: Israel’s Post Gulf War Options Under International Law,” LOYOLA OF LOS ANGELES INTERNATIONAL AND COMPARATIVE LAW JOURNAL, Vol. 14, Nov. 1991, pp. 10-24; Louis René Beres, “On Assassination as Anticipatory Self-Defense: Is It Permissible?” 70 U. DET. MERCY L. REV. U., 13 (1992); Louis René Beres, “On Assassination as Self-Defense: The Case of Israel,” 20 HOFSTRA L. REV 321 (1991); Louis René Beres, “Preserving the Third Temple: Israel’s Right of Anticipatory Self-Defense Under International Law,” 26 VAND. J. TRANSNAT’L L. 111 (1993); Louis René Beres, “After the Gulf War: Israel, Preemption and Anticipatory Self-Defense,” 13 HOUS. J. INT’L L. 259 (1991); Louis René Beres, “Israel and Anticipatory Self-Defense,” 8 ARIZ J. INT’L & COMP. L. REV. 89 (1991); Louis René Beres, “After the Scud Attacks: Israel, `Palestine,’ and Anticipatory Self-Defense,” 6 EMORY INT’L L. REV. 71 (1992); and Louis René Beres, “Israel, Force and International Law: Assessing Anticipatory Self-Defense,” THE JERUSALEM JOURNAL OF INTERNATIONAL RELATIONS, Vol. 13, No. 2., 1991, pp. 1-14.
[29].Jurisprudentially, these “solutions” represent “Crimes against humanity.” For definition of such crimes, See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS POWERS AND CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL. Done at London, August 8, 1945. Entered into force, August 8, 1945. For the United States, Sept. 10, 1945. 59 Stat. 1544, 82 U.N.T.S. 279. The principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal were affirmed by the U.N. General Assembly as AFFIRMATION OF THE PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED BY THE CHARTER OF THE NUREMBERG TRIBUNAL. Adopted by the U.N. General Assembly, Dec. 11, 1946. U.N.G.A. Res. 95 (I), U.N. Doc. A/236 (1946), at 1144. This AFFIRMATION OF THE PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED BY THE CHARTER OF THE NUREMBERG TRIBUNAL (1946) was followed by General Assembly Resolution 177 (II), adopted November 21, 1947, directing the U.N. International Law Commission to “(a) Formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal, and (b) Prepare a draft code of offenses against the peace and security of mankind….” (See U.N. Doc. A/519, p. 112). The principles formulated are known as the PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED IN THE CHARTER AND JUDGMENT OF THE NUREMBERG TRIBUNAL. Report of the International Law Commission, 2nd session, 1950, U.N. G.A.O.R. 5th session, Supp. No. 12, A/1316, p. 11.
[30].Here we must recall that criminal responsibility of leaders under international law is not limited to direct personal action nor is it limited by official position. On the principle of command responsibility, or respondeat superior, see: In re Yamashita, 327 U.S. 1 (1945); The High Command Case (The Trial of Wilhelm von Leeb), 12 LAW REPORTS OF TRIALS OF WAR CRIMINALS 1 (United Nations War Crimes Commission Comp. 1949); see Parks, COMMAND RESPONSIBILITY FOR WAR CRIMES, 62 MIL.L. REV. 1 (1973); O’Brien, THE LAW OF WAR, COMMAND RESPONSIBILITY AND VIETNAM, 60 GEO. L.J. 605 (1972); U S DEPT OF THE ARMY, ARMY SUBJECT SCHEDULE No. 27 – 1 (Geneva Conventions of 1949 and Hague Convention No. IV of 1907), 10 (1970). The direct individual responsibility of leaders is also unambiguous in view of the London Agreement, which denies defendants the protection of the act of state defense. See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS, Aug. 8, 1945, 59 Stat. 1544, E.A.S. No. 472, 82 U.N.T.S. 279, art. 7.
[31] These breaches include various forms of “perfidy.” Deception can certainly be legal under the law of armed conflict, but The Hague Regulations clearly disallow any placement of military assets or personnel in populated civilian areas. Prohibition of perfidy is codified at Protocol 1 of 1977, additional to the Geneva Conventions of 1949, and at Geneva IV, Art. 28. It is widely recognized that these rules are also binding on the basis of customary international law. Perfidy represents an especially serious violation of the law of war, one that is identified as a “Grave Breach” at Article 147 of Geneva Convention IV. Significantly, in our current context, the legal effect of perfidious behavior is always to immunize the preempting state from any unavoidable harm done to the perfidious party’s noncombatant populations. See, by this author, Louis René Beres, “Religious Extremism and International Legal Norms: Perfidy, Preemption and Irrationality,” CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW, Vol. 39, No. 3., 2007-2008, pp. 709-730.
[32].The term “Grave Breaches” applies to certain infractions of the Geneva Conventions of 1949 and Protocol I of 1977. The actions defined, as “Grave Breaches” in the four Conventions must be performed willfully or intentionally, and against the different groups of “protected person” identified by each Convention. The High Contracting Parties to the Geneva Conventions are under obligation “to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed,” a grave breach of the Convention. As defined at Art. 147 of Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (6 U.S.T. 3516, signed on Aug. 12 1949, at Geneva), Grave Breaches “shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Reference to Grave Breaches can also be found in the INTERIM REPORT OF THE COMMISSION OF EXPERTS, UNITED NATIONS DOCUMENT, S/25274, and January 2, 1993, at Sec. 3., Art. 47.
[33] This term is used here in the most literal jurisprudential sense. (See: Convention on the Prevention and Punishment of the Crime of Genocide, Done at New York: December 9, 1948. Entered into force, January 12, 1951. 78 U.N.T.S. 277.) The Genocide Convention criminalizes not only the various stipulated acts of genocide, but also (Article III) conspiracy to commit genocide and direct and public incitement to commit genocide. Articles II, III and IV of the Genocide Convention are fully applicable in all cases of direct and public incitement to commit genocide. For the Convention to be invoked, it is sufficient that any one of the State parties call for a meeting, through the United Nations, of all the State parties (Article VIII).
[34] Neither international law nor US law specifically advises any particular penalties or sanctions for states that choose not to prevent or punish genocide committed by others. Nonetheless, all states, most notably the “major powers” belonging to the UN Security Council, are bound, among other things, by the peremptory obligation (defined at Article 26 of the Vienna Convention on the Law of Treaties) known as pacta sunt servanda, to act in continuous “good faith.” In turn, this pacta sunt servanda obligation is itself derived from an even more basic norm of world law. Commonly known as “mutual assistance,” this civilizing norm was most famously identified within the classical interstices of international jurisprudence, most notably by the eighteenth-century legal scholar, Emmerich de Vattel in The Law of Nations (1758).
[35] An Israel-Iran nuclear war could take place during the period that Iran is still pre-nuclear. Even before Iran could acquire a nuclear missile capability, it could acquire the capacity to use radiation dispersal weapons. Though less apocalyptic than any actual nuclear chain-reaction bomb, such a capacity could still wreak long-term havoc upon Israel. The present author first wrote about such little-discussed weapons in an early book on nuclear terrorism. See: Louis René Beres, Terrorism and Global Security: The Nuclear Threat (Westview, 1987).
