Israel would be entirely correct that the Declaration of Principles (DOP) was intended to establish an “autonomy,” not a state. Further (according to Ambassador Shoval), “Palestinian statehood is contingent on the Palestinians destroying their terrorist infrastructure, of which Hamas itself is an integral part.” However, the Palestinians themselves will certainly understand something very helpful to their cause. That is: there are applicable norms supporting statehood that exist outside the narrow legal context of the specific Israeli-Palestinian agreements.
For example, the Hamas-controlled Palestinian government authority will certainly assert that the right to “self-determination” is a peremptory or jus cogens norm under international law, a rule that permits “no derogation.” Hence, it will maintain, even a formal agreement that denies the right of Palestinian statehood is null and void to the extent that it might prevent Palestinian “self-determination.”
Do the Palestinians actually have such a peremptory right? In my informed judgment, and in the learned opinion of Ambassador Shoval, they assuredly do not. In Israel’s currently official judgment, one hopes that they do not. More importantly, however, in the effective judgment of an overwhelming majority of the world’s existing states, they certainly do have such a right. This is true even now. Even after the Hamas victory. In the end, in spite of what international law calls “the general principles of law recognized by civilized nations,” few states will act contrary to or vote against Palestinian statehood. This would occur even if the Israeli position is now firmly and properly grounded in the underlying texts of Oslo/Roadmap and in the June 24, 2002 landmark statement of President George W. Bush: “If Palestinians embrace democracy, confront corruption and firmly reject terror they can count on American support for the creation of a provisional state of Palestine.”
The original Oslo Agreements make it very clear that, pending the outcome of final status negotiations, all options must remain open. Hence, the DOP, at Article V.4, provides that the “outcome of the permanent status negotiations should not be prejudiced or preempted by agreements reached for the interim period.” The Interim Agreement, at Article XXXI.6 adds: “Neither party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions.” Pending the outcome of the permanent status negotiations, neither side is permitted to engage in any attempt to change the legal status of Judea/Samaria/West Bank. (Gaza, of course, is already a moot issue after Prime Minister Sharon’s unilateral “disengagement.”) This is provided explicitly at Article XXI.7 of the Interim Agreement.
These points notwithstanding, Israel’s argument will be countered by the larger and more “flexible” context of international law. The norms that shall bind Palestinians and Israelis are determined not only by the precise written agreements negotiated between them, but also by the much broader body of relevant international norms and principles. Within this more expansive body lies a number of peremptory rules that can override Oslo/Road Map expectations, rules that can be used decisively to Palestinian advantage and to Israeli disadvantage. What is most important, perhaps, the world generally wants to focus on these particular rules in this matter, because it still wants, for a variety of different reasons, to justify creation of a new state of Palestine.
Ambassador Shoval is certainly right to argue that Israel must now make every conceivable effort to prevent a Palestinian state. Whether or not the Jewish State actually “holds the keys to the very idea of Palestinian statehood,” however, is rather doubtful. To act in its own interests, and in the critical interests of Israel’s physical survival, Israel’s prime minister quickly needs to gather together Israel’s best legal thinkers to counter years of the country’s terrorizing self-delusion about peace and Palestinian self-determination. Simultaneously, on the deeply regrettable understanding that a Palestinian state could already be a fait accompli, Israel’s strategic thinkers must also be consulted. To them, the following different question should be posed: How shall Israel live with a still probable Palestinian state? In answering this particular question, Israel’s best strategic thinkers will have to look closely at likely synergies/interactions between Palestine and other Arab-Islamic enemy states, as well as at synergies/interactions between Palestine and Israel’s own internal Arab populations. Notwithstanding Israel’s formal right to reject a Palestinian state under international law, their unenviable task will be necessary.
LOUIS RENE BERES (Ph.D., Princeton, 1971) is the author of many books and articles dealing with Israeli security matters and international law. Strategic and Military Affairs columnist for The Jewish Press, his work is well known to Israel’s political, military and intelligence communities. He has been a co-author of several law journal articles and opinion editorials with Ambassador Shoval.