Palestine is Here - What Shall Israel do Now?

Citing to various formal expectations of the Oslo agreements, the Barak Government has repeatedly denied PLO/PA authority to declare a Palestinian state. There are two major problems with this delusionary denial. First, Israel's technical legal objections will have absolutely no effect on Palestinian intentions or on worldwide sympathies (both of which are strong). Second, and somewhat less obviously, Israel's objections are much too narrowly focused, and can be countered easily even at the jurisprudential level.

The first problem with Israel's denial of Palestinian right to declare a state needs little discussion. The Palestinian side is firmly and irreversibly committed to sovereignty and independence very soon, and it will likely not be influenced by anything Israel might offer in the way of objections. Significantly, this unambiguous commitment is largely the predictable and ironic outcome of a "Peace Process" advanced and accepted by four successive Israeli governments. For Rabin or Peres or Netanyahu or Barak to have ever believed that the Palestinians would be content with a nonstate "entity" (Netanyahu spoke naively of an entity like "Andorra or Puerto Rico") is beyond intelligent understanding.

The second problem with Israel's denial of right to declare a Palestinian state is that such denial overlooks broader pertinent issues of international law - issues to which the Palestinian side could cite properly and productively as it seeks to legalize its already agreed-upon course of action. Although Israel is entirely correct that the Declaration of Principles (DOP) establishes an "autonomy," not a state, the Palestinians will understand that there are applicable norms supporting statehood outside the narrow legal context of the Israeli-Palestinian agreements.

For example, the PLO/PA will certainly assert that the right to "self- determination" is a peremptory or jus cogens norm under international law, that is, a rule that permits "no derogation." Hence, even a formal agreement that denies the right of Palestinian statehood is arguably 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, they do not. In Israel's judgment, 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. In the end, few states will act or (in the UN) vote against Palestinian statehood - even if the Israeli position is firmly grounded in the codifying texts of Oslo.

The 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) and Gaza Strip. This is provided explicitly at Article XXI.7 of the Interim Agreement.

These points notwithstanding, Israel's argument tends to ignore the larger meaningful context of international law. The norms that bind Palestinians and Israelis are determined not only by the precise agreements negotiated between them, but also by the much broader body of relevant international law. Within this broader body lies a number of peremptory rules that override Oslo 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 wants, generally, to justify creation of a new state of Palestine.

At this point, after almost seven years of suicidal Oslo miscalculations, the Government of Israel should recognize that a Palestinian state is a fait accompli, and that this catastrophic outcome - the result of its own inconceivably bad judgments - cannot now be stopped with narrowly technical and globally unpopular legal arguments. To act in its own interests, and in the critical interests of Israel's physical survival, Prime Minister Barak quickly needs to gather Israel's best strategic thinkers, wherever they might be, and put to them the following question: How shall Israel live with the coming Palestinian state? In answering this essential question, Israel's best strategic thinkers will have to look closely at probable synergies/interactions between Palestine and other Arab-Islamic enemy states as well as synergies/interactions between Palestine and Israel's Arab populations. Their task will be hard.

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