On May 6, 2025, National Unity leader Benny Gantz reaffirmed the obvious: Establishment of a Palestinian state would seriously undermine Israel’s security. Gantz concluded correctly that, “…anyone who talks about a Palestinian state or [Gaza] withdrawal is simply delusional.” What needs to be added is that there would be no greater safety for Israel by agreeing to Palestinian “demilitarization.”
In 1995 and 1998, Zalman Shoval (Israel’s 2x former ambassador to the United States) and I published several law journal articles clarifying the demilitarization trap. In essence, we argued that even if an impressive number of states could argue convincingly for recognition of “Palestine,” these arguments would not satisfy the authoritative expectations of international law.
Among other things, the Convention on the Rights and Duties of States (1934) – the treaty that defines legal requirements of statehood – explicitly identifies all pertinent criteria. These binding standards do not include recognition. In principle, at least, national declarations of support for Palestinian “self-determination” could be reasonable if the Palestinian side were authentically committed to a “two-state solution.”
Yet the Palestinian Authority (PA), Hamas, and other regional “liberation movements” still insist that there should be only one legitimate state in the area and that this state must be “Palestine.” Reflecting jihadi underpinnings of their expected state, Palestinian leaders in West Bank (Judea/Samaria), Gaza and elsewhere continue to support the view that Israel represents an irremediable abomination of the Dar al-Islam (the world of Islam).
IN THIS non-negotiable and annihilationist view, all of Israel remains nothing more than “Occupied Palestine.” It follows, inter alia, that anyone still seeking a “Two-State Solution” would be urging the creation of a criminal aggressor state, one for which the barbarism of October 7, 2023, represents a suitable template for future violence against Israeli noncombatants.
Earlier, this manipulative urging had stemmed from a diplomatic framework known as “A Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict,” proposed in 2003 by the Quartet on the Middle East: the US, EU, UN, and Russia.
Together with Palestinian refusal to reject the genocidal “Phased Plan” (Cairo) of June 1974 and the correlative Palestinian jihad to “liberate occupied Palestine” in increments, the road map revealed a largely unforeseen peril. Even certain well-intentioned states favoring Palestinian sovereignty were being misled by contrived promises of “demilitarization.”
On June 14, 2009, Prime Minister Benjamin Netanyahu agreed to accept another presumptive enemy state, but made such an agreement contingent on verifiable Palestinian demilitarization. Presently, Mr. Netanyahu, once again prime minister, opposes Palestinian statehood in any form, even if accompanied by demilitarization. This is the only correct and rational position because Israel’s survival could not plausibly coincide with any such bestowal of Arab sovereignty.
In law, functioning as a sovereign state, Palestine would not be bound by any pre-independence compacts. Might this be different if the new Arab state were somehow willing to consider itself bound by pertinent pre-state agreements? Not at all. Even in such relatively favorable circumstances, the new government of an irredentist Palestinian terror state would retain grounds to implement lawful treaty terminations.
The relevant particulars are unhidden. Palestine could withdraw from agreements because of a “material breach” – an alleged violation by Israel that credibly undermined the object and/or purpose of the accord. Alternatively, it could point toward what international law calls rebus sic stantibus, a “fundamental change of circumstances.” Here, if a Palestinian state were to declare itself vulnerable to previously unforeseen dangers, even from forces of other Arab or Islamist armies, it could lawfully end its previously “guaranteed” commitments to stay demilitarized.
Crafting a comprehensive post-Gaza War accord
THERE IS another method by which a treaty-like arrangement obligating a new Palestinian state to accept demilitarization could lawfully be invalidated. Here, the usual grounds that can be invoked under domestic law to invalidate contracts would apply as well to treaties and treaty-like agreements under international law. This means that a new state of Palestine could point to alleged “errors of fact” or “duress” as appropriate grounds for terminating any negotiated pacts with Israel.
Per the Vienna Convention on the Law of Treaties (1969), any treaty or treaty-like agreement is void if, at the time it was entered into, it conflicts with a “peremptory” rule of general international law. This means a rule accepted and recognized by the international community of states as one from which “no derogation is permitted.” Because the right of all sovereign states to maintain military forces essential to “self-defense” is precisely such a rule, Palestine, depending on the particular form of its institutionalized authority, could be within its rights to abrogate any prior arrangements to accept demilitarization.
THOMAS JEFFERSON, the third president of the United States, 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 that: “There are circumstances which sometimes excuse the nonperformance of contracts between man and man; so are there also between nation and nation.” Specifically, Jefferson continued, “...the law of self-preservation always overrules the law of obligation to others.”
In crafting a comprehensive post-Gaza War accord, Israel should draw no reassurance from earlier Palestinian promises to demilitarize. Should the government of a new state of Palestine ever choose to invite foreign armies or terrorists onto its territory (possibly after the original government authority was displaced or overthrown by more militantly Islamist forces), it could do so without practical difficulties and without violating international law.
In concept, any plan for Palestinian statehood would still be built on the long-moribund Oslo Accords: ill-founded agreements destroyed by persistent Arab violations. For the Palestinians, Oslo-mandated expectations were never anything more than a cost-effective method of dismantling Israel. For the Israelis, these expectations were taken as a more-or-less unavoidable way of averting future terror crimes and war-level aggressions.
WHAT DOES all of this ultimately mean for any Palestinian demilitarization “remedy” and Israel’s national security? Prima facie, the Arab world and Iran still have only a “one-state solution” for the Middle East. This “solution” eliminates Israel altogether. Unassailably, it is a “final solution.” Even today, official maps of “Palestine” show a new jihadi state comprising all of the West Bank (Judea/Samaria), all of Gaza and all of the State of Israel.
Back on September 1, 1993, Yasser Arafat affirmed that the Oslo Accords would remain an integral 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.” This PNC Resolution calls for “the establishment of a national authority on any part of Palestinian soil from which Israel withdraws or is liberated.”
Later, on May 29, 1994, Rashid Abu Shbak, then senior PA security official, remarked straightforwardly: “The light which has shone over Gaza and Jericho will also reach the Negev and the Galilee.”
Since these early declarations, nothing has changed in authoritative Palestinian definitions of Israel and “Palestine.” This is true for the leadership of both Hamas and the PA. It makes no tangible difference whether one jihadi terror group or another is in power. Both would intend a State of Palestine that is irredentist and violence-centered. To be sure, the egregious crimes of October 7, 2023, would remain a proud symbol of Palestinian “self-determination.”
Those who would still consider accepting Palestinian statehood in some form should recall the following: The Islamic world contains 50 states with more than one billion people. Islamic states comprise an area 672 times the size of Israel. Israel, together with Judea/Samaria, is less than half the size of San Bernardino County in California. The Sinai Desert, transferred by Israel to Egypt in the 1979 Treaty, is three times larger than the State of Israel. Israel is less than half the size of Lake Michigan.
There is one last noteworthy point. The many-sided threat of Palestinian statehood is part of a much larger and more portentous enemy threat.
This suggests, ipso facto, that any crime-based jihadi state would become a significant “force-multiplier” for Israel’s adversaries, both state and sub-state. In a worst-case but fully realistic scenario, the creation of “Palestine” would heighten the probability of a mass-casualty international war in the region. At some not-too-distant point in time, this could mean a no-holds-barred, unconventional conflict.
The writer is an emeritus professor of international law at Purdue University and the author of many books and scholarly articles on international law, nuclear strategy, nuclear war, and terrorism. His 12th and latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; second edition, 2018).