Israel Deserves Better  As recent developments show, such an acquiescence would be mistake. There is cause for concern.

Iran continues to take Americans and other Westerners hostage, indicting three dual-nationals just days ago on unknown charges. This remains a troubling pattern of diplomatic blackmail, negotiation by coercion. Last month in Lebanon, a so-called parliamentarian for Hezbollah, a terrorist surrogate of the Iranian regime, called for “Israeli civilians to be kidnapped in a future war with Israel.” He “boasted” that Hezbollah’s missiles “can now reach Tel Aviv from Iran, not just Damascus, Beirut, or Cairo.”

The German intelligence service recently reported on numerous Iranian attempts to clandestinely obtain dual-use chemical, biological and nuclear technology. The report by the Bundesamt für Verfassungsschutz (BfV), the domestic intelligence service of the Federal Republic of Germany, also noted “a further increase in the already considerable procurement efforts in connection with Iran’s ambitious missile technology program, which could, among other things, potentially serve to deliver nuclear weapons.”

In early May, the Deputy Chief of Staff of the Iranian Armed Forces, Brigadier General Ali Abdollahi, reportedly revealed at a conference in Tehran that the regime had test-fired a high-precision ballistic missile “with a range of 2000 kilometers and pinpoint accuracy of 8 meters.” In March, Iran’s Islamic Revolutionary Guard Corps (IRGC) launched two Qadr medium-range ballistic missiles. On one of them, in Hebrew, was inscribed the phrase, “Israel must be wiped out.”

Iran’s Deputy Foreign Minister recently said, in response to the U.N. Secretary General’s statement that Iran’s ballistic missile tests are “not consistent” with the “spirit” of the multilateral nuclear agreement: “We will severely confront any move — be it political, legal, or technical — that hinders our missile program.”

Also recently, U.S. Department of Energy officials confirmed the purchase from Iran of nuclear materials. Congress voted to block such transactions but as media reports indicate that the purchase, amounting to $8.6 million in taxpayer funds, was conducted in April, the vote was to no avail.

More surprises could be in the offing. An oft-overlooked benefit in the JCPOA can be found in Annex III, where the parties decided to engage “in different areas of civil nuclear co-operation,” including construction and modernization of Iranian light water reactors, provision of technical assistance and on-the-job training.

Meanwhile, Israel has been denied a bilateral nuclear cooperation agreement with the U.S.

Some argue that, in light of the security challenges posed by Iran as well as other state and non-state actors, Israel should accept whatever the U.S. offers in the Memorandum of Understanding (MOU). This acceptance would be a mistake. A close ally — the only democracy in the Middle East — and a much needed partner in U.S. efforts to combat regional and global threats, Israel must not be turned into a beggar, particularly when Obama Administration policies have, arguably, contributed to an escalation of the dangers Israel faces.

Consider the billions in previously frozen assets released to Iran under the nuclear agreement. As least some of it, by Secretary of State Kerry’s own admission, will fall into the hands of the IRGC and other Iranian entities, affiliates, and surrogates designated as terrorists and terrorist-enablers. A separate $1.7 billion the U.S. Treasury transferred to the Central Bank of Iran in January of this year, as Tehran released Americans it had unjustly held captive for years, will be used to fund Iran’s military expansion.

For these and many other reasons, Israel’s reported MOU requests on security assistance, missile defense, and regional qualitative military advantage are justified.

Israel is a major strategic partner, as declared in the United States-Israel Strategic Partnership Act, enacted on December 19, 2014. The new law laid the foundation for expanded bilateral cooperation in a wide variety of spheres including defense, intelligence, and homeland- and cyber-security. Among other provisions, it enhanced “Israel’s trade status to expedite export licensing” for certain defense-related technologies and products, and expanded “authority for forward-deployed U.S. weapons stockpiles in the Jewish State.” Israel is also a major non-NATO ally and, in May of this year, was granted permission by the North Atlantic Council to open a diplomatic mission at NATO headquarters in Brussels.

Israel is a major strategic partner, as declared in the United States-Israel Strategic Partnership Act, enacted on December 19, 2014. The new law laid the foundation for expanded bilateral cooperation in a wide variety of spheres including defense, intelligence, and homeland- and cyber-security. Above, Israeli PM Netanyahu meets President Obama at the White House, May 20, 2011. (Image source: Israel PM office)

Perhaps it is time to fill the void in the security relationship with the Jewish State, elevate the discussions beyond an MOU, and consider a more fulsome security arrangement — one that is comparable to those with such trusted allies as the United Kingdom and Australia.

The Congress should lead the way, as the Obama Administration does not have “clean hands”. A newly released Senate Subcommittee report explains how the State Department awarded hundreds of thousands of dollars in government grants to an Israeli organization that used the funds to mount a campaign against Prime Minister Netanyahu in the 2015 parliamentary elections. President Obama once even questioned the necessity of maintaining Israel’s qualitative military edge.

Ultimately, the terms of any U.S.-Israel agreement must withstand comparison to the concessions offered Iran in the JCPOA and show unequivocally that Israel, a trusted ally and major strategic partner, fared better in negotiations than an unconstrained enemy.

Yleem D.S. Poblete, Ph.D. is a Fellow at the Institute for Policy Research at the Catholic University of America. She served for close to 20 years on the staff of the Committee on Foreign Affairs, U.S. House of Representatives, including as Chief of Staff. During her tenure, she was responsible for such consequential measures as the Iran Threat Reduction and Syria Human Rights Act of 2012, the Palestinian Anti-Terrorism Act of 2006, and the 2007 MOU with Israel.

International law has one overarching debility. No matter how complex the issues, virtually everyone able to read feels competent to offer an authoritative legal opinion. While, for example, no sane person would ever explain or perform cardio-thoracic surgery without first undergoing rigorous medical training, nearly everyone feels competent to interpret complex meanings of the law.

This debility needs to be countered, at least on a case by case basis. In the enduring controversy over Palestinian statehood, there are significant rules to be considered. For a start, on November 29, 2012, the General Assembly voted to upgrade the Palestinian Authority (PA) to the status of a “Nonmember Observer State.”

Although it is widely believed by many self-defined “experts” that this elevation by United Nations has already represented a formal bestowal of legal personality, that belief is incorrect. Under law, at least, “Palestine” – whatever else one might happen to think of “fairness” – remains outside the community of sovereign states.

This juridical exclusion of “Palestine,” whether welcome or not, on selective political grounds, is evident “beyond a reasonable doubt.” The authoritative criteria of statehood that express this particular exclusion are long-standing and without ambiguity. Under relevant international law, a true state must always possess the following specific qualifications: (1) a permanent population; (2) a defined territory; (3) a government; and (4) the capacity to enter into relations with other states.

Moreover, the formal existence of a state is always independent of recognition by other states. According to the 1934 Convention on the Rights and Duties of States (the Montevideo Convention):

“Even before recognition, the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit….”

It follows that even a Palestinian state that would fail to meet codified Montevideo expectations could simply declare otherwise, and then act accordingly, “to defend its integrity and independence….”

More than likely, any such “defending” would subsequently involve incessant war and terror against “Occupied Palestine,” also known as Israel. The Palestine Liberation Organization (PLO) was formed in 1964, three years before there supposedly were any “Israeli Occupied Territories.” What, then, exactly, was the PLO trying to “liberate?”

Whenever the PA finally decides it is time openly to declare statehood, certain explicit Montevideo standards and corollary criteria of statehood will need to be invoked.

Much as the Government of Israel, seeking to challenge any such adversarial PA declaration, will then cite correctly multiple Oslo Agreement violations. The PA will counter-argue that its particular right to declare an independent state of Palestine is nonetheless fundamental, or “peremptory.” The PA will surely add as a footnote that its right of statehood according to “jus cogens“ (“certain fundamental, overriding principles of international law, from which no derogation is ever permitted”) simply overrides all previously-existing expectations of a just peace with Israel.

Israeli Prime Minister Yitzhak Rabin, U.S. President Bill Clinton, and PLO chairman Yasser Arafat at the Oslo Accords signing ceremony on September 13, 1993. (Image source: Vince Musi / The White House)

Undoubtedly, among other matters, the PA will cite (1) the plainly non-treaty quality of the Oslo Agreements (per definitions of “treaty” at the 1969 Vienna Convention on the Law of Treaties), and to (2) those basic and allegedly immutable human rights under international law that concern “self‑determination” and “national liberation.”

Now, of course, Prime Minister Netanyahu seems to have acknowledged the eventual creation of Palestine, but, among other things, only on the seemingly prudent condition of antecedent Palestinian “demilitarization.”

While this contingent condition may at first sound reassuring, it effectively represents little more than a contrived and ultimately impotent legal expectation. For one thing, no new state is ever under any obligation to remain “demilitarized,” whatever else it may have actually agreed to during its particular pre-state incarnation. For another, there is no discernible reason to believe that “Palestine” would ever make good on any of its pre-independence promises to Israel to support the Jewish State’s equally basic right to “peace and security.”

For “Palestine,” following formal statehood, the struggle with Israel would continue to be conceptualized as zero-sum; that is, on the corrosive assumption that absolutely any gain for Israel would represent a corresponding loss for Palestine. It could claim it was defending itself against anyone, including terrorist groups, and remain within its rights.[1]

Under the Montevideo Convention, all states are legally equal, enjoy the same rights, and have equal capacity in their exercise. The moment that the PA should proceed to declare a State of Palestine, the new country could become the effective juridical equal of Israel. To best maintain its indispensable national interests in such circumstances, Israel should insist that Palestine’s borders never be based upon pre-1967 lines.

A perfect core summation of such insistence is provided in the February 10, 2013 words of Israeli legal expert, Ambassador Alan Baker:

“The legality of the presence of Israel’s communities in the area (Judea and Samaria) stems from the historic, indigenous, and legal rights of the Jewish people to settle in the area, granted pursuant to valid and binding international legal instruments, recognized and accepted by the international community. These rights cannot be denied or placed in question.”

Accordingly, Israel should clearly affirm that Israeli “settlement activity” is in fact fully consistent with binding international law. Any contrary affirmation by a still-aspiring “Palestine” would be founded upon specious misrepresentations of this critical law.

Louis René Beres is Emeritus Professor of International Law at Purdue University. His just-published new book is titled Surviving Amid Chaos: Israel’s Nuclear Strategy. lberes@purdue.edu

[1] Over the years, a number of cases in United States federal courts have rejected the idea that the PLO, as “parent” of the PA, is in any way recognizable as the legitimate core of an independent Palestinian state. Earlier, perhaps, capable Israeli lawyers and policymakers might have been able to refer to such American case law in compelling support of an argument against Palestinian statehood. Today, however, after Oslo, and after so many years of incremental Israeli recognition of PLO/PA authority as legitimate, Israel will have to base its well-founded opposition to “Palestine” on other grounds.