For Israel, a Two-State Solution Would Be a ‘Final Solution’ Commentary
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For Israel, a Two-State Solution Would Be a ‘Final Solution’
Edited by: JURIST Staff

The evidence is clear. The true aim of all authoritative Palestinian leaderships is not a sovereign and independent state of Palestine – a diplomatic option these leaderships have willfully rejected again and again –  but elimination of the Jewish State.  In this urgent matter, history deserves immediate pride of place.

To begin, there has never been a sovereign state of Palestine, nor does such a state exist presently. For anyone willing to examine the pertinent history in its verifiable legal context, the starting point should be the Convention on the Right and Duties of States (Montevideo, 1933). [1] As the governing treaty on statehood, “Montevideo” dispels all prevailing falsifications about a pre-existing “State of Palestine.”

Still, while waging a criminal-terrorist war in Gaza, [2] the Palestinian side and its supporters demand that “Israel-occupied areas” become a newly codified Palestinian state. Significantly, on official Palestinian maps, all of Israel proper is identified as “Occupied Palestine.” Even before working diplomatically on a “Two State Solution,” the Palestinian side has accepted a cartographic genocide of the Jewish State. [3]

“Palestine from the river to the sea” pretty much says it all. In this connection, fair-minded observers should finally recall that the Palestine Liberation Organization (PLO, forerunner of PNA and Hamas) was founded in 1964, three years before there were any “Israel-occupied territories.” So what exactly was it seeking to “liberate?”

During the many years that Fatah and Hamas terrorists were energetically slaughtering each other (as well as Israeli noncombatants, who were raped and mutilated during the October 7, 2023 hostage-taking), Israel’s persistent warnings about Palestine were swept under America’s diplomatic rug. Not even after 9/11, when both Fatah and Hamas openly celebrated America’s jihad-triggered misfortune, did the United States re-evaluate its irrational support of Palestinian statehood. Today, reasonable persons should seriously inquire, especially as another US presidential election approaches: Is it lawful or sensible for the United States to support Palestinian statehood when such support would be on behalf of a continuously murderous and anti-American terror organization? [4]

Enemy theology matters. For all jihadist forces in the Middle East, Sunni and Shia, conflict with Israel is never authentically about land. Rather, it is about God; it is about variously derivative promises of personal immortality.

Truth is exculpatory. For the Palestinians and their frequently-deluded allies, the real enemy is never Israel per se. This true enemy is “The Jews.” The young Palestinian terrorist who strikes with axe or blade (both were used for beheading Jewish children on October 7, 2023) is expecting to become a “martyr,” a shahid.  For the Palestinian terrorist, could there ever be any form of power greater than the jihadist promised power over death? [5]

It’s high time for candor. Hamas, Fatah and all other Palestinian terror organizations seek a “One State Solution” for their “Jewish Problem.” In principle, perhaps, earlier declarations of American support for Palestinian “self-determination”[6] might not have been unreasonable as such, [7] but only if the Palestinian side had actually been committed to a “Two-State Solution.” Even today, in the January 22, 2024 statement of Hamas leader Khaled Mashal, a uniform Palestinian goal is plain: “We reject the Two-State Solution, which requires we recognize the legitimacy of `The Zionist Entity.’”

Despite policy differences, both the Palestinian National Authority (Fatah) and the Islamic Resistance Movement (Hamas) continue to agree on one overriding point. This is their joint and effectively genocidal conviction that: (1) Israel is by its very nature intolerable (here, any Jewish State, by definition, represents a religious abomination to the Dar al Islam); and (2) all of Israel is “Occupied Palestine.” The official Palestinian Map of “Palestine,” first broadcast on PA Television in September 2011, includes both the PNA areas and all of the State of Israel (excluding the Golan Heights) wrapped in a Palestinian flag. Similarly disfiguring maps that present Israel proper as “Occupied Palestine” appear in Palestinian schoolbooks and are endlessly broadcast on PNA TV.

From the seventeenth century onward, the world political system has operated in a “state of nature.” [8] In the anarchic Middle East, considerations of raw power have routinely trumped the presumptively binding expectations of international law.  On specific matters concerning Palestinian statehood, it is high time for well-intentioned observers to understand that the Palestinian people’s true enemy is not Israel, but rather a sordid mix of jihadist criminal forces. Accordingly, any further Palestinian advances toward formalized statehood would be to the long-term disadvantage of both Arabs and Israelis. Such a disadvantage could become existential.

As a complicating factor, because of the still vital Sunni-Shiite schism, variously specific outcomes of Palestinian statehood could remain indeterminate and unpredictable. [9] In such circumstances, the final victor could be a steadily nuclearizing Iran. [10] If there should be any doubts about the willingness of a still pre-nuclear Iran to engage militarily against an already-nuclear Israel, [11] one need only recall that in late January, Iran was demonstrably willing to attack an already-nuclear Pakistan.

It’s time for a summing up. In essence, the Palestinian raison d’etre of any Two-State Solution would be the replacement of a lawfully-existing Jewish State by an openly irredentist Arab state. Prima facie, as reaffirmed by Hamas leader Khaled Mashal on January 22, 2024, it would be a One-State or Final Solution.


[1] Convention signed at Montevideo December 26, 1933; Senate advice and consent to ratification, with a reservation, June 15, 1934; Ratified by the President of the United States, with a reservation, June 29, 1934; Ratification of the United States deposited with the Pan American Union July 13, 1934; Entered into force December 26, 1934; Proclaimed by the President of the United States January 18, 1935; Article 8 reaffirmed by protocol of December 23, 1936.

[2] Under international law, terrorists are always Hostes humani generis, or “Common enemies of mankind.” See: Research in International Law: Draft Convention on Jurisdiction with Respect to Crime, 29 AM J. INT’L L. (Sup 1935) 435, 566 (quoting King V. Marsh (1615), 3 Bulstr. 27, 81 Eng. Rep 23 (1615) (“a pirate est Hostes humani generis”)).

[3] Significantly, international law, which is an integral part of the legal system of all states, already assumes a reciprocally common general obligation to supply benefits to one another and to avoid war wherever possible. This core assumption of jurisprudential solidarity is known formally as a “peremptory” or jus cogens expectation, that is, one that is not even subject to question. It can be found already in Justinian, Corpus Juris Civilis, Hugo Grotius, The Law of War and Peace (1625) and Emmerich de Vattel, The Law of Nations or Principles of Natural Law (1758).

[4] Punishment of aggression is a firm and longstanding expectation of international criminal law.  The peremptory principle of Nullum Crimen sine poena, “No crime without a punishment,” has its origins in the Code of Hammurabi (c. 1728 – 1686 B.C.E.); the Laws of Eshnunna (c. 2000 B.C.E.); the even earlier Code of Ur-Nammu (c. 2100 B.C.E.) and the law of exact retaliation, or Lex Talionis, presented in three separate passages of the Torah.

[5] In world politics, “power over death” has typically been linked to belligerent nationalism. In his posthumously published Lecture on Politics (1896), German historian Heinrich von Treitschke observed: “Individual man sees in his own country the realization of his earthly immortality.” Earlier, German philosopher Georg Friedrich Hegel opined, in his Philosophy of Right (1820), that the state represents “the march of God in the world.” The “deification” of Realpolitik, a transformation from mere principle of action to a sacred end in itself, drew its originating strength from the doctrine of sovereignty advanced in the sixteenth and seventeenth centuries. Initially conceived as a principle of internal order, this doctrine underwent a specific metamorphosis, whence it became the formal or justifying rationale for international anarchy –  that is, for the global “state of nature.” First established by Jean Bodin as a juristic concept in De Republica (1576), sovereignty came to be regarded as a power absolute and above the law.

[6] See by 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).

[7] For early discussion of authoritative international law criteria that distinguish permissible insurgencies from terroristic 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.

[8] This system was originally codified and effectively “sanctified” at the end of the Thirty Years’ War and the Peace of Westphalia: See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; and Treaty of Peace of Osnabruck, Oct. 1648, 1., Consol. T.S. 119. Together, these two treaties comprise the Peace of Westphalia.

[9] It has been falsely argued that certain prospective harms to Israel could be reduced eliminated by ensuring the Palestinian state’s immediate “demilitarization.” For informed reasoning against this naive argument, see: Louis René Beres and Zalman Shoval, “Why a Demilitarized Palestinian State Would Not Remain Demilitarized: A View Under International Law,” Temple International and Comparative Law Journal, Winter 1998, pp. 347-363; and Louis René Beres and Zalman Shoval, “On Demilitarizing a Palestinian `Entity’ and the Golan Heights: An International Law Perspective,” Vanderbilt Journal of Transnational Law, Vo. 28., No.5., November 1995, pp. 959-972.

[10] This is the case if Israel did not exert its rights under international law to “anticipatory self-defense.” For early scholarly examinations of anticipatory self-defense, by Professor Beres and with particular reference to Israel, see:  Louis René Beres,  “Preserving the Third Temple:  Israel’s Right of Anticipatory Self-Defense Under International Law,”  Vanderbilt Journal of Transnational Law,  Vol. 26,  No. 1,  April 1993,  pp. 111- 148;  Louis René Beres,  “After the Gulf War:  Israel, Preemption and Anticipatory Self-Defense,”  Houston Journal of International Law, Vol. 13,  No. 2,  Spring 1991,  pp. 259 – 280;  and 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. 1 – 24.

[11] In law, nuclear war and genocide need not be considered as mutually exclusive.  War might well be the means whereby genocide is undertaken.  According to Articles II and III of the Genocide Convention, which entered into force on January 12, 1951, genocide includes any of several listed acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such….”  See Convention on the Prevention and Punishment of the Crime of Genocide Done at New York, Dec. 9, 1948.  Entered into force, Jan. 12, 1951.  78 U.N.T.S.  277.

Louis René Beres (Ph.D. Princeton, 1971) is the author of many books and scholarly articles dealing with Israel, terrorism and international law. He was born in Zürich at the end of World War II.

Zalman Shoval twice served as Israel’s ambassador to the United States. He was educated at the University of California, Berkeley (US) and The Graduate Institute of International Studies at Geneva (Switzerland). 

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