Why the Oslo Accords Should Be Abbrogated by Israel

A Jurisprudential Memorandum
for the New Prime Minister

By Louis Rene Beres*

Benjamin Netanyahu, the new Prime Minister of Israel, intends to honor those portions of the Oslo Accords that have already become "facts on the ground." Although this intention would appear to support the authoritative expectations of international law, exactly the opposite is true. As the following argument makes clear, international law now requires abrogation, not compliance, with these invalid and illegal agreements.

The Oslo Accords between Israel and the PLO are in violation of international law. Israel, therefore, is now obligated to abrogate these nontreaty agreements. A comparable argument could be made regarding PLO obligations, but this would make little jurisprudential sense in light of that particular nonstate party's intrinsic incapacity to enter into a legal arrangement with Israel.

Taken by itself, the fact that the Oslo accords do not constitute authentic treaties under the Vienna Convention - because they link a state with a nonstate party - does not call for abrogation. But as the nonstate party in this case just happens to be a terrorist organization whose leaders must be punished for their egregious crimes, any agreement with this party that offers rewards rather than punishments is entirely null and void. Significantly, in view of the peremptory expectation known in law as Nullum crimen sine poena, "No crime without a punishment," the state party in such an agreement - here the State of Israel - violates international law by honoring the agreement.

According to Principle I of the binding Nuremberg Principles: "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment." It is from this principle, which applies with particular relevance to Hostes humani generis ("Common enemies of humankind") and which originates in three separate passages of the Jewish Torah, that each state's obligation to seek out and prosecute terrorists derives. Hence, for Israel to honor agreements with terrorists - agreements that require, among other pertinent violations - the release of thousands of other terrorists - is to dishonor the very meaning of international law.

Is Yasser Arafat personally a terrorist? In the U.S. case of Klinghoffer v. Palestine Liberation Organization, the court answered in the affirmative. In the Israeli courts, a petition to charge Yasser Arafat with terrorist crimes was submitted to Israel's High Court of Justice in May 1994. This petition, filed by Shimon Prachik, an officer in the IDF reserves, and Moshe Lorberaum, who was injured in a 1978 bus bombing carried out by the PLO, called for Arafat's arrest. The petition noted that Arafat, prima facie, had been responsible for numerous terror attacks in Israel and abroad, including murder, airplane hijacking, hostage-taking, letter-bombing and hijacking of ships on the high seas. The petitioner's allegation of Arafat's direct personal responsibility for terrorism was seconded and confirmed by Dr. Ahmad Tibi, Arafat's most senior advisor: "The person responsible on behalf of the Palestinian people for everything that was done in the Israeli-Palestinian conflict is Yasser Arafat," said Dr. Tibi on July 13, 1994, "and this man shook hands with Yitzhak Rabin."

Terrorism is not the only crime in which Arafat and many of the released Palestinian prisoners are complicit. Related Nuremberg-category crimes, including crimes of war and crimes against humanity, were also committed by these persons. In this connection, the new Prime Minister should recall that units of the Palestine Liberation Army (PLA) served with Saddam Hussein's forces in occupied Kuwait, making them, and Yasser Arafat personally (the legal principle of command responsibility is known as respondeat superior, or "Let the Master Answer") responsible for multiple crimes of extraordinary horror and ferocity. And if these offenses were not enough of an affront to world law, many of the terrorists now being released from Israeli jails in furtherance of the Oslo accords are immediately accepting high positions in the Palestine Authority's security forces.

Even if the nonstate party to the Oslo accords were not a terrorist organization, Israel would have entered into an agreement of unequal obligations, an agreement where the PLO would not be held under international law to the same standards of accountability. Several recent federal court decisions in the United States reaffirm that agreements between nonstate and state parties impose asymmetrical compliance expectations. For example, in a concurring statement in the case of Tel-Oren v. Libyan Arab Republic, a 1981 civil suit in U.S. federal courts in which the plaintiffs were Israeli survivors and representatives of persons murdered in a terrorist bus attack in Israel in 1978, Circuit Judge Harry T. Edwards stated: "../...I do not believe the law of nations imposes the same responsibility or liability on nonstate actors, such as the PLO, as it does on states and persons acting under color of state law."

The PLO, of course, is a terrorist organization, and Israel has no right to honor the Oslo accords' requirement to release convicted members of that organization. No government, in fact, has the right to lawfully pardon or grant immunity to terrorists with respect to criminally sanctionable violations of international law. In the United States, it is evident from the Constitution that the President's power to pardon does not encompass violations of international law, and is limited to "Offenses against the United States." This limitation derives from a broader prohibition that binds all states, including Israel, namely the overriding claims of pertinent peremptory rules stemming from Higher Law or the Law of Nature. These claims are identified in Blackstone's COMMENTARIES, which acknowledge that all law "results from those principles of natural justice, in which all the learned of every nation agree../..../.."

In its apprehension and incarceration of terrorists, Israel acted, however unintentionally, not only for itself, but on behalf of the entire community of states. Moreover, because some of the jailed terrorists had committed crimes against other states as well as against Israel, the government in Jerusalem cannot possibly pardon these offenses against other sovereigns. The Jewish State, therefore, possesses absolutely no right to grant immunity for terrorist violations of international law. No matter what might be permissible under its own Basic Law and the Oslo accords, any freeing of terrorists is legally incorrect. By its freeing of terrorists, Israel is guilty of what is known in law as a "denial of justice."

Israel's obligation to abrogate the Oslo accords, as we have seen, stems from certain peremptory expectations of international law. Israel, however, has substantial rights of abrogation here apart from such expectations. These rights derive from the doctrine of Rebus sic stantibus. Defined literally as "So long as conditions remain the same," this doctrine of changed circumstances now augments Israel's obligations to cease compliance with Oslo. This is because Israel's traditional obligations to the accords ended promptly when a fundamental change occured in those circumstances that existed at the effective dates of the accords and whose continuance formed a tacit condition of the accords' ongoing validity. This change, of course, involved multiple material breaches by the PLO, especially those concerning control of anti-Israel terrorism and extradition of terrorists. In short, Rebus sic stantibus has become pertinent for Israeli abrogation because of the profound change created by the PLO in the very circumstances that formed the cause, motive and rationale of consent.

According to Oslo expectations, Arafat should be actively committed to control of anti-Israel terrorism. Yet, as THE JERUSALEM POST pointed out correctly in a mid-March 1996 editorial, "Arafat not only shelters terrorists; he lets them incite, recruit, organize, train, arm, raise funds, and launch operations from areas under his control. This is now indisputable."

The "head of the snake," admitted former Prime Minister Shimon Peres, "is in Gaza." And it is in Gaza, PLO-controlled Gaza, that Hamas - allegedly at odds with PLO - has been fomenting much of its terror campaign against Israel. It is the Palestinian security services that sustain this Hamas campaign. In the words of THE JERUSALEM POST:

"It was the Hamas leadership in Gaza which decided on terrorist strikes and issued operational orders for the bus bombings. It was in Gaza that the Hamas military organization trained suicide bombers and assembled explosives. It was in Gaza that "the engineer" Yihye Ayyash found shelter until he was killed, and where his successor Mohammed Dief has been living openly. It was in Gaza that Arafat's Preventive Security chief was negotiating with Dief - a close friend - both before and after the first bus bombing. He knew of Dief's involvement in the bombing and did nothing either to detain him or prevent the next outrage."

Israel's obligation to terminate the Oslo accords stems also from a related principle of national self-preservation. Under this peremptory norm, any agreement may be terminated unilaterally following changes in conditions that make performance of the agreement injurious to fundamental rights, especially the rights of existence and independence. Known in law as "rights of necessity," this norm was explained with particular lucidity by none other than Thomas Jefferson. In his "Opinion on the French Treaties," written on April 28, 1793, Jefferson stated that when performance, in international agreements, "becomes impossible, nonperformance is not immoral. So if performance becomes self- destructive to the party, the law of self-preservation overrules the laws of obligation to others." Later, in that same document, Jefferson wrote: "The nation itself, bound necessarily to whatever its preservation and safety require, cannot enter into engagements contrary to its indispensable obligations." Israel, the reader should recall, has an "indispensable obligation" to endure.

How, exactly, do the Oslo accords impair this obligation? Here is what THE JERUSALEM POST had to say about the expected consequences of Oslo II:

" ../...the implementation of Oslo II signals the relinquishment of Israel's security control over the territories and the assumption of such control by the PLO. For the first time, there will be a large PLO army on the outskirts of Israel's major population centers, and it will be in control of strategic areas which dominate Israel's heartland. Soon, Israel will be able to control neither the influx of Palestinians from refugee camps in neighboring countries nor the importation of arms. To expect such an arrangement to bring anything but unrest, terrorism and ultimately war, is to live in a world of make believe."

To better understand this "world of make believe," it is instructive to consider the Charter of Hamas, another terrorist organization that is central to current difficulties in implementing "peace." According to this Charter:

Peace initiatives, the so-called peaceful solutions,

and the international conferences to resolve the
Palestinian problem, are all contrary to the beliefs
of the Islamic Resistance Movement. For renouncing
any part of Palestine means renouncing part of the
religion; the nationalism of the Islamic Resistance
Movement is part of its faith, the movement
educates its members to adhere to its principles
and to raise the banner of Allah over their homeland
as they fight their Jihad../..../..There is no solution to
the Palestinian problem except by Jihad../..../..In order
to face the usurpation of Palestine by the Jews, we
have no escape from raising the banner of Jihad../..../..We
must imprint on the minds of generations of Muslims
that the Palestinian problem is a religious one, to
be dealt with on this premise../..../.."I swear by that who
holds in His Hands the Soul of Muhammad! I indeed
wish to go to war for the sake of Allah! I will
assault and kill;, assault and kill, assault and kill.

Regarding relationships with the Palestine Liberation Organization (PLO), the Hamas Charter offers the following: "The PLO is among the closest to the Hamas, for it constitutes a father, a brother, a relative, a friend. Can a Muslim turn away from his father, his brother, his relative of his friend? Our homeland is one, our calamity is one, our destiny is one and our enemy is common to both of us../..../.." On the primacy of hatred toward Judaism, not Israel (i.e., Israel is despised because it is Jewish), the Hamas Charter states: "Israel, by virtue of its being Jewish and of having a Jewish population, defies Islam and the Muslims. `Let the eyes of the cowards not fall asleep.'"

After the assassination of terrorist Yechya Ayyash, known widely as "The Engineer," Yasser Arafat delivered a eulogy in Dura, near Hebron. Speaking before a large crowd of Hamas supporters, Arafat praised all "Palestinian martyrs," including those who had murdered Israeli women and children in schools, buses and homes. Referring to the imminent takeover of Jerusalem from the Jews, Arafat expressed confidence that, "in a few months, we will pray together at the Al-Aksa mosque,:" adding that "those who don't like it can go and drink the water of the Dead Sea."

At a eulogy given on June 15, 1995, for Abed Al Karim Al Aklok, a former PLO official, Arafat remarked: "We are all seekers of martyrdom in the path of truth and right toward Jerusalem the capital of the State of Palestine../..../..We will continue this difficult Jihad, this long Jihad, this arduous Jihad, in the path of martyrs - via death - the path of sacrifice../..../.." On January 30, 1996, speaking to 40 Arab diplomats at the Grand Hotel in Stockholm, Sweden, Arafat's topic was: "The Impending Total Collapse of Israel." Said Arafat, "We Palestinians wil take over everything, including all of Jerusalem../..../..All the rich Jews who will get compensation will travel to America." Further: "We of the PLO will now concentrate all our efforts on splitting Israel psychologically into two camps. Within five years we will have six to seven million Arabs living on the West Bank and in Jerusalem../..../..You understand that we plan to eliminate the State of Israel and establish a purely Palestinian State../..../..I have no usefor Jews; they are and remain Jews. We now need all the help we can get from you in our battle for a united Palestine under total Arab-Moslem domination."

Regarding the Oslo accords and Israel's vulnerability to war, Israeli security is now increasingly dependent upon nuclear weapons and strategy. Faced with a codified and substantial loss of territories - a loss that might still be enlarged by transfer to Syria of the Golan Heights - the Jewish State will have to decide on how to compensate for its diminished strategic depth. While this shrinkage does not necessarily increase Israel's existential vulnerability to unconventional missile attack, it surely does increase that state's susceptibility to attacking ground forces and to subsequent enemy occupation. And the loss of strategic depth will almost certainly be interpreted by enemy states as a significant weakening of Israel's overall defense posture, an interpretation that could lead to great enemy incentives to strike first.

Should Israel's sacrifice of strategic depth occasioned by the Oslo accords result in a Palestinian state, the geostrategic victory of the Islamic world would be complemented by something less tangible but no less critical: an Arab and Iranian perception of an ongoing and unstoppable momentum against the Jewish State, a jihad-centered perception of military inevitability that would reiterate the policies of war. Recognizing such perceptions, Israel could be forced to take its bomb out of the "basement," and/or it could have to accept a greater willingness to launch preemptive strikes against enemy hard targets.

For their part, certain Arab states and/or Iran would respond to such Israeli decisions. Made aware of Israel's policy shifts - shifts that would stem from both Israel's Oslo-generated territorial vulnerabilities and from its awareness of enemy perceptions spawned by the Oslo-generated creation of Palestine, these enemy states could respond in more or less parallel fashion. Here, preparing openly for nuclearization and aggression against Israel, these states would illustrate dramatically certain far-reaching results of the Oslo accords - results that are still generally unrecognized and that provide, together with other above-listed rationales, a fully authoritative basis for permissible abrogation.

There is one last point that would need to be emphasized by Israel's new Government. Contrary to widely disseminated but wholly erroneous allegations, a Palestinian state did not exist before 1967 or 1948. A state of Palestine was not promised by authoritative U.N. Security Council Resolution # 242. Indeed, a state of Palestine has never existed.

As a nonstate legal entity, Palestine ceased to exist in 1948, when Great Britain relinquished its League of Nations mandate. When, during the 1948-49 War of Independence, Judea/Samaria and Gaza came under illegal control of Jordan and Egypt respectively, these aggressor states did not put an end to an already-existing state. From the Biblical Period (ca.1350 BCE to 586 BCE) to the British Mandate (1918-48), the land named by the Romans after the ancient Philistines (a naming intended to punish and demean the Jews) was controlled exclusively by non-Palestinian elements. Significantly, however, a continuous chain of Jewish possession of the land was legally recognized after World War I at the San Remo Conference of April 1920. There, a binding treaty was signed in which Great Britain was given mandatory authority over Palestine (the area had been ruled by the Ottoman Turks since 1516) to prepare it to become the "national home for the Jewish People."

Palestine, according to the treaty, comprised territories encompassing what are now the states of Jordan and Israel, including Judea/Samaria and Gaza. Present-day Israel, including Judea/Samaria and Gaza, comprises only twenty-two percent of Palestine as defined and ratified at the San Remo Peace Conference. In 1922, Great Britain unilaterally and illegally split off 78 percent of the lands promised to the Jews - all of Palestine east of the Jordan River - and gave it to Abdullah, the non-Palestinian son of the Sharif of Mecca. Eastern Palestine now took the name Transjordan, which it retained until April 1949, when it was renamed as Jordan.

From the moment of its creation, Transjordan was closed to all Jewish migration and settlement, a clear betrayal of the British promise in the Balfour Declaration of 1917 and a patent contravention of its Mandatory obligations. On July 20, 1951, a Palestinian assassinated King Abdullah because of his hostility to Palestinian nationalist aspirations. Several years prior to Abdullah's killing, in 1947, the newly-formed United Nations, rather than designate the entire land west of the Jordan River as the Jewish National Homeland, enacted a second partition. Ironically, because this second fission again gave unfair advantage to the Arabs, Jewishleaders accepted the painful judgment while the Arab states rejected it.

On May 15, 1948, exactly one day after the State of Israel came into existence, Azzam Pasha, Secretary General of the Arab League, declared to the tiny new nation founded upon the ashes of the Holocaust: "This will be a war of extermination and a momentous massacre../..../.." This genocidal declaration has been and remains to this day at the heart of all subsequent Arab orientations toward Israel. In 1967, almost twenty years after Israel's entry into the community of nations, the Jewish State - as a result of its stunning military victory over Arab aggressor states - gained unintended control over Judea/Samaria and Gaza. Although the idea of the inadmissibility of the acquisition of territory by war is enshrined in the U.N. Charter, there existed no authoritative sovereign to whom the territories could be "returned." Israel could hardly have been expected to transfer these territories back to Jordan and Egypt, which had exercised unauthorized and cruel control since the Arab-initiated war of extermination in 1948-49. Moreover, the idea of Palestinian "self- determination" was only just beginning to emerge after the Six-Day War, and was not even codified in U.N. Security Council Resolution #242, which was adopted on November 22, 1967. For their part, the Arab states convened a summit in Khartoum in August 1967, concluding "No peace with Israel, no recognition of Israel, no negotiations with it../..../.."

Prime Minister Netanyahu, please take heed. International law does not require compliance with the Oslo Accords. It requires abrogation of these illegal agreements.

=================
*Louis Rene Beres is Professor of International Law, Department of Political Science, Purdue University.

A Matter of Courage

Sivan 12, 5768, 15 June 08 11:43

by Prof. Paul Eidelberg

(IsraelNN.com) Some people ask, "How did Israel ever get into Oslo?" which journalist Charles Krauthammer called "the biggest diplomatic blunder in history."

One may also ask, "What prevents Israel from getting out of this suicidal blunder?"

Why doesn't Israel's government simply abrogate Oslo, i.e., the Israel-PLO Agreement of September 1993? After all, the PLO has violated this agreement countless times. Indeed, Oslo has resulted in some 10,000 Jewish casualties.

To get out of Oslo we first need to know how Israel got into this death trap in the first place. The simplest answer goes like this:

During the 1992 Knesset election campaign, Labor Party leader Yitzhak Rabin said there would be no recognition of, or negotiation with, the PLO. Yet that is precisely what the Rabin government proceeded to do once it was entrenched in office. One may therefore conclude that Oslo is the result of the Labor Party's betrayal of the nation. All this is true, but too simple.

Oslo as not a place so much as a state of mind. Israel's ruling elites succumbed to the Oslo mentality as soon as Israel won her greatest military victory in the Six Day War of June 1967. A government of national unity offered to "return" the land Israel repossessed for a peace treaty. Imagine: returning this strategic and cherished land to the aggressors for a piece of paper.

And these were not ordinary aggressors: they were Arabs and Muslims. Theirs is a "culture of hate" with a 1,400-year history of aggression. These aggressors exulted in bloodshed, in slaughtering "infidels."

Accordingly, Israel got into Oslo because Israel's government refuses to take Islam seriously. Dominated by a see-no-evil, hear-no-evil and speak-no-evil mentality, Israel's ruling elites would have us believe that genuine and abiding peace is possible between Israel and Arab-Islamic despotisms. Israeli prime ministers, however, are not merely blind-deaf-mutes.

Why did Prime Minister Menachem Begin surrender the Sinai, including not only the settlement of Yamit, but also Israel's most sophisticated strategic air bases and Israeli-developed Alma oil fields - all this for what Egyptian dictator Anwar Sadat subsequently called "a piece of paper"?

Why did Prime Minister Yitzhak Shamir attend the October 1991 Madrid Conference that tacitly recognized the PLO, whose charter calls for Israel's destruction? Indeed, why was Mr. Shamir silent about the Teheran Conference, when 60 Arab-Islamic states, including Egypt, passed various resolutions calling for Israel's annihilation a mere two weeks before the Madrid Conference?

Why did Prime Minister Benjamin Netanyahu surrender more than 40 percent of Judea and Samaria, including 80 percent of Hebron, for a piece of paper?

Why did Prime Minister Ehud Barak offer PLO chief Yasser Arafat 95 percent of Judea and Samaria, including eastern Jerusalem and the Temple Mount, for a piece of paper?

Is it any wonder that Prime Minister Ariel Sharon withdrew from Gaza for less than a piece of paper?

How ironic, or idiotic, that Prime Minister Ehud Olmert, having witnessed the "brave" policies of his predecessors, should confess, "we are tired of being courageous".

Can it be that Israel got into Oslo because Israeli prime ministers lack the courage to face the truth about Israel's implacable enemies?

The key word here is "courage". For it may well be argued that it is precisely lack of courage that prevented Israeli prime ministers from facing the ugly truth about Israel's relentless enemies.

But this suggests that most Israeli politicians are not only feckless, but habitually mendacious. Indeed, it may well be that these politicians have come to believe in their own lies.

The question arises: How do these politicians get away with such monumental lying? Are the people of Israel so gullible? No! At least 90 percent regard Israeli politicians as corrupt. But then why do they keep electing the same scoundrels to office?

Can it be that Israel, "the only democracy in the Middle East," is not really a democracy? Can it be that the people of Israel have long been enslaved by a political system that entrenches cowards and liars in office?

Israel's Survival Imperatives: Oslo Agreements in International Law and National Strategy

ISRAEL'S SURVIVAL IMPERATIVES:
THE OSLO AGREEMENTS IN INTERNATIONAL LAW AND NATIONAL STRATEGY

Louis René Beres

Policy Paper No. 25, 1998

Executive Summary

The Oslo Accords exhibit a chilling irony. Not only are these non-treaty agreements inherently illegal, they also weaken Israel in the Jewish state's protracted struggle for survival.

From this starting point, the policy paper that follows identifies the overwhelming jurisprudential fallacies contained in Israel's pro-Oslo stance (a stance that is not even acknowledged in the Islamic world) and the substantially injurious effects of Oslo on Israel's security.

This paper ends with the informed recommendation that Israel terminate its self-imposed and unreciprocated Oslo obligations immediately, a suggestion that may appear markedly naive and dangerous, but which is, in fact, considerably less risky than maintaining the present collision course.

In reaching this conclusion, the paper examines such specific issues as Palestinian "demilitarization", the requirements of Israeli nuclear deterrence, the question of Israel's "bomb in the basement" and certain possible preemption expectations.

Also included is an extensive/intensive examination of the effects of a nuclear war upon Israel and the region.

This sobering examination, which draws upon the author's more than quarter-century acquaintance with this subject (Professor Beres is the author of Apocalypse: Nuclear Catastrophe in World Politics, one of the first major books on nuclear strategy and nuclear war), advances three primary models: (1) exclusively counterforce attacks against Israeli hard targets; (2) exclusively countervalue attacks against Israeli civilian populations; and (3) mixed counterforce/countervalue attacks.

Here the author's hope is that such heuristic models will assist Israeli strategists in fashioning a pertinent "master plan", a body of generalized and interrelated propositions from which precise policy options could be derived.

In the end, the so-called "Peace Process" - never anything more than an enemy Trojan Horse - must be stopped before it is too late.

The obligation to rescue Israel from this process of attrition (terrorism) and annihilation (war) stems from both a legal and a strategic imperative.

This policy paper clarifies the essential arguments that underlie these closely related imperatives.

Why Military Limitations on a "Palestinian" State Will Fail

WHY MILITARY LIMITATIONS ON A "PALESTINIAN" STATE WILL FAIL:
A LEGAL ASSESSMENT

Howard Grief

Policy Paper No. 52, from the book
ISRAEL AND A PALESTINIAN STATE: ZERO SUM GAME?, 2001

Executive Summary

It is widely assumed that the new Barak government will make a final status agreement with the "Palestinian Authority" and that as a result of it, a new Palestinian Arab state will be proclaimed by Yasser Arafat. To contain the damage this will cause to Israel's security, the Government will attempt to impose maximum restraints on the new state's military capabilities equivalent to demilitarization. Limitations will be imposed on the nature and accumulation of arms, on the size of the "Palestinian" armed forces and, most importantly, on the right of the new state to contract alliances with other states which are sworn enemies of Israel, particularly Iran, Iraq and Libya. No foreign army will be permitted to operate within the boundaries of the new state.

What needs to be determined is whether Israel can legally impose these limitations on a state that will assert it has sovereign rights and which will be admitted into the United Nations. Under Israeli constitutional law, which reflects Jewish law in this matter, no foreign sovereignty can ever be legally established in the Land of Israel, but this point will be entirely ignored even by the government of Israel. The "Palestinian" Arab state that will be proclaimed will qualify as a state under international law because it will satisfy four specific conditions set out in the Montevideo Convention of December 26, 1933 for the establishment of states, namely having a permanent population, a defined territory, a government and the capacity to enter into relations with other states. The new state can be expected to be recognized by more states than recognize the Jewish state.

Once the "Palestinian" Arab state comes into existence and becomes a full-fledged member of the United Nations, it will enjoy the same rights and duties as all other states who are members. If the new state then discards all the limitations that were previously imposed by Israel under the final status agreement, which is a foregone conclusion in light of PLO non-compliance with all agreements so far concluded with Israel, there will be no method of enforcement except by Israel resorting to military action.

In examining the legal aspects of the matter, there will be a clash between Israel's right under international law to impose military limitations on a "sovereign" state and the right of that state to enjoy self-determination and full independence and freedom. As a result of this clash, war will become inevitable unless Israel foregoes its vital security interests.

Israel's right to place limitations on the independence of the "Palestinian" Arab state is allowed under international law, although enforcement is a separate question. The practice of placing limitations on sovereign states by means of treaty obligations is part and parcel of the modern state system. It dates back to at least the Peace Treaties of Westphalia, which ended the Thirty Years War, 1618-1648, that engulfed most of Europe. The new sovereign states which emerged after the peace agreements were forbidden to make any alliances directed against the ruling Hapsburg Empire, known as the Holy Roman Empire.

Military limitations on the embryonic "Palestinian" Arab state already exist in the Interim Agreement concluded with the PLO on September 28, 1995. Under the agreement (Article 14-3), no armed forces may be established or operate in the "West Bank" apart from the "Palestinian Police" or the Israel military forces. In addition, the "Palestinian Authority" has no power and responsibility in the realm of external security (Articles 10-4 and 12-1) and cannot conduct foreign relations with other states (Article 9, paragraph 5[a]). Israel will seek to inject into the final status agreement similar limitations on "Palestinian independence" with regard to defense and security which will effectively demilitarize the state.

The questions of Israel imposing military limitations on another state which has become independent also raise the issue of sovereignty and to what extent it can be diminished without losing its meaning. In the modern world, state sovereignty can never be absolute. All states are limited to some degree in what they are allowed to do. These limitations may emanate from a treaty or international agreement, from the rules of customary international law or by resolutions or decisions taken by international organizations, in particular the United Nations. Further limitations are now placed on states in the way they treat their own citizens or minorities, as the world has just witnessed in the case of Yugoslavia and Kosovo.

Israel's imposition of military limitations on the nascent Arab state under Arafat's rule therefore does not violate international law nor the norms of sovereignty as they are understood today. However, the reverse side of the coin allows any sovereign state to rid itself of onerous restrictions that unduly harm its freedom or equality. Once the "Palestinian" Arab state is established, it may seek to enlarge its territory and attack nearby Jewish settlements or engage in or permit acts of terrorism from the territory it controls. For this purpose it will first amass a large stock of weapons, even prohibited weapons such as missiles, and ask for military assistance from other Muslim states. It will also denounce the military limitations which Israel imposed on it as an infringement of its status as a sovereign independent state. Arafat will declare all these limitation to be incompatible with the Palestinian right of self-determination and the rights of the "Palestinians" as a free people in their own land, quoting the exact words of US President Clinton when he visited Gaza in December 1998. To justify his actions further, Arafat may quote from the American Declaration of Independence when the Thirteen Colonies broke away from the control of Great Britain on the ground that they were entitled to be "free and independent" with the power to contract alliances and to do all other acts and things which independent states may, of right, do.

Faced with Arafat's open violation of his undertakings in the final status agreement, Israel will be free to act against the "Palestinian" Arab state. But then Israel will be accused of violating the territorial integrity of a UN member state, contrary to international law. If Israel still decides to stop the pending and imminent danger to its existence, it could be threatened with UN sanctions and counter-action. Israel will also be pilloried in the world media as the aggressor, even though it will be acting in self-defense. The likely outcome will be a new Israeli-Arab war.

Petition to Annul the Interim Agreement

A PETITION TO ANNUL THE INTERIM AGREEMENT

Howard Grief

Policy Paper No. 77, 1999

Executive Summary

It was beyond belief: those directing the affairs of the Government of Israel one day lost their senses.* They decided voluntarily, secretly and anti-democratically to make an agreement with an illegal, criminal organization representing a fictitious nation, non-existent in anyone’s imagination prior to this century. They ceded parts of the heritage of every Jew living in the Land of Israel as well as those outside the country who identify with the aims of Zionism. Before Israel’s envoys actually met with PLO members on a regular basis under the auspices of the Government of Norway, such developments were beyond the scope of imagination. The heritage ceded relates to Judea, Samaria and Gaza, where the kingdoms of Judah and Israel once thrived and which had always been considered core, inalienable parts of the Land of Israel, belonging to the Jewish People, exclusively and eternally. Yet, the Government of Israel and its top leaders, acting illegally and unconstitutionally, agreed to forfeit this precious Jewish heritage. They did so when they signed the Declaration of Principles at Oslo on August 20, 1993, re-signed it at Washington on September 13, 1993, and then hastily concluded the terrible Interim Agreement signed at Washington on September 28, 1995.

In light of the gross illegal nature of the Israel-PLO Agreements, it was natural for Israeli citizens to seek redress in the Supreme Court of Israel by submitting a Petition to its august judges for a ruling on the legality of what was done in their name by their Government. To make it easier for the Court to adjudicate such a portentous matter, viz., that of the alleged illegality of the Interim Agreement, the Petition was carefully drafted and arranged to make the Court see clearly, without any blinkers or hesitation, the violations which the Government of Israel committed under both constitutional and criminal law, the laws of the State which the Court is bound to enforce. This was also done to prevent the Court from evading its judicial duty to discuss on the merits the alleged violations of the laws cited in the Petition. The Petition presents no less than fourteen breaches of legislative enactments and principles of law which are found in the Interim Agreement. The Petition focuses attention most of all on three primary constitutional violations concerning Section 11B of the Law and Administration Ordinance, Section 1 of the Area of Jurisdiction and Powers Ordinance and the Law of Return, all of which absolutely prohibit in their converse sense the voluntary cession of any part of the Land of Israel in the possession of the State, apart from minor boundary adjustments. “Possession” here means under Israel’s de facto sovereignty in conformity with the inherent meaning of these three laws, which assume that the People of Israel are and always have been the de jure sovereign over all parts of the Land of Israel since the time of the Patriarchal Covenants. Moreover, these constitutional laws are buttressed by criminal sanctions, rendering the Government of Israel – including all of its cabinet ministers and officials, both past and present, who initiated, participated in or endorsed the idea of giving up Israel’s territorial possessions to the PLO – liable for prosecution under the relevant provisions of the Penal Code of Israel with regard to treason. The Petition also clarifies the Rule of Law as it applies to the Interim Agreement and the three separate branches of Government. In this respect, the Knesset has no right to validate an illegal agreement by passing laws which are contrary to the norms of the Jewish State, one of which is the prohibition of territorial withdrawal from the Land of Israel.

The Petition stands on its own as an historical document by providing the substantive grounds under Israeli constitutional and criminal law for the illegality of the Interim Agreement and all other Israel-PLO agreements. The straightforward, convincing logic of the Petition was not enough to overcome the fearful reluctance of the Supreme Court to deal with the legal arguments contained in the Petition. Instead, the Court extricated itself from having to decide the legal issues on the merits by the expedient of calling the Petition “a political position”, thus automatically placing it outside its purview. However, any serious reading and study of the Petition will show that the exact opposite is the case. Another conclusion is that the Court itself, including its President, Justice Aharon Barak, to whom an application was made for a Further Hearing, ignominiously violated the law of Israel by deliberately refusing to adjudicate apparent violations of State laws duly brought to their attention for adjudication.

* “A government that has lost its senses,” are the exact words used by Prime Minister Netanyahu, then Leader of the Opposition, in his published statement reacting to the Mutual Recognition Agreement between Israel and the PLO (see Yediot Aharonot, September 10, 1993, page 4).

Illegality of Sharm E-Sheikh Memo Under Israeli Law

THE ILLEGALITY OF THE SHARM E-SHEIKH MEMORANDUM UNDER ISRAELI LAW

Howard Grief

Policy Paper No. 91, 1999

Executive Summary

Amid the usual pomp and ceremony which follows all the agreements concluded with the PLO, the Government of Israel under the new leadership of Prime Minister Barak entered into a new phase of territorial surrender of patrimonial and hereditary lands belonging to the Jewish People when it agreed to the Sharm e-Sheikh Memorandum on September 4, 1999. As with all prior agreements, the new one entailed grave violations of Israeli law, both procedural and substantive. In the procedural sense, two violations stand out. One was the lack of any prior Cabinet authorization granted to the Prime Minister to sign the agreement itself. Though such authorization was given afterwards, this reverses the order of proper constitutional procedure and turns the Cabinet into a rubber stamp for a fait accompli engineered by the Prime Minister.

The second procedural defect, which is even more important from a legal perspective, was the lack of legal capacity existing in the PLO to make a binding agreement or contract with the Government of Israel. This arises from its status in Israeli law as a terrorist and criminal organization, which cannot be changed as long as the Charter of the PLO remains in full force and effect, as it still does, despite the political charade conducted by Chairman Arafat to pretend that it has been abrogated or amended to delete anti-Israel, anti-Zionist clauses of the Charter. The best proof that this was never done as alleged by Arafat in his letter to President Clinton is that the PLO could not exist without the Charter which is its source of authority and raison d'etre. Since the PLO still exists in the most vibrant manner possible -- witness the fact that it signed the Sharm e-Sheikh Memorandum and it is now conducting the Permanent Status negotiations with Israel -- so must the Charter continue to exist with all its abominable provisions completely intact.

The substantive violations of law are both constitutional and criminal in nature. They concern the prohibition of ceding any part of the Land of Israel that is in the effective possession and hence under the sovereignty of the State of Israel, both de jure and de facto, even though these areas are not included formally within the borders of the State. Jewish history reinforces this prohibition. Israeli leaders would not have surrendered ancient Jewish lands had they been imbued with a deeper sense of the Jewish historical connection to the Land of Israel.

The establishment of Jewish settlements in Judea, Samaria and Gaza has drawn strong American criticism but this runs counter to an amazing fact, little remembered today. The Americans signed a treaty with Great Britain, exactly 75 years ago, known as the Anglo-American Convention of December 3, 1924 which expressly recognized Jewish settlement activity in all parts of the Land of Israel included in the mandated territory of Palestine. This treaty became part of American domestic law until the Mandate itself expired. That treaty recognition is sufficient by itself to bar any American objection today to new Jewish settlements in Judea and Samaria because all rights granted to the Jewish people in the Mandate survived afterwards and were inherited by the State of Israel, particularly the right of "close settlement by Jews on the land".

Under the Sharm e-Sheikh Memorandum, UN Security Council Resolutions 242 and 338 serve as the basis for the Permanent Status negotiations. But this basis is fallacious, since these resolutions do not apply to Judea, Samaria and Gaza, in light of the fact that they are not "occupied territories" as defined under international law, nor Israeli law. The supreme irony is that it was Israel itself that encouraged the whole world to believe that they do apply, since it was decided to administer the areas recaptured in the Six Day War in the same fashion which "occupied territories" are normally bound to be administered by an occupying country under the rules of international warfare, though Israel did so on a voluntary basis in accordance with humanitarian considerations.

A Permanent Status Agreement which is called for under the Sharm e-Sheikh Memorandum is not needed, not only because the fictitious "Palestinian people" represented by the PLO have no legal or historical right to the Land of Israel, but also because a permanent settlement was already made at the San Remo Conference in April 1920. Moreover, Israeli law has also permanently settled the question of Jerusalem's status, which the Government of Israel has no legal right to change or even negotiate. In regard to Arab refugees, the latter do not have any "right of return" to a country which has never been their ancestral homeland to which their forebears came in the 7th century as foreign invaders and then in succeeding centuries as foreign settlers or in the 20th century as illegal immigrants during the period of the British Mandate.

The so-called peace process with the PLO, which is actually a land withdrawal process, undoes the work of 100 years of Zionism and undermines the existence of the Jewish state. It will bring nothing but disaster and war as the portents already indicate, especially increased acts of terrorism. Those Israeli leaders who initiated this process and blessed it by their implementation should one day be made accountable for their irresponsible and illegal actions in an appropriate judicial forum.

Oslo Accords/Road Map A Deathtrap For Israel (Conclusion)

By: Louis René Beres

Date: Wednesday, December 24 2008

Regarding the Oslo accords and Israel's vulnerability to war, Israeli security has become increasingly dependent upon nuclear weapons and strategy. Faced with a codified and substantial loss of territories generated by Oslo, the Jewish State will soon have to decide on how to compensate for its diminished strategic depth. While this shrinkage does not necessarily increase Israel's existential vulnerability to unconventional missile attack, it surely does increase that state's susceptibility to attacking ground forces and to subsequent enemy occupation. Any loss of strategic depth will almost certainly be interpreted by enemy states as a significant weakening of Israel's overall defense posture, an interpretation that could actually lead to substantial enemy incentives to strike first.

As Israel's sacrifice of strategic depth − occasioned by the Oslo accords and successor Road Map − would begin to produce a Palestinian state, this time led openly by Hamas, the geostrategic victory of the Jihadist/Islamic world would be complemented by something less tangible but no less critical: an Arab and Iranian perception of an ongoing and unstoppable momentum against the Jewish State, a jihad-centered perception of military inevitability that would reiterate the policies of war. Recognizing such perceptions, Israel could, inter alia, be forced to take its bomb out of the "basement," and/or it could have to accept a greater willingness to launch preemptive strikes against enemy hard targets. In this connection, my readers of The Jewish Press may recall Project Daniel and its precise recommendations to Israel's Prime Minister for Israel's strategic future.

For their part, certain Arab states and/or Iran would respond to such Israeli decisions. Made aware of Israel's policy shifts − shifts that would stem from both Israel's Oslo/Road Map-spawned territorial vulnerabilities, and from its awareness of enemy perceptions spawned by the "peace process"-generated creation of "Palestine," these enemy states could respond in more or less parallel fashion. Here, preparing openly for nuclearization and aggression against Israel, these states would illustrate dramatically certain far-reaching results of Oslo/Road Map, results that are still generally unrecognized and that provided, together with other above-listed rationales, a fully authoritative basis for permissible abrogation.

On October 6, 1973, when Egyptian and Syrian surprise attacks came close to jeopardizing Israel's physical survival, it was because of a monumental intelligence failure. Similarly, on January 18, 1991, when the scream of air-raid sirens could be heard in every corner of Israel, the Iraqi Scuds that slammed through Tel Aviv and Haifa neighborhoods caught the country − in the words of a former Intelligence Chief − "with its pants down." In the latter case, the only thing that saved Israel were Iraq's notably benign warheads. If they had not been so benign, Israel would have suffered terribly.

In good measure, A'man's (IDF Intelligence Branch) record of intermittent failure is noteworthy. While it is obviously too late to rectify prior mistakes, lessons can be learned for the future. The most important of all such lessons is this: Before you take comfort from what the "experts" have had to say about Oslo − and now about the Road Map − recall that their record has been seriously flawed on certain critical occasions.

At this ominous time in its history, Israel is confronted especially by enemy nuclearization, a developing menace of potentially unprecedented import. Although Israel's leaders may maintain that this menace is unrelated to the Oslo Accords or to the successor Road Map, exactly the opposite is true. As I first wrote many years ago before Project Daniel, Iran - if uninterrupted − will have the capacity to launch missiles against Israel from its own territory. And this would not require the strategic advantages of a cooperative state of Palestine. Yet, its willingness to launch will surely be enhanced by the Oslo/Road Map dismemberment of Israel. This is the case, because the overall effect of such dismemberment will be to weaken the country generally, including its basic will to resist, and because Oslo/Road Map will likely preclude any essential Israeli preemption.

Israel, in the fashion of an individual organism, is a system. Here, the weakening of constituent "organs" may not be life-threatening by itself, yet − taken together − such weakening might portend "death." While particular territorial surrenders might not, in and of themselves, produce national annihilation, they will, over time, continue to drain the lifeblood from the country. In response, enemy states − sensing the progressive deterioration of a still-hated Jewish State − will poise for the kill. This is precisely what is being calculated at this very moment in Damascus, Teheran, Baghdad, Cairo, and, of course, in Gaza, Nablus and Jericho.

Preemption, as was made clear in Project Daniel, may ultimately be essential to Israel's very survival, and Oslo/Road Map may already have prevented Israel from striking preemptively. After all, in a Middle East shaped by "peace process" expectations, such a strike would have appeared as incontestably belligerent, upsetting all of the delicate "peacemaking" then underway. The "civilized world" would have never tolerated such Israeli "aggressions."

What if Menachem Begin had thought this way back in June 1981? If he had chosen to forego the preemption option at that time, what sorts of warheads would have been fitted on Iraqi Scuds 10 years later? While Begin's heroic actions at Osiraq (Operation Opera) did indeed save the country from "another Holocaust" (Begin's own words after the successful raid), Prime Minister Olmert refused to act against Iran.

General Yitzhak Rabin, on the eve of the Yom Kippur War, assured his countrymen that the Arabs would not attack. This view, derivative from the similarly misconceived assessment of then Minister of Defense Moshe Dayan, has come to be known in Israel as the mechdal, the "concept," the idea that the enemy is not preparing for war. A scant 24 hours before the attack, A'man's official estimate on the probability of war, according to Chaim Herzog, was "the lowest of the low."

Today, Israel faces another mechdal − an omission, an instance of nonperformance, and an expression of neglect with vastly more catastrophic potential. This time, the "concept" could produce an actual end to the Third Temple Commonwealth. The problem stems in large part from an altogether erroneous understanding of what the distinctly zero-sum "peace process" has done to weaken Israel, and to strengthen Israel's enemies.

Under international law, as we have seen, Israel was never under any obligation to comply with Oslo. On the contrary, the Jewish State was always legally obliged to terminate this set of agreements. Should Israel's next prime minister learn to avoid similar mistakes with the present Road Map, Israel may still have a secure future. But should he (or she) continue to operate on the erroneous presumption that Israel is somehow bound to honor intrinsically lawless agreements (a view almost certainly to be encouraged by Washington), the ensuing mechdal could be the country's last.

Copyright © The Jewish Press, December 26, 2008. All rights reserved

LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with international relations and international law. In the United States he has worked for over thirty-five years on international law and nuclear strategy matters, both as a scholar and as a lecturer/consultant to various agencies of the United States Government. In Israel he has lectured widely at various academic centers for strategic studies, at the Dayan Forum and at the National Defense College (IDF). He was chair of Project Daniel, and is the Strategic and Military Affairs columnist for THE JEWISH PRESS.

Oslo Accords/Road Map A Deathtrap For Israel (Part I)

By: Louis René Beres

Date: Wednesday, December 10 2008

Some military and diplomatic failures should come as no surprise. One of these is surely the so-called "Peace Process" in the Middle East. From the imperiled beginning, from the start time of "Oslo," the entire genocidal enterprise has effectively been framed from the standpoint of Israel's phased destabilization and, ultimately, its elimination. To be sure, this grotesque outcome has never been the deliberate objective of assorted American presidents, or even of most Europeans - leaders and ordinary citizens − but the de facto implications and consequences were always easy to discern. Indeed, the probable results of these inherently asymmetrical agreements should always have been obvious.

Oslo I − known generally as the Declaration of Principles − was concluded and signed in Oslo on August 19, 1993, and re-signed in Washington D.C. on September 13, 1993. Oslo II was signed in Washington D.C. on September 28, 1995. As expressed in a steadily enlarging Palestinian terrorist movement against Israel, and in the staggering numbers of Israelis killed and maimed by suicide bombers and other terrorists since August 19, 1993, the Middle East Peace Process has certainly been a resounding failure. There is not a single dimension of evaluation that could reasonably be used to suggest otherwise. It follows that the currently still-fashionable Road Map warrants exactly the same negative judgment.

Let us be clear. From Rabin onwards, all of Israel's prime ministers seemingly felt obligated, under international law, to honor the Oslo Accords. Significantly, from the standpoint of an informed jurisprudence, this obligation was never supported by authoritative norms or expectations, but only by the popular notion that such signed documents were simply valid and binding ipso facto. From the start, in fact, the law of nations actually required abrogation, not compliance, with what were invalid and illegal agreements. Moreover, as Israel's position on Oslo has affected its overall nuclear security posture, I will - in these three continuous columns for The Jewish Press − also explain the relevant interrelatedness of law and power.

The Oslo Accords between Israel and the PLO were always in violation of incontrovertible international law. Israel, therefore, has always been obligated to abrogate these non-treaty agreements. A comparable argument could be made regarding PLO/PA obligations, but this would make little jurisprudential sense in light of that non-state party's intrinsic incapacity to enter into an equal legal arrangement with Israel.

Taken by itself, the fact that the Oslo accords do not constitute authentic treaties under the Vienna Convention − because they link a state with a non-state party − would not necessarily call for abrogation. But as the non-state party in this case just happened to be a terrorist organization whose leaders must be punished for their egregious crimes, any agreement with this party that offered rewards rather than punishments was null and void. Significantly, in view of the peremptory expectation known in law as Nullum crimen sine poena, "No crime without a punishment," the state party in such an agreement − here, the State of Israel - actually violated international law by honoring the agreement.

How little has been understood by politicians and pundits. According to Principle I of the binding Nuremberg Principles: "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment." It is from this principle − which applies with particular relevance to Hostes humani generis ("Common enemies of Humankind") and which originates in three separate passages of the Torah − that each state's obligation to seek out and prosecute terrorists derives. Hence, for Israel to honor agreements with terrorists − agreements that sometimes required, among other pertinent violations, the release of thousands of other terrorists − was to dishonor the very meaning of international law. There is also considerable and additional irony here, since Israel, as recently as August 2008, has released large number of terrorists utterly by volition.

During his later years, after Oslo had "entered into force," considerable attention was focused on Yasir Arafat. Was Arafat a terrorist? Although the answer is perfectly plain to anyone who thinks, permit me to also support this judgment in formal legal terms: In the U.S. case of Klinghoffer v. Palestine Liberation Organization (1990), the court unambiguously answered the question of Arafat as a terrorist, in the affirmative.

In the Israeli courts, a petition to charge Yasir Arafat with terrorist crimes had been submitted to Israel's High Court of Justice in May 1994. This petition, filed by Shimon Prachik, an officer in the IDF reserves, and Moshe Lorberaum, who was injured in a 1978 bus bombing carried out by the PLO, called for Arafat's arrest. The petition noted that Arafat, prima facie, had been responsible for numerous terror attacks in Israel and abroad, including murder, airplane hijacking, hostage-taking, letter-bombing and hijacking of ships on the high seas.

The petitioner's allegation of Arafat's direct personal responsibility for terrorism was seconded and confirmed by Dr. Ahmad Tibi, then Arafat's most senior advisor: "The person responsible on behalf of the Palestinian people for everything that was done in the Israeli-Palestinian conflict is Yasir Arafat," said an uncharacteristically truthful Dr. Tibi on July 13, 1994, "and this man shook hands with Yitzhak Rabin."

But what of the argument that international law may permit insurgent force that is directed toward support of fundamental rights and rules? It is certainly correct that international law has consistently proscribed particular acts of terrorism. Yet, it has, at the very same time, entitled insurgents to the right to use certain levels and types of force against a regime that represses their peremptory human rights, especially "self-determination," "independence," and "national liberation." Wasn't Fatah, therefore, an authentic national liberation movement, one that had therefore been operating within the boundaries of permissibility under international law?

To answer this question, two essential criteria must be examined: just cause and just means. These criteria allow us to distinguish a lawful insurgency from terrorism, in all cases. The principle of just cause maintains that an insurgency may exercise law-enforcing measures under international law. To qualify as lawful insurgents, however, this group must also display appropriate respect for humanitarian international law − i.e., just means. It follows that in order to determine whether a particular group actually satisfies the requirements of a lawful insurgency, its resort to force must be tested against the expectations of discrimination, proportionality and military necessity.

Terrorism is underway whenever a group engages in campaigns of force directed against broad segments of the general population − campaigns that blur the essential distinction between combatants and noncombatants. Similarly, the group becomes terroristic once it begins to apply force to the fullest possible extent, restrained only by the limits of available weaponry. The implications for any proper evaluation of Palestinian insurgency are clear.

National liberation movements that fail to meet the settled and codified restraints of the laws of war are not protected as legitimate or permissible. The ends do not justify the means. As in the case of war between states, every use of force by insurgents must be judged twice: once with regard to the justness of the objective, and once with regard to the justness of the means used in pursuit of that objective. This translates that even if we were to concede to Fatah a just cause (a concession that this writer would certainly not offer), Arafat's disregard for just means necessarily made his organization a terrorist group.

Copyright © The Jewish Press, December 12, 2008. All rights reserved.

LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with international relations and international law. In the United States he has worked for over thirty-five years on international law and nuclear strategy matters, both as a scholar and as a lecturer/consultant to various agencies of the United States Government. In Israel he has lectured widely at various academic centers for strategic studies, at the Dayan Forum and at the National Defense College (IDF). He was Chair of Project Daniel, and is the Strategic and Military Affairs columnist for The Jewish Press.

Oslo Accords/Road Map A Deathtrap For Israel (Part II)

By: Louis René Beres

Date: Wednesday, December 17 2008

The explicit application of codified restrictions of the laws of war to non-international armed conflicts dates back only as far as the four Geneva Conventions of 1949. Recalling, however, that more than treaties and conventions comprise the laws of war, it is clear that the obligations of jus in bello (justice in war) comprise part of "the general principles of law recognized by civilized nations" and bind all categories of belligerents. Indeed, the Hague Convention IV of 1907 declares in broad terms that in the absence of a precisely published set of guidelines in humanitarian international law concerning "unforeseen cases," the pre-conventional sources of international law govern all belligerency.

Terrorist crimes, as part of a broader category called crimen contra omnes (crimes against all) by the lawyers, mandate universal cooperation in apprehension and punishment. In this connection, as punishers of "grave breaches" under international law, all states and state-like authorities are expected to search out and to prosecute, or extradite, individual perpetrators. Regarding Israel and the Palestinian Authority (PA), the latter's obligation under law to extradite terrorists to Israel would have obtained even if there had been no Oslo Accords. Hence, there is really no need to probe incessantly the precise language of the Accords. The PA's multiple violations of extradition expectations under international law existed independently of Oslo.

The important principle of universal jurisdiction is founded upon the presumption of solidarity between all sovereigns in the fight against crime. Moreover, the case for universal jurisdiction is strengthened whenever extradition is difficult or impossible to achieve. And it is built into the four Geneva Conventions of August 12, 1949.

Traditionally, piracy and slave trading were the only offenses warranting universal jurisdiction. Following World War II, however, states have generally recognized an expansion of universal jurisdiction to include crimes of war; crimes against peace; crimes against humanity; torture; genocide; and crimes of terrorism. For the most part, this purposeful jurisdictional expansion has its origins in certain multilateral conventions, in customary international law, and in certain pertinent judicial decisions.

Terrorism is not the only crime in which Arafat and many of the subsequently released Palestinian prisoners were complicit. Related Nuremberg-category crimes − including crimes of war and crimes against humanity − were also committed by these persons. In this connection, my readers here in The Jewish Press should recall that units of the Palestine Liberation Army (PLA) served with Saddam Hussein's forces in occupied Kuwait, making them, and Yasir Arafat personally (the legal principle of command responsibility is known as respondeat superior, or "Let the Master Answer") responsible for multiple crimes of extraordinary horror and ferocity. As if these offenses were not enough of an affront to world law, many of the terrorists who have been released from Israeli jails in furtherance of the Oslo accords and the wider "peace process" quickly accepted assorted high positions in the Palestine Authority's or Hamas' "security forces."

Even if the nonstate party to the Oslo accords had not been a terrorist organization, Israel would have entered into an agreement of unequal obligations − an agreement wherein the PLO would not have been held (under international law) to the same standards of accountability. Several recent federal court decisions in the United States reaffirm that agreements between nonstate and state parties impose asymmetrical compliance expectations. For example, in a concurring statement in the case of Tel-Oren v. Libyan Arab Republic − a 1981 civil suit in U.S. federal courts in which the plaintiffs were Israeli survivors and representatives of persons murdered in a terrorist bus attack in Israel in 1978 − Circuit Judge Harry T. Edwards stated: "...I do not believe the law of nations imposes the same responsibility or liability on nonstate actors, such as the PLO, as it does on states and persons acting under color of state law."

The PLO, of course, among many of its sister affiliates and foes, always remained a terrorist organization, and Israel therefore never had any right to honor the Oslo accords' alleged requirement to release certain convicted members of that organization. No government, in fact, has the right to lawfully pardon or grant immunity to terrorists with respect to criminally sanctionable violations of international law. In the United States, it is evident from the Constitution that the President's power to pardon does not encompass violations of international law, and is limited to "Offenses against the United States." This limitation derives from a broader prohibition that binds all states, including Israel, namely the overriding claims of pertinent peremptory rules stemming from Higher Law or the Law of Nature. These claims, with core origins in Torah, are identified in Blackstone's Commentaries, which acknowledge that all law "results from those principles of natural justice, in which all the learned of every nation agree...."

In its apprehension and incarceration of terrorists, Israel had acted, however unintentionally, not only for itself, but also on behalf of the entire community of states. Moreover, because some of the jailed terrorists had committed crimes against other states as well as against Israel, the government in Jerusalem could not permissibly pardon these offenses against other sovereigns. The Jewish State, therefore, has possessed absolutely no right to grant immunity for terrorist violations of international law. No matter what might be permissible under its own Basic Law and the Oslo accords, any freeing of terrorists was always legally incorrect. By its freeing of terrorists, Israel was manifestly guilty of what is known in law as a "denial of justice." In this connection, all complicit Israeli prime ministers also committed individually punishable criminal acts.

Israel's obligation to abrogate the Oslo accords, as we have seen, stemmed from certain peremptory expectations of international law. Israel, however, has substantial rights of abrogation here apart from such expectations. These rights derive from the doctrine of Rebus sic stantibus. Defined literally as "So long as conditions remain the same," this doctrine of changed circumstances augmented Israel's obligations to cease compliance with Oslo. This is because Israel's traditional obligations to the accords ended promptly when a "fundamental change" occurred in those circumstances that existed at the effective dates of the accords, and whose continuance formed a tacit condition of the accords' ongoing validity. This change, of course, involved multiple material breaches by the PLO, especially those concerning control of anti-Israel terrorism and extradition of terrorists. In short, Rebus sic stantibus almost immediately became significant basis for Israeli abrogation because of the profound change created by the PLO in the very circumstances that formed the cause, motive and rationale of consent.

According to Oslo expectations, Arafat should have been actively committed to the control of anti-Israel terrorism. Yet, Arafat not only sheltered terrorists; he let them incite, recruit, organize, train, arm, raise funds, and launch operations from areas that had been under his control. Naturally, the same has been true of his successors, Fatah as well as Hamas. The Olmert position that these two groups were somehow legally distinguishable was prima facie wrong.

Israel's unfulfilled obligation to terminate the Oslo accords stemmed also from a related principle of national self-preservation. Under this peremptory norm, any agreement may be terminated unilaterally, following changes in conditions that make performance of the agreement injurious to fundamental rights, especially the basic rights of existence and independence. Known in law as "rights of necessity," this norm was explained with particular lucidity by none other than Thomas Jefferson. In his "Opinion on the French Treaties," written on April 28, 1793, Jefferson stated that when performance, in international agreements, "becomes impossible, nonperformance is not immoral. So if performance becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation to others." Later, in that same document, Jefferson wrote: "The nation itself, bound necessarily to whatever its preservation and safety require, cannot enter into engagements contrary to its indispensable obligations." Israel, The Jewish Press reader will recall, has an "indispensable obligation" to endure.

Copyright © The Jewish Press, December 19, 2008. All rights reserved

LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with international relations and international law. In the United States he has worked for over thirty-five years on international law and nuclear strategy matters, both as a scholar and as a lecturer/consultant to various agencies of the United States Government. In Israel he has lectured widely at various academic centers for strategic studies, at the Dayan Forum and at the National Defense College (IDF). He was Chair of Project Daniel, and is the Strategic and Military Affairs columnist for THE JEWISH PRESS.