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.