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The more things change, the more they remain the same. From its imperiled beginnings, from the plainly one-sided inception of Oslo, the so-called “Middle East Peace Process” never gave Israel a chance. Widely animated by a distinctly lascivious Arab will to exploit the agreement in order to hasten Israel’s incremental elimination, a Final Solution to the Israel Question, it remains, even today, little more than an enemy Trojan Horse. Ironically, from the standpoint of current U.S. and other national foreign policies, the “Peace Process” is now routinely characterized as a road map.
The benign cartography is sorely misleading. Oslo I, known generally as the Declaration of Principles, was concluded and signed in Oslo, on August 19, 1993, and resigned in Washington D.C. on September 13, 1993. Oslo II was signed in Washington D.C. on September 28, 1995. As expressed in a still-steadily enlarging Palestinian terrorist movement against Israel, and in the total numbers of Israelis killed and maimed by suicide bombers and other terrorists since August 19, 1993 (the present “calm” will not last), the Middle East Peace Process has been a resounding failure.
Let us not kid ourselves. From Rabin onwards, all of Israel’s prime ministers seemingly felt more-or-less obligated to honor the Oslo Accords. From the standpoint of an informed jurisprudence, this obligation was never supported by authoritative norms or expectations, but rather by the gratuitously popular notion that such signed documents were valid and binding ipso facto. From the start, in fact, the law of nations actually required abrogation, not compliance, with what were unassailably invalid and illegal agreements. Moreover, as Israel’s position on Oslo has affected its overall nuclear security posture, I will, in this three-part column also explain the relevant interrelatedness of law and power.
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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 nontreaty agreements. A comparable argument could be made regarding PLO/PA obligations, but this would make little jurisprudential sense in light of that nonstate party’s antecedent incapacity to enter into any 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 nonstate party, did not call for prima facie abrogation. But, as the nonstate party, in this case just happened to be a terrorist organization whose leaders must be punished for their documented egregious crimes, any agreement with this party that offered rewards rather than punishments was immediately null and void. 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 illegal 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 core meanings of international law. There is also additional irony here, as Israel repeatedly released large number of terrorists by its own volition.
During his later years, after Oslo had already “entered into force,” considerable attention was focused on Yasir Arafat. Was Arafat a terrorist? Although the answer is perfectly clear to anyone who thinks (there is nothing exculpatory about being a Nobel Peace laureate), it can also be supported in formal legal terms: In the U.S. case of Klinghoffer v. Palestine Liberation Organization (1990), the U.S. court unambiguously answered the question of Arafat as terrorist in the affirmative.
In the Israeli courts, a petition to charge Yasir Arafat with terrorist crimes had already 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 correctly that Arafat 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.”
What, however, of the argument that international law may permit insurgent force that is directed toward legitimate support of fundamental human 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 use certain levels and types of force against any regime that represses their peremptory human rights, especially “self-determination,” “independence,” and “national liberation.” Fatah, therefore, might have represented an authentic national liberation movement, one that had been operating within the boundaries of permissibility under international law.
To address this argument, two essential criteria must first 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 certain forms of insurgency may exercise law-enforcing measures under international law.
To qualify as lawful insurgents, this group must also display appropriate respect for humanitarian international law – i.e., just means. It follows that in order to determine whether a specific group actually satisfies the requirements of a lawful insurgency, its resort to force must first be tested against the established expectations of discrimination, proportionality and military necessity.
Terrorism is underway whenever a group engages in campaigns of force that are deliberately directed against broad segments of the general population, campaigns that blur the always-essential distinction between combatants and noncombatants. Similarly, the group becomes terroristic whenever it begins to apply force to the fullest possible extent, restrained only by the limits of available weaponry. The policy implications of these expectations for any proper evaluation of Palestinian insurgency are manifest and straightforward.
National liberation movements that fail to meet the settled and codified restraints of the laws of war are never protected as legitimate or permissible. Under international law, the ends can never justify the means. As in the case of war between states, every use of force by insurgents must always 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.
Even if we were to concede to Fatah a just cause (a concession that no reasonable observer could conceivably countenance), Arafat’s flagrant disregard for just means necessarily made his organization a terrorist group.
(To Be Continued)
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 forty 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.
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