THE AMERICANS FOR A SAFE ISRAEL CONFERENCE

Sheraton New York, December 15, 1996

Speech Delivered By Louis Rene Beres (Ph.D., Princeton, 1971)

Professor of Political Science and International Law, Purdue University



By what impeccable illogic has Israel reached its current condition? It is hard to know.

By what curious reasoning does this State - ironically calling itself, still, THE JEWISH STATE - demand less and less - always less - than any other state?

It is hard to reconstruct.

We are all, all of us here, asking ourselves the same questions.

There are times that I think the only way we can truly understand what is going on here is by invoking the language and imagery of the theater of the absurd. Consider, for example, the statement a year ago by Maj. Gen. Danny Rothschild - speaking as a distinguished lecturer at the Jaffee Center for Strategic Studies - about the desirability of PLO terrorists as Arafat's security service. Said the general, the shift from PLO fighters based in Tunis to terrorists with "intifadah experience" will help Israel supervise the Oslo Accords.

In other words, in the judgment of a general of the Jewish State, Israel's security can best be served by Arab terrorists with real-world experience in killing Jews. (Not a caricature of the remarks; an authentic representation).

Tertullian, an early Latin father of the Christian Church, said: "Credo quia absurdum," "I believe because it is absurd." Maybe we need to learn from this statement in order to understand certain Jewish behavior in the New Middle East.

Stranger things are now happening.

Like their Israeli brethren, American Jews, for the most part, are willing to suffer almost anything from each other, or from heaven itself, so long as true words do not touch them.

The Charter of Allah, The Platform of the Islamic Resistance Movement (HAMAS), says the following: "There is no solution to the Palestinian problem except by Jihad. The initiatives, proposals and International Conferences are but a waste of time, an exercise in futility../..../..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." (See Article 15).

Who in the media bothers to recall this Charter expectation? Who bothers to recall that the unamended PLO Covenant is a complementary document? The Government of Israel? The mainstream Jewish apparatchiks in New York and Washington? Hardly. They are all too busy supporting their enemies. In Washington and New York, they are all worried about funding and about correctness and about cocktail party invitations. They want to be machers, they want to be PLAYERS, they want to be RESPECTED, they want to be LOVED. They want to belong to that transnational fraternity of silly people who comprise, always, the stratum of political power.

This past semester at Purdue I taught a course called ISRAEL AND WORLD POLITICS. The three Arab students in the course (all from Jordan) never deviated from the Arab position. There was never any thought in their minds about an obligation to support Jewish rights in Israel. The three Jewish students in the course, on the other hand, essentially supported the same position as their Arab classmates.

Failing to recognize that it is the Jews, not the Arabs, who are an endangered species in the Middle East, these three students were persistently worried about ARAB rights. As Jews, they wanted less and less - always less.

You will note, readily, that the lack of polarity in my classroom parallels the lack of polarity in the real world. In this real world, the Israeli position and the Arab position are now largely congruent. The Arabs with power openly seek the annihilation of the Jewish State; the leaders of the Jewish State accept and work for the policies that will lead to such annihilation.

I have learned to admire certain aspects of the Arab world. The Arabs believe in something; they believe in themselves; they believe in their faith; they believe in surviving. Time is on THEIR side. They understand time. As for the Jews in Israel - at least a significant number of them - they believe essentially in becoming Los Angeles. For them, Eretz Israel is a place where they can finally stop being embarrassed by having been born Jews, and stop being burdened by the expectations of Jewish faith and culture.

Further, these Israelis believe less in themselves than in their enemies. How else could we have reached a condition where the remark by Gen. Rothschild is taken seriously, where it doesn't even elicit a murmur of public disapproval?

But I am straying from my mandate. I will speak this morning about Oslo from the standpoint of international law. And I will speak this morning about unconventional war and Israel's nuclear strategy.

On the nuclear strategy question, a large study of mine has just been published by Bernard Shapiro's Freeman Center - copies available here. Bernard's MACCABEAN deserves credit generally for its persistently truthful and informed contribution to Israel's survival, as does - of course - AFSI's Herb Zweibon and OUTPOST).

Regarding Oslo and international law, I was asked, early on, by a very senior Likud figure, to draft a brief on permissible abrogation. Needless to say, my brief was never implemented.

It is also safe to say that it never will be implemented. So, whatever I have to say here about Oslo and international law now remains confined to the purely academic. I wish it were different, because the jurisprudential arguments - rather than being impractical and impolitic (the view of the Prime Minister) - might have rescued the State of Israel.

Grasping the jurisprudential, a clever Prime Minister could have found a decent and lawful way out of the security dilemmas created by his immediate predecessors. There would have been hell to pay in the short run, to be sure, but at least there would have been some reasonable opportunity for a long run.

The Oslo Accords between Israel and the PLO are in clear violation of authoritative international law.

Israel is now obligated to abrogate these nontreaty agreements. The arguments made by the Netanyahu Government and others that Israel must comply with its "legal" obligations is sheer nonsense. No state is obligated to continue with an agreement made with a terrorist organization.

Rather, Israel (like all states) is obligated under international law to punish all violators of international criminal law. In view of the peremptory expectation known as Nullum crimen sine poena, "No crime without a punishment," the state party to an agreement with terrorists 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 Torah (Lex Talionis sections) that each state's obligation to seek out and prosecute terrorists derives. For Israel to honor agreements with terrorists - agreements that require, among other pertinent violations - the release of thousands of other terrorists - is to dishonor both international and Jewish law.

Terrorism is not the only crime in which Arafat and many of the released Palestinian prisoners are complicit. elated Nuremberg-category crimes, including crimes of war and crimes against humanity, were also committed by these persons. Here you should recall that units of the Palestine Liberation Army (PLA) served with Saddam Hussein's forces in occupied Kuwait, making them, and Yassir 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.

Even if the non-state 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 non-state 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 non-state 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, for the lawyers among us, 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 under the Oslo Accords, any freeing of terrorists is legally incorrect. By its freeing of terrorists, Israel is guilty under international law of what is known as a "denial of justice."

Israel's obligation to abrogate the Oslo Accords, as we have seen, stems from certain basic 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 (if one accepts that there were ever such obligations) 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 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.

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, you should all now recall, has an "indispensable obligation" to endure.

How shall Israel endure?

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 could still be enlarged by transfer to Syria of the Golan - the Netanyahu Government will have to decide on just 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 (and they are still all enemy states) as a significant weakening of Israel's overall defense posture, an interpretation that could lead to enemy incentives to strike first.

Should Israel's sacrifice of strategic depth occasioned by Oslo result in a Palestinian State, which now seems certain, 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 results of the Oslo Accords - results that are still largely unrecognized and that provide, together with the above-listed rationales, a fully authoritative basis for permissible abrogation.

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LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is Professor of Political Science and International Law at Purdue University. He is the author of fourteen major books and several hundred scholarly articles in national and international journals. He has lectured recently on Israeli security matters in Israel, Europe and the United States. Professor Beres, whose work is very well-known to the current Prime Minister and to Israel's military and intelligence communities, was born in Zurich, Switzerland on August 31, 1945.
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