Louis Rene Beres
Professor of International Law
June 20, 1996
Dear Mr. Netanyahu,
The Oslo Agreement is inherently illegal from the standpoint of international law. Hence, in view of the supremacy of international law over national law, the new government of Israel should be advised that it is compliance with the Agreement, not a lack of compliance, that would pose legal problems. In other words, your Government will have an overriding jurisprudential obligation to abrogate (you can choose, of course, some sort of partial abrogation). A near-universal reaction to such an abrogation would be to condemn Israel for allegedly failing to stand by its legal obligations, but this would be an uninformed reaction and could be challenged jurisprudentially by informed adversarial counterarguments.
In the final analysis, Mr. Prime Minister, questions of law will necessarily follow questions of politics. In this connection, just as the Agreement itself was largely made possible by prior Government acceptance of the territories as "occupied" (i.e., by a prior linguistic surrender), so too must abrogation of the Agreement come after your new Government's expressed rejection of that acceptance. This means that a first order of business for the new Government must be a return to the original and correct view that the territories are not "occupied" and that Israel has an overriding right, inherent in its very sovereignty, to survive intact. With widespread public affirmations of this view, the legal obligation to abrogate could follow with less public outcry. In and of themselves, the legal issues are straight forward and easy to articulate in a way that would support abrogation. It is the antecedent political issues that must first be gotten out of the way.
Returning to the strictly jurisprudential, it is true that repeated Palestinian violations of the Agreement create a rationale for lawful abrogation, but please keep in mind that the Agreement itself is not a treaty. As it links a state with a nonstate entity, there is some question whether the permissible grounds (found primarily in the Vienna Convention on the Law of Treaties) for lawful termination even apply. One could argue authoritatively that any agreement between a state and nonstate entity is not at all binding under international law (because the nonstate entity, here the PLO, lacks capacity to act as a legal person.)
The Declaration of Principles is in violation of the Madrid Formula, which expressly excluded the PLO from participation in the Peace Process. Regarding the codified exclusion of the PLO from such participation, it was recognized, explicitly, in the Palestinian Response to the Madrid Invitation of 22 October 1991. Here, despite reaffirmation of the PLO as "the sole legitimate representative of the Palestinian people everywhere," it is acknowledged that "the PLO has agreed not to be directly or overtly involved in the process at present../..../.." Earlier, in a Letter of Assurances to Israel dated 18 October 1991, the United States affirmed: "The United States believes that no party in the process can be forced to sit with anyone it does not want to sit with../..../..The United States believes that the Palestinians will be represented in a common Jordanian-Palestinian delegation. Palestinian residents of the West Bank and Gaza who agree to the two-tracks concept and to negotiation by phases, and who are willing to live in peace with Israel (my emphasis here) will take part in the delegation and the negotiations on interim arrangements. Moreover, it is not the United States aim to bring the PLO into the process or to make Israel enter a dialogue or negotiation with the PLO."
Looking over these components of the Madrid Process, it is clear that the codified exclusion of the PLO is contained in both the explicit language of relevant documents and, by extrapolation, in the requirement that Palestinian delegates be "willing to live in peace with Israel." As long as the PLO Covenant call for Israel's destruction remains problematic, it is juridically incontestable that PLO delegates would fail to meet the stipulated expectation on willingness to "live in peace with Israel." In this connection, open PLO support for Saddam Hussein's crimes of war, crimes against peace and crimes against humanity during the Gulf War - support never recanted by the PLO - underscores that organization's persisting unwillingness to "live in peace" with the Jewish State.
In the end, Mr. Prime Minister, Israel should argue (in part) as follows: Nullum crimen sine poena. "No crime without a punishment." This major principle of international law, essential to all civilized international relations (and compelling, especially, to post-Holocaust Jewry) obligates all states to seek out and prosecute those responsible for crimes of terrorism. Significantly, this principle was reaffirmed at Nuremberg in 1945-46, in particular response to crimes directed at the Jewish People. Further, Nullum crimen sine poena was cited specifically by Israel's Attorney-General, Gideon Hausner, in his prosecution of Adolph Eichmann. It follows that the Government of Israel has a special obligation to stand by this principle regarding PLO crimes and Israel's juridical relationship to the PLO - an obligation greater perhaps than that of any other state in the world. For Israel to willfully reject such an obligation, a rejection that has in fact already occurred, may be especially violative of international law and, as a non-jurisprudential aside, is especially shameful for a Jewish State.
Mr. Prime Minister, I would suggest a far-reaching change, a "frontal assault" declaration, based in part upon my preceeding arguments, stipulating that certain matters, especially Jerusalem and the "return" of Palestinians, are assuredly not mandated for discussion under international law. This sort of law-enforcing declaration would elicit great anger in certain quarters in the short run, but would likely be overwhelmingly cost-effective in the long-run. Most importantly, perhaps, such a legally correct declaration would be more than a proclamation of postponement of hard questions, but rather a firm statement of separation from the follies and illegalities of the previous Government.
In conclusion, Mr. Prime Minister, Israel's declaration should be as follows: "We do not accept the legality of the Oslo Agreement. On the contrary, we recognize an overwhelming legal obligation to detach Israel from this suicidal, non-treaty agreement. We also recognize, therefore, an obligation not only to reverse pertinent concessions made by the previous Government, but to state categorically that certain matters pertaining to Israel's physical integrity and survival should not and shall not be negotiated.
Louis Rene Beres
The writer was educated at Princeton (Ph.D., 1971) and is the author of fourteen books and several hundred scholarly articles dealing with international law.