Terminating Oslo I and II:

An Obligation under International Law

By Louis Rene Beres

An informed brief for permissible abrogation by the State of Israel

It is generally believed that the Oslo Accords1 between Israel and the PLO are fully binding under international law. Exactly the opposite is true. Because these non-treaty agreements run counter to absolutely incontrovertible legal expectations, Israel is now obligated to terminate the agreement. A parallel argument can be made concerning PLO obligations, but this would make little realistic sense, as we shall see, in view of the pertinent and authoritative grounds for termination.

The Oslo Agreements do not constitute treaties because they link a state with a nonstate party. In and of itself, this incontestable fact, drawn from the Vienna Convention on the Law of Treaties,2 certainly does not call for termination. But because the nonstate party in this case happens to be a terrorist organization3 whose leaders must be punished4 for egregious crimes, any agreement with this party that offers rewards rather than punishment is entirely null and void. Indeed, in view of the peremptory5 expectation known in law as Nullum crimen sine poena,6 "No crime without a punishment," the state party in such an agreement - in this case the State of Israel -violates international law by honoring the agreement.

Terrorist crimes7 mandate universal cooperation in apprehension and punishment. As punishers of "grave breaches" under international law (defined at the Fourth Geneva Convention),8 all states and other legal "persons"9 are expected to search out and prosecute, or extradite for prosecution,10 individual perpetrators.11 This assuredly does not mean holding hands and signing documents on the White House lawn. The "good offices" of the United States do not in any way mitigate Israel's legal failings in this matter; rather, it simply makes one more state, the United States of America,12 complicit in this failure.

Regarding the peremptory norm of Nullum crimen sine poena, it was reaffirmed with unassailable authority at Nuremberg in 1945 -46,13 and in particular response to crimes against the Jewish People. Moreover, this norm was cited specifically by Israel's Attorney General, Gideon Hausner, in his prosecution of Nazi war criminal Adolph Eichmann.14 It follows that the current State of Israel has a special obligation to stand by this peremptory rule 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 several times over, may be especially violative of international law and, as a non-jurisprudential aside, is especially shameful for the Jewish State. Another legal reason for prompt Israeli termination of Oslo lies in what international law calls rebus sic stantibus. Defined literally as "so long as conditions remain the same," this doctrine of a fundamental change of circumstances now requires Israel to cease compliance. Israel's traditional obligations to the Agreement ended when a change occurred in those circumstances that existed at the effective dates of the Agreement and whose continuance formed a tacit condition of the Agreement's ongoing validity. This change, of course, involved multiple material breaches by the PLO, especially those that concern control of anti-Israel terrorism and extradition of terrorists.15 Today, rebus sic stantibus has become operative for Israel because of a profound change created by the PLO in the circumstances that formed the cause, motive and rationale of consent.

Finally, Israel's obligation to terminate the Oslo Agreements stems from a related principle concerning 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."16 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."17 Israel, one must remind Messrs. Rabin and Peres, has an "indispensable obligation" to endure.18

It is plausible, of course, that Israel's current Prime Minister will pay no heed to the above legal arguments. It is essential, however, that his successor does pay such heed, and that he not assume, incorrectly, that Israel must comply with an altogether illegal agreement. To comply with international law, as indeed it must, Israel must cease compliance with the Oslo Accords. That is its only legal course of action. There is an ironic resonance to this demand, but it is nonetheless a compelling and valid demand.

On the very day that he signed the Declaration of Principles in 1993 (Oslo I), Yasser Arafat19 addressed the Palestinian people on Jordan television, assuring them that the agreement was nothing more than the implementation of the 1974 PLO Plan of Phases, a 10-point scheme for the destruction of Israel in stages. The first stage, said Arafat, is "the establishment of a national authority on any part of Palestinian soil that is liberated or from which the Israelis withdraw."20 The same assertion was repeated by Chairman Arafat after the signing of Oslo II.21 These assertions, considered together with Israel's peremptory right to endure, its peremptory obligation to punish crimes22 and the PLO's persistent breaches of all agreements with the Jewish State, obligate prompt termination of an altogether misnamed "Peace Process."

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LOUIS RENE BERES (Ph.D., Princeton, International Law) is the author of fourteen books and several hundred published scholarly articles dealing with international law. Recently he co-authored an article, with Ambassador Zalman Shoval, in the VANDERBILT JOURNAL OF TRANSNATIONAL LAW ("On Demilitarizing A Palestinian `Entity' and the Golan Heights: An International Law Perspective"). His newest book is FORCE, ORDER AND JUSTICE: INTERNATIONAL LAW IN AN AGE OF ATROCITY.

NOTES

1. Oslo II was signed at the White House on September 28, 1995. Oslo I was signed at the same venue on September 13 1993. For a complete compendium of the documentary record, up to the signing of Oslo II, see: THE PALESTINIAN-ISRAELI PEACE AGREEMENT, Washington D.C. Institute for Palestine Studies, 1994, Revised second ed., 306 pp.

2. According to the Vienna Convention on the Law of Treaties, a treaty is always an international agreement"concluded between States../..../.." See VIENNA CONVENTION ON THE LAW OF TREATIES. Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted in 8 I.L.M. 679 (1969).

3. The Palestine Liberation Organization was treated as a terrorist group in the Klinghoffer v. Palestine Liberation Organization (PLO) suit. Here, the court determined, inter alia, that the federal court had jurisdiction over the PLO. See Klinghoffer v. S.N.C. Achille Lauro, 739 F. Supp., 854, 857 (S.D.N.Y. 1990). In this civil action, which alleged that "the owner and charterer of the Achille Lauro, travel agencies, and various other entities" failed to thwart the attack, jurisdiction was proferred on the basis of the Death on the High Seas Act (46 U.S.C. App. Secs. 761 - 767; 1982), diversity of citizenship and state law. Responding to the suit, the travel agencies/charterers, etc., impleaded the PLO, calling for contribution or indemnification for reparations imposed against them. This call was based on the passengers' suits as well as on punitive and compensatory damages for the PLO's "tortious interference with their businesses." (Id., at 857).

4. Punishment represents the original meaning of justice. See Robert C. Solomon and Mark C. Murphy, WHAT IS JUSTICE? CLASSIC AND CONTEMPORARY READINGS (1990); se generally, Haim H. Cohn, ON THE IMMORALITY OF PUNISHMENT, 25 ISRAEL LAW REVIEW., No. 3-4, 284-291 (1991).

5. According to Article 53 of the Vienna Convention on the Law of Treaties: "A peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." Even a treaty must be subordinate to peremptory expectations: "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law."

6. The earliest expressions of Nullum crimen sine poena can be found in the Code of Hammurabi (c. 1728 - 1686 B.C.), the Laws of Eshnunna (c. 2000 B.C.), the even earlier code of Ur-Nammu (c. 2100 B.C.) and, of course, the lex talionis or law of exact retaliation, presented in three separate passages of the Jewish Torah or Biblical Pentateuch. At Nuremberg, the words used by the Court, "So far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished," represented an emphatic contemporary reaffirmation of Nullum crimen sine poena.

7. An authoritative listing of offenses that constitute the crime of terrorism can be found in the EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM. Done at Strasbourg, Nov. 10, 1976. Entered into force, Aug. 4, 1978. Europ. T.S. No. 90, reprinted in 15 I.L.M. 1272 (1976). See also: Louis Rene Beres, "The Meaning of Terrorism - Jurisprudential and Definitional Clarification," VANDERBILT JOURNAL OF TRANSNATIONAL LAW, Vol. 28, No. 2, March 1995, pp. 239 - 249; and Louis Rene Beres, "The Meaning of Terrorism for the Military Commander," COMPARATIVE STRATEGY: AN INTERNATIONAL JOURNAL, Vol. 14, No. 3, July - September 1995, pp. 287 - 299.

8. See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949 at 6 U.S.T. 3616, art. 146, 75 U.N.T.S. 386.

9. On subjects of international law, see generally: Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 4th ed., 1990, Part II; Crawford, THE CREATION OF STATEHOOD IN INTERNATIONAL LAW, 1979; O'Connell, INTERNATIONAL LAW, 2nd ed., 1970, Vol. I; Verzijl, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE., Vol. II, 1969; Lissitzyn, "Territorial Entities Other Than Independent States in the Law of Treaties," 125 HR, p. 5.; Lauterpacht, INTERNATIONAL LAW: COLLECTED PAPERS, Vol. II, 1975, p. 487; Rousseau, DROIT INTERNATIONAL PUBLIC, Vol. II, 1974; Schwarzenberger, INTERNATIONAL LAW, 3rd ed., Vol. I, 1957, p. 89; Cassese, INTERNATIONAL LAW IN A DIVIDED WORLD, 1986, Ch. 4; and Shaw, INTERNATIONAL LAW, 3rd ed., 1991, Ch. 5.

10. The "extradite or prosecute" expectation of international law derives from Nullum crimen sine poena. Developed in antiquity, this formula has roots in both natural law and in positive law. See Jean Bodin, SIX BOOKES OF A COMMONWEALE (Kenneth D MacRae ed., Richard Knolles, tr, 1962)(1576); Hugo Grotius, DE JURE BELLIS AC PACIS LIBRI TRES (Francis W. Kelley, tr., 1925); Emmerich de Vattel, THE LAW OF NATIONS OR THE PRINCIPLES OF NATURAL LAW (Charles G. Fenwick, tr., Carnegie Inst., 1916)(1758).

11. See 1973 Resolution on Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, G.A. Res. 3074, U.N. GAOR, Supp. 25th Sess., No. 30 at 78, U.N. Doc. A/9030 (1973). Other pertinent resolutions affirm that a refusal "to cooperate in the arrest, extradition, trial and punishment" of such persons is contrary to the United Nations Charter and "to generally recognized norms of international law." See e.g., G.A. Res. 2840, U.N. GAOR, 26th Sess., Supp. No. 29, at 88, U.N. Doc. A/8429 (1971). See also G.A. Res. 3074, U.N. GAOR, Supp. 28th Sess., No. 30, at 78, U.N. Doc. A/9030 (1973); G.A. Res. 96, U.N. Doc. A/64 at 188 (1946). Regarding responsibility under Geneva Law, the Geneva Conventions address the obligation of all signatories "to respect and to ensure respect" for the Conventions " in all circumstances." See e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 1, 6 U.S.T. 3516, 75 U.N.T.S. 287 (1955). See as well, Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, opened for signature, by G.A. Res. 2391 (XXIII), Nov. 26, 1968, entered into force, Nov. 11, 1970.

12. There are also legal implications here for the United States. Pursuant to Article VI of the Constitution of the United States, and several decisions of the U.S. Supreme Court, international law forms part of the law of the United States. Hence, not only was United States involvement in Oslo I and II an abuse of international law, it was also an abuse of the law of the United States.

13. See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 (entered into force for the United States on Sept. 10, 1945); Charter of the International Military Tribunal, annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers. In 1946, the U.N. General Assembly adopted a resolution affirming the principles of international law recognized by the Charter of the Nuremberg Tribunal. Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal. G.A. Res. 95, U.N. GAOR, 1st Sess., at 1144, U.N. Doc. A/236 (1946). This affirmation was followed by G.A. Res. 174 (II), adopted on November 21, 1947, directing the U.N. International Law Commission to: (a) Formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal; and (b) Prepare a draft code of offenses against the peace and security of mankind." U.N./ Doc. A/519, at 112 (1947). The principles thus formulated are known as the Principle of International Law Recognized in the Charter and Judgment of the Nuremberg Tribunal, U.N. GAOR, 5th Sess., Supp. No. 1, at 11, U.N. Doc. A/1316 (1950)(Nuremberg Principles).

14. See Gideon Hausner, JUSTICE IN JERUSALEM (New York: Schocken Books, 1966). Indicted under Israel's Nazi Collaborators Punishment Law, Eichmann was convicted and executed after the judgment was confirmed by the Supreme Court of Israel on appeal in 1962. See Attorney-General v. Adolph Eichmann, 36 Int'l L. Rep. 5 (Isr. Dist. Ct. Jerusalem, 1961), aff'd 36 Int'L L. Rep. 277 (Isr. S. Ct. 1962).

15. See "The Extradition Fiasco," editorial, THE JERUSALEM POST, International Edition, week ending September 9, 1995, p. 10.

16. See Jefferson's "Opinion on the French Treaties," April 28, 1793, in Merrill D. Peterson, ed., THE POLITICAL WRITINGS OF THOMAS JEFFERSON (Thomas Jefferson Memorial Foundation: 1993), pp. 113 - 114.

17. Id., p. 115.

18. Regarding this obligation, here is what THE JERUSALEM POST had to say about the signing of Oslo II: "../...the implementation of Oslo 2 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." See "A Palestinian State," September 27, 1995, p. 10.

19. In addition to the well-known inventory of terrorist crimes sponsored by Arafat, the PLO Chairman also gave his blessings to various crimes of war, crimes against peace and crimes against humanity committed by Saddam Hussein during the Gulf War. Units of the Palestine Liberation Army (PLA) served with Saddam's forces in occupied Kuwait, making them actively complicit in multiple crimes of extraordinary horror and ferocity. See REPORT ON IRAQI WAR CRIMES (DESERT SHIELD/DESERT STORM), unclassified version, Secretary of the Army, War Crimes Documentation Center, International Affairs Division, Office of the Judge Advocate General, Headquarters, Department of the Army, Washington D.C. 20310, 8 January 1992, 116 pp.

20. See "Solid Paper Facts," editorial, THE JERUSALEM POST, International Edition, week ending October 7, 1995, p. 10.

21. Id.

22. Regarding Yasser Arafat's personal responsibility for PLO crimes, it warrants mention that authoritative voices within the PLO not only accept this responsibility of their Chairman, they celebrate it. On July 13, 1994, Dr. Ahmad Tibi, senior advisor to Arafat, responded to Israeli objections to the entry of Maalot terrorists (those who had slaughtered 22 Israeli schoolchildren in 1974) into Gaza and Jericho as follows: "The person responsible on behalf of the Palestinian people for everything that was done in the Israeli-Palestinian conflict is Yasser Arafat../..../.." (See: Joel Greenberg, "Israelis Keep Arafat Aides Out of Gaza," THE NEW YORK TIMES, July 14, 1994, p. 1.

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