Terminating Oslo I and II:
An Obligation under International Law
By Louis Rene Beres
An informed brief for permissible abrogation by the State of
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
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
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
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
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
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.
- 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
generally, Haim H. Cohn, ON THE IMMORALITY OF
PUNISHMENT, 25 ISRAEL LAW REVIEW., No. 3-4,
- 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
- 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.
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
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,
ed., 1990, Part II; Crawford, THE CREATION OF
STATEHOOD IN INTERNATIONAL LAW, 1979;
INTERNATIONAL LAW, 2nd ed., 1970, Vol. I; Verzijl,
INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE.,
1969; Lissitzyn, "Territorial Entities Other Than
Independent States in the Law of Treaties," 125 HR, p.
5.; Lauterpacht, INTERNATIONAL LAW: COLLECTED
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.
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
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,
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
- 14. See Gideon Hausner, JUSTICE IN JERUSALEM (New
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
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
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.