It is an honor to present the indispensable analysis of Professor Louis René Beres. This blogger would be intellectually poorer without his mentoring.
‘Looking Back at Constant Error: Understanding the Tangled Narrative Of Middle East “Peace” – Israel Journal of Foreign Affairs (http://israelcfr.com/about-ijfr.php?inp=4)
(Louis René Beres is Professor of Political Science and International Law at Purdue University in West Lafayette, Indiana, and is the author of numerous 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 US 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)
From the very start of the Middle East Peace Process, beginning at Oslo in 1993, all Palestinian “peace partners” have sought to excise Israel
from the map. For these Palestinians—Fatah, Hamas, it has made no
real difference—the objective of every written agreement with “the Jews” has been clear. Up until the present, in fact, all Palestinian factions
have held one core idea in common, that is, that every inch of Israel,
in addition to all of the West Bank (Judea/Samaria) and Gaza, is,
irremediably and incontestably, an integral part of “Palestine.” In other words, for all Palestinian factions, there is no Jewish land or
Jewish State in the Arab Middle East.
More than one year ago, at the end of April 2011, Fatah (or the Palestinian
Authority) and Hamas initiated a formal détente. At that time, Hamas leader Mahmoud Azhar duly noted the still-unchanged Islamic Resistance Movement platform: “No recognition of Israel, and no negotiation.” This refractory position also became the de jure and de facto policy of Fatah.
Currently, even the very best case “peace process” scenario for Israel is manifestly intolerable. In such a case, Fatah would announce publicly that it is not bound by relentless Hamas’ rejectionism, but would still proceed unilaterally toward full Palestinian statehood, and to UN membership. In this connection, assorted official statements issued by spokesmen for Palestinian President Abbas (that the now codified rapprochement between Palestinian factions represents only “internal Palestinian issues”) remain, prima facie, disingenuous.
Also significant is the fact that the inter-faction agreement was formally signed in Cairo, where forces of the Muslim Brotherhood, the “parent” and active mentor of Hamas, are now continuing to fill the post-Mubarak power vacuum in Egypt.
Israeli Prime Minister Benjamin Netanyahu originally sought to blunt the security consequences of any eventual Palestinian state by making such sovereignty contingent upon Palestinian “demilitarization.” Not unexpectedly, that strategy was stillborn. Skirting bilateral diplomacy with their deferential bid for statehood in the UN, both Palestinian factions already knew that Netanyahu’s demilitarization contingency was inherently naïve. After all, the right to “self defense” is peremptory under international law, and cannot be diminished by any pre-independence concessions or commitments.
From Israel’s basic survival standpoint, there is no meaningful difference between Fatah and Hamas. Both the Fatah Charter and the Hamas Covenant call openly for Israel’s liquidation.
To be sure, active anti-rocket defenses and other high-technology weaponry have their proper place in defending one’s country. However, hiding behind active defenses, including the longer-range Arrow system, can never save Israel. From Sun-Tzu to Clausewitz, military thinkers have understood that over time, even partial or incremental substitutions of defense for offense are destined to fail.
Historically, Israeli territorial concessions, beginning with the transfer of Sinai to Egypt, have only weakened the Jewish State. According to the Hamas Covenant, this has happened, in large measure, due to a persistently hardening resolve “to raise the banner of jihad in the face of the oppressors, so that they may rid the land and the people of their [Jewish] uncleanness, vileness, and evils.”
Slowly, but incontestably, new waves of Palestinian terrorism are surfacing. Just before the April 2011 Fatah–Hamas pact, the March 2011 slaughter of nearly an entire Jewish family by Palestinian terrorists revealed another early warning about Israel’s “peace partners.” To suggest, as some peace process advocates in Israel and the United States have routinely done, that the murderers in this case
were culturally and/or psychologically aberrant, and thereby adequately outside of the Palestinian mainstream, would be factually incorrect. As in previous murders perpetrated by Palestinians against entire Israeli families, these latest Arab killers, who lacked even the faith-based aspiration of becoming martyrs, were widely praised by their respective communities.
What about Israeli “settlement?” Doesn’t this enterprise kindle Palestinian hatred and spark anti-Israel terror? Hardly. Sanctimonious objections to “settlements” are always a smokescreen. For the Palestinians, whether Hamas, Fatah, or any other faction, openly grotesque violence against Jewish civilians remains a lasciviously “sacred” objective. Oddly enough, for the Palestinians, any new state of “Palestine” must necessarily be “free of Jews,” yet the State of Israel is already being ordered to grant over one million Arabs full Israeli citizenship.
Credo quia absurdum [I believe because it is absurd].
From the unmistakably asymmetrical inception of the Oslo Accords, the Middle East peace process has never offered Israel even a hint of evenhandedness. Animated by a relentlessly aggressive and generalized Arab will to exploit law and diplomacy in order to produce Israel’s elimination by increments (“lawfare”), this campaign remains, ironically, an easily recognizable Trojan horse.
In reality, the Road Map represents considerably more than a convenient or benign “detour.” Oslo I, known generally as the Declaration of Principles, was concluded and signed in Oslo on August 19, 1993, and re-signed in Washington, DC on September 13, 1993. Oslo II was signed in Washington on September 28, 1995. If gauged in terms of the intensified activities of Palestinian terrorist movements against Israel, and also the total number of Israelis killed and maimed by suicide bombers and other terrorists since August 19, 1993, the Middle East
peace process has been a resounding failure.
Exeunt omnes? [All exit?]
From Yitzhak Rabin onward, all of Israel’s prime ministers have seemingly felt more or less obligated to honor the Oslo Accords. This delusionary obligation was never supported by authoritative norms or expectations, but only by the gratuitously popular notion that such signed documents were prima facie valid,and, ipso facto, binding.
The law of nations has always required abrogation, not compliance, with regard to invalid agreements. Moreover, as Israel’s position on Oslo has profoundly affected its overall nuclear security posture, we must now also understand the way in which law and power are critically interrelated.
The Oslo Accords between Israel and the PLO have always expressed a codified violation of international law. Israel, therefore, has always been obligated to abrogate these non-treaty agreements. A comparable argument could be made regarding PLO/PA obligations, but this argument would make little jurisprudential sense in light of that non-state party’s inability to enter into any equal legal arrangement with Israel.
Taken by itself, the fact that the Oslo Accords did not constitute authentic treaties under the Vienna Convention, because they linked a state with a non-state party, did not call for automatic abrogation. But, as the non-state party in this case just happened to be a terrorist organization, the leaders of which 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],11 the state party in such an agreement, here the State of Israel, violated international law by honoring the illegal agreement.
Little about this 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 Jewish 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 always to defile the core meanings of international law. An additional and particularly shameful irony should also be noted here, as Israel has repeatedly released large numbers of terrorists by its own
volition.
During his later years, after Oslo had already entered into force, considerable attention was focused expressly on Palestinian leader Yasir Arafat. Was he 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 accessible legal terms: In the US case of Klinghoffer v. Palestine Liberation Organization (1990), for example, the US court formally answered the question of whether Arafat was a terrorist in the affirmative.
In the Israeli courts, a petition to charge Arafat with terrorist crimes was 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 Tibi on July 13, 1994, “and this man shook hands with Yitzhak Rabin.”
But what of the argument that international law may sometimes allow insurgent force that is directed toward legitimate support of fundamental human rights and rules? It is correct that international law has consistently proscribed particular acts of terrorism. Yet, at the same time, it has also 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, at least according to this argument, might have represented an authentic national liberation movement, one that had been operating within the boundaries of permissibility under international law.
To address this position, two essential jurisprudential criteria must first be
examined: just cause and just means. These criteria allow us to distinguish a lawful insurgency from terrorism. The principle of just cause maintains that in certain cases, insurgents may exercise law-enforcing measures under international law.
To qualify as lawful insurgents, such groups 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 measured against the established expectations of discrimination, proportionality, and military necessity.
Terrorism is necessarily 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 non-combatants. 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 current policy implications of these legal 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 likely countenance, Arafat’s flagrant and indisputable disregard for just means did render his Fatah organization a terrorist group.
The explicit application of codified restrictions of the laws of war to noninternational armed conflicts dates back to the four Geneva Conventions of 1949.
Recalling, however, that more than treaties and conventions comprise the laws of war, it is also clear that the obligations of jus in bello [justice in war] comprise part of “the general principles of law recognized by civilized nations,” and bind all categories of belligerents. Indeed, the Hague Convention IV of 1907 declares, in broad terms, that in the absence of a precisely published set of guidelines in humanitarian international law concerning “unforeseen cases,” the pre-Convention sources of international law govern all belligerency.
Terrorist crimes, as part of a broader category called crimen contra omnes [crimes against all], mandate universal cooperation in apprehension and punishment. As punishers of “grave breaches” under international law, all states and statelike authorities are expected to search out and prosecute, or extradite, individual perpetrators. Regarding Israel and the Palestinian Authority (PA), the latter’s obligation under law to extradite terrorists to Israel would have obtained even if
there had been no Oslo Accords. Since 1993, no American or Israeli leader has ever duly noted or commented upon this particularly salient obligation.
From a jurisprudential standpoint, there is no need to probe further the precise language of the Accords. The PA’s multiple violations of extradition expectations under international law existed, and continue to exist, independently of Oslo.
The important though controversial principle of universal jurisdiction is usually founded upon an authoritative presumption of solidarity between all sovereigns in their common fight against international crime. Moreover, the case for universal jurisdiction may be strengthened whenever extradition is difficult or impossible to achieve. It is also built into the four Geneva Conventions of August 12, 1949.
Traditionally, piracy and slave trading were the only offenses warranting
universal jurisdiction. Since World War II, however, states have generally
recognized an expanded definition of universal jurisdiction to include crimes of war; crimes against peace; crimes against humanity; torture; genocide; and crimes
of terrorism. For the most part, this purposeful, although sometimes abused (by anti-Israel elements), jurisdictional expansion has its origins in certain multilateral conventions, in customary international law, and in pertinent judicial decisions.
Terrorism is not the only major crime in which Arafat and many of the subsequently released Palestinian prisoners were actively complicit. Related Nurembergcategory crimes, including crimes of war and crimes against humanity, were also committed by these criminals. It should be noted that units of the Palestine Liberation Army (PLA) served enthusiastically with Saddam Hussein’s forces in occupied Kuwait during the First Gulf War, making them, and Yasir Arafat personally (the legal principle of command responsibility is known as respondeat superior [let the master answer], responsible for multiple crimes.
As if these offenses were not enough of an intolerable affront to international law, many of the terrorists who were later released from Israeli jails in presumed furtherance of the Oslo Accords and also the wider “peace process” quickly accepted various high positions in the “security forces” of the Palestinian Authority
or Hamas.
Even if the non-state Palestinian party to the Oslo Accords had not been a
terrorist organization, Israel would still have entered into an agreement of
unequal obligations wherein the PLO would not have been held under law to the same standards of accountability. Various federal court decisions in the US have affirmed that agreements between non-state and state parties impose asymmetrical compliance expectations. In a concurring statement in the case of Tel-Oren v. Libyan Arab Republic, a 1981 civil suit in US 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, among many of its sister affiliates and foes, remained a terrorist
organization. Therefore, Israel never had any right to honor the Oslo Agreements’ alleged requirement to release certain convicted members of that criminal group. No government, ever, has any right to lawfully pardon or grant immunity to terrorists with respect to criminally sanctionable violations of international law.
In the US, it is evident from the Constitution that the president’s power to pardon does not encompass violations of international law, and, accordingly, is limited to identifiable “offenses against the United States.”
This critical limitation derives from a broader prohibition, one 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, with core origins in Torah, are listed in Blackstone’s Commentaries, which acknowledges 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 had 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 could not pardon these offenses against other sovereigns. The Jewish State possessed no right to grant immunity for terrorist violations of international law.
No matter what might be permissible under its own Basic Law and the Oslo Accords, any freeing of terrorists has always been legally incorrect. By such acts, Israel is manifestly guilty of what is known in law as a “denial of justice.” Arguably, in this connection, all complicit Israeli prime ministers from Rabin to Netanyahu have also committed individually punishable violations of international law.
Israel’s persisting legal obligation to abrogate the Oslo Accords stemmed from certain peremptory expectations of international law. Israel, however, also has substantial rights of abrogation that bind its behavior, apart from any such expectations. These particular rights derive from the basic doctrine of Rebus sic stantibus.
Defined literally as “so long as conditions remain the same,” this doctrine of changed circumstances augmented Israel’s incontestable obligations to cease its compliance with Oslo. This is because Israel’s traditional obligations to the Accords ended promptly when a “fundamental change” occurred in those circumstances that existed at the effective dates of the accords, and whose continuance had formed a tacit condition of the accords’ ongoing validity. This change involved multiple material breaches by the PLO, especially those concerning control of anti-Israel
terrorism, and extradition of terrorists. Almost immediately, Rebus sic stantibus became a material basis for Israeli abrogation, because of the profound change created by the PLO in the very circumstances that had formed the cause, motive, and rationale of Israeli consent.
According to explicit Oslo expectations, Arafat, from the beginning, should have been actively committed to the control of anti-Israel terrorism. Yet, Arafat not only sheltered Arab terrorists; he let them incite, recruit, organize, train, arm, raise funds, and even launch murderous operations from areas that were under his direct control. Naturally, the same is true of his successors, Fatah as well as Hamas.
The ongoing position that these two groups are somehow legally and morally distinguishable from each other remains wrong. This awareness should be understood, especially when the intersecting issues of “Palestine” and Iran could soon confront Israel with a devastating force multiplier.
In retrospect, Israel’s still-unfulfilled obligation to terminate the Oslo Accords also stemmed from a related principle of national self-preservation. Under this peremptory or utterly “sacred” norm, any agreement may be terminated unilaterally following changes in conditions that would make performance of the agreement injurious to fundamental rights, especially the rights of existence and independence known in law as “rights of necessity.” This basic norm was explained
with particular lucidity and erudition 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.”
Regarding the Oslo Accords and Israel’s consequent vulnerability to war, Israeli security has become increasingly dependent upon nuclear weapons and strategy.
Faced with a UN-supported and self-declared Palestinian state, the Jewish State would have to decide on precisely how to compensate for its expected diminished strategic depth. While this shrinkage might not necessarily increase Israel’s existential vulnerability to unconventional missile attack, it would increase that state’s susceptibility to attacking ground forces, and even to subsequent enemy occupation.
Any loss of strategic depth would almost certainly be interpreted by enemy states, including “Palestine,” as a significant weakening of Israel’s overall defense posture.
This could then lead to irresistible enemy incentives to strike first.
As Israel’s sacrifice of strategic depth is translated into an independent Palestinian state, the geostrategic victory of the Jihadist/Islamic world would be complemented by something less tangible, but assuredly no less critical—Arab and Iranian perceptions of an ongoing and unstoppable momentum against the Jewish State, a jihad-centered view of military inevitability that would reiterate extant policies of war. Recognizing such perilous perceptions, Israel could be forced to take its bomb out of the “basement,” and/or to accept a greater willingness to launch
preemptive strikes against certain enemy hard targets.
Individual Arab states and/or Iran could respond to any such Israeli decisions in different ways. Made aware of Israel’s policy shifts that would now stem from Israel’s awareness of enemy perceptions spawned by the creation of “Palestine,” these particular enemy states could react in more or less parallel fashion. Here, preparing openly for nuclearization and/or aggression against Israel, these states could express certain far-reaching results of Oslo/Road Map/UN results that are still generally unrecognized. Until the present, these effects had provided Israel, together with other abovementioned rationales, a fully authoritative basis for permissible abrogation.
When, on October 6, 1973, Egyptian and Syrian surprise attacks came close to jeopardizing Israel’s physical survival, it was due to a major intelligence failure. Similarly, on January 18, 1991, when the scream of air-raid sirens could be heard in every corner of Israel, the Iraqi Scuds that slammed through Tel Aviv and Haifa neighborhoods caught the country, in the words of a former Israeli intelligence chief, “with its pants down.” In the latter case, what saved Israel from sustaining genuinely existential losses were Iraq’s notably ineffectual warheads.
The record of intermittent failure of A’man [the IDF Intelligence Branch] is worth noting. Although it is obviously too late to rectify prior mistakes, some important lessons can still be learned. The most important is this: Before one takes comfort from what the “experts” have had to say about “Palestine,” recall that their record has sometimes been flawed.
Currently Israel is confronted by Iranian nuclearization, a developing menace of potentially existential import. Although American and Israeli leaders may maintain that this menace is somehow unrelated to Palestinian statehood, exactly the opposite is true. In all military plans and preparations, the prospect of synergistic interaction between otherwise separate or discrete threats should be taken into account.
In the not-too-distant future, Iran will likely have the capacity to launch nuclear missiles against Israel. While this would not require the strategic advantages of a cooperative “Palestine,” Iran’s actual willingness to launch or to share nuclear weapon assets with Hizbullah could be enlarged by any antecedent Oslo/Road Map/UN dismemberment of Israel, the overall effect of which would be to weaken Israel generally, including perhaps even its basic will to resist.
Preemption, in some form or other (and this includes newly promising and nonexplosive forms of cyber defense or cyber-warfare), may still be essential to Israel’s survival. At the same time, Oslo/Road Map expectations may already have prevented Israel from striking preemptively in a timelier and more militarily assertive fashion. In a Middle East shaped by peace process expectations, such a strike might have appeared as “aggression,” thereby upsetting the delicate
“peacemaking” then allegedly underway. More than likely, the “civilized world,”
even after acknowledging Israel as the only viable democracy in the Middle East, would not have approved of any such Israeli “belligerence.”
What if in June 1981 Menachem Begin had thought in these terms? What if he had chosen to forego the preemption option against Iraq at that time? What sorts of warheads would have then been fitted on Iraqi Scuds ten years later? What sorts of WMD would have confronted America and its allies in Operations Desert Storm and Iraqi Freedom?
While Prime Minister Begin’s timely actions at Osiraq (Operation Opera)16 probably did save the country from “another Holocaust” (Begin’s own words after the uniquely successful raid), subsequent prime ministers Barak, Sharon, Olmert, and Netanyahu all refused to act meaningfully against Iran. As for the intermittent “sanctions” imposed by the UN and US, they certainly have not been very effective.
General Yitzhak Rabin, on the eve of the Yom Kippur War, assured his countrymen that the Arabs would not attack. This view, derived from the similarly misconceived assessment of then-minister of defense Moshe Dayan, came to be known in Israel as the mechdal, or the “concept”—the thoroughly mistaken idea that the enemy was not preparing for war. Just twenty-four hours before the attack, the official estimate of A’man on the probability of war, according to former president Chaim Herzog, was “the lowest of the low.”
Today, even after much of the Arab world has experienced far-reaching internal turmoil and political refashioning, Israel faces another possible mechdal—an omission, an instance of nonperformance, an expression of neglect with vastly more catastrophic potential. This time, perhaps, the “concept” could produce a de facto end to the Jewish State, a “solution” that Israel’s enemies would tantalizingly characterize as “final.” At the same time, from a purely strategic or operational standpoint, the prospects for a genuinely successful and lawful preemption against
Iran are now low to non-existent.
Under authoritative international law, Israel was never under any binding
obligation to comply with Oslo, and it is under no current obligations to comply with a still-emergent Road Map. On the contrary, the Jewish State has always been legally obliged to terminate asymmetrical agreements with terrorists.
Should Israel’s current prime minister somehow manage to avoid the creation of “Palestine,” Israel may still have a secure future. But, should a reconciled Fatah– Hamas unity government give way to a genuine Palestinian state, one that would be unambiguously militarized, Israel’s long-term survival could become problematic.
The Palestine Liberation Organization (PLO) was founded in 1964; three years before there were any “occupied territories.” What, precisely, was the PLO seeking to “liberate?” The answer remains: all of Israel. In this regard, absolutely nothing has changed.
Adina Kutnicki 