Sheraton New York, December 15, 1996
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
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
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
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
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.
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,