Israel’s persisting legal obligation to abrogate the Oslo Accords, as we have seen, stemmed from certain peremptory expectations of international law. Israel, however, also has substantial rights of abrogation here 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 augments 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 had existed at the effective dates of the accords, and whose continuance had 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, 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 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 terrorists; he let them incite, recruit, organize, train, arm, raise funds and even launch murderous operations from areas that had been under his direct control. Naturally, the same has been true of his successors, Fatahas well as Hamas. The ongoing position that these two groups are somehow legally and morally distinguishable remains wrong on its face.
Israel’s unfulfilled obligation to terminate the Oslo Accords stemmed 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 basic 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.”
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 will quickly have to decide on precisely how to compensate for its eventually diminished strategic depth. While this shrinkage may not necessarily increase Israel’s existential vulnerability to unconventional missile attack, it will increase that state’s susceptibility to attacking ground forces, and to subsequent enemy occupation.
Any loss of strategic depth will almost certainly be interpreted by enemy states, including “Palestine,” as a significant weakening of Israel’s overall defense posture, an interpretation that could then lead to irresistible enemy incentives to strike first.
As Israel’s sacrifice of strategic depth is expressed in an independent Palestinian state, the geostrategic victory of the Jihadist/Islamic world will be complemented by something less tangible, but assuredly no less critical. This is Arab and Iranian perception of an ongoing and unstoppable momentum against the Jewish state, a jihad–centered perception of military inevitability that would reiterate extant policies of war. Recognizing such perilous perceptions, Israel could, inter alia, be forced to take its bomb out of the basement, and/or it could be forced 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, shifts that would now stem from Israel’s awareness of enemy perceptions spawned by the creation of Palestine, these particular enemy states, however some might have been transformed by current revolutionary currents, would react in more or less parallel fashion. Here, preparing openly for nuclearization and/or aggression against Israel, these states would express certain far-reaching results of Oslo/Road Map/UN results that are still generally unrecognized. Significantly, until the present moment, these effects had provided Israel, together with other above-listed rationales, a fully authoritative basis for permissible abrogation.
LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971), and is the author of many 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 United States 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). Professor Beres was Chair of Project Daniel. Born in Zürich, Switzerland, he is Strategic and Military Affairs columnist for The Jewish Press.