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July 29, 2015 / 13 Av, 5775
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After Fatah-Hamas Reconciliation: The Endless Futility Of Israel’s ‘Peace Process’ (Second of Five Parts)


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            The Oslo Accords between Israel and the PLO have always been in 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 would make little jurisprudential sense in light of that non-state party’s antecedent incapacity to enter into any equal legal arrangement with Israel.

           Taken by itself, the fact that the Oslo Accords do not constitute authentic treaties under the Vienna Convention, because they link a state with a non-state party, did not call for prima facie abrogation.  But, as the non-state party in this case just happened to be a terrorist organization whose leaders 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,” the state party in such an agreement, here the State of Israel, actually violated international law by honoring the illegal agreement.

            How little 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 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 to dishonor the core meanings of international law. There is also an additional and particularly shameful irony here, as Israel repeatedly released large number of terrorists by its own volition.
           
During his later years, after Oslo had already “entered into force,” considerable attention was focused on Yasir Arafat. Was Arafat 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 formal legal terms: In the U.S. case of Klinghoffer v. Palestine Liberation Organization (1990), the U.S. court unambiguously answered the question of Arafat as terrorist in the affirmative. 

           In the Israeli courts, a petition to charge Yasir 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 petitioners’ 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 Dr. Tibi on July 13, 1994, “and this man shook hands with Yitzhak Rabin.”

            But what of the argument that international law may sometimes permit insurgent force that is directed toward legitimate support of fundamental human rights and rules?  It is certainly correct that international law has consistently proscribed particular acts of terrorism.  Yet it has, at the very same time, 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, so goes 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 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 certain forms of insurgency may exercise law-enforcing measures under international law. 
            To qualify as lawful insurgents, this group 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 tested against the established expectations of discrimination, proportionality and military necessity.

             Terrorism is always 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 noncombatants.  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 policy implications of these 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 conceivably countenance), Arafat’s flagrant and indisputable disregard for just means necessarily did make his organization a terrorist group.


 

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.

About the Author: Louis René Beres (Ph.D., Princeton, 1971) is professor of political science and international law at Purdue University and the author of many books and articles dealing with international relations and strategic studies.


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