The explicit application of codified restrictions of the laws of war to non-international armed conflicts dates back only as far as the four Geneva Conventions of 1949. Recalling, however, that more than treaties and conventions comprise the laws of war, it is 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-conventional sources of international law govern all belligerency.
Terrorist crimes, as part of a broader category called crimen contra omnes (crimes against all) by the lawyers, mandate universal cooperation in apprehension and punishment. In this connection, as punishers of “grave breaches” under international law, all states and state-like authorities are expected to search out and to 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. Hence, there is really no need to probe incessantly the precise language of the Accords. The PA’s multiple violations of extradition expectations under international law existed independently of Oslo.
The important principle of universal jurisdiction is founded upon the presumption of solidarity between all sovereigns in the fight against crime. Moreover, the case for universal jurisdiction is strengthened whenever extradition is difficult or impossible to achieve. And it is built into the four Geneva Conventions of August 12, 1949.
Traditionally, piracy and slave trading were the only offenses warranting universal jurisdiction. Following World War II, however, states have generally recognized an expansion 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 jurisdictional expansion has its origins in certain multilateral conventions, in customary international law, and in certain pertinent judicial decisions.
Terrorism is not the only crime in which Arafat and many of the subsequently released Palestinian prisoners were complicit. Related Nuremberg-category crimes − including crimes of war and crimes against humanity − were also committed by these persons. In this connection, my readers here in The Jewish Press should recall that units of the Palestine Liberation Army (PLA) served with Saddam Hussein’s forces in occupied Kuwait, making them, and Yasir 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. As if these offenses were not enough of an affront to world law, many of the terrorists who have been released from Israeli jails in furtherance of the Oslo accords and the wider “peace process” quickly accepted assorted high positions in the Palestine Authority’s or Hamas’ “security forces.”
Even if the nonstate party to the Oslo accords had not been a terrorist organization, Israel would have entered into an agreement of unequal obligations − an agreement wherein the PLO would not have been held (under international law) to the same standards of accountability. Several recent federal court decisions in the United States reaffirm that agreements between nonstate 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 nonstate actors, such as the PLO, as it does on states and persons acting under color of state law.”
The PLO, of course, among many of its sister affiliates and foes, always remained a terrorist organization, and Israel therefore never had any right to honor the Oslo accords’ alleged requirement to release certain 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, with core origins in Torah, 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 had acted, however unintentionally, not only for itself, but also 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 permissibly pardon these offenses against other sovereigns. The Jewish State, therefore, has possessed absolutely 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 was always legally incorrect. By its freeing of terrorists, Israel was manifestly guilty of what is known in law as a “denial of justice.” In this connection, all complicit Israeli prime ministers also committed individually punishable criminal acts.
Israel’s obligation to abrogate the Oslo accords, as we have seen, stemmed from certain peremptory 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 augmented Israel’s obligations to cease 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 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 almost immediately became significant basis 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.
According to Oslo expectations, Arafat 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 launch operations from areas that had been under his control. Naturally, the same has been true of his successors, Fatah as well as Hamas. The Olmert position that these two groups were somehow legally distinguishable was prima facie wrong.
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.” Israel, The Jewish Press reader will recall, has an “indispensable obligation” to endure.
Copyright © The Jewish Press, December 19, 2008. All rights reserved
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 thirty-five 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). He was Chair of Project Daniel, and is the Strategic and Military Affairs columnist for THE JEWISH PRESS.