Some military and diplomatic failures should come as no surprise. One of these is surely the so-called “Peace Process” in the Middle East. From the imperiled beginning, from the start time of “Oslo,” the entire genocidal enterprise has effectively been framed from the standpoint of Israel’s phased destabilization and, ultimately, its elimination. To be sure, this grotesque outcome has never been the deliberate objective of assorted American presidents, or even of most Europeans – leaders and ordinary citizens − but the de facto implications and consequences were always easy to discern. Indeed, the probable results of these inherently asymmetrical agreements should always have been obvious.

Oslo I − known generally as the Declaration of Principles − was concluded and signed in Oslo on August 19, 1993, and re-signed in Washington D.C. on September 13, 1993. Oslo II was signed in Washington D.C. on September 28, 1995. As expressed in a steadily enlarging Palestinian terrorist movement against Israel, and in the staggering numbers of Israelis killed and maimed by suicide bombers and other terrorists since August 19, 1993, the Middle East Peace Process has certainly been a resounding failure. There is not a single dimension of evaluation that could reasonably be used to suggest otherwise. It follows that the currently still-fashionable Road Map warrants exactly the same negative judgment.

Let us be clear. From Rabin onwards, all of Israel’s prime ministers seemingly felt obligated, under international law, to honor the Oslo Accords. Significantly, from the standpoint of an informed jurisprudence, this obligation was never supported by authoritative norms or expectations, but only by the popular notion that such signed documents were simply valid and binding ipso facto. From the start, in fact, the law of nations actually required abrogation, not compliance, with what were invalid and illegal agreements. Moreover, as Israel’s position on Oslo has affected its overall nuclear security posture, I will – in these three continuous columns for The Jewish Press − also explain the relevant interrelatedness of law and power.

The Oslo Accords between Israel and the PLO were always in violation of incontrovertible 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 intrinsic incapacity to enter into an 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 − would not necessarily call for abrogation. But as the non-state party in this case just happened to be a terrorist organization whose leaders must be punished for their egregious crimes, any agreement with this party that offered rewards rather than punishments was null and void. Significantly, 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 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 very meaning of international law. There is also considerable and additional irony here, since Israel, as recently as August 2008, has released large number of terrorists utterly by volition.

During his later years, after Oslo had “entered into force,” considerable attention was focused on Yasir Arafat. Was Arafat a terrorist? Although the answer is perfectly plain to anyone who thinks, permit me to also support this judgment in formal legal terms: In the U.S. case of Klinghoffer v. Palestine Liberation Organization (1990), the court unambiguously answered the question of Arafat as a terrorist, in the affirmative.

In the Israeli courts, a petition to charge Yasir Arafat with terrorist crimes had been 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 that Arafat, prima facie, 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 Dr. Tibi on July 13, 1994, “and this man shook hands with Yitzhak Rabin.”

But what of the argument that international law may permit insurgent force that is directed toward support of fundamental 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 the right to use certain levels and types of force against a regime that represses their peremptory human rights, especially “self-determination,” “independence,” and “national liberation.” Wasn’t Fatah, therefore, an authentic national liberation movement, one that had therefore been operating within the boundaries of permissibility under international law?

To answer this question, two essential criteria must be examined: just cause and just means. These criteria allow us to distinguish a lawful insurgency from terrorism, in all cases. The principle of just cause maintains that an insurgency may exercise law-enforcing measures under international law. To qualify as lawful insurgents, however, this group must also display appropriate respect for humanitarian international law − i.e., just means. It follows that in order to determine whether a particular group actually satisfies the requirements of a lawful insurgency, its resort to force must be tested against the expectations of discrimination, proportionality and military necessity.

Terrorism is underway whenever a group engages in campaigns of force directed against broad segments of the general population − campaigns that blur the essential distinction between combatants and noncombatants. Similarly, the group becomes terroristic once it begins to apply force to the fullest possible extent, restrained only by the limits of available weaponry. The implications for any proper evaluation of Palestinian insurgency are clear.

National liberation movements that fail to meet the settled and codified restraints of the laws of war are not protected as legitimate or permissible. The ends do not justify the means. As in the case of war between states, every use of force by insurgents must 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. This translates that even if we were to concede to Fatah a just cause (a concession that this writer would certainly not offer), Arafat’s disregard for just means necessarily made his organization a terrorist group.

Copyright © The Jewish Press, December 12, 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.