Terminating OSLO I and II

It is generally believed that the Oslo Accords between Israel and the PLO are fully binding under international law. Exactly the opposite is true. Because these non-treaty agreements run counter to absolutely incontrovertible legal expectations, Israel is now obligated to terminate the agreement. A parallel argument can be made concerning PLO obligations, but this would make little realistic sense, as we shall see, in view of the pertinent and authoritative grounds for termination.

The Oslo Agreements do not constitute treaties because they link a state with a nonstate party. In and of itself, this incontestable fact, drawn from the Vienna Convention on the Law of Treaties, certainly does not call for termination. But because the nonstate party in this case happens to be a terrorist organization whose leaders must be punished for egregious crimes, any agreement with this party that offers rewards rather than punishment is entirely null and void. Indeed, 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 - in this case the State of Israel - violates international law by honoring the agreement.

Terrorist crimes mandate universal cooperation in apprehension and punishment. As punishers of "grave breaches" under international law (defined at the Fourth Geneva Convention), all states and other legal "persons" are expected to search out and prosecute, or extradite for prosecution, individual perpetrators. This assuredly does not mean holding hands and signing documents on the White House lawn. The "good offices" of the United States do not in any way mitigate Israel's legal failings in this matter; rather, it simply makes one more state, the United States of America, complicit in this failure.

Regarding the peremptory norm of Nullum crimen sine poena, it was reaffirmed with unassailable authority at Nuremberg in 1945 -46, and in particular response to crimes against the Jewish People. Moreover, this norm was cited specifically by Israel's Attorney General, Gideon Hausner, in his prosecution of Nazi war criminal Adolph Eichmann.

It follows that the current State of Israel has a special obligation to stand by this peremptory rule regarding PLO crimes and Israel's juridical relationship to the PLO, an obligation greater perhaps than that of any other statee in the world. For Israel t willfully reject such an obligation, a rejection that has in fact already occurred several times over, may be especially violative of international law and, as a non-jurisprudential aside, is especially shameful for the Jewish State.

Another legal reason for prompt Israeli termination of Oslo lies in what international law calls rebus sic stantibus. Defined literally as "so long as conditions remain the same," this doctrine of a fundamental change of circumstances now requires Israel to cease compliance. Israel's traditional obligations to the Agreement ended when a change occurred in those circumstances that existed at the effective dates of the Agreement and whose continuance formed a tacit condition of the Agreement's ongoing validity. This change, of course, involved multiple material breaches by the PLO, especially those that concern control of anti-Israel terrorism and extradition of terrorists.

Today, rebus sic stantibus has become operative for Israel because of a profound change created by the PLO in the circumstances that formed the cause, motive and rationale of consent.

Finally, Israel's obligation to terminate the Oslo Agreements stems from a related principle concerning 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, one must remind Messrs. Rabin and Peres, has an "indispensable obligation" to endure.

It is plausible, of course, that Israel's current Prime Minister will pay no heed to the above legal arguments. It is essential, however, that his successor does pay such heed, and that he not assume, incorrectly, that Israel must comply with an altogether illegal agreement. To comply with international law, as indeed it must, Israel must cease compliance with the Oslo Accords. That is its only legal course of action. There is an ironic resonance to this demand, but it is nonetheless a compelling and valid demand.

On the very day that he signed the Declaration of Principles in 1993 (Oslo I), Yasser Arafat addressed the Palestinian people on Jordan television, assuring them that the agreement was nothing more than the implementation of the 1974 PLO Plan of Phases, a 10-point scheme for the destruction of Israel in stages. The first stage, said Arafat, is "the establishment of a national authority on any part of Palestinian soil that is liberated or from which the Israelis withdraw." The same assertion was repeated by Chairman Arafat after the signing of Oslo II. These assertions, considered together with Israel's peremptory right to endure, its peremptory obligation to punish crimes and the PLO's persistent breaches of all agreements with the Jewish State, obligate prompt termination of an altogether misnamed "Peace Process."