Louis René Beres (Ph.D., Princeton, 1971)
Professor of International Law
E MAIL lberes@purdue.edu
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At the very start of his presidency, Barack Obama declared a strong U.S. commitment to Palestinian statehood. This unequivocal declaration was immediately seconded by his Secretary of State, Hillary Clinton. In principle, such authoritative U.S. support for Palestinian “self-determination” [i] might not be unreasonable if the Palestinian side were authentically committed to a “Two-State Solution.” Yet, not a single Palestinian faction will accept peaceful national coexistence with any Jewish state. Rather, both Fatah and Hamas–even as they battle each other—agree entirely on only one overriding point: All of Israel, they both say, is part of “Palestine.”Ironically, therefore, the new American president, although searching hopefully for a Middle East peace, is in fact acting to create still another terror state in the region.[ii] Fashioned officially by the so-called Quartet—the United States; Russia; the European Union and the United Nations—this creation would stem from a diplomatic framework known formally as The Road Map for Implementation of a Permanent Solution for Two States in the Israel-Palestinian Dispute. Together with an openly insistent Palestinian refusal to reject the annihilatory “Phased Plan” (Cairo) of June 1974, and an associated no-compromise Jihad[iii] to “liberate” all of “occupied Palestine” in increments, the Road Map reveals another generally unforeseen danger. Lacking a full understanding of pertinent international law and of antecedent Natural Law, [iv] both the United States and Israel could be misled in this injurious cartography by certain erroneous expectations[v] concerning Palestinian "demilitarization.”
Here is the jurisprudential and geo-strategic core of the problem. As Road Map details are worked out, the Quartet will likely agree that Israel's security could be maintained only if this 23rd Arab state were partially or selectively demilitarized. This argument, however, would be founded upon unsupportable legal presumptions. Notwithstanding probable Quartet "guarantees," the relevant expectations of international law would be unable to protect Israel.
International law would not necessarily require Palestinian compliance with pre-state agreements concerning the use of armed force.[vi] From the standpoint of relevant norms, enforcing demilitarization upon a state of Palestine would be very problematic. As a fully sovereign state, any preindependence compacts would not legally bind Palestine, even if these agreements were to include fully codified Quartet assurances. Because treaties can be binding only upon states,[vii] an agreement between a non-state Palestinian National Authority (PNA)[viii] and an authentic sovereign state (Israel) [ix] would have little real effectiveness.[x]
What if the government of "Palestine" were willing to consider itself bound by the pre-state, non-treaty agreement, i.e., if it were willing to treat this agreement as if it were a real treaty? Even in these relatively favorable circumstances, the new Arab government would still have ample pretext to identify various grounds for lawful "treaty" termination. It could, for example, withdraw from the "treaty" because of what it would regard as a "material breach," an alleged violation by Israel that seemingly undermined the object or purpose of the agreement. Or it could point toward what international law calls a "fundamental change of circumstances" (rebus sic stantibus).[xi] In this connection, if a Palestinian state declared itself vulnerable to previously unforeseen dangers—perhaps even from the forces of other Arab armies—it could lawfully end its sworn commitment to remain demilitarized.
There is another method by which a treaty-like arrangement obligating a new Palestinian state to accept demilitarization could quickly and legally be invalidated after independence. The usual grounds that may be invoked under domestic law to invalidate contracts also apply under international law to treaties. This means that the new state of Palestine could point to alleged errors of fact or to duress as perfectly appropriate grounds for terminating the agreement.
Moreover, any treaty is void if, at the time it was entered into, it conflicts with a "peremptory" rule of general international law (jus cogens—a rule accepted and recognized by the international community of states as one from which "no derogation is permitted."[xii] Because the right of sovereign states to maintain military forces essential to "self-defense"[xiii] is certainly such a peremptory rule,[xiv] Palestine, depending upon its particular form of authority, could be entirely within its right to abrogate a treaty that had compelled its demilitarization.
Thomas Jefferson, an American President who had read Epicurus, Cicero and Seneca, as well as Voltaire, Montesquieu, Holbach, Helvetius and Beccaria, wrote interestingly about obligation and international law. While affirming that "Compacts between nation and nation are obligatory upon them by the same moral law which obliges individuals to observe their compacts...,”[xv] he also acknowledged the following: "There are circumstances which sometimes excuse the nonperformance of contracts between man and man; so are there also between nation and nation." Very specifically, Jefferson continued, if performance of contractual obligation becomes "self-destructive" to a party, "...the law of self-preservation overrules the law of obligation to others."[xvi]
Here it must be remembered that, historically,[xvii] demilitarization is a principle applied to various "zones,"[xviii] not to the entirety of emergent states. Hence, a new state of Palestine might have yet another legal ground upon which to evade compliance with preindependence commitments to demilitarization. It could be alleged, inter alia, that these commitments are inconsistent with traditional or Westphalian[xix] bases of authoritative international law—bases found in treaties and conventions, international custom,[xx] and the general principles of law recognized by "civilized nations"[xxi]—and that they are, therefore, commitments of no binding character.
We may see that Israel should draw no comfort from the purportedly legal promise of Palestinian demilitarization.[xxii] Indeed, should the government of a new state of Palestine choose to invite foreign armies and/or terrorists[xxiii] onto its territory (possibly after the original government authority is displaced or overthrown by even more militantly Islamic, anti-Israel terrorists[xxiv]), it could do so without practical difficulties and also without necessarily violating international law.
Strangely, the Quartet's Road Map is built upon the patently moribund Oslo Accords—ill founded agreements unambiguously destroyed by persistent and egregious Arab violations. The basic problem with the Oslo Accords that underlies these violations should now be obvious. On the Arab side, Oslo-mandated expectations were never anything more than an optimally cost-effective method of dismantling Israel. On the Israeli side, these expectations were taken, more or less, as an unavoidable way of averting further Palestinian terrorism[xxv] and catastrophic Arab aggressions. [xxvi] The resultant asymmetry in expectations, never acknowledged by the Quartet, has generally enhanced Arab power while it has systematically weakened and degraded Israel. Even now, even after substantial American military efforts in Iraq and Afghanistan, the relentlessly undisguised Palestinian call to "Slaughter the Jews"[xxvii] has failed to impair Quartet enthusiasm for creating another terrorist state. Even now, when the United States plans to midwife the birth of yet another terrorist state,[xxviii] our new president (however well-intentioned) refuses to understand that only a gravedigger could wield the forceps. [xxix]
What does all of this mean, for the demilitarization "remedy" and for Israeli security in general? Above all, it positively demands that Israel make rapid and far-reaching changes in the manner in which it conceptualizes the continuum of cooperation and conflict. Israel, ridding itself of wishful thinking - of always hoping, hoping too much—should recognize immediately the zero-sum calculations of its enemies and should begin to recognize itself that the struggle in the Middle East must still be fought overwhelmingly at the conflict end of the continuum.[xxx] The struggle, in other words, must be conducted, however reluctantly and painfully, in zero-sum terms. Understood in terms of international law and world order, [xxxi] this means, inter alia, a growing willingness in Jerusalem to accept the right[xxxii] and corollary obligations of “anticipatory self-defense.” [xxxiii]
In essence, the Arab world—however fractionated along other conflict dimensions—still has only a "One-State Solution" for Israel and the Palestinians. It is a "solution" that eliminates Israel altogether, a physical solution, a "Final Solution." [xxxiv] The official PA maps of "Palestine" show the new Arab state comprising all of the West Bank (Judea/Samaria), all of Gaza, and all of the State of Israel. Additionally, they exclude any reference to a Jewish population, and list holy sites of Christians and Muslims only. One official cartographer, Khalil Tufakji, was commissioned by the Palestine National Authority to design and to locate a proposed Capitol Building. This was drawn to be located on the Mount of Olives in Jerusalem, directly on top of an ancient Jewish cemetery.
The more things change, the more they remain the same. On September 1, 1993, Yasser Arafat immediately reaffirmed that the then new Oslo Accords would remain an intrinsic part of the PLO's 1974 Phased Plan for Israel's destruction: "The agreement will be a basis for an independent Palestinian State in accordance with the Palestinian National Council Resolution issued in 1974...The PNC Resolution issued in 1974 calls for the establishment of a national authority on any part of Palestinian soil from which Israel withdraws or which is liberated."[xxxv] Later, on May 29, 1994, Rashid Abu Shbak, a senior PNA security official, remarked: "The light which has shone over Gaza and Jericho will also reach the Negev and the Galilee." Since these declarations, nothing has changed in Palestinian definitions of Israel and “Palestine.” This is true for the current leadership of both Hamas and Fatah; it makes absolutely no difference. [xxxvi]
Those who are concerned with Palestinian demilitarization and Israeli security ought also consider the following: The Arab world is presently comprised of 22 states of nearly five million square miles and more than 250,000,000 people. The Islamic world generally contains 44 states with more than one billion people. The Islamic states comprise an area 672 times the size of Israel. Israel, with a population of around five million Jews, is, together with Judea/Samaria, less than half the size of San Bernardino County in California. The Sinai Desert alone, which Israel transferred to Egypt in the 1979 Treaty, is three times larger than the entire State of Israel.
A fully sovereign Palestinian state could lawfully abrogate preindependence commitments to demilitarize. It has also been noted that the Palestine National Authority is guilty of multiple material breaches of Oslo, [xxxvii] and of certain additional “grave breaches” of the law of war. [xxxviii] Further, both Fatah and Hamas still remain unwilling to rescind genocidal[xxxix] calls for Israel's literal annihilation. It follows that any Quartet plan for accepting Palestinian demilitarization would be built upon sand, and that Israel and the United States should never base their analytic assessments of Palestinian statehood upon such an illusory foundation.[xl]
U.S. President Barack Obama is certainly well-intentioned in recycling his predecessor’s plan for a “Two State Solution,” but these good intentions are not a reasonable substitute for his very far-reaching jurisprudential and strategic misunderstandings. The false legal promise of Palestinian “demilitarization” can only bring forth further death and injury to innocent Israeli civilian populations. Over time, moreover, especially as Hamas is already in close collaboration with al Qaeda in Gaza,[xli] these harms would also directly impact our own safety and security in these United States.
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LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with international law.
[i] See, by this author: Louis René Beres, “Self-Determination, International Law and Survival on Planet Earth,” ARIZONA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, Vol. 11., No. 1., 1994, pp. 1-26. See also: Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance With the Charter of the United Nations (The Principle of Equal Rights and Self-Determination of Peoples), G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28 at 121, U.N. Doc. A/8028 (1970), reprinted in 9 I.L.M. 1292; Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66, U.N. Doc. A/4684 (1960); Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called For Under Article 73e of the Charter, G.A. Res. 1541, U.N. GAOR, 15th Sess., Supp. No. 16, at 29, U.N. Doc. A/4684 (1960).
[ii] This has special jurisprudential significance, because acting in support of a terror state is clearly a violation of international law, and because all international law is also the law of the United States. In the precise words used by the U.S. Supreme Court in The Paquete Habana, “International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.” See: The Paquete Habana, 175 U.S. 677, 678-79 (1900). See also: The Lola, 175 U.S. 677 (1900); Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 781, 788 (D.C. Cir. 1984)(per curiam)(Edwards, J. concurring)(dismissing the action but making several references to domestic jurisdiction over extraterritorial offenses), cert. denied 470 U.S. 1003 (1985)(“concept of extraordinary judicial jurisdiction over acts in violation of significant international standards…embodied in the principle of “universal violations of international law’”).
[iii] For the best current discussion of Jihad, see: Andrew G. Bostom, ed., THE LEGACY OF JIHAD: ISLAMIC HOLY WAR AND THE FATE OF NON-MUSLIMS (New York: Prometheus Books, 2005, 759 pp. This magisterial collection, using extensive primary and secondary source materials, reveals that for centuries, jihad sought to expand Islamic dominance by massacre, pillage, enslavement and deportation. The argument reproduces extensive quotations from the Qu’ran and the Hadith, along with Qu’ranic exegeses by the best-known classical and modern commentators. In consequence, the book thoroughly discredits the position that merely by radical misinterpretation has jihadist warfare been justified.
[iv] Antecedent Natural Law is based upon acceptance of certain principles of right and justice that prevail because of their own intrinsic merit. Eternal and immutable, these principles are external to all acts of human will and interpenetrate all human reason. This notion and its attendant tradition of human civility runs almost continuously from Mosaic Law and the ancient Greeks and Romans to the present day. The Stoics regarded Nature itself as the supreme legislator in a moral order where Man, through his divinely granted capacity to reason, can commune directly with the gods. As set forth in De Republica and De Legibus, Cicero’s classical concept of Natural Law underscores a principle that is now very much a part of the United States Constitutional foundation: that is, that the imperative quality of the civil law is always contingent upon being in perfect harmony with reason. (See: Cicero, De Republica, 211, T.E. Page et al., eds, Clinton Walker Keyes, trans., Harvard University Press, 1966 (1928)). According to Cicero, justice is not – as the Epicureans claimed – a mere matter of utility. Rather, it is a distinct institution of nature that always transcends expediency and that must be embodied by positive law before such normative obligations can ever claim any proper human loyalties. (Id., 317-53). Emmerich de Vattel’s classic, The Law of Nations, also gave an important re-emphasis to the Natural Law origins of all international law. See, for example, Albert De Lapradelle, Introduction to Emmerich De Vattel, The Law of Nations, 114-16 (James Brown Scott., ed, Charles G. Fenwick., trans., Oceania Publications, 1964 (1758). Arguing from the assumption that nations are no less subject to the laws of nature than are individuals, Vattel concluded that what one man owes to other men, one nation, in turn, owes to all other nations: “Since Nations are bound mutually to promote the society of the human race, they owe one another all the duties which the safety and welfare of that society require.” (Id. At 113.) With this idea in mind, Vattel then proceeded to identify a permanent standard by which all can distinguish between lawful and unlawful behavior in world affairs: “Since, therefore, the necessary Law of Nations consists in applying the natural law to States, and since the natural law is not subject to change, and the obligations which it imposes are necessary and indispensable, nations can not alter it by agreement, nor individually or mutually release themselves from it.” (Id., at 4).
[v]An earlier example of erroneous legal assumptions by Israel can be found in the Israel-Egypt Peace Treaty of 1979. (See: Treaty of Peace, March 26, 1979, Egypt-Israel, 18 I.L.M.). When vast portions of the worldwide Islamic community criticized then-President Sadat for his “traitorous” agreements with “the Jews,” Sadat reassured them that the Treaty was merely a tactical expedient to buy time until Egypt could fight another war against Israel. This was done when he stated, openly, that the Egypt-Israel Peace Treaty “is founded on Islamic rules, because it arises from a position of strength, after the holy war and victory Egypt achieved on 10th Ramadan 1393” (October 1973). See: Robert S. Wistrich, Anti-Semitism: The Longest Hatred (New York: Pantheon Books, 1991), p. 231.
[vi]This does not mean, of course, that pre-state Palestinian insurgents are in any way free from binding obligations to humanitarian international law – the law of armed conflict. Rather, all insurgents are always expected to comply, inter alia, with core principles of the Martens Clause and the earlier St. Petersburg Declaration of December 11, 1868 (138 Consol. T.S. 297). The Martens Clause is included in the Preamble of the 1899 Hague Conventions. International Convention with Respect to the Laws and Customs of War by Land, Preamble, July 29, 1899, 187 Consol. T.S. 429, 430. The clause is paraphrased and given higher status in the 1977 Protocol 1 by being included in the main text of Article 1. Protocol Additional to the Geneva Convention of 12 August 1949, art. 1, June 8, 1977, 125 U.N.T.S. 3, 7, 16, I.L.M. 1391, 1396-97. In situations not covered by this Protocol, or by other international agreements, the Clause provides that “civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity, and from the dictates of public conscience.” Id.
[vii]A treaty is always an international agreement "concluded between states....” Vienna Convention on the Law of Treaties, May 23, 1969, art. 2(1)(a), 1155 U.N.T.S. 331, 8 I.L.M. 679. For the requirements of statehood under international law, see: Convention on the Rights and Duties of States, Dec. 26, 1933, art. [vii]1, 49 Stat. 3097, 165 L.N.T.S. 19. A fundamental principle on the observance of treaties, Pacta Sunt Servandum, is defined at Part III, Section 1., Art. 26 of the Vienna Convention On The Law Of Treaties: “Every treaty in force is binding upon the parties to it, and must be performed by them in good faith.” See: Vienna Convention On The Law Of Treaties. Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted at 8 I.L.M. 679 (1969).
[viii]See: Convention on the Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S. 20. See also: Klinghoffer v. S.N.C. Achille Lauro, 739 F. Supp, 854 (S.D.N.Y., 1990). Here, in seeking favorable classification for litigation, the PLO requested the U.S. court to accept its self-description as a state. (Id., at 857) More precisely, the PLO characterized itself as “the nationhood and sovereignty of the Palestinian people….” (Id.) The court, however, found the PLO to be an “unincorporated association.” (Id., at 858). It determined that the PLO lacked the key elements of statehood as articulated by the long-settled norms of international law. (Id.)(citing National Petrochemical Co. or Iran v. M.T.Stolt Sheaf, 860 F. 2d 551, 553 (2d Cir. 1988), cert. denied, 489 U.S. 1091 (1989) and quoting Restatement (third) of the Foreign Relations Law of the United States, Sec. 201 (1987).
[ix]On the State of Israel and Jewish sovereignty, see: Theodore Herzl, THE JEWISH STATE (Dover Publications, 1988). This Dover edition is an unabridged reproduction of the work published in 1946 by the American Zionist Emergency Council, which was, in turn, based on the first English-language edition. A JEWISH STATE, published in London, England, in 1896. The Herzl text was originally published in Vienna, in 1896, under the title: Der Judenstaat. Recognizing that “the nations in whose midst Jews live are all either covertly or openly anti-Semitic,” Herzl put the Jewish Question in the briefest possible form: “Are we to `get out’ now, and where to? Or, may we yet remain? And, how long?” Herzl, supra, at 86.
[x]Technically, an agreement on demilitarization under international law must always be "between states." Hence, any agreement on demilitarization that would include a non-state party would be prima facie null and void. See: e.g., Karl Liko, DEMILITARIZED ZONE, in 2 INTERNATIONAL MILITARY AND DEFENSE ENCYCLOPEDIA 736, 736 (Trevor N. Dupuy, ed., 1993)(defining "demilitarized zone" as "a term used in international law to designate an area in which, according to a formal treaty or an informal agreement between states, the maintenance of military forces and installations is prohibited." (emphasis added).
[xi]Defined literally as "so long as conditions remain the same," the doctrine of rebus sic stantibus has a long history. For an informed scholarly treatment of this doctrine, see generally; Arie E. David, THE STRATEGY OF TREATY TERMINATION 3-55 (1975). In the traditional view, the obligation of a treaty terminates when a change occurs in those circumstances that existed at the effective date of the agreement and the continuance of which formed a tacit condition of the ongoing validity of the treaty. Id. The function of the doctrine therefore is to execute the shared intentions of the parties. Id. Rebus sic stantibus becomes operative when there is a change in the circumstances that formed the cause, motive or rationale of consent. Id.
[xii]See: Vienna Convention, supra, art. 53. Even a treaty is subordinate to peremptory expectations: "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law." Id.
[xiii]This right extends to both the customary right of anticipatory self-defense and to the codified right of post-attack self-defense. Regarding the right of anticipatory self-defense, states do not always have to wait until after an attack is absorbed before embarking upon self-defense. Rather, where the threat is sufficiently imminent in point of time, they can choose to strike first, provided, of course, that the strike falls within the parameters of discrimination, proportionality and military necessity. Regarding the codified right of post-attack self-defense, see: U.N. Charter, art. 51.
[xiv]One theory stipulates that any treaty obligation may be terminated unilaterally following changes in conditions that make performance of the treaty injurious to fundamental rights, especially the rights of existence, self-preservation and independence. Some areas of law summarize these rights as "rights of necessity." See David, supra, at 19. See generally: LAW OF TREATIES, art. 28, Doctrine section in 29 AM.J.INT'L L. 653, 1100-02 (Supp . 1935)(presenting the doctrinal background for article 28, entitled "Rebus Sic Stantibus," in this draft convention prepared for the codification of international law.
[xv]Under international law, the principle of universal cooperation, from which universal jurisdiction may derive, is founded upon the presumption of solidarity between states in the struggle for order and justice in “nature.” It is mentioned in the Corpus Juris Civilis, in Hugo Grotius’ De Jure Belli Ac Pacis Libri Tres (Book II, Ch. 20); and in Emmerich de Vattel’s Le Droit Des Gens (Book 1, Ch. 19). The case for universal jurisdiction is codified, inter alia, at the four Geneva Conventions of August 12, 1949. These Conventions impose upon the High Contracting Parties an obligation to punish certain grave breaches, regardless of where the infraction occurred or the nationality of the perpetrators. See, also: Restatement (third) of the Foreign Relations Law of the United States, 402-04, 1987.
[xvi]See Jefferson’s “Opinion on the French Treaties” (April 28, 1793) in Merrill D. Peterson, ed., THE POLITICAL WRITINGS OF THOMAS JEFFERSON (Thomas Jefferson Memorial Foundation: 1993), pp. 113-114.
[xvii]For some interesting historical examples of demilitarized zones, consider the following: In 348 BCE, a treaty between Rome and Carthage included a provision for the neutralization of Corsica, a neutral zone “in the middle” (Corsica esset media inter Romanos et Carthaginienses). The Treaty of Radzin in 1681 between the Russian and Ottoman Empires created a vast buffer zone between parties south of Kiev. More modern forms of demilitarization were developed in the nineteenth century, from measures that prohibited fortifications in designated areas, normally imposed by the victor upon the vanquished. After World War I, Germany, pursuant to the Treaty of Versailles, had to demilitarize the Rhineland. Permanent demilitarized zones have been created in the Straits of Magellan (by the border treaty of 1881 between Argentina and Chile); in the Aaland Islands belonging to Finland (according to the Aaland Islands Convention of 1921 between Finland, Sweden and other European powers); and in Norway’s Svalbard Archipelago and Bear Island (by terms of the Svalbard (Spitsbergen) Treaty of 1920 between Norway, the United States, and the former Soviet Union. The Outer Space Treaty of 27 January 1967 demilitarizes the moon and other celestial bodies (prohibiting the stationing of nuclear weapons and other mass destruction weapons), while Antarctica has been demilitarized by the Antarctic Treaty of 1 December 1959.
[xviii]. For a source containing detailed provisions on demilitarized zones, see: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature, Dec. 12, 1977, 1125 U.N.T.S. 3, 16, I.L.M. 1391 (Protocol I).
[xix] After the Peace of Westphalia, which ended the Thirty Years War and consecrated the still-extant state system. See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; Treaty of Peace of Osnabruck, Oct. 1648, 1 Consol. T.S. 119. Together, these two treaties comprise the “Treaty of Westphalia.”
[xx] Article 38(1)(b) of the STATUTE OF THE INTERNATIONAL COURT OF JUSTICE describes international custom as “evidence of a general practice accepted as law.” The essential significance of a norm’s customary character is that the norms bind even those states that are not parties to the pertinent codification. Even where a customary norm and a norm restated in treaty form are apparently identical, these norms are treated as jurisprudentially discrete. During the merits phase of MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, the International Court of Justice (ICJ) stated: “Even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.” See: MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, Nicar. V. US., Merits, 1986 ICJ, Rep. 14 (Judgment of 27 June).
[xxi].These authoritative bases of international law are drawn from art. 38 of the Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, T.S. 993.
[xxii]. A similar point may be concluded about prospective demilitarization of the Golan Heights. Here the meaning of "demilitarization" would be more traditional than its use regarding concessions by a still emerging state (Palestine), but the consequences of Golan demilitarization could be no less injurious to Israel. For more on Golan demilitarization, see: Louis René Beres and (AMB.) Zalman Shoval, "On Demilitarizing a Palestinian `Entity' and the Golan Heights: An International Law Perspective,” VANDERBILT JOURNAL OF TRANSNATIONAL LAW, Vol. 28, No. 5., November 1995, pp. 959 - 971. Zalman Shoval was a prior two term Israeli Ambassador to the United States. See also, more recently, Louis René Beres and Zalman Shoval, “Don’t Give Up the Golan Heights,” The Christian Science Monitor, Wednesday, May 21, 2008, p. 9).
[xxiii] Here there would even be a danger of WMD terrorism, especially nuclear terrorism. For earlier writings by this author on nuclear terrorism in particular, see: Louis René Beres, “The Threat of Palestinian Nuclear Terrorism in the Middle East,” 15 INT’L PROBS. 48 (1976); Louis Rene Beres, “Is Nuclear Terrorism Plausible?’, in NUCLEAR TERRORISM: DEFINING THE THREAT 45 (Paul Leventhal and Yonah Alexander, eds., 1986); Louis René Beres, “Preventing Nuclear Terrorism: Responses to Terrorist Grievances,” in PREVENTING NUCLEAR TERRORISM: THE REPORT AND PAPERS OF THE INTERNATIONAL TASK FORCE ON PREVENTION OF NUCLEAR TERRORISM 146 (Paul Leventhal and Yonah Alexander, eds, 1987); Louis René Beres, “Responding to the Threat of Nuclear Terrorism,” in INTERNATIONAL TERRORISM: CHARACTERISTICS, CAUSES, CONTROLS 228 (Charles W. Kegley, Jr., ed, 1990); Louis René Beres, “Terrorism and International Law,” 3 FLA. INT’L L.J., 291 (1988); Louis Rene Beres, “International Terrorism and World Order: The Nuclear Threat,” 12 STAN. J. INT’L STUD. 131 (1977); Louis René Beres, “Terrorism and International Security: The Nuclear Threat,” 26 CHITTY’S L.J., 73 (1978); Louis René Beres, “Hic Sunt Dracones: The Nuclear Threat of International Terrorism,” PARAMETERS: J. U.S. ARMY WAR C., June 1979, at 11; Louis René Beres, “International Terrorism and World Order: The Nuclear Threat,” in STUDIES IN NUCLEAR TERRORISM 360 (Augustus R. Norton and Martin H. Greenberg, eds., 1979); Louis René Beres, TERRORISM AND GLOBAL SECURITY: THE NUCLEAR THREAT (Boulder and London: Westview Special Studies in National and International Terrorism, 1987), 2nd edition, 156 pp; Louis René Beres, APOCALYPSE: NUCLEAR CATASTROPHE IN WORLD POLITICS (Chicago and London: The University of Chicago Press, 1980), 315 pp; Louis René Beres, “Confronting Nuclear Terrorism,” 14 HASTINGS INT’L & COMP. L. REV 129 (1990); Louis René Beres, “On International Law and Nuclear Terrorism,” 24 GA. J. INT’L & COMP. L 1 (1994); Louis René Beres, “Israel, the `Peace Process,’ and Nuclear Terrorism: A Jurisprudential Perspective,” 18 LOY. L.A. INT’L &, “The United States and Nuclear Terrorism in a Changing World: A Jurisprudential View,” 12 DICK. J. INT’L L. 327 (1994). COMP. L.J. 767 (1996); and Louis René Beres, “Preventing the `Blood-Dimmed Tide: How To Avoid Nuclear Terrorism Against the United States,” 24 STRATEGIC REV. 76 (1996).
[xxiv] Under international law, terrorists are always hostes humani generis, or “common enemies of mankind.” See: Research in International Law, Draft Convention on Jurisdiction with Respect to Crime, 29 AM. J INT’L L., (Supp, 1935) 435, 566 (quoting King. V. Marsh (1615) 3. Bulstr. 27, 81 Eng. Rep 23 (1615) (“a pirate est Hostes humani generis.”)
[xxv].For core conventions in force concerning terrorism, see especially CONVENTION ON THE PREVENTION AND PUNISHMENT OF CRIMES AGAINST INTERNATIONALLY PROTECTED PERSONS, INCLUDING DIPLOMATIC AGENTS. Adopted by the U.N. General Assembly, Dec. 14, 1973. Entered into force for the United States, Feb. 20, 1977. 28 U.S.T. 1975, T.I.A.S., No. 8532. Reprinted in 13 I.L.M. 43 (1974); VIENNA CONVENTION ON DIPLOMATIC RELATIONS. Done at Vienna, April 18, 1961. Entered into force for the United States., Dec. 13, 1972. 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95; CONVENTION ON OFFENSES AND CERTAIN OTHER ACTS COMMITTED ON BOARD AIRCRAFT (TOKYO CONVENTION), September 14, 1963, entered into force for the United States on December 4, 1969, 704 U.N.T.S. 219, 20 U.S.T. 2941; CONVENTION FOR THE SUPPRESSION OF UNLAWFUL SEIZURE OF AIRCRAFT (Hague Convention) of December 16, 1970, entered into force for the United States on Oct. 14, 1971, 22 U.S.T. 1641; CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF CIVIL AVIATION (MONTREAL CONVENTION) of September 23, 1971, entered into force for the United States on Jan. 26, 1973. 24 U.S.T. 564; INTERNATIONAL CONVENTION AGAINST THE TAKING OF HOSTAGES, Adopted by General Assembly Resolution 34/146 of December 17, 1979. U.N. Gen. Assbly. Off. Rec. 34th Sess. Supp. No. 46 (A/34/46), p. 245;entered into force on June 3, 1983, entered into force for the United States on December 7, 1984; EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM OF JANUARY 27, 1977, entered into force on August 4, 1978, E.T.S. 90. On December 9, 1985, the U.N. General Assembly unanimously adopted a resolution condemning all acts of terrorism as "criminal." Never before had the General Assembly adopted such a comprehensive resolution on this question. Yet, the issue of particular acts that actually constitute terrorism was left largely unaddressed, except for acts such as hijacking, hostage taking and attacks on internationally protected persons that were criminalized by previous custom and conventions. See UNITED NATIONS RESOLUTION ON TERRORISM, General Assembly Resolution 40/61 of December 9, 1985, and U.N. Gen. Assbly. Off. Rec 40th Sess., Supp. No. 53 (A/40/53), p. 301.
[xxvi] See: RESOLUTION ON THE DEFINITION OF AGGRESSION, Dec. 14, 1974, U.N.G.A. Res. 3314 (XXIX), 29 U.N. GAOR, Supp. (No. 31) 142, U.N. Doc. A/9631, 1975, reprinted in 13 I.L.M. 710, 1974; and CHARTER OF THE UNITED NATIONS, Art. 51.. Done at San Francisco, June 26, 1945. Entered into force for the United States, Oct. 24, 1945, 59 Stat. 1031, T.S. No. 993, Bevans 1153, 1976, Y.B.U.N. 1043.
[xxvii] For a discussion of authoritative international law criteria to distinguish permissible insurgencies from impermissible ones, see: Louis René Beres, “The Legal Meaning of Terrorism for the Military Commander,” CONNECTICUT JOURNAL OF INTERNATIONAL LAW, Vol. 11., No. 1., Fall 1995, pp. 1-27.
[xxviii] Here it is also important to note a longstanding peremptory or jus cogens obligation under international law: Nullum crimen sine poena, “No crime without a punishment.” This ancient expectation was granted authoritative contemporary reaffirmation in the judgment of the Nuremberg Tribunal on September 30, 1946: “To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.” See: Excerpts from Judgment of the Nuremberg Tribunal, September 30, 1946 (Appendix D), in M. Cherif Bassiouni, “International law and the Holocaust,” CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL, Vol. 9., No. 2, Spring 1979, p. 284. The earliest expressions of Nullum crimen sine poena can be found in the Code of Hammurabi (c. 1728-1686 BCE); the Laws of Eshnunna (c. 2000 BCE); the still-earlier Code of Ur-Nammu (c. 2100 BCE); and, of course, the law of exact retaliation or Lex Talionis in three separate passages of the Jewish Torah. It follows that any willful Israeli Government indifference to Nullum crimen sine poena in matters of granting Palestinian statehood would be starkly ironic, in view of that legal principle’s prominent Jewish origins.
[xxix] Such prospective presidential refusal should call to mind the continuing relevance of Natural Law and of Emmerich de Vattel’s classic argument on the obligation of each nation to every other nation. THE LAW OF NATIONS (1758) gave important emphasis to the Natural Law origins of all international law, and reasoned – as we already noted here earlier - that nations are no less subject to the laws of nature than are individuals. He concluded that what one “man” owes to other “men,” one nation, in turn, owes to all other nations. See: Vattel, THE LAW OF NATIONS (1758), Introduction to Book I, p. 4.
[xxx] On this point, see: Louis René Beres, “Olmert’s Approach to Israel’s Enemies,” The Washington Times, August 8, 2007. See also, by the same author, Louis René Beres, AFTER THE FALLING ROCKETS FROM LEBANON: INTERRELATED COMMENTARIES ON ISRAEL’S PERFORMANCE AND SURVIVAL, Ariel Center for Policy Research (ACPR), Policy Paper No. 166, January 2007, 79 pp; and Louis René Beres, “International Law and the Killing of Imad Mughniyeh,” THE ISRAEL JOURNAL OF FOREIGN AFFAIRS, Vol. 2., No. 2., 2008, pp. 79-84.
[xxxi] The concept of “world order” as both an organizing dimension of scholarship and as a normative goal of international affairs has its contemporary intellectual origins in the work of Harold Lasswell and Myres McDougal at the Yale Law School, Grenville Clark and Louis Sohn’s WORLD PEACE THROUGH WORLD LAW (1966) and the body of writings by Richard A. Falk and Saul H. Mendlovitz. For early works by this author, who was an original participant in the World Law Fund’s World Order Models Project (WOMP), see especially: Louis René Beres and Harry R. Targ, CONSTRUCTING ALTERNATIVE WORLD FUTURES: REORDERING THE PLANET (1977); Louis René Beres and Harry R. Targ., eds., PLANNING ALTERNATIVE WORLD FUTURES: VALUES, METHODS AND MODELS (1975); Louis René Beres, PEOPLE, STATES AND WORLD ORDER (1981); Louis René Beres, REASON AND REALPOLITIK: US FOREIGN POLICY AND WORLD ORDER (1984); and Louis René Beres, AMERICA OUTSIDE THE WORLD: THE COLLAPSE OF US FOREIGN POLICY (1987).
[xxxii] The customary right of anticipatory self-defense, which is the legal expression of preemption, has its modern origins in the Caroline Incident. This was part of the unsuccessful rebellion of 1837 in Upper Canada against British rule. (See: Beth Polebau, “National Self-Defense in International Law: An Emerging Standard for a Nuclear Age,” 59 N.Y.U. L. REV. 187, 190-191 (noting that the Caroline Incident transformed the right of self-defense from an excuse for armed intervention into a customary legal doctrine). Following the Caroline, even the threat of an armed attack has generally been accepted as justification for a militarily defensive action. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then-U.S. Secretary of State Daniel Webster outlined a framework for self-defense that does not actually require a prior armed attack. (See Polebau, op. cit., citing to Jennings, “The Caroline and McLeod Cases,” 32 AM. J. INT’L L., 82, 90 (1938).) Here, a defensive military response to a threat was judged permissible as long as the danger posed was “instant, overwhelming, leaving no choice of means and no moment for deliberation.” (See Polebau. supra, 61).
[xxxiii]. See, especially, Louis René Beres, “On Assassination, Preemption and Counterterrorism: The View From International Law,” INTERNATIONAL JOURNAL OF INTELLIGENCE AND COUNTERINTELLIGENCE, Vol. 21. Issue 4., December 2008, pp. 694-725. For earlier writings by this author on anticipatory self-defense under international law, see: Louis René Beres, Chair, The Project Daniel Group, ISRAEL’S STRATEGIC FUTURE: PROJECT DANIEL, ACPR Policy Paper No. 155, ACPR (Israel), May 2004, 64pp (this paper was prepared for presentation to then Israeli Prime Minister Ariel Sharon, and transmitted by hand on January 16, 2003); Louis René Beres, SECURITY THREATS AND EFFECTIVE REMEDIES: ISRAEL’S STRATEGIC, TACTICAL AND LEGAL OPTIONS, ACPR Policy Paper No. 102, ACPR (Israel), April 2000, 110 pp; Louis René Beres, ISRAEL’S SURVIVAL IMPERATIVES: THE OSLO AGREEMENTS IN INTERNATIONAL LAW AND NATIONAL STRATEGY, ACPR Policy Paper No. 25, ACPR (Israel), April 1998, 74 pp; Louis René Beres, “Assassinating Saddam Hussein: The View From International Law,” INDIANA INTERNATIONAL AND COMPARATIVE LAW REVIEW, Vol. 13, No. 3, 2003, pp. 847- 869; Louis René Beres, “The Newly Expanded American Doctrine of Preemption: Can It Include Assassination,” DENVER JOURNAL OF INTERNATIONAL LAW AND POLICY, Vol. 31, No. 2., Winter 2002, pp. 157-177; Louis René Beres and (Col/IDF/Ret.), Yoash Tsiddon-Chatto, “Reconsidering Israel’s Destruction of Iraq’s Osiraq Nuclear Reactor,” TEMPLE INTERNATIONAL AND COMPARATIVE LAW JOURNAL, Vol. 9, No. 2., 1995, pp. 437-449; Louis René Beres, “Striking `First’: Israel’s Post Gulf War Options Under International Law,” LOYOLA OF LOS ANGELES INTERNATIONAL AND COMPARATIVE LAW JOURNAL, Vol. 14, Nov. 1991, pp. 10-24; Louis René Beres, “On Assassination as Anticipatory Self-Defense: Is It Permissible?” 70 U. DET. MERCY L. REV. U., 13 (1992); Louis René Beres, “On Assassination as Self-Defense: The Case of Israel,” 20 HOFSTRA L. REV 321 (1991); Louis René Beres, “Preserving the Third Temple: Israel’s Right of Anticipatory Self-Defense Under International Law,” 26 VAND. J. TRANSNAT’L L. 111 (1993); Louis René Beres, “After the Gulf War: Israel, Preemption and Anticipatory Self-Defense,” 13 HOUS. J. INT’L L. 259 (1991); Louis René Beres, “Israel and Anticipatory Self-Defense,” 8 ARIZ J. INT’L & COMP. L. REV. 89 (1991); Louis René Beres, “After the Scud Attacks: Israel, `Palestine,’ and Anticipatory Self-Defense,” 6 EMORY INT’L L. REV. 71 (1992); and Louis René Beres, “Israel, Force and International Law: Assessing Anticipatory Self-Defense,” THE JERUSALEM JOURNAL OF INTERNATIONAL RELATIONS, Vol. 13, No. 2., 1991, pp. 1-14.
[xxxiv].Jurisprudentially, these “solutions” represent "Crimes against humanity." For definition of such crimes, See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS POWERS AND CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL. Done at London, August 8, 1945. Entered into force, August 8, 1945. For the United States, Sept. 10, 1945. 59 Stat. 1544, 82 U.N.T.S. 279. The principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal were affirmed by the U.N. General Assembly as AFFIRMATION OF THE PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED BY THE CHARTER OF THE NUREMBERG TRIBUNAL. Adopted by the U.N. General Assembly, Dec. 11, 1946. U.N.G.A. Res. 95 (I), U.N. Doc. A/236 (1946), at 1144. This AFFIRMATION OF THE PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED BY THE CHARTER OF THE NUREMBERG TRIBUNAL (1946) was followed by General Assembly Resolution 177 (II), adopted November 21, 1947, directing the U.N. International Law Commission to "(a) Formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal, and (b) Prepare a draft code of offenses against the peace and security of mankind...." (See U.N. Doc. A/519, p. 112). The principles formulated are known as the PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED IN THE CHARTER AND JUDGMENT OF THE NUREMBERG TRIBUNAL. Report of the International Law Commission, 2nd session, 1950, U.N. G.A.O.R. 5th session, Supp. No. 12, A/1316, p. 11.
[xxxv] On June 9, 1974, in its twelfth session, the Palestine National Council – the PLO’s highest body – reiterated the organization’s aim to achieve their “right to return and their right to self-determination on the soil of their homeland.” (See Political Programme for the Present Stage of the Palestinian Liberation Organization Drawn Up by the Palestinian National Counsel, 3 J. PALESTINE STUD. 224 – 26 (1974). Departing from its then previous strategy, which had called for the immediate destruction of Israel and the establishment of a Palestinian state over “all of Palestine,” the Phased Plan stipulated the following: “First, to establish a combatant national authority over every part of Palestinian territory that is liberated (article 2); Second, to use that territory to continue the fight against Israel (article 4); finally, to start a pan-Arab war to complete the liberation of all Palestinian territory, i.e., to eliminate Israel (article 8). (See also: Eddie Chumney, Restoring the Two Houses of Israel, 337 (1999).
[xxxvi].Here we must recall that criminal responsibility of leaders under international law is not limited to direct personal action nor is it limited by official position. On the principle of command responsibility, or respondeat superior, see: In re Yamashita, 327 U.S. 1 (1945); The High Command Case (The Trial of Wilhelm von Leeb), 12 LAW REPORTS OF TRIALS OF WAR CRIMINALS 1 (United Nations War Crimes Commission Comp. 1949); see Parks, COMMAND RESPONSIBILITY FOR WAR CRIMES, 62 MIL.L. REV. 1 (1973); O’Brien, THE LAW OF WAR, COMMAND RESPONSIBILITY AND VIETNAM, 60 GEO. L.J. 605 (1972); U S DEPT OF THE ARMY, ARMY SUBJECT SCHEDULE No. 27 - 1 (Geneva Conventions of 1949 and Hague Convention No. IV of 1907), 10 (1970). The direct individual responsibility of leaders is also unambiguous in view of the London Agreement, which denies defendants the protection of the act of state defense. See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS, Aug. 8, 1945, 59 Stat. 1544, E.A.S. No. 472, 82 U.N.T.S. 279, art. 7.
[xxxvii] These breaches include various forms of “perfidy.” Deception can certainly be legal under the law of armed conflict, but the Hague Regulations clearly disallow any placement of military assets or personnel in populated civilian areas. Prohibition of perfidy is codified at Protocol 1 of 1977, additional to the Geneva Conventions of 1949, and at Geneva IV, Art. 28. It is widely recognized that these rules are also binding on the basis of customary international law. Perfidy represents an especially serious violation of the law of war, one that is identified as a “Grave Breach” at Article 147 of Geneva Convention IV. Significantly, in our current context, the legal effect of perfidious behavior is always to immunize the preempting state from any unavoidable harm done to the perfidious party’s noncombatant populations. See, by this author, Louis René Beres, “Religious Extremism and International Legal Norms: Perfidy, Preemption and Irrationality,” CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW, Vol. 39, No. 3., 2007-2008, pp. 709-730.
[xxxviii].The term "Grave Breaches" applies to certain infractions of the Geneva Conventions of 1949 and Protocol I of 1977. The actions defined, as "Grave Breaches" in the four Conventions must be performed willfully or intentionally, and against the different groups of "protected person" identified by each Convention. The High Contracting Parties to the Geneva Conventions are under obligation "to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed," a grave breach of the Convention. As defined at Art. 147 of Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (6 U.S.T. 3516, signed on Aug. 12 1949, at Geneva), Grave Breaches "shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Reference to Grave Breaches can also be found in the INTERIM REPORT OF THE COMMISSION OF EXPERTS, UNITED NATIONS DOCUMENT, S/25274, and January 2, 1993, at Sec. 3., Art. 47.
[xxxix] This term is used here in the most literal jurisprudential sense. (See: Convention on the Prevention and Punishment of the Crime of Genocide, Done at New York: December 9, 1948. Entered into force, January 12, 1951. 78 U.N.T.S. 277.) The Genocide Convention criminalizes not only the various stipulated acts of genocide, but also (Article III) conspiracy to commit genocide and direct and public incitement to commit genocide. Articles II, III and IV of the Genocide Convention are fully applicable in all cases of direct and public incitement to commit genocide. For the Convention to be invoked, it is sufficient that any one of the State parties call for a meeting, through the United Nations, of all the State parties (Article VIII).
[xl] Above all, of course, these assessments must deal with core issues of war and peace. Regarding the status of war under international law, the question of whether or not a condition of belligerency actually exists between states is often difficult to answer. Traditionally, a “formal” war was said to exist only when a state had first issued a formal declaration of war. The Hague Convention III codified this position in 1907. Hague Convention III Relative to the Opening of Hostilities, art. 1, Oct. 18, 1907, 26 Stat. 2259, 205 Consol. T.S. 263. This Convention provided that hostilities must not commence without “previous and explicit warning” in the form of a declaration of war or an ultimatum. (Id.) Presently, a declaration of war may be tantamount to a declaration of criminality because international law prohibits aggression. (See General Treaty for the Renunciation of War as an Instrument of National Policy, art. 1., Aug. 27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57; 1 Trial of the Major War Criminals 171 (1947)(stating that the “Nuremberg Judgment,” U.N. Charter, art. 2, para. 4. A state may compromise its own legal position by announcing formal declarations of war. See Hague Convention III, Relative to the Opening of Hostilities, art. 1, Oct. 18, 1907, 26 Stat. 2259, 205 Consol. T.S. 263. It follows (in a legal principle that can have distinctly major implications for Israel, and for its many state and non-state adversaries), that a condition of war may exist without formal declarations, but only if there exists an armed conflict between two or more states, or at least one of these states at least considers itself to be “at war.”
[xli]See Louis René Beres and Clare Lopez, “Palestinian – al Qaeda Plans,” The Washington Times, December 5, 2006.
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