Editor’s Note: this article first appeared on 21 January 1994. Prof. Eidelberg intended a direct legal challenge to the Israeli-PLO or “Oslo” Accords. Yitzhak Rabin, of course, served as Prime Minister at the time. Eidelberg seeks to show that these agreements have no standing in international law and violate Israeli law.

Canadian-Israeli attorney Howard Grief has written a 21-page legal article on “The Israel-PLO Accords and the Role of the Prime Minister: Illegal Acts Under Constitutional and Criminal Law.” … A summary follows (with Grief’s permission).

PLO has no standing under international law

The Rabin government’s agreements with the PLO, such as the Declaration of Principles (DOP), are devoid of legality on the level of international law as well as on the level of Israel’s municipal law. All agreements which are part of international law, whether they are called treaties, accords, or otherwise, are considered to be international agreements only if they are made between sovereign states or alternatively, between sovereign states and intergovernmental organizations under the control of sovereign states.

The PLO is not a sovereign state or an intergovernmental organization. Its 1988 declaration of the state of “Palestine,” even though recognized by over 100 countries, remains a fiction. The PLO has no international legal personality; it continues to be a private organization. The agreement signed by Rabin and Arafat on September 13, 1993 is not subject to international law; it has no international law character.

Hence it would be more accurate to define the DOP as a political agreement whose true object is to sever Judea, Samaria and Gaza from the rest of Eretz Yisrael. Such an agreement is regulated by Israel’s municipal and constitutional [sic] law.

The subject matter of the agreement (Judea, Samaria and Gaza) does not constitute “foreign territories” or “occupied territories” belonging to a foreign sovereign, but part of the Land of Israel under the sovereignty of the State of Israel. That this contention would be disputed by many jurists is irrelevant. What is decisive here is what Israel’s own municipal law says about this issue …

Israeli law applies equally in Judea/Samaria/Gaza as in the rest of Israel

There is no difference between Israel law as applied to the 140,000 Jewish inhabitants of Judea, Samaria and Gaza and the law applied to Jewish inhabitants in other parts of the country. The government policy of not invoking Israeli municipal law throughout Judea, Samaria and Gaza—the policy was made at the inception of Israeli rule in 1967—is revocable at any time of the government’s choosing. This is what the government is authorized to do under Amendment 11B of the Law and Administrative Ordinance of 1967. By a simple order, the government can bring any of these areas within the jurisdiction of the State, and thus make the laws of the State applicable even to Arab inhabitants of Judea, Samaria and Gaza (as was done in eastern Jerusalem and the Golan).

Amendment 11B only reaffirmed what had been decided by Israel’s Provisional Council of the State when the latter enacted, on September 16, 1948, a law entitled “Area of Jurisdiction and Powers Ordinance.” This ordinance authorizes the government to apply Israeli law to any area of the Land of Israel that had come under the control of the IDF and which was not previously included within the jurisdiction of the State.

Grief points out that the Declaration of Principles actually accepts this view of Israel’s municipal law: that Israel enjoys sovereignty over Judea, Samaria and Gaza! Article 4 of the DOP grants jurisdiction over all of the territory of Judea, Samaria and Gaza to a body called the “Council,” also known as the “Palestinian Interim Self-Government Authority,” except for jurisdictional issues to be raised in permanent status negotiations, such as Jerusalem and Jewish settlements.

Procedural law: “Palestinians” are not a “people” under international law

Turning to procedural law, consider the parties to the Declaration of Principles mentioned in the preamble, i.e., “The Government of the State of Israel” and “The Palestine Liberation Organization” representing the “Palestinian people.” This poses insurmountable legal problems.

First, there is no “Palestinian people” as a separate legal person under international law. Second, to designate the PLO as the party representing the “Palestinian people” runs up against Israeli law. For under the Prevention of Terrorism Ordinance as it existed when the DOP was signed, the PLO was designated both as a “terrorist organization” and as an “enemy.”

The PLO was thus relegated to a criminal organization, without any legal rights under the municipal law of Israel. It therefore had no legal standing and could not be a party to an agreement with the State of Israel. Says Grief: “Any agreement with [the PLO] would be null and void ab initio.” …

Substantive considerations

Turning to substantive considerations, not only is the government barred from ceding areas of Eretz Yisrael, but under Section 11B of the Law and Administration Ordinance, it is also barred from entering into negotiations with that aim in view. “The ban on negotiations,” says Grief, “applies especially to Jerusalem as a consequence of the enactment of the 1980 Basic Law: Jerusalem: Capital of Israel, as well as to the Golan because of the 1981 Golan Heights law.”

Viewed in this light, Prime Minister Rabin and the cabinet acted illegally in approving an agreement with the PLO. That the Knesset, on September 23, 1993, approved that agreement by means of a vote of confidence has no force in law and does not alter the situation of illegality. (A vote of confidence does not endow an illegal act of government with legality.)

Criminal law

Let us now sum up the possible violations of the criminal law with which Rabin and others may be charged:

1. establishing contacts with a terrorist organization contrary to section 4(b) of the Prevention of Terrorism Ordinance before its repeal on January 19, 1993.
2. establishing contacts with a terrorist organization which harmed the security of the State, contrary to section 114 of the Penal Law.
3. committing an act, with the intention to withdraw an “area” from the sovereignty of the State, contrary to Article 97(b) of the Penal Law dealing with the crime of treason.

This third possible criminal violation may shock some readers. But as Grief points out, such has been the longing of the Jewish people for their ancient homeland, and such has been the repeated efforts of nations to destroy the Jewish state or to reduce its territory to an indefensible enclave, that Article 97(b) of the Penal Law imposes the penalty of death or life imprisonment for any violation of this statute.

What Article 97(b) sought to prevent

Apropos of this law, recall how Britain deprived the Jews of 75 percent of the land set aside for the Jewish homeland by authorizing the creation of the Emirate of Transjordan on the eastern side of Palestine. Writes Grief: “It is exactly to prevent further dismemberment and partition of Eretz Yisrael that Article 97(b) … was enacted, and by its very nature this provision of the law can only apply to Israel’s highest governmental leaders since only they and no one else are capable of dismembering the land by giving parts of it away to foreign nations.”

Inasmuch as Article 4 of the Declaration of Principles would, if fully implemented, lead to the dismemberment of the Land of Israel, there is reason to believe that Yitzhak Rabin, et al, violated the gravest of criminal laws….

I therefore concur with Grief that if and when a new nationalist government is formed in Israel, an official commission of inquiry should be established to determine whether Yitzhak Rabin and other members of his cabinet were guilty of violations of the criminal law, including that of treason.◙