web analytics
October 23, 2014 / 29 Tishri, 5775
At a Glance
InDepth
Sponsored Post
Meir Panim with Soldiers 5774 Roundup: Year of Relief and Service for Israel’s Needy

Meir Panim implements programs that serve Israel’s neediest populations with respect and dignity. Meir Panim also coordinated care packages for families in the South during the Gaza War.



After Fatah-Hamas Reconciliation: The Endless Futility Of Israel’s Peace Process (Third of Five Parts)


Beres-Louis-Rene

            The explicit application of codified restrictions of the laws of war to noninternational-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 also 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 preconventional 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. 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 evenif there had been no Oslo Accords.
            There is, then, really no need to probe further the precise language of the Accords.The PA’s multiple violations of extradition expectations under international law existed and continue to exist independently of Oslo.
            The important though controversial principle of universal jurisdiction is usually founded upon an authoritative presumption of solidarity between all sovereigns in the fight against international crime.  Moreover, the case for universal jurisdiction may be strengthened whenever extradition is difficult or impossible to achieve. It is also 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 (although sometimes abused by anti-Israel elements) jurisdictional expansion has its origins in certain multilateral conventions, in customary international law, and in certain pertinent judicial decisions.
            Terrorism is assuredly not the only major crime in which Arafat and many of the subsequently released Palestinian prisoners were actively complicit.  These persons also committed related Nuremberg-category crimes, including crimes of war and crimes against humanity.  In this connection, we should recall that units of the Palestine Liberation Army (PLA) served enthusiastically with Saddam Hussein’s forces in occupied Kuwait during the first Gulf War, 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 mean crimes.
             As if these offenses were not enough of an intolerable affront to world law, many of the terrorists who were later released from Israeli jails in presumed furtherance of the Oslo Accords, and also the wider peace process, quickly accepted various high positions in the Palestine Authority’s or Hamas’s security forces.
            Even if the nonstate Palestinian party to the Oslo Accords had not been a terrorist organization, Israel would still have entered into an agreement of unequal obligations, an agreement wherein the PLO would not have been held under law to the same standards of accountability.  Assorted federal court decisions in the United States have reaffirmed that agreements between nonstate and state parties impose asymmetrical compliance expectations.  For example, in a concurring statement in the case of Tel-Orenv. 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, had always remained a terrorist organization, and, consequently, Israel never had any right to honor the Oslo Accords’ alleged requirement to release certain convicted members of that criminal group.  No government, in fact, has any 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 precisely 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 acknowledges 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 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, possessed 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 has always been legally incorrect.  By its freeing of terrorists, Israel was manifestly guilty of what is known in law as a “denial of justice.” Arguably, in this connection, all complicit Israeli prime ministers from Rabin to Netanyahu also committed individually punishable violations of international law.

 

             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 forty 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).  Professor Beres was Chair of Project Daniel. Born in Zürich, Switzerland, he is Strategic and Military Affairs columnist for The Jewish Press.

About the Author: Louis René Beres, strategic and military affairs columnist for The Jewish Press, is professor of Political Science at Purdue University. Educated at Princeton (Ph.D., 1971), he lectures and publishes widely on international relations and international law and is the author of ten major books in the field. In Israel, Professor Beres was chair of Project Daniel.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

No Responses to “After Fatah-Hamas Reconciliation: The Endless Futility Of Israel’s Peace Process (Third of Five Parts)”

Comments are closed.

SocialTwist Tell-a-Friend

Current Top Story
Chaye Zisel Braun
Funeral for Chaye Zisel Braun Underway [photos]
Latest Indepth Stories
Keeping-Jerusalem

Judea and Samaria (Yesha) have been governed by the IDF and not officially under Israeli sovereignty


n past decades, Oman has struck a diplomatic balance between Saudi Arabia, the West, and Iran.

The Jewish Press endorses the reelection of Gov. Andrew Cuomo. His record as governor these past four years offers eloquent testimony to the experience and vision he has to lead the Empire State for the next four years.

I think Seth Lipsky is amazing, but it just drives home the point that newspapers have a lot of moving parts.

While not all criticism of Israel stemmed from anti-Semitism, Podhoretz contends the level of animosity towards Israel rises exponentially the farther left one moved along the spectrum.

Myth #1: It is easy to be a B’nai Noach. It is extraordinarily hard to be a B’nai Noach.

The question of anti-Semitism in Europe today is truly tied to the issue of immigration.

Polls indicate that the Palestinians are much more against a two state solution than the Israelis.

Turkey and Iran the 2 regional powers surrounding the ISIS conflict gain from a partial ISIS victory

Emigration from Israel is at an all-time low, far lower than immigration to Israel from Europe.

Leon Klinghoffer’s daughters: “‘Klinghoffer’ is justified as ‘a work of art’…This is an outrage.”

Do you seriously think that as you kidnap our children we should medically treat and help yours?

Sometimes collective action against the heinous acts of the majority is not enough. The world should not only support the blockade of Gaza; it must enforce the dismantling of Hamas.

The Arab Spring has challenged Jordan with the task of gradual reform with regard to its monarchy.

More Articles from Louis Rene Beres
Louis Rene Beres

President Obama’s core argument on a Middle East peace process is still founded on incorrect assumptions.

Louis Rene Beres

Once upon a time in America, every adult could recite at least some Spenglerian theory of decline.

President Obama’s core argument is still founded on incorrect assumptions.

Specific strategic lessons from the Bar Kokhba rebellion.

Still facing an effectively unhindered nuclear threat from Iran, Israel will soon need to choose between two strategic options.

For states, as for individuals, fear and reality go together naturally.

So much of the struggle between Israel and the Arabs continues to concern space.

An undifferentiated or across-the-board commitment to nuclear ambiguity could prove harmful to Israel’s’s overall security.

Printed from: http://www.jewishpress.com/indepth/columns/louis-bene-beres/after-fatah-hamas-reconciliation-the-endless-futility-of-israels-peace-process-third-of-five-parts/2011/07/27/

Scan this QR code to visit this page online: