It is a familiar story. Israel, with nary a hint of meaningful reciprocity (reinforcing standing government policy of “Land For Nothing”), releases Palestinian terrorist prisoners. This time, in fact, Prime Minister Sharon even threw in amnesty for terrorists not yet apprehended. One must wonder here why the Prime Minister failed to ask an essential antecedent question: If Palestinian Authority “President” Abbas authentically seeks an orderly society that is at peace with Israel, why then should he welcome child murderers back into the Palestinian Arab community? Indeed, he even welcomed them back as heroes.
On February 3rd, 2005, the Prime Minister received senior Cabinet approval for the release of 900 prisoners and the handover of Jericho to Palestinian control. But perhaps all is not as strange or calamitous as it would seem. After all, Israel’s Minister of Defense, Lt. Gen. Shaul Mofaz, did state that “prisoners who killed Israelis could not be freed in the near term.” For their part, in a signal that things might have gone even worse for Israel, the Palestinians expressed resentment that Sharon had resisted “broader concession.” Presumably they were disappointed that Israel’s government-inflicted auto-suicide was no longer sufficiently impassioned and needed more outside encouragement. And, let us not forget, Israel’s release of Arab terrorists and sacrifice of Jewish lands was carried out for the sake of “good will.”
Irony aside, Mofaz plainly left open the unforgivable prospect that restrictions on releasing terrorists with Israeli blood on their hands could be lifted in the future. Moreover, who – exactly – are such terrorists? Is a prisoner who did not actually kill an Israeli with his own hands, but “only” made such killings possible in a variety of support positions, less guilty – or less dangerous?
Under long-standing international law, every state has a primary obligation to protect its citizens. Yet, the government of Israel has also announced that it might end its search for dozens of terrorists responsible for carrying out or planning future attacks. The ostensible rationale for this announcement was the utterly-unsupported hope that Holocaust denier Mahmoud Abbas now seeks real peace with the Jewish state. Israeli government spokesman David Baker said the Israeli concessions were made “despite scores of terror-related incidents in Gaza, and the Palestinian Authority has not made one meaningful arrest.”
“…not made one meaningful arrest.” A core element of all civilized legal systems is the rule of “No crime without a punishment.” This principle, drawn originally from the law of ancient Israel and strongly reaffirmed at the post-War Nuremberg Trials, is conspicuously a part of all international law. In this regard, a particularly blatant Israeli violation of international law now lies in Sharon’s growing unwillingness to press the Palestinian Authority to arrest those terrorists who recently murdered three American citizens in Gaza.
To the extent that President Bush concurs in such an unwillingness – effectively an American act of complicity with terrorists – our own country is in violation not only of international law, but also the law of the United States. Patently self-defeating as we continue to wage “Operation Iraqi Freedom,” this is a two-fold violation because all international law is made part of U.S. law (the “supreme law of the land”) by Article 6 of the Constitution and by a number of landmark Supreme Court decisions.
In June 2003, the “Shurat HaDin – Israel Law Center” – in astute anticipation of then-impending terrorist releases, properly condemned Israel’s planned freeing of 100 Palestinian prisoners. Later, almost five times that number were actually processed by Prime Minister Sharon. In her letter to the Prime Minister and members of his Cabinet, Shurat HaDin Director Nitsana Darshan-Leitner wrote that releasing terrorists as a “goodwill gesture” would reignite Arab terrorism against defenseless Jewish men, women and especially children.
Sadly, she was correct. Very soon thereafter, at least two newly-released terrorists went on to launch suicide bomb attacks in Israel. In these attacks, as is so often the case with Palestinian terror, the announced “military target” was a cafe filled with mothers and young children.
Every state has an obligation under international law to prosecute and punish terrorists. This obligation derives from nullum crimen sine poena, “No crime without a punishment.” It is codified directly in many different authoritative sources, and is also deducible from the binding Nuremberg Principles (1950). According to Principle 1: “Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.”
Terrorism is an established crime under international law; incontestably one of the most serious. The precise offenses that comprise this crime can be found at The European Convention on The Suppression of Terrorism. Notwithstanding disingenuous Israeli government assurances to the contrary at the time, some of the Palestinian terrorists previously released were also guilty of related crimes of war and crimes against humanity – crimes so egregious that the perpetrators are known in law as hostes humani generis, “Common enemies of humankind.”
International law presumes solidarity between states in the fight against all crime, including the crime of terrorism. This presumption is mentioned as early as the 17th century in Hugo Grotius’ The Law of War and Peace. Although Israel has clear jurisdiction to punish crimes committed on its territory (the primary basis of jurisdiction under international law is determined by location of the offense), it also has the right to act under broader principles of “universal jurisdiction.” Its case for such universal jurisdiction, which derives from an expectation of interstate solidarity, is found at the four Geneva Conventions of August 12, 1949. These conventions unambiguously impose upon the High Contracting Parties the obligation to punish “Grave Breaches” of their settled rules.
NO government has the legal right to free terrorists as a “goodwill gesture,” as was the case earlier in apparent deference to the “Road Map,” and, as is now at least partially, the case in Prime Minister Sharon’s search for improved relations with Mahmoud Abbas. Terrorism is a criminally sanctionable violation of international law not subject to ad hoc nullification by individual countries. In the United States, it is manifest from the Constitution that the President’s power to pardon does not encompass violations of international law, and is always limited to “Offenses against the United States.” This limitation stems from a wider prohibition that binds all states, namely the claims of a “Higher Law.” These claims are the very basis of American law. Their roots lie directly in the Torah.
In originally apprehending and punishing Arab terrorists, Israel acted – wittingly or unwittingly, it doesn’t matter – on behalf of all states. Moreover, because some of the terrorists had committed crimes against other states, Israel cannot possibly pardon these offenses against other sovereigns. Although Sharon’s latest terrorist release does not, strictly speaking, represent a “pardon,” it will have exactly the same effect. So, too, will the announced “amnesty” have the effect of a pardon.
No state possesses any sort of authority to pardon violations of international law, especially the uniquely cruel violations persistently generated by Arab terrorism. No matter what might be permissible under its own Basic Law, any political freeing of terrorists by Israel is legally inexcusable. Further, the fundamental principle is well-established in law that, by virtue of such releases, the releasing state itself must assume responsibility for past criminal acts and even for future ones. Is this the sort of responsibility sought by Prime Minister Sharon?
Such a fundamental principle is known formally in law as a “peremptory” norm. Codified at Article 53 of The Vienna Convention on the Law of Treaties, it means a rule that “permits no derogation.” It means a rule that is both binding and altogether unyielding.
Under international law, Prime Minister Sharon’s newest release of terrorists and associated amnesty – effectively analogous to a mass pardoning of criminals – will necessarily implicate the Jewish State for a “denial of justice.” This could have profound practical consequences. Although it is arguable that punishment, which is central to justice, does not always deter future crimes, this Israeli freeing of terrorists and amnesty will surely have the following chilling effect: It will undermine the Jewish state’s general obligation to incapacitate certain violent criminals from the commission of new acts of mass murder. Simply stated, it means many more mutilated and murdered Israelis and (recognizing growing ties between Palestinian terror groups and al-Qaeda) Americans.
Copyright © 2005, The Jewish Press. All rights reserved.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is author of many books and articles dealing with international criminal law. He is Strategic and Military Affairs columnist for The Jewish Press.