web analytics
July 28, 2014 / 1 Av, 5774
Israel at War: Operation Protective Edge
 
 
At a Glance
InDepth
Sponsored Post
IDC Advocacy Room IDC Fights War on Another Front

Student Union opens ‘hasbara’ room in effort to fill public diplomacy vacuum.



Releasing Terrorists as a ‘Gesture for Peace’

A core element of international law is the basic rule of nullum crimen sine poena, or "no crime without a punishment."
Louis Rene Beres

Louis Rene Beres

One can only wonder. What can the government of Israel really be thinking? On Tuesday, October 29, the very day Israel’s prime minister freed the second installment of convicted Palestinian terrorists, Hamas reciprocated with an enthusiastic barrage of rockets, fired from Gaza.

Immediately, it seems, Israel had received a prompt taste of Palestinian “good will.” But what other sort of quid pro quo did Netanyahu expect? The current release plan, premised on the indecipherable notion that Israeli capitulations can somehow improve Israel’s security, includes two further installments. Upon completion, a grand total of 104 murderers will have been sent back to foment new and even more insidious crimes against the innocent.

What sort of government could agree to free the killers and torturers of its own children, especially when any hoped-for “good will” would be an obvious delusion? Significantly, any such agreement is not only indefensible on moral and pragmatic grounds, but also in terms of (1) international law, and (2) because international law is always an integral part of the law of each individual nation, Israeli law. In other words, all increments of terrorist release are not only foolish and indecent, they are also plainly unlawful.

All countries coexist under a binding law of nations. A core element of this international law is the basic rule of nullum crimen sine poena, or “no crime without a punishment.” An unchanging principle, drawn from the law of ancient Israel, it was reaffirmed for all nations at the historic Nuremberg Trials (1945-46).

To the extent that the government of the United States should concur in the upcoming Israeli terrorist release – and this extent, of course, is plainly 100 percent – the U.S. will be in violation not only of international law but also the law of the United States. Here, inter alia, international law is part of U.S. law, by virtue of Article 6 of the U.S. Constitution, the “Supremacy Clause,” and also by a number of pertinent Supreme Court decisions, especially the Paquete Habana (1900).

In June 2003, the Shurat HaDin, Israel Law Center, in anticipation of then-planned terrorist releases, had already correctly condemned Israel’s intended freeing of 100 Palestinian prisoners. Later, almost five times that number were actually set loose by then-Prime Minister Ariel Sharon. Of course, the dire results were exactly as director Darshan-Leitner had warned, including grotesque suicide-bomb attacks by several of the newly released Fatah terrorists.

Every state has an obligation under international law to apprehend and punish terrorists. This derives in part from the vital expectation of “no crime without a punishment.” It is codified widely, and is also deducible from the authoritative Nuremberg Principles (1950).

Terrorism is a serious crime under international law. In the past, some of the Palestinian terrorists released in “good will gestures” were also guilty of crimes of war and crimes against humanity. These Nuremberg-category crimes are so egregious that the perpetrators are known in law as hostes humani generis, or “Common enemies of humankind.”

International law presumes solidarity between states in the fight against all crime, including terrorism. Although Israel has unequivocal jurisdiction to punish crimes committed on its own territory, it may sometimes also have the right to act under certain broader principles of “universal jurisdiction.” Its particular case for such wider jurisdiction would be found at the four Geneva Conventions of August 12, 1949.

No government on earth has the legal right to free terrorists as a “goodwill gesture,” or as a “gesture for peace.” Not a single one. Terrorism is a criminally sanctionable violation of international law, an unspeakable violation that is never subject to any manipulation by individual countries. For good reason, therefore, here in the United States, the president’s power to pardon purposefully excludes any violations of international law.

In its original capture and punishment of Palestinian terrorists, Israel had acted on behalf of all nations. Because some of these terrorists had also committed crimes directed against other states, Israel cannot now permissibly pardon these offenses contra other sovereigns. Although Netanyahu’s next terrorist release will not, strictly speaking, represent a “pardon,” it will have the identical juridical effect.

No state possesses any sort of authority to pardon violations of international law, especially the uniquely cruel violations generated by Palestinian terrorism. No matter what might be permissible under its own Basic Law, any political freeing of terrorists by Israel would always be legally unsupportable. A fundamental principle is established in law that, by virtue of any such releases, the releasing state itself must assume responsibility for pertinent past criminal acts, and for future ones.

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.

Please use the Facebook Tab below to leave your comment:

2 Responses to “Releasing Terrorists as a ‘Gesture for Peace’”

  1. why is it crime too stand agaist illegal[theft] of ones land, why kill palestinians,because they have a home,that you desire, of course your god is lucifer,not god the creator,? wake up

  2. Loren Gee says:

    Because it isn't their land. They do not have single legal claim to the land – that is a challenge if you care to take it up to prove that they do.

    Under international laws (yes plural). The land belongs to Israel. San Remo Treaty, Mandate for Palestine and a minor one called the UN Charter.

    The Arabs are stealing Israeli land. They have already stolen 99.93% of all the land in the Middle East from the indigenous peoples, that is more than enough

Comments are closed.

SocialTwist Tell-a-Friend

Loading Facebook Comments ...
Loading Disqus Comments ...
Current Top Story
The United Nations Security Council
UN Security Council Demands Gaza Cease Fire
Latest Indepth Stories
kerry clown

Kerry is preoccupied with pressuring Israel, notwithstanding the transformation of the Arab Spring .

journalism

With no shortage of leftist media that seek to distort the news, what should our Torah response be?

Jewish Home leader Naftali Bennett

Because let’s face it: Hamas obviously can’t defeat the IDF in the field, soldier against soldier

As Peres retires, Israel fights sour legacy: Insistence on setting policy in line with hopes, rather than with reality.

Our capital was not arbitrarily chosen, as capitals of some other nations were.

UNHRC High Commissioner Navi Pillay accuses the IDF of possible war crimes in Gaza again, cutting slack to Hamas.

There is much I can write you about what is going here, but I am wondering what I should not write. I will start by imagining that I am you, sitting at home in the Los Angeles area and flipping back and forth between the weather, traffic reports, the Ukraine, Mexican illegals and Gaza. No […]

Should Jews in Europe take more responsibility in self-defense of community and property?

It is time for a total military siege on Gaza; Nothing should enter the Gaza Strip.

Germany’s The Jewish Faith newspaper ominously noted, “We Jews are in for a war after the war.”

The truth is we seldom explore with kids what prayer is supposed to be about.

Almost as one, Jews around the world are acknowledging the day-to-day peril facing ordinary Jews in Israel and the extraordinary service of the IDF in protecting them.

So on the one hand Secretary Kerry makes no bones about who is at fault for the current hostilities: he clearly blames Hamas.

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.

    Latest Poll

    Do you think the FAA ban on US flights to Israel is political?






    View Results

    Loading ... Loading ...

Printed from: http://www.jewishpress.com/indepth/columns/louis-bene-beres/releasing-terrorists-as-a-gesture-for-peace/2013/11/14/

Scan this QR code to visit this page online: