The multiple ironies are staggering. On December 15, 2008, just before mounting his indispensable and purposeful Gaza operation against Palestinian terrorism, Prime Minister Olmert had released 230 Palestinian terrorists. To be sure, these freed terrorists were supposedly Fatah, not Hamas, but Mr. Olmert’s underlying strategic calculation was still unreasonable and wholly self-destructive.
At the time of the actual release, the prime minister had stated that it would represent a “gesture of good will” towards the Abbas-led Palestinians. There should be no problem, he had continued, because the Fatah men would have to sign a commitment not to return to violence. How comforting!
Credo quia absurdum. “I believe because it is absurd.” Here, the Israeli plan was both grotesquely dangerous and ridiculous. A formal agreement from terrorists not to terrorize is a silly document, nothing more. Why, too, was the disgraced prime minister interested in strengthening the hand of a Palestinian leader with a long record of determined support for the murder of Israeli noncombatants? In its blood-soaked history of terroragainst Israeli civilians, Fatah has always been effectively indistinguishable from Hamas. In the end, the differences have been inconsequential. Indeed, in the “old days,” Israel had even supported the Islamists against Fatah.
Presently, it would appear that Israel’s Operation Cast Lead has been a loud death knell for Abbas. In any event, the earlier presumption that a Fatah-led “Palestine” would be better for Israel was certainly wrong. For some reason, Mr. Olmert had believed, against all evidence, that Abbas leads a terrorist enemy still open to political compromise. Yet, even a cursory glance at the official PA map of “Palestine” (which includes all of Israel, not just West Bank, or Judea/Samaria) would have revealed only a “one-state solution.”That state would not be Israel.
Under international law, every state has a primary and unalterable obligation to protect its citizens. This Israeli prime minister’s government had at least tacitly signaled Abbas that it might soon end its search for still operational Fatah terrorists. The ostensible rationale for this communication had been the persistently vain hope that the PA leader had sought a real peace with the Jewish State. Such hope was unfounded, of course, but keeping it alive could have proven helpful to Olmert’s Kadima Party in the coming elections.
As my faithful readers in The Jewish Press already know, the core element of all civilized legal systems is the rule of Nullum crimen sine poena, “No crime without a punishment.” This principle, drawn originally from the law of Ancient Israel and reaffirmed at the Nuremberg Trials, is part of all international law. It applied here. It was not in any way inapplicable because of terrorist jail time already served.
To the extent that our new president, Barack Obama might concur in Mr. Olmert’s asymmetrical deal with Fatah – effectively an American act of complicity with terrorists – our own country would be in violation not only of international law, but also the law of the United States. Such violation would be two-fold because all international law has been 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. It is also clear that the recent Israeli release of Arab terrorists could have negative security consequences for our own country, especially because of the growing cooperation between various Palestinian factions (primarily Hamas) and al-Qaeda.
Every state has a peremptory obligation to prosecute and punish terrorists. This obligation derives in part from “No crime without a punishment.” It is codified in many 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 always a serious crime under international law. The precise offenses that comprise this crime can be found, inter alia, at The European Convention on the Suppression of Terrorism. Some of the Palestinian terrorists previously released in “good will gestures” had also been guilty of related crimes of war and crimes against humanity.
International law presumes solidarity between states in the fight against crime, including the crime of terrorism. This presumption is mentioned in Hugo Grotius’ The Law of War and Peace (1625). Although Israel has thoroughly unambiguous jurisdiction to punish all crimes committed on its territory, it also has the right to act under far broader principles of “universal jurisdiction.” Its case for such jurisdiction, which derives from an expectation of interstate solidarity, is found in part at the four Geneva Conventions of August 12, 1949. These Conventions impose upon the High Contracting Parties the obligation to punish “Grave Breaches.”
No government ever has the legal right to free terrorists as a “goodwill gesture.” In the United States, it is clear from the Constitution that the president’s power to pardon does not encompass violations of international law. This power is limited to “Offenses against the United States.”
In originally capturing and punishing Arab terrorists, Israel had acted on behalf of all states. Because some of the terrorists had committed egregious crimes against other states, Israel could not possibly pardon these offenses against other sovereigns. Although Olmert’s latest terrorist release did not, strictly speaking, represent a “pardon,” it will have precisely the same effect.
No state possesses any sort of authority to pardon violations of international law, especially the violations generated by Palestinian terrorism. No matter what might be permissible under its own Basic Law, any politically based freeing of terrorists by Israel was unlawful. Significantly, the principle is also established in law that, by virtue of such releases, the releasing state itself must assume responsibility for past criminal acts and for future ones.
Jurisprudence matters. Prime Minister Olmert’s recent release of 230 Fatah terrorists -effectively analogous to a mass pardoning of criminals – has seriously implicated the Jewish State for a “denial of justice.” This could have profound security consequences for both the U.S. and Israel. Although punishment does not always deter crimes, this Israeli freeing of terrorists will undermine the Jewish State’s legal obligation to incapacitate violent criminals from committing new acts of mass murder.
And, again, there are the aforementioned ironies. At a time when the IDF is locked into mortal combat with Palestinian terrorists, it hardly made any sense to add to their number. Cynical prime ministerial calculations that released Fatah criminals could somehow be useful in eliminating Hamas criminals missed a very essential and fundamental point: At the end of the day, both wings of Palestinian Arab terror share an absolutely overriding commitment to annihilate Israel.
Copyright © The Jewish Press, February 20, 2009. All rights reserved.
LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971) and is author of many books and articles dealing with international criminal law. Professor Beres lectures widely in the U.S., Europe and the Middle East on terrorism and counter terrorism. He is Strategic and Military Affairs Analyst for The Jewish Press.