web analytics
September 1, 2014 / 6 Elul, 5774
At a Glance
InDepth
Sponsored Post
Jerusalem Mayor Nir Barkat (L) visits the JewishPress.com booth at The Event. And the Winners of the JewishPress.com Raffle Are…

Congratulations to all the winners of the JewishPress.com raffle at The Event



Still Acting Against Itself: Yet Another Illegal Israeli Mass Terrorist Release


Beres-Louis-Rene

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.

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 “Still Acting Against Itself: Yet Another Illegal Israeli Mass Terrorist Release”

Comments are closed.

SocialTwist Tell-a-Friend

Current Top Story
U.S. Secretary of State John Kerry.
Arab Sources: State Dept Again Pressuring Israel to Restart Talks
Latest Indepth Stories
0.5-Shekel-hatasham-RJP

The War projects to lower Israel’s 2014 GDP 0.5% but will have little influence on foreign investors

The_United_Nations_Building

It is in the nature of the Nations of the World to be hostile towards the Jewish People.

champions

Hamas and Islamic Jihad are actually fighting to “liberate Jerusalem and all Palestine.”

IDF Chief of Staff Benny Gantz reviewing maps on the Golan Heights.

The bad news is that ISIS and Al Qaeda are on the Syrian Golan. The good news is that every terrorist in Syria is killing each other.

The congregants, Ethiopians spanning generations, were beaming with joy and pride.

The withdrawal from the Gaza Strip nine years ago did not enhance Israel’s security.

How does a soldier from a religious home fall in love with a soldier from a non- religious kibbutz?

In 19th century entire ancient Jewish communities fled Palestine to escape brutal Muslim authorities

Responsibility lies with both the UN and Hamas, and better commitments should have been demanded from both parties in the ceasefire.

But the world is forever challenging our Jewish principle and our practices.

If this is how we play the game, we will lose. By that I mean we will lose everything.

Reportedly, Egypt, Saudi Arabia, and the United Arab Emirates have formed a bloc that seeks to counter Islamist influence in the Middle East.

One wonders how the IDF could be expected to so quickly determine the facts.

While there is no formula that will work for everyone, there are some strategies that if followed carefully and consistently can help our children – and us – gain the most from the upcoming school year.

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/still-acting-against-itself-yet-another-illegal-israeli-mass-terrorist-release/2009/02/18/

Scan this QR code to visit this page online: