Under long-standing international law, every state has a primary obligation to protect its citizens. Yet, it appears that Israeli Prime Minister Benjamin Netanyahu may soon be prepared to exchange Palestinian terrorists for kidnapped IDF soldier Gilad Shalit. Any such exchange, however humane to Shalit and his family, would imperil thousands of other Israelis.
A 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 post-War Nuremberg Trials, is part of all international law. It applies here.
To the extent that U.S. President Barack Obama should concur in this impending deal – 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 US law (the “supreme law of the land”) by Article 6 of the Constitution, and by a number of landmark Supreme Court decisions.
For Israel, there is also a pertinent and portentous history of terrorist exchanges. In June 2003, the Shurat HaDin, the Israel Law Center, in anticipation of then-planned terrorist releases, condemned Israel’s freeing of 100 Palestinian prisoners. Later, almost five times that number were freed by then-Prime Minister Ariel Sharon. In her letter to the Prime Minister and members of his Cabinet, Shurat HaDin Director Nitsana Darshan-Leitner wrote that releasing terrorists for any reason would reignite Arab terrorism against defenseless Jewish men, women and especially children.
Nitsana was correct. Soon thereafter, at least two newly released Palestinian terrorists proceeded to launch suicide bomb attacks in Israel. In these attacks, one “military target” of the heroic fighters was a cafe filled with mothers and their babies.
Every state has an indisputable core obligation under international law to prosecute and punish terrorists. This obligation derives in part from “No crime without a punishment.” It is codified directly 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 a serious crime under international law. The precise offenses that comprise this crime can be found atThe European Convention on the Suppression of Terrorism. Some of the Palestinian terrorists previously released were also guilty of related crimes of war and crimes against humanity. These are Nuremberg-category 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 terrorism. This presumption is mentioned as early as the seventeenth century in Hugo Grotius’ The Law of War and Peace. Although Israel has a clear jurisdiction to punish any crimes committed on its own territory, 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 impose upon the High Contracting Parties the obligation to punish “Grave Breaches.”
No government now has the legal right to free terrorists in exchange for its own kidnapped citizens, military or civilian. Terrorism is a criminally sanctionable violation of international law that is not subject to manipulation by individual countries. In the United States, it is clear from the Constitution that the President’s power to pardon does not encompass violations of international law. Rather, this power is always limited precisely to “Offenses against the United States.”
In originally capturing and punishing Palestinian terrorists, Israel acted on behalf of all states. Moreover, because some of the terrorists had committed their crimes against other states, Israel cannot properly pardon these offenses against other sovereigns. Although Mr. Netanyahu’s impending prisoner exchange would not, strictly speaking, represent a “pardon,” it would have exactly the same effect.
No state possesses the authority to pardon violations of international law. No matter what might be permissible under its own Basic Law, any impending political freeing of terrorists by Israel would be impermissible. The fundamental 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.
Under international law, Prime Minister Netanyahu’s impending exchange – effectively analogous to a mass pardoning of criminals – would implicate the Jewish State for a “denial of justice.” This could have practical consequences. Although it is arguable that punishment, which is central to justice, does not always deter future crimes, such an Israeli freeing of terrorists would undermine the Jewish State’s legal obligation to incapacitate violent criminals from committing new acts of mass murder.
A tragic aspect of modern international law is sometimes the need to make hard and painful choices in order to safeguard larger populations from future harms. Mr. Netanyahu should now act accordingly.
Louis Rene Beres was educated at Princeton (Ph.D., 1971), and is author of many books and articles dealing with international criminal law.