There are many specific and readily identifiable reasons for the failure of “Oslo,” a term that – though originally signifying the accords signed twenty years ago between Israel and the Palestinians – has become a commonplace shorthand for the Middle East peace process.
Most obvious, perhaps, is the plainly unacceptable Palestinian insistence on a so-called right of return – essentially a rejection of Israel’s right to exist – and also the utterly relentless pattern of Arab incitement, one openly urging Palestinians to commit murderous acts of terrorism against “the Jews.”
Yet another important reason, this one still not widely recognized or well understood, has to do with repeated Palestinian Authority/Fatah violations of international criminal law, most evidently the peremptory or incontrovertible jurisprudential obligation to extradite wanted terrorists.
From Oslo’s very beginnings, on September 13, 1993, the Palestinian Authority persistently refused to honor its codified agreement to extradite Arab terrorists to Israel.
Significantly, even if the Oslo Accords had not contained explicit and unambiguous provisions for terrorist extradition, the PA would still have been bound to surrender or prosecute terrorist murderers according to the more general and customary rules of international law.
This basic and always binding requirement to extradite major criminals (hostis humani generis, or common enemies of humankind) exists conspicuously in natural law, which in turn lies at the very center of all national and international legal systems.
This pertinent general principle has a name. It is known in law as aut dedere, aut judicare – extradite or prosecute.
Over the past twenty years the PA has prosecuted and imprisoned some terrorists, but even this tiny handful was detained only for brief periods, and then only for blatantly concocted public-relations purposes.
A good example of such contrivance, many years back, was the grotesque case of Wa’al Salah Nasr, who had plotted to carry out a suicide bombing attack against Israeli children. Following his Palestinian “trial,” which produced a sentence of five years in prison, Nasr was released after three weeks, during which time he had been treated as a local hero.
Not surprisingly, White House spokesman Ari Fleischer said in December 2001 that President Bush felt Palestinian jails should “not only have bars on the front but no longer have revolving doors at the back.”
Nothing ever changed. In part this was because successively misguided Israeli prime ministers were all oddly prepared to release Arab terrorists in a vain search for Palestinian “good will” and because PA leaders knew full well that there would never be any tangible sanctions for non-compliance.
Therefore, not only did the PA invariably fail to extradite or prosecute terrorists, it routinely and deliberately hired the very same murderers into the Palestinian “police” or “security services.”
If this were not bad enough, these starkly anti-American terrorists, who celebrated 9/11 openly and enthusiastically, were subsequently trained by American intelligence agencies and by the Pentagon.
For easy corroboration, the reader need only search the Internet for U.S. General Keith Dayton. It was Dayton who led the preposterous American effort to train Fatah “security forces” in nearby Jordan, all with many millions of American tax dollars.
Credo quia absurdum – I believe because it is absurd. Presumably, American presidents and other political leaders believed that “moderate” Fatah could somehow be used as an effective sub-contractor against “extremist” Hamas. Of course, from an informed American or Israeli point of view, such thinking was always incomprehensible. As everyone in the region understands, there has never existed even an iota of consequential difference between these two core Palestinian terror groups.
There is a long and detailed history here, a humiliating narrative of error from which only the Arab side has ever learned anything important.
Osama Abu Tayeh was arrested by the PA for March 1996 bombings in Jerusalem. Rejecting Israeli requests for extradition, the PA proudly hired Tayeh for the Palestinian police in October 1996.
Yusuf Malahi, the murderer of two Israeli civilians in Ramle on August 26, 1994, was arrested by the PA and set free several weeks later to join the Palestinian police.
Other known Palestinian terrorists currently or recently serving in the PA police include Bassam Issa, Atef Hamadan, Imad Abbas, Bassam Aram, Yasir Aram, Iyad Abu-Shakafa, Iyad Basheeti, Ibrahim Shaheed, Ahmed Samarah and Jamal Abu-Rob.
Palestinian heroes, all.
* * * * *
Every country has an overwhelming and irreversible obligation under international law to seek out and to prosecute terrorists. This obligation, which derives (ironically) from ancient Jewish law, is known generally as nullum crimen sine poena, no crime without a punishment. It is codified directly in many different sources, and is also deducible from the universally binding Nuremberg Principles.
Principle One, adopted by the UN International Law Commission on August 2, 1950, stipulates: “Any person who commits an act which constitutes a crime under international law is responsible…and liable to punishment.”
Terrorism is always an established crime under international law. An authoritative listing of constituent offenses that comprise this particular crime can be found, inter alia, in the European Convention on the Suppression of Terrorism (1977).
Moreover, many Palestinian terrorists had also been complicit in related crimes of war and crimes against humanity, crimes so egregious that perpetrators are singled out in law as hostis humani generis.
A clear and to this day underreported example would be the active Palestinian Liberation Army (PLA) assistance extended to Saddam Hussein’s torturers during and after the 1991 Gulf War. As the world has already forgotten the irrepressible jubilation of Palestinian celebrations on 9/11, so too it no longer recalls the intimate and mutually supporting ties that had earlier existed between Yasir Arafat and Iraqi dictator Saddam Hussein.
Following Operation Desert Storm, Amnesty International identified at least thirty different methods of torture used by the Iraqis and their Palestinian allies. These methods included burning alive, electric shock, gang rape and forced starvation.
In one instance, more than 2,000 women and children were crammed into a single large room and given nothing to eat or drink. When many began to die, the bodies were passed to the Iraqi and Palestinian guards, who then tossed them playfully onto a nearby field. One mother recalls pushing her way to a window to see what had become of her child’s corpse. She witnessed dozens of dogs roaming hungrily in the field:
“I looked outside and saw the legs and hands of my son in the mouths of the dogs. The dogs were eating my son.”
The Palestinian Authority no longer comments on its previous support for Saddam Hussein, but it does continue to appoint Islamic clerics who feverishly denounce the United States and Israel in their weekly sermons. A typical sermon on PA Radio proclaims: “Oh Allah, grant victory to the Muslim people over the hateful America.” Here, there is also regular and ecstatic praise of Palestinian suicide bombers, both male and female.
Some years back an issue of the Hamas magazine for children featured the picture of a Palestinian girl with her severed head lying nearby. The caption read: “Suicide bomber Zainab Abu Salem. Her head separated from her pure body, and her ra’ala [Islamic head scarf] remains to decorate her face. Her place is now in Paradise.”
The “new and improved” post-Arafat Palestinian Authority still teaches children to aspire to shahada, martyrdom, which it calls “sweet.” Palestinian mothers of suicide bombers elicit special praise in their communities. “There goes the mother of a shahid” is what they yearn to hear.
Rejecting the normal maternal instinct to protect one’s child, these women find solace not in life but rather in the most hideous death cult of contemporary political life. For them, the simultaneous killing of their own children and the children of certain despised others (“the Jews”) is the undisguised source of their greatest pride.
In mid-March 2005, PA TV offered special promotions related to International Women’s Day. To help commemorate it, Sheikh Yusuf Juma’ Salamah, in a Friday sermon to an audience that included PA President Mahmoud Abbas, likened the ideal Palestinian woman to Al Khansah. This heroine of Islamic tradition celebrated the death of her four sons in battle by thanking God for the honor. Salamah, the PA Minister of Waqf, quoted Al Khansah: “Praise Allah, who granted me honor with their deaths.”
Al Khansah has become the archetypal mother of all shahids. From a very early age, Palestinian girls are now urged to adopt her as a model. A music video for these children, broadcast again and again on PA TV, includes the farewell words of a child shahid: “Mother, don’t cry for me, be joyous over my blood.” The Palestinian Authority has named five girls’ schools “The Al Khansah School for Girls” (in Bethlehem, Jenin, Nablus, Han Yunis, and Rafah).
* * * * *
In refusing Israel’s proper and formal extradition requests for terrorists, the Palestinian Authority, still an aspiring sovereign state and now a UN “nonmember observer state,” has effectively elected to remove itself from the jurisprudentially civilized community of nations.
No government, and certainly no “authority,” has the right to lawfully pardon or grant immunity to terrorists with respect to criminally sanctionable violations of international law.
In the U.S., it is evident from the Constitution that the president’s power to pardon does not encompass violations of international law and is limited to “offenses against the United States.”
This limitation stems from a broader prohibition that binds all states – namely, the persistently overriding claims of pertinent rules derived from higher law or the law of nature. Although PA inaction on extradition is not, strictly speaking, a pardoning or immunizing action, it has exactly the same effect.
But are Palestinian insurgents actually “freedom fighters,” as Palestinians and their sympathizers claim, rather than authentic terrorists? Under international law, the answer is plainly no. Even if one were able to argue convincingly that homicidal Palestinian violence is animated by the legal principle of jus ad bellum or just cause (a problematic argument, on its face), it certainly lacks all necessary elements of jus in bello or just means.
Because of the fact that any insurgent violence which fails to meet the expectations of humanitarian international law – the expectations of discrimination, proportionality, and military necessity – is terrorism, there can be no doubt that these killers are authentic terrorists.
Freedom fighters do not gleefully murder infants sucking on pacifiers in nursery schools or schoolchildren munching on pizza in packed eateries.
Under formal international law, any willful refusal to extradite or prosecute terrorists is always inexcusable. Indeed, the principle is well established in law that by virtue of such a refusal, the authority in question assumes responsibility for past criminal actions and even for future ones. The refusal by PA officials to extradite therefore implicates them in an ongoing denial of justice.
Such an implication may have profound pragmatic consequences. Although it is unclear that punishment, which is central to all justice, necessarily deters future crimes, the protection of any terrorist necessarily undermines the obligation to incapacitate that particular criminal from the commission of any further acts of murder.
In the case of protected Palestinian terrorists, hundreds of Israelis who are alive today may be murdered tomorrow as a direct result of the PA’s refusal to extradite or prosecute.
The manifestly dreadful consequences of this refusal will only be enlarged by Israel’s own terrorist releases over the years.
Terrorism is a major crime that can and must be punished. In the absence of a reliable expectation that terrorists will be extradited or prosecuted, international criminal law would simply fail to operate. To ensure that such an expectation will in fact be fulfilled, and that international criminal law will in fact work, all states should insistently demand that pertinent Israeli extradition requests be honored as the law demands – that is, without regard to countervailing geopolitical pressures – or that meaningful prosecution of terrorists be mandated in appropriate municipal courts.
Even today, PA textbooks instruct young Palestinian students that “Palestine” exists “from the river to the sea.” Integral to all such instruction is the position that Israel has already been eliminated cartographically, and that what “the Jews” refer to as Israel is more correctly known as “Occupied Palestine.”
Taken together with the PA’s historical unwillingness to extradite terrorists to Israel, or even to ensure the serious prosecution of these terrorists in appropriate domestic courts, this egregious falsification is the primary reason for Oslo’s inevitable failure.
About the Author: Louis René Beres (Ph.D., Princeton, 1971) is professor of political science and international law at Purdue University and the author of many books and articles dealing with international relations and strategic studies.
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