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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, 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.
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