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Posts Tagged ‘jurisdiction’

The Oslo Accords/Road Map Were Always A Deathtrap For Israel (Part II)

Wednesday, December 17th, 2008

The explicit application of codified restrictions of the laws of war to non-international armed conflicts dates back only as far as the four Geneva Conventions of 1949.  Recalling, however, that more than treaties and conventions comprise the laws of war, it is clear that the obligations of jus in bello (justice in war) comprise part of “the general principles of law recognized by civilized nations” and bind all categories of belligerents.  Indeed, the Hague Convention IV of 1907 declares in broad terms that in the absence of a precisely published set of guidelines in humanitarian international law concerning “unforeseen cases,” the pre-conventional sources of international law govern all belligerency.

 

 Terrorist crimes, as part of a broader category called crimen contra omnes (crimes against all) by the lawyers, mandate universal cooperation in apprehension and punishment.  In this connection, as punishers of “grave breaches” under international law, all states and state-like authorities are expected to search out and to prosecute, or extradite, individual perpetrators.  Regarding Israel and the Palestinian Authority (PA), the latter’s obligation under law to extradite terrorists to Israel would have obtained even if there had been no Oslo Accords. Hence, there is really no need to probe incessantly the precise language of the Accords. The PA’s multiple violations of extradition expectations under international law existed independently of Oslo.

 

The important principle of universal jurisdiction is founded upon the presumption of solidarity between all sovereigns in the fight against crime.  Moreover, the case for universal jurisdiction is strengthened whenever extradition is difficult or impossible to achieve. And it is built into the four Geneva Conventions of August 12, 1949.

 

Traditionally, piracy and slave trading were the only offenses warranting universal jurisdiction.  Following World War II, however, states have generally recognized an expansion of universal jurisdiction to include crimes of war; crimes against peace; crimes against humanity; torture; genocide; and crimes of terrorism. For the most part, this purposeful jurisdictional expansion has its origins in certain multilateral conventions, in customary international law, and in certain pertinent judicial decisions.

 

Terrorism is not the only crime in which Arafat and many of the subsequently released Palestinian prisoners were complicit.  Related Nuremberg-category crimes − including crimes of war and crimes against humanity − were also committed by these persons.  In this connection, my readers here in The Jewish Press should recall that units of the Palestine Liberation Army (PLA) served with Saddam Hussein’s forces in occupied Kuwait, making them, and Yasir Arafat personally (the legal principle of command responsibility is known as respondeat superior, or “Let the Master Answer”) responsible for multiple crimes of extraordinary horror and ferocity. As if these offenses were not enough of an affront to world law, many of the terrorists who have been released from Israeli jails in furtherance of the Oslo accords and the wider “peace process” quickly accepted assorted high positions in the Palestine Authority’s or Hamas’ “security forces.”

 

Even if the nonstate party to the Oslo accords had not been a terrorist organization, Israel would have entered into an agreement of unequal obligations − an agreement wherein the PLO would not have been held (under international law) to the same standards of accountability.  Several recent federal court decisions in the United States reaffirm that agreements between nonstate and state parties impose asymmetrical compliance expectations.  For example, in a concurring statement in the case of Tel-Oren v. Libyan Arab Republic − a 1981 civil suit in U.S. federal courts in which the plaintiffs were Israeli survivors and representatives of persons murdered in a terrorist bus attack in Israel in 1978 − Circuit Judge Harry T. Edwards stated:  “…I do not believe the law of nations imposes the same responsibility or liability on nonstate actors, such as the PLO, as it does on states and persons acting under color of state law.”

 

The PLO, of course, among many of its sister affiliates and foes, always remained a terrorist organization, and Israel therefore never had any right to honor the Oslo accords’ alleged requirement to release certain convicted members of that organization.  No government, in fact, has the right to lawfully pardon or grant immunity to terrorists with respect to criminally sanctionable violations of international law.  In the United States, 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 derives from a broader prohibition that binds all states, including Israel, namely the overriding claims of pertinent peremptory rules stemming from Higher Law or the Law of Nature.  These claims, with core origins in Torah, are identified in Blackstone’s Commentaries, which acknowledge that all law  “results from those principles of natural justice, in which all the learned of every nation agree….”

 

In its apprehension and incarceration of terrorists, Israel had acted, however unintentionally, not only for itself, but also on behalf of the entire community of states.  Moreover, because some of the jailed terrorists had committed crimes against other states as well as against Israel, the government in Jerusalem could not permissibly pardon these offenses against other sovereigns. The Jewish State, therefore, has possessed absolutely no right to grant immunity for terrorist violations of international law.  No matter what might be permissible under its own Basic Law and the Oslo accords, any freeing of terrorists was always legally incorrect.  By its freeing of terrorists, Israel was manifestly guilty of what is known in law as a “denial of justice.” In this connection, all complicit Israeli prime ministers also committed individually punishable criminal acts.

 

Israel’s obligation to abrogate the Oslo accords, as we have seen, stemmed from certain peremptory expectations of international law.  Israel, however, has substantial rights of abrogation here apart from such expectations.  These rights derive from the doctrine of Rebus sic stantibus. Defined literally as “So long as conditions remain the same,” this doctrine of changed circumstances augmented Israel’s obligations to cease compliance with Oslo.  This is because Israel’s traditional obligations to the accords ended promptly when a “fundamental change” occurred in those circumstances that existed at the effective dates of the accords, and whose continuance formed a tacit condition of the accords’ ongoing validity.  This change, of course, involved multiple material breaches by the PLO, especially those concerning control of anti-Israel terrorism and extradition of terrorists.  In short, Rebus sic stantibus almost immediately became significant basis for Israeli abrogation because of the profound change created by the PLO in the very circumstances that formed the cause, motive and rationale of consent.

 

According to Oslo expectations, Arafat should have been actively committed to the control of anti-Israel terrorism.  Yet, Arafat not only sheltered terrorists; he let them incite, recruit, organize, train, arm, raise funds, and launch operations from areas that had been under his control.  Naturally, the same has been true of his successors, Fatah as well as Hamas. The Olmert position that these two groups were somehow legally distinguishable was prima facie wrong.

 

Israel’s unfulfilled obligation to terminate the Oslo accords stemmed also from a related principle of national self-preservation.  Under this peremptory norm, any agreement may be terminated unilaterally, following changes in conditions that make performance of the agreement injurious to fundamental rights, especially the basic rights of existence and independence.  Known in law as “rights of necessity,” this norm was explained with particular lucidity by none other than Thomas Jefferson.  In his “Opinion on the French Treaties,” written on April 28, 1793, Jefferson stated that when performance, in international agreements, “becomes impossible, nonperformance is not immoral.  So if performance becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation to others.”  Later, in that same document, Jefferson wrote:  “The nation itself, bound necessarily to whatever its preservation and safety require, cannot enter into engagements contrary to its indispensable obligations.”  Israel, The Jewish Press reader will recall, has an “indispensable obligation” to endure.

 

Copyright © The Jewish Press, December 19, 2008. All rights reserved

 
LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with international relations and international law.  In the United States he has worked for over thirty-five years on international law and nuclear strategy matters, both as a scholar and as a lecturer/consultant to various agencies of the United States Government.  In Israel he has lectured widely at various academic centers for strategic studies, at the Dayan Forum and at the National Defense College (IDF).  He was Chair of Project Daniel, and is the Strategic and Military Affairs columnist for THE JEWISH PRESS.

The ‘Geneva Initiative’ And Amnesty For Palestinian Terrorists

Wednesday, February 4th, 2004
An essential element of all civilized legal systems is the fundamental rule of “No crime without a punishment.” This principle, drawn originally from the law of Ancient Israel, is conspicuously codified in binding international law. It is hard to imagine, therefore, that Israel’s Yossi Beilin, in launching the so-called “Geneva Initiative,” proposed a total amnesty for all Palestinian terrorists. Especially difficult to understand was Mr. Beilin’s associated suggestion that this amnesty be extended to even those members of Islamic Jihad who had just recently attempted to blow up an Israeli high school. Consistent with the incomparable barbarism of Palestinian terrorism, the declared mission of Islamic Jihad in this thwarted suicide-bombing operation was to massacre hundreds of Israeli children.

What conceivable mindset would lead an Israeli to offer such a perverse, dangerous and illegal proposal? What is more, Beilin shamelessly recommended such an injustice at a ceremony during which ten Palestinian representatives spoke rabidly of Israel as an “apartheid,” “criminal” and “racist” state, glorified Palestinian “martyrs” (that is, those who had previously maimed and murdered Jewish schoolchildren) and lamented the fate of Arab prisoners, no matter how heinous their particular crimes. What must an Israeli mother, father, sister, brother, husband, wife of victims of Arab terror have felt if they had endured Yossi Beilin’s fawning remarks on the evening news? Must an Israeli be an active accomplice to the Palestinian Authority’s still-planned Final Solution for the Jewish State?

But there is now a much larger issue before us than the unforgivable indecency of an oft-discredited Israeli politician. Early last June, the Shurat HaDin - Israel Law Center, already anticipating government terrorist releases, had condemned Israel’s then-planned freeing of 100 Palestinian prisoners - fewer than one-fifth of the number later actually processed by Prime Minister Sharon. In a letter to the Prime Minister and members of his Cabinet, Shurat HaDin Director Nitsana Darshan-Leitner wrote incontestably that releasing terrorists as a “goodwill gesture” would reignite Arab terrorism against Jewish civilians in Israel. Not only was Darshan-Leitner entirely correct in this prophetic assessment – at least two released terrorists went on to perpetrate new suicide bomb attacks upon Israeli civilians – but it is also perfectly clear that Mr. Sharon’s misconceived release was in serious violation of international law.

Every state has an obligation under international law to prosecute and punish terrorists. This obligation derives particularly from a long- standing rule known as Nullum Crimen Sine Poena, “No crime without a punishment.” It is codified directly in many different 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 an established crime under international law; one of the very worst. The precise
offenses that comprise this crime can be found at The European Convention On The Suppression Of Terrorism. Notwithstanding disingenuous Israeli cabinet assurances to the contrary at the time, some of the Palestinian terrorists released were also guilty of related crimes of war and crimes against humanity – crimes so egregious that the perpetrators are known in law as Hostes Hamani Generis, “Common enemies of humankind.”

International law presumes solidarity between states in the fight against all crime, including the crime of terrorism. This presumption is mentioned as early as the 17th Century in Hugo Grotius’ The Law Of War And Peace. Although Israel has clear jurisdiction to punish crimes committed on its territory (the primary basis of jurisdiction under international law is determined by territorial location of the offense), it also has the right to act under broader principles of “universal jurisdiction.” Its case for such universal jurisdiction, which derives from an overriding expectation of interstate solidarity, is found at the four Geneva Conventions of August 12, 1949. These Conventions unambiguously impose upon the High Contracting Parties the obligation to punish “Grave Breaches” of their settled rules.

NO government has the legal right to free terrorists as a “goodwill gesture,” as was the case earlier in apparent deference to the “Road Map,” and as is now the case with Mr. Beilin’s proposed Geneva “amnesty.” Terrorism is a criminally sanctionable violation of international law not subject to ad hoc nullification by individual countries or “authorities.” In the United States, it is manifest from the Constitution that the President’s power to pardon does NOT encompass violations of international law, and is always limited to “Offenses against the United States.” This limitation stems from a wider prohibition that binds ALL states, namely the claims of a “Higher Law.” These claims, of course, are the very basis of American law. Their roots lie unambiguously in the Torah.

In originally apprehending and punishing Palestinian terrorists, Israel acted - wittingly or unwittingly, it doesn’t matter - on behalf of all states. Moreover, because some of the pertinent terrorists committed crimes against other states, Israel certainly cannot pardon these offenses against other sovereigns. And although Beilin’s proposed amnesty for terrorists might not,
strictly speaking, represent a “pardon,” it would have exactly the same effect.

Israel possesses no authority to grant any sort of pardons for violations of international law, especially the uniquely cruel violations generated by Palestinian terrorism. No matter what might be permissible under its own Basic Law, any political freeing of terrorists is legally inexcusable. Indeed, the fundamental principle is well-established in law that by virtue of such releases the state would assume responsibility for past criminal acts and even for future ones. Such a fundamental principle is known formally as a “peremptory” norm. Codified at Article 53 of The Vienna Convention on the Law of Treaties, it means a rule that “permits no derogation.”

Under international law, an Israeli amnesty for terrorists – effectively analagous to a mass pardoning of criminals - would implicate the Jewish State for a “denial of justice.” Such implication could have profound practical consequences. Although it is arguable that punishment, which is central to justice, does not necessarily deter future crimes, an Israeli freeing of terrorists would surely undermine the state’s general obligation to incapacitate these violent criminals from the commission of additional acts of mass murder.

Yossi Beilin’s proposed amnesty for terrorists would be a grievous violation of international law. For this reason, and because many freed Palestinian criminals would quickly return to a life of bullets and bombs against ice cream parlors and young school children, citizens of Israel must act immediately to denounce the Geneva Initiative. International law sets fixed limits on any manifestly injurious expressions of “forgiveness,” and all civilized societies have an obligation to secure themselves against murderers.

LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is author of many books and articles dealing with international law. He is Strategic and Military Affairs Analyst for The Jewish Press.

Newsday And Abuse In The Jewish Community

Friday, July 4th, 2003

As we noted several weeks ago, despite the continuing coverage of claims of abuse in our yeshivas, attesting to the significance we attach to the problem, we nonetheless expressed our serious reservations about how the issue was treated in The Jewish Week.

We concluded that as serious as the issue is, The Jewish Week’s effort was overblown and reeked of an effort to pursue its agenda of portraying Orthodoxy in a negative light. Sadly,
Newsday attempted the same thing last week, although the goal, and it went to extraordinary lengths to reach it, was to liken abuse in the Orthodox community to the plague engulfing the Catholic Church.

Thus, in a series of five articles last week, several either beginning or blurbed on the front page, Newsday purported to ventilate, as one headline put it, “A ‘Crisis’ For Jewish Leaders” with the explanatory subheading, “Struggling With Allegations Against Rabbis of Sex Abuse.”

In the course of the five article series, Newsday invoked the names of all of eight rabbis. However, while three were, in fact, convicted of abuse, two were acquitted of all charges, and
authorities declined to charge another because there was no evidence to do so. With respect to the other two, one has yet to be formally charged, and the other fled the relevant jurisdiction.

Is there a problem if even one child is abused? Of course. Is there a “crisis?” Newsday doesn’t know of one. It certainly didn’t document it.

Targeting Terrorist Leaders

Friday, October 12th, 2001

Israel's targeting terrorist leaders in order to thwart attacks against its citizens continues to draw criticism around the world. Some of it, of course, is from those who are acting viscerally out of a deep anti-Israel or anti-Jewish animus. But there are some who are disturbed over the fact that those marked by Israel have not been convicted in a court of law, and that Israel sometimes operates in territory under the jurisdiction of the Palestinian Authority to get at them. What followed last week's helicopter attack against suspected terrorists should be illuminating. One Raed al-Karmi survived the attack and here is part of last Friday's New York Times report on the incident:

The Israeli Army said that it had tried to kill Raed al-Karmi in retaliation for his attacks on Israeli citizens and to pre-empt future attacks. But as her recovered from his wounds on a sofa in a clinic this afternoon, Mr. Karmi sounded unrepentant and undeterred. “I will continue my efforts to kill soldiers and settlers,” he said… His left eye, right hand and feet covered with bandages, Mr. Karmi, a lanky 26-year-old, fielded calls on a cell phone as well-wishers and two guards with AK-47's crowded around him. Garlanded with plastic lilies, a large photograph of Mr. Arafat stood on a table by his head.

Among other killings, Mr. Karmi is accused of kidnapping and shooting two Tel Aviv restaurateurs here in January. In the interview, he freely acknowledged taking part in killing the men…

Plainly, Israel was not on a fishing expedition. And for those who would rely on the Palestinian Authority, we haven't heard that Mr. Karmi's celebrity status has been altered in any way.

Printed from: http://www.jewishpress.com/indepth/editorial/targeting-terrorist-leaders/2001/10/12/

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