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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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