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.
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.