STILL VIOLATING INTERNATIONAL LAW
THE "NEW" PALESTINIAN AUTHORITY'S REFUSAL TO EXTRADITE TERRORISTS
July 5, 2005
As published in THE JEWISH PRESS
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Plus ca change, plus c'est la meme chose.
The French expression has it right - in the generic sense and in the
more particular case of Israel versus Arab terrorism. "The more things
change, the more they remain the same." With respect to binding legal
obligations that incontestably compel the Palestinian Authority to
extradite terrorists to Israel, nothing has changed. For Mahmoud Abbas, as
for Arafat before him, the most authoritative expectations of
international law continue to be disregarded. Under the "Road Map" as under
the prior Oslo Accords, justice for Jews remains a glaring contradiction in
terms.
Among so many stark Palestinian violations of past and present peace
agreements, it is a challenge to identify any one set of infractions as
especially egregious. Still, the Palestinian Authority's persistent refusal
to extradite leading terrorists to Israel strikes at the very heart of
justice, making a mockery of any PA claims that it abides faithfully by the
rule of law. Even if the Oslo and Road Map Agreements did not contain very
explicit provisions for terrorist extraditions, the PA would be
unequivocally bound to surrender or prosecute terrorist murderers
according to the general and customary rules of international law. This
basic requirement to extradite criminals exists plainly in "Natural Law,"
which lies at the core of all national and international legal systems, and
in the longstanding general principle known as Aut dedere aut judicare,
"Extradite or Prosecute."
Over the past eleven years, the PA HAS prosecuted and imprisoned
some terrorists, but even this tiny handful were detained only for
unacceptably brief periods and only for public relations purposes. An
example several years back is the case of Wa'al Salah Nasr, who 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 in three weeks. Not surprisingly, President George Bush said
on December 5, 2001: "Arafat's jails have bars in the front and revolving
doors in the back."
Nothing has changed, in part (as an incomprehensible irony, to be
sure) because Prime Minister Sharon is always prepared to release Arab
terrorists in his search for Palestinian "good will," and in part because
Mahmoud Abbas knows full well that there will never be any sanctions for
non-compliance. Not only does the PA still fail to "Extradite or Prosecute"
terrorists, it routinely hires these murderers into the Palestinian
"police" or "security services" - murderers who are then trained by
American intelligence agencies with American tax dollars. To be very
precise, Abbas, himself - after the death of Yassir Arafat - has hired
approximately 400 known terrorists as policemen.
There is a long and continuing history here - a history from which
only the Arabs have truly learned. Osama Abu Tayeh was arrested by the PA
for the March 1996 bombings in Jerusalem. Rejecting Israeli requests for
extradition, the PA hired Tayeh for the Palestinian Police in October 1996.
Yusuf Malahi, murderer of two Israeli civilians in Ramle on August 26, 1994,
was arrested by the PA and set free in several weeks to join the Police.
Other known Palestinian terrorists currently or recently serving in the PA
Police include Bassam Issa; Atef Hamadan; Imad Abbas; Bassam Aram; Yasser
Aram; Iyad Abu-Shakafa; Iyad Basheeti; Ibrahim Shaheed; Ahmed Samarah; and
Jamal Abu-Rob.
Every country has an overwhelming and irreversible obligation under
international law to seek out and to prosecute terrorists. This obligation,
which derives 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 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 therefor and
liable to punishment."
Terrorism is an established crime under international law. A listing
of constituent offenses that comprise this crime can be found in the
European Convention on the Suppression of Terrorism. Moreover, many
Palestinian terrorists have also been complicit in related crimes of war
and crimes against humanity, crimes so horrendous that perpetrators are
known in law as Hostes humani generis, "Common Enemies of Humankind." An
example would be Palestinian Liberation Army (PLA) assistance to Saddam's
torturers during and after the 1991 Gulf War. As the world has already
forgotten the irrepressible jubilation of Palestinian celebrations after
9/11, so too has it forgotten the intimate and mutually supporting ties
that had existed between Arafat and Saddam Hussein.
Following Operation Desert Storm, Amnesty International had
identified at least thirty different methods of torture used by the Iraqis
and their Palestinian allies, ranging from burning alive to electric shock to
gang rape to starvation. In one instance reported two years ago in THE NEW
YORKER, more than 2000 women and children were crammed into a single large
room and given nothing to eat or drink. When many began to die, bodies were
passed to the guards who tossed them in a large 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."
Currently the Palestinian Authority no longer supports Saddam
Hussein, but it does continue to appoint Islamic clerics who feverishly
denounce the United States in their weekly sermons. A typical sermon on PA
Radio proclaims: "Oh Allah, grant victory to the Iraqi Muslim people over the
hateful America." And here there is also regular and ecstatic praise of the
suicide bombers - male and female. A very recent issue of ALFATAH, the
Hamas magazine for children, features the picture of a Palestinian girl with
her severed head lying nearby. The caption reads: "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" Palestinian authority - the one run by "moderate" Mahmoud
Abbas, teaches children to aspire to SHAHADA - martyrdom - which it calls
"sweet." Palestinian mothers of suicide bombers now elicit special praise in
their communities. "There goes the mother of a SHAHID," is what they yearn
to hear and what they can realistically expect to hear. Rejecting the
normal mother's instinct to protect her own 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 others is the perverse source of their most palpable pride.
In mid-March 2005, PA TV offered special promotions related to
International Woman's Day. To help commemorate this day, Sheikh Yusuf Juma'
Salamah, in a March 11 Friday sermon to an audience that included
"President" Abbas, likened the ideal Palestinian woman to Al Khansah. This
heroine of Islamic tradition celebrated her four sons' death 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 is the archetypal mother of all Shahids. >From a very early
age, Palestinian girls are now urged to adopt this "mother" as a model. A
current music video for these children, broadcast again and again on Abbas'
PA TV, includes the farewell letter of a child Shahid: The farewell
words....."Mother, don't cry for me, be joyous over my blood." Not
surprisingly, 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 - an aspiring 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 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 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, we have already seen, exactly the same effect.
Are the Palestinians in question "freedom fighters" rather than
authentic terrorists? Under international law, the answer is plainly "no."
Even if one were able to argue that murderous Palestinian violence is
animated by the principle of "Just Cause" (a problematic argument, on its
face) it certainly lacks all necessary elements of "Just Means." Because
any insurgent violence that fails to meet the expectations of humanitarian
international law - the expectations of discrimination, proportionality and
military necessity - is terrorism, there can be no doubt whatever that
these killers are terrorists. Freedom fighters, one must recall, do not
deliberately murder infants sucking on pacifiers in kibbutz nursery
schools.
Under formal international law, any wilful refusal to extradite or
prosecute terrorists is 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. Here, PA refusals to extradite implicate that "Authority" for
a "denial of justice." Such implication has profound pragmatic
consequences. Although it is unclear that punishment, which is central to
all justice, necessarily deters future crimes, the protection of any
terrorist undermines the obligation to incapacitate that criminal from the
commission of further acts of murder. In the case of protected Palestinian
terrorists, hundreds of Israelis who are alive today may yet be murdered
tomorrow as a direct result of the PA refusal to extradite or prosecute.
Of course the dreadful consequences of this refusal will be enlarged by
Prime Minister Sharon's own release of terrorists for presumed diplomatic
advantage (a delusionary view by any reasonable measure of judgment) AND
they will encourage still others to commit major acts of terrorism against
Israel.
Terrrorism 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 fail to operate. To ensure
that such an expectation will routinely be fulfilled, and that international
criminal law does in fact work, all states should now insistently demand
that Israeli extradition requests be honored as the law demands (that is,
without regard to countervailing geopolitical pressures) or that
meaningful prosecution be undertaken in proper municipal courts.
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Louis Rene Beres
Professor of International Law
Purdue University
LAEB Building
West Lafayette IN 47907
USA
E MAIL BERES@POLSCI.PURDUE.EDU
Understood in terms of the Palestinian Authority's repeated refusals to
extradite known terrrorists to Israel or to prosecute these terrorists
with any serious intent, it is high time for the organized community of
nations to side openly and sincerely with the interests of justice.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author
of many books and articles dealing with terrorism and international law. He
is Strategic and Military Affairs columnist for THE JEWISH PRESS. |
