Israel's Government has already begun to release large numbers of

Palestinian terrorists, including many from Hamas. The declared point of

this release, which is not even an obligation of the "Road Map" peace plan

being supervised by President Bush, is to show "good will" to the

Palestinians. Not surprisingly, of course, the only reciprocal will from

Hamas will be renewed murders of Jewish women and children.

      The Prime Minister and his cabinet have promised that none of the

released prisoners will have blood on his hands. More precisely, they now

try to offer assurances that none of those about to be set free have had

any "direct involvement" in terror attacks upon Israelis. One needn't be a

lawyer or a philosopher to understand that such assurances are altogether

meaningless. There is really no way of ever knowing exactly who took direct

part in particular barbarous attacks, and even those prisoners with only

presumed "indirect" responsibility for attacks may now be the most

dangerous to Israel.

      Early last June, the Shurat HaDin - Israel Law Center, already

anticipating terrorist releases, had condemned Israel's then-planned

freeing of 100 Palestinian prisoners - fewer than one/fifth of the number

now actually being 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" will reignite Arab terrorism against Jewish civilians in

Israel. Not only was Darshan-Leitner entirely correct in this pragmatic

assessment, but it is also perfectly clear that Mr. Sharon's misconceived

release is 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.

According to Principle 1: "Any person who commits an act which constitutes

a crime under international law is responsible therefore and liable to


      Terrorism is an established crime under international law. The

precise offenses that comprise this crime can be found at THE EUROPEAN


disingenuous Israeli cabinet assurances to the contrary, some of the

Palestinian terrorists now being released are also guilty of related crimes

of war and crimes against humanity - crimes so egregious that the

perpetrators are known in law as HOSTES HUMANI 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 seventeenth 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." Terrorism is a criminally sanctionable violation of international

law not subject to ad hoc nullification by individual countries, even if


are organized into a "Quartet" that includes approval by the United

Nations.  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.

      In 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 as well as against the State of Israel, Prime Minister

Sharon certainly cannot pardon these offenses against other sovereigns.

And although Israel's release of terrorists is not, strictly speaking, a

"pardon," it will have exactly the same effect.

      Israel possesses no authority to grant any sort of pardons for

violations of international law, especially the uniquely heinous 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


      Under international law, Israel's "goodwill gesture" - effectively

analagous to a mass pardoning of criminals - implicates 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, Israel's freeing of

terrorists will surely undermine its general obligation to incapacitate

these violent criminals from the commission of additional acts of mass


      Israel's release of terrorists is in grievous violation of

international law. For this reason, and because (1) many freed Palestinian

criminals will quickly return to a life of bullets and bombs against ice

cream parlors and nursery school children; and (2) the present terrorist

release may soon be followed by several others, citizens of Israel must

immediately act to oppose their government's lawless and self-destructive

action. Significantly, those who would now undertake such opposition by

appropriate forms of civil disobedience would be acting in full support of

international law and civilized international relations.  But those who

support Prime Minister Sharon's terrorist releases, however well-meaning

and hopeful for "peace," would be acting lawlessly and in dangerous

disregard for Israel's public safety.



28 July 2003


Louis Rene Beres

Professor of International Law

Department of Political Science

Purdue University

West Lafayette IN  47907



TEL   765/494-4189

FAX   765/494-0833


LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is author of

many books and articles dealing with international law.



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