ISRAEL'S RELEASE OF PALESTINIAN TERRORISTS VIOLATES INTERNATIONAL LAW 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 punishment." Terrorism is an established crime under international law. 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, 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 they 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 derogation." 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 murder. 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 USA TEL 765/494-4189 FAX 765/494-0833 E MAIL BERES@POLSCI.PURDUE.EDU LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is author of many books and articles dealing with international law. ========================= FREEMAN CENTER FOR STRATEGIC STUDIES |
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