- - Tuesday, July 16, 2013


What sort of people and government would agree to free the murderers of its own children and do it in the name of a presumed “good will” toward irreconcilable enemies? What might this people and government be thinking, especially when its hoped-for quid pro quo is an obvious delusion?

Inconceivably, in Jerusalem, there is evidence that Prime Minister Benjamin Netanyahu may soon oblige Washington and go along with at least a partial release of Palestinians serving time for perpetrating unspeakable violence against Israelis. Leaving aside that any such release would be unreciprocated, and that both the Palestinian Authority and Hamas would remain committed to Israel’s eradication, this contemplated freeing of terrorists would also be inherently illegal.

All countries coexist under a binding law of nations. A core element of this international law is the rule of nullum crimen sine poena, or “no crime without a punishment.” An unchanging principle, drawn from the law of ancient Israel, it was reaffirmed for all nations at the historic Nuremberg Trials (1945-46).

Should President Obama concur in any terrorist release, effectively an act of American complicity with international criminal activity, the United States would be in violation not only of international law, but its own laws. International law is already part of U.S. law by virtue of Article 6 of the U.S. Constitution, and also by a number of landmark Supreme Court decisions, especially the Paquete Habana (1900).

In June 2003, the Israel Law Center, in anticipation of then-planned terrorist releases, had condemned Israel’s intended freeing of 100 Palestinian prisoners. Later, almost five times that number were actually set loose by Prime Minister Ariel Sharon. The dire results were exactly as Law Center Director Nitsana Darshan-Leitner had warned, including grotesque suicide-bomb attacks by several of the newly-released Fatah terrorists.

Every state has an obligation under international law to apprehend and punish terrorists. This derives in part from the vital expectation of “no crime without a punishment.” It is codified widely and is also deducible from the authoritative Nuremberg Principles (1950).

Terrorism is a serious crime under international law. In the past, some of the Palestinian terrorists released in “good will gestures” were also guilty of crimes of war and crimes against humanity. These Nuremberg-category crimes are so egregious that the perpetrators are known in law as hostes humani generis, or “common enemies of humankind.”

International law presumes solidarity between states in the fight against all crime, including terrorism. Although Israel has unequivocal jurisdiction to punish crimes committed on its own territory, it may sometimes also have the right to act under certain broader principles of “universal jurisdiction.” Its particular case for such wider jurisdiction would be found at the four Geneva Conventions of Aug. 12, 1949.

No government on earth has the legal right to free terrorists as a “goodwill gesture.” Not the government of Israel; not the government of the United States. Terrorism is a criminally sanctionable violation of international law, one that is never subject to any unwittingly capricious manipulations by individual countries. In the United States, the president’s power to pardon purposefully excludes any violations of international law.

In its original capture and punishment of Arab terrorists, Israel had acted on behalf of all nations. Because some of these terrorists had also committed crimes directed against other states, Israel cannot now permissibly pardon these offenses without regard to other sovereign states. Although Mr. Netanyahu’s anticipated terrorist release would not, strictly speaking, represent a “pardon,” it would have the same juridical effect.

No state possesses any sort of authority to pardon 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 by Israel would always be legally indefensible. A fundamental principle is established in law that by virtue of any such releases, the releasing state itself must assume responsibility for pertinent past criminal acts and for future ones.

Under international law, Mr. Netanyahu’s contemplated release of Palestinian terrorists, effectively analogous to a mass pardoning of international criminals, would implicate the Jewish state in a “denial of justice.” This irremediable implication could have profound practical consequences. Although it is arguable that punishment, which is always central to justice, does not always deter future crimes, any such Israeli freeing of terrorists would still undermine the Jewish state’s binding legal obligation to incapacitate violent criminals from committing any new acts of mass murder.

To be sure, many if not most Israelis are opposed to any further government terrorist releases. Led by the Almagor Terror Victims Association, these Israelis have launched an indispensable campaign to stop Mr. Netanyahu from capitulating to Palestinian Authority head Mahmoud Abbas and President Obama. Significantly, on the group’s list of 120 terrorists who should be kept imprisoned at all costs, are four Palestinians who killed on an evening now named after their carefully-chosen murder weapons. That attack is known today as “The Night of the Pitchforks.”

Louis Rene Beres is a professor of political science and international law at Purdue University.

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