Seeking to strengthen Palestinian President Mahmoud Abbas after the Hamas triumph in Gaza, Israeli Prime Minister Olmert now intends to free many Fatah terrorists. “As a gesture of good will towards the Palestinians,” Mr. Olmert announced at the Sharm El-Sheik summit with Abbas and the leaders of Egypt and Jordan, “I will bring before the Israeli Cabinet a proposal to free 250 Fatah prisoners who do not have blood on their hands.” There should be no problem, he continued, because the Fatah men “must sign a commitment not to return to violence.”
There are many things wrong with this picture. In the first place, if Olmert is concerned with a “return to violence”, these about-to-be released Fatah prisoners must already have blood on their hands. It also goes without saying that a signed commitment from terrorists not to terrorize is, at best, a silly document. At worst, it is a plainly criminal one. And why is the Prime Minister of Israel interested at all in strengthening the hand of a Palestinian leader with a long record of support for the terrorist murder of Israeli noncombatants? In its history of intifadah against Israeli schoolchildren and their mothers on buses, in schools and in shopping plazas, Fatah is essentially indistinguishable from Hamas. The underlying Olmert presumption that a Fatah-led “Palestine” would somehow be better for Israel is disingenuous and wrong.
Prime Minister Olmert has also left open the unforgivable prospect that restrictions on releasing terrorists with Israeli blood on their hands could be lifted in the future. And who, exactly, are such terrorists? Is a Fatah prisoner who did not actually kill an Israeli with his own hands, but “only” made such killings possible in a variety of support positions, less guilty or less dangerous?
Under long-standing international law, every state has a primary obligation to protect its citizens. Yet, the Olmert government of Israel has at least tacitly communicated to Abbas, that it might end its search for dozens of Fatah terrorists believed responsible for planning future attacks. The ostensible rationale for this communication is the unfounded hope that Mahmoud Abbas now seeks real peace with the Jewish State.
As my faithful readers in The Jewish Press have heard me say before, a core element of all civilized legal systems is the rule of “No crime without a punishment.” This principle, drawn originally from the law of Ancient Israel and strongly reaffirmed at the post-War Nuremberg Trials, is conspicuously, a part of all international law. A particularly blatant Israeli violation of international law thus lies in Olmert’s unwillingness to press the Palestinian President to arrest any Fatah terrorists. One might expect, in the near future, that Olmert will even begin to refer to these criminals as “freedom fighters.” Credo quia absurdum. “I believe because it is absurd.”
To the extent that President Bush concurs in Olmert’s deals with Fatah – effectively an American act of complicity with terrorists – our own country would be in violation not only of international law, but also the law of the United States. Such a violation would be two-fold because all international law has been made part of US law (the “supreme law of the land”) by Article 6 of the Constitution and by a number of landmark Supreme Court decisions.
In June 2003, the Shurat HaDin – Israel Law Center – in astute anticipation of then-impending terrorist releases, properly condemned Israel’s planned release of 100 Palestinian prisoners. Later, almost five times that number were actually freed by Prime Minister Sharon. In her letter to the Prime Minister and members of his Cabinet, Shurat HaDin Director Nitsana Darshan-Leitner wrote that releasing terrorists as a “good will gesture” would only reignite Arab terrorism against defenseless Jewish men, women and especially children.
She was correct. Very soon thereafter, at least two newly-released Fatah-linked terrorists went on to launch suicide bomb attacks in Israel. In these attacks, a described “military target” of the heroic fighters was a cafe filled with mothers and young children.
Every state has an obligation under international law to prosecute and punish terrorists. This obligation derives from Nullum Crimen Sine Poena, “No crime without a punishment.” It is codified directly in many authoritative sources, and is also deducible from the binding Nuremberg Principles (1950). 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 a crime under international law, and incontestably one of the most serious. The precise offenses that comprise this crime can be found at The European Convention On The Suppression Of Terrorism. Notwithstanding Israeli government assurances to the contrary at the time, some of the Palestinian terrorists previously released in “good will gestures” were also guilty of related crimes of war and crimes against humanity. These are 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 17th century in Hugo Grotius’ The Law Of War And Peace. Although Israel has clear jurisdiction to punish crimes committed on its territory, it also has the right to act under broader principles of “universal jurisdiction.” Its case for such universal jurisdiction, which derives from an expectation of interstate solidarity, is found at the four Geneva Conventions of August 12, 1949. These Conventions impose upon the High Contracting Parties the obligation to punish “Grave Breaches.”
NO government has the legal right to free terrorists as a “good will gesture.” Terrorism is a criminally sanctionable violation of international law that is not subject to manipulation by individual countries. In the United States, it is clear from the Constitution that the President’s power to pardon does NOT encompass violations of international law. This power is always limited to “Offenses against the United States.”
In originally capturing and punishing Arab terrorists, Israel acted on behalf of all states. Moreover, because some of the terrorists had committed crimes against other states, Israel cannot possibly pardon these offenses against other sovereigns. Although Olmert’s latest terrorist release does not, strictly speaking, represent a “pardon,” it will have exactly the same 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 is legally incorrect. The fundamental principle is also established in law that, by virtue of such releases, the releasing state itself must assume responsibility for past criminal acts and for future ones.
Under international law, Prime Minister Olmert’s planned release of 250 Fatah terrorists – effectively analogous to a mass pardoning of criminals – will implicate the Jewish State for a “denial of justice.” This could have profound practical consequences. Although it is arguable that punishment, which is central to justice, does not always deter future crimes, this Israeli freeing of terrorists will undermine the Jewish State’s legal obligation to incapacitate violent criminals from committing new acts of mass murder.Such freeing must be prevented.
Copyright, The Jewish Press, July 13, 2007. All rights reserved.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is author of many major books and articles dealing with international criminal law. Professor Beres is Strategic and Military Affairs columnist for The Jewish Press.