Why Peace Failed

Written for Arutz Sheva: Still hidden examples of Palestinian non-compliance. <br/>

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Prof. Louis René Beres,

Louis René Beres
Louis René Beres

There are many specific and discoverable reasons to explain the failure of the “Middle East Peace Process.” Most obvious, at least to anyone who cares to look, has been de facto Palestinian Arab insistence on a one-state solution (Israel is identified on all Arab maps as "occupied Palestine"), and on the corollary pattern of relentless Arab terror. Some related reasons for persistent diplomatic failure concern Palestinian Arab intransigence on the so-called "right of return," and a plainly injurious pattern of calculated Arab incitement.

Significantly, the seemingly-benign right of return actually represents a prima facie rejection of Israel's physical existence as a state.

Yet another important reason behind failure of the Peace Process is much less widely recognized or understood.

Freedom fighters, one must recall, do not gleefully murder infants sucking on pacifiers in kibbutz nursery schools.
This particular reason has to do with certain repeated Palestinian Authority violations of international criminal law, most critically, the “peremptory” or "incontrovertible" jurisprudential obligation to extradite wanted terrorists.

From Oslo’s beginnings, on September 13, 1993, the Palestinian Authority. inter alia, steadfastly refused to honor its codified agreement to extradite Arab terrorists to Israel. But even if the Oslo Agreements had not contained very explicit and unambiguous provisions for terrorist extradition, the PA would still have been bound to surrender or prosecute terrorist murderers according to the more general and customary rules of international criminal law.

Ultimately, this basic and binding requirement to extradite major criminals (Hostes humani generis, or "Common enemies of humankind") lies conspicuously in "Natural Law," which, in turn, exists, incontestably, at the normative center of all constituted national and international legal systems.

This pertinent general principle of law is far more than merely anecdotal. It has a proper jurisprudential name. It is known, in law, as aut dedere, aut judicare, "extradite or prosecute."

Over the past twenty-plus years, the PA did prosecute and imprison some terrorists, but even this tiny handful was detained only for brief periods, and then, only for blatantly concocted public relations purposes. A good example of such Arab contrivance, many years back, was the case of Wa'al Salah Nasr, who had plotted to carry out a particularly grotesque suicide bombing attack against Israeli children. Following his Palestinian "trial," which produced a sentence of five years in prison, Nasr was released after three weeks, during which time he had been treated as a great Arab hero.

Not surprisingly, President George Bush, on December 5, 2001, said: "Arafat's jails have bars in the front, and revolving doors in the back."

Remember Arafat? Plus ce change....Nothing has ever really changed. In part, this is because successively misguided Israeli prime ministers were all prepared to release Arab terrorists in an oddly vain search for Palestinian "good will," and because PA Presidents Yasser Arafat and Mahmoud Abbas both knew that there would never be any tangible Israeli sanctions for non-compliance.

Not only did the PA invariably fail to "extradite or prosecute" terrorists; it routinely and deliberately hired these very same murderers into the Palestinian "police" or "security services.”

If this were not serious enough, these starkly anti-American terrorists, all of whom had celebrated 9/11 harms against the United States openly and enthusiastically, were subsequently trained by American intelligence agencies, and later by the Pentagon. For easy corroboration, the reader need only search the internet for U.S. General Keith Dayton. It was General Dayton, under two presidents, who led the preposterous American effort to train Fatah “security forces” in nearby Jordan, all exhausting many hundred millions of American tax dollars.

Credo quia absurdum. “I believe because it is absurd.”  American presidents and other political leaders had somehow believed that “moderate” Fatah could be used as an effective sub-contractor against “extremist” Hamas. Of course, from an informed American or Israeli point of view, such thinking was always incomprehensible. As everyone in the region understands, there has never existed even an iota of consequential difference between these two core Palestinian terror groups.

There is a long and detailed history here, a humiliating narrative of error from which only the Arab side has ever learned anything important. Osama Abu Tayeh was arrested by the PA for March 1996 bombings in Jerusalem. Rejecting Israeli requests for extradition, the PA proudly hired Tayeh for the Palestinian Police in October, 1996.

Yusuf Malahi, the murderer of two Israeli civilians in Ramle on August 26, 1994, was arrested by the PA, and set free several weeks later to join the Palestinian 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.

Palestinian heroes, all.

Every country has an overwhelming and irreversible obligation under international law to seek out and to prosecute terrorists. This obligation, which derives (ironically) 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 the universally binding Nuremberg Principles (1950).

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 therefore, and liable to punishment."

Terrorism is always an established crime under international law. An authoritative listing of constituent offenses that comprise this particular crime can be found, inter alia, in the European Convention on the Suppression of Terrorism (1977). Moreover, many Palestinian terrorists had also been complicit in related crimes of war and crimes against humanity, crimes so “egregious” that perpetrators are singled out in law as Hostes humani generis.

A clear and underreported example would be the active Palestinian Liberation Army (PLA) assistance extended to Saddam Hussein’s torturers, during and after the 1991 Gulf War. As the world has already forgotten the irrepressible jubilation of Palestinian celebrations on 9/11, so too has it forgotten the intimate and mutually supporting ties that had earlier existed between PA President Yasser Arafat, and Iraqi dictator Saddam Hussein.

Following Operation Desert Storm, Amnesty International identified at least thirty different methods of torture used by the Iraqis and their Palestinian allies. These methods ranged from burning alive, to electric shock, to gang rape, to forcible starvation. In one instance reported (2003) 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, the bodies were passed to the Iraqi and Palestinian guards, who then tossed them playfully onto a nearby field. One mother recalls pushing her way to a window to see what had become of her child's corpse. Immediately, 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 comments on its previous support for Saddam Hussein, but it does continue to appoint Islamic clerics who feverishly denounce the United States and Israel in their weekly sermons. A typical sermon on PA Radio proclaims: "Oh Allah, grant victory to the Muslim people over the hateful America." Here, there is also regular and ecstatic praise of Palestinian suicide bombers, both male and female.

Years ago, an issue of the Hamas magazine for children had featured the picture of a Palestinian girl, with her severed head lying nearby. The caption read: "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 and improved” post-Arafat Palestinian authority still 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.

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 certain despised others ("the Jews") is the undisguised 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 has become 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, still an aspiring sovereign state, and now already a UN “nonmember observer 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 exactly the same effect.

But are the Palestinian insurgents "freedom fighters," rather than authentic terrorists?  Under international law, the answer is plainly "no."  Even if one were able to argue convincingly that homicidal Palestinian violence is animated by the legal principle of "Just Cause" or jus ad bellum (a problematic argument, on its face) it certainly lacks all necessary elements of "Just Means," or jus in bello.  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 that these killers are authentic terrorists.

Freedom fighters, one must recall, do not gleefully murder infants sucking on pacifiers in kibbutz nursery schools.

Under formal international law, any willful refusal to extradite or prosecute terrorists is always 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 an implication may have profound pragmatic consequences. Although it is unclear that punishment, which is central to all justice, necessarily deters future crimes, the protection of any terrorist necessarily undermines the obligation to incapacitate that particular criminal from the commission of any further acts of murder. In the case of protected Palestinian terrorists, hundreds of Israelis who are alive today may still be murdered tomorrow as a direct result of the PA refusal to extradite or prosecute. The manifestly dreadful consequences of this refusal will be enlarged by Israel's own sequential terrorist releases over the years.

Terrorism 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 simply fail to operate. To ensure that such any such expectation will in fact be fulfilled, and that international criminal law will in fact work, all states should insistently demand that pertinent Israeli extradition requests be honored as the law demands - that is, without regard to countervailing geopolitical pressures - or that meaningful prosecution of terrorists be mandated in appropriate municipal courts.

Even today, PA textbooks instruct young Palestinian students that the country exists "from the river to the sea." Integral to all such instruction, is the position that Israel has already been eliminated cartographically, and that what "the Jews" rather annoyingly refer to as Israel, is more correctly known as "Occupied Palestine."  

Taken together with the PA's historic unwillingness to extradite Palestinian terrorists to Israel, or even to ensure the serious prosecution of these terrorists in appropriate domestic courts, this egregious falsification expresses a primary reason for the Peace Process's failure.

Louis René Beres (Ph.D., Princeton, 1971) lectures and publishes widely on international law, especially in regard to Israel and the Middle East. His most recent writings have appeared in the Harvard National Security Journal (Harvard Law School); The International Journal of Intelligence and Counterintelligence; Case Western Reserve Journal of International Law; Parameters; Journal of the US Army War College; The Israel Journal of Foreign Affairs; The Brown Journal of  World Affairs; Oxford University Press; US News & World Report; The Jerusalem Post; The Atlantic; and Israel National News. Professor Beres was born in Zürich, Switzerland, at the end of World War II.