Releasing Terrorists and International Law

Every state has an obligation under international law to prosecute and punish terrorists. This obligation derives from a long-standing rule known as <i>Nullum Crimen Sine Poena</I>, "No crime without a punishment." It is codified directly in many different authoritative sources, and is also deducible from the binding Nuremberg Principles (1950). According to Principle 1: "Any person who commits an

Prof. Louis René Beres,

Prof. Louis Rene Beres
Prof. Louis Rene Beres
israelnewsphoto: R. B.
An essential element of all civilized legal systems is the fundamental rule of "No crime without a punishment." This principle, drawn originally from the law of Ancient Israel, is conspicuously codified in binding international law. It is hard to imagine, therefore, that Israel's Prime Minister has released 435 terrorist prisoners in exchange for a single Israeli citizen and for the bodies of three Israeli soldiers. Leaving aside Mr. Sharon's misguided sense of honor in this matter (the release of Arab terrorists will inevitably result in more Jewish corpses), any such release represents a serious violation of fundamental civilizational rules.

Early last June, the Shurat HaDin - Israel Law Center, in astute anticipation of impending terrorist releases, had properly condemned Israel's then-planned freeing of 100 Palestinian prisoners. Later, almost five times that number were processed by Prime Minister Sharon. In her 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" would reignite Arab terrorism against Jewish civilians in Israel. Tragically, she was right on the mark. Shortly thereafter at least two newly-released terrorists went on to inflict suicide bomb attacks upon Israeli civilians. In these attacks, as is so often the case with Palestinian terror, the announced "military target" 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 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 (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 an established crime under international law; one of the very worst. 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 at the time, some of the Palestinian terrorists released were 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 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," as was the case earlier in apparent deference to the "Road Map", and as is now partially the case in the Prime Minister's search for improved relations with Hezbollah. Terrorism is a criminally sanctionable violation of international law not subject to ad hoc nullification by individual countries. 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. Their roots lie directly in the Hebrew Bible.

In originally apprehending and punishing Arab 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, Israel certainly cannot pardon these offenses against other sovereigns. And although Sharon's terrorist release does not, strictly speaking, represent 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 cruel violations generated by Arab 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, Prime Minister Sharon's current release of terrorists - effectively analogous to a mass pardoning of criminals - will implicate 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, this Israeli freeing of terrorists will surely undermine the state's general obligation to incapacitate these violent criminals from the commission of additional acts of mass murder.

Prime Minister Sharon means to acknowledge the Talmudic principle that each single life is a sanctification and to properly honor the bodies of Israel's fallen soldiers. This is all well and good, to be sure, but the cost for Israel will quickly be reckoned in dozens of new Jewish terror victims. Mr. Sharon should now recall that international law sets limits on any manifestly injurious expressions of "honor" or "goodwill," and that all civilized societies have a persistently overriding obligation to secure their living citizens against murderers.





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