IS ISRAEL'S DECISION TO FREE TERRORISTS
A CONTRADICTION OF INTERNATIONAL LAW?

by Professor Louis Beres
Professor of International Law, Dept. Political Science
Perdue Univsity, W. Lafayette, Ind. USA)

Every state has an obligation under international law to seek out and to prosecute terrorists. This obligation derives from a long-standing principle known as Nullum crimen sine poena, "No crime without a punishment." It is codified directly in many different 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."
it follows that the State of Israel, now in the process of releasing large numbers of convicted terrorists, is acting in clear violation of international law.

Terrorism is an established crime under international law. An authoritative listing of particular offenses that comprise this crime can be found in the EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM. Moreover, some of the Palestinian prisoners now being released are also guilty of related crimes of war and even crimes against humanity, crimes so egregious that the perpetrators are known in law as Hostes humani generis, "common enemies of humankind." In this connection, we should recall that units of the Palestine Liberation Army (PLA) served with Saddam Hussein's forces in occupied Kuwait, making them, and Yasser Arafat personally (the legal principle of command responsibility is known in law as respondeai superior) complicit in multiple crimes of extraordinary horror and ferocity. And if these offenses were not enough of a affront to world legal order, many of the terrorists now being released from Israeli jails are immediately assuming high positions in the Palestinian Authority's various police and security services.

Of course, the Oslo Accords as a whole, from which the terrorist releases are drawn, are entirely invalid under international law, thus essentially "doubling" the lawlessness of these releases. This invalidity is based upon: (a) the illegality of any agreement between a state and a terrorist organization; (b) the expectations of Nullum crimen sine poena, especially as they are violated by acceptance of Yasser Arafat as a signatory; and (c) the obligation of every state of self-preservation, an obligation patently undermined by Israel's surrender of critical strategic depth and by its incomprehensibly willful expansion of terrorist opportunity. Regarding (a), above, it has been reaffirmed in several recent federal court decisions in the United States that agreements between non-state and state parties impose unequal compliance obligations. Indeed, in a concurring statement in the case of Tel-Oren v. Libyan Arab Republic, a 1981 civil suit in U.S. federal courts in which the plaintiffs were Israeli survivors and representatives of persons murdered in a terrorist bus attack in Israel in 1978, Circuit Judge Harry T. Edwards stated: "...I do not believe the law of nations imposes the same responsibility or liability on nonstate actors, such as the PLO, as it does on states and persons acting under colour of state law." The PLO as well as the Palestine Information Office, the National Association of Arab Americans, and the Palestine Congress of North America, were named defendants in this suit for compensatory and punitive damages. What this means, inter alia, is that the Palestine Authority that is party to Oslo I and II cannot be held to the same standards of accountability as the State of Israel.

Perhaps the best way to understand the profound illegality of Israel's terrorist release policy - a policy that flies in the face of all civilized respect for law - is simply to recall the specific account of PLO terrorism found in the Tel-Oren decision. In the words of Judge Edwards: "On March 11, 1978, thirteen heavily armed members of the Palestine Liberation Organization...turned a day trip into a nightmare for 121 civilian men, women and children. the PLO terrorists landed by boat in Israel and set out on a barbaric rampage along the main highway between Haifa and Tel-Aviv. They seized a civilian bus, a taxi, a passenger car, and later a second civilian bus. They took the passengers hostage. They tortured them, short them, wounded them and murdered them. Before the Israeli police could stop the massacre, 22 adults and 12 children were killed, and 73 adults and 14 children were seriously wounded..."

Is it any wonder that international law forbids the kind of agreement expressed by Oslo I and II, especially the release of terrorists and their transformation into proper figures of public authority? If the Government of Israel is self-destructive enough to weaken its nation's security by freeing Palestinian terrorists, Israeli critics of that policy should certainly remind their government of its responsibilities under international law, responsibilities that extend to all states. Such a reminder could be delivered via appropriate acts of civil disobedience or civil resistance, which would - unlike Israeli Government policies under Oslo - be appropriate acts of civil disobedience or civil resistance, which would - unlike Israeli Government policies under Oslo - be authentically law-enforcing. Moreover, as international forms part of the law of all states, including the State of Israel, this right is especially compelling when the state's very survival is being placed at risk by government. Moreover, the right of civil disobedience can become an outright obligation when a government's actions run counter to the Nuremberg Principles.

In the years before the Civil War, thousands of Americans organized an Underground Railroad to help those fleeing from slavery. At that time, those who participated in this movement were judged lawbreakers by the Federal Government and were often imprisoned under the Fugitive Slave Act. Today, however, it is authoritatively recognized that the true lawbreakers of the period were those who had sustained the system of slavery, and that every individual act to oppose this system had been genuinely law-enforcing. Similar patterns of recognition should now emerge in regard to the critical anti-Oslo movement within Israel.

Israelis should also recognize their right to civil resistance, which is not the same as civil disobedience. Acts of nonviolent civil resistance - acts specifically intended for the purpose of preventing or impeding ongoing criminal policies on the part of a government (e.g., acts intended to stop illegal terrorist releases in Israel) - are not crimes. In contrast to classic instances of nonviolent civil disobedience, where the persons committing such acts traditionally accept punishment as a demonstration of commitment to law, civil resistance is essentially law-enforcing. Hence, because those who are engaged in civil resistance act in compliance with incontrovertible human rights, they warrant not punishment in any form, but acquittal and public approval.

Citizens of Israel could now take note of remedies available to citizens of the United States, remedies that should also be available to them because of the two country's common commitment to international law. Two pertinent criminal cases in U.S. courts are People v. Jarka (Circuit Court of Lake County, Waukegan Illinois) and Chicago v. Streeter (Circuit Court of Cook County, Chicago, Illinois). Here, the defendants were acquitted by invoking the traditional common law defense known as "necessity." This defense, which erases criminal liability for conduct that would otherwise be an offense (if the accused was without blame in creating the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than that which might reasonably result from his/her own conduct) has broad applicability concerning crimes against peace, crimes against humanity, war crimes, Grave Breaches of the Geneva conventions, violations of the U.N. Charter, among many other offenses against the law of nations.

As for the suits in Israeli municipal courts, a petition to charge Yasser Arafat with terrorist crimes was submitted to Israel's High Court of Justice in May 1994. This petition, filed by Shimon Prachik, an officer in the IDF reserves, and Moshe Lorberbaum, who was injured in a 1978 bus bombing carried out by the PLO, called for Arafat's arrest and for an investigation into his then upcoming entry into Gaza-Jericho. The petition noted that Arafat, prima facie, had been responsible for numerous terror attacks in Israel and abroad, including murder, airplane hijacking, hostage-taking, letter bombing and hijacking of ships on the high seas. The petitioners' allegation of Arafat's direct person responsibility for terror attacks was seconded and confirmed by Dr. Ahmad Tibi, Arafat's most senior advisor: "The person responsible on behalf of the Palestinian people for everything that was done in the Israeli-Palestinian conflict is Yasser Arafat." said Dr. Tibi on July 13, 1994, "and this man shook hands with Yitzhak Rabin."

In the final analysis, no government has the right to lawfully pardon or grant immunity to terrorists with respect to criminally sanctionable violations of international law. In the U.S., it is evident from the Constitution that the President's power to pardon does not encompass United States. This limitation derives from a broader prohibition that binds all states, including Israel, namely the persistently overriding claims of pertinent peremptory norms derived from Higher Law or the Law of Nature. Although Israel's current freeing of terrorists is not, strictly speaking, a result of the exercise of pardon power, it has precisely that same effect.

In apprehending and punishing terrorists, Israel acted, however unwillingly, not only for itself, but on behalf of all nations. Moreover, because some of the apprehended terrorists had committed crimes against other states as well as against the State of Israel, the government in Jerusalem cannot possibly pardon these offenses against other sovereigns. For Israel, the legal "bottom line" is that it possesses absolutely no right to grant any sort of immunity for any violations of international law, especially for the egregious violations generated by terrorism. No matter what might be permissible under its own Basic Law and/or its Oslo Accords with the PLO (and even here the Prime Minister would find it most difficult to determine legal justifications), any political freeing of terrorists is legally inoperative. Indeed, the principle is well-established in law that by virtue of such freeing, as an expression of pardoning of criminals, the state assumes responsibility for past criminal acts and even for future ones.

Under international law, Israel's freeing of terrorists, effectively analogous to a mass pardoning of criminals, implicates that state for a "denial of justice." Such implication has profound pragmatic consequences. Although it is unclear that punishment, which is central to justice, also deters future crimes, the far-reaching freeing of terrorists undermines the obligation to incapacitate these particular criminals from the commission of further acts of terrorism. Such freeing may also encourage others to commit terrorist offenses in the future, against Israel and/or other states.

Even if we were to reject the expectations of Nullum Crimen sine poena (" no crime without a punishment") and the intrinsic rationality of straight retributivism, it is incontestable that law function to prevent future crimes. Here we may recall the argument of Plats' Protagoras: "No one punishes those who have been guilty of injustice solely because they have committed injustice, unless he punishes in a brutal and unreasonable manner. When anyone makes use of his reason in inflicting punishment, he punishes not on account of the fault that is past, for no one can bring it about that what has been done may not have been done, but on account of a fault to come in order that the person punished may not again commit the fault, that his punishment may restrain from similar acts those persons who witness the punishment."

Whatever one's operative conception of law and justice, Israel's current freeing of terrorists is in grievous violation of international law. Whether the dominant concern is punishment per se, the control of terrorists already in custody or the prevention of new terrorists, such illegal freeing should be halted as soon as possible. Within Israel, those who now oppose their government's lawless actions by appropriate disobedience or resistance act in authentic and essential support of international law, while those who support such actions are acting to uphold authentic lawbreakers.

SPECIAL PROGRAM NOTICE JUST IN:
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Bonhoeffer was martyred a few days before the war ended for his stand against the Nazis, as one of the leaders of the German Evangelical Church which stood firm against Hitler's anti-Jewish measures !

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