President Shimon Peres with Aviva and Noam Schalit.
(photo credit: REUTERS)
Under long-standing international law, every state has a primary obligation to
protect its citizens.
Yet it appears that tomorrow, Prime Minister
Binyamin Netanyahu will exchange Palestinian terrorists for kidnapped IDF
soldier Gilad Schalit. Any such exchange, however humane to Schalit and his
family, would imperil thousands of other Israelis.
A core element of all
civilized legal systems is the rule of Nullum crimen sine poena
, “no crime
without a punishment.” This principle, drawn originally from the law of ancient
Israel and reaffirmed at the post-war Nuremberg Trials, is part of all
international law. It applies here as well.
Were the United States to
undertake a Schalit-like deal to free terrorist prisoners, America would stand in
violation not only of international law, but also of US law. This is because
Article 6 of the Constitution (the “supreme law of the land”) makes all
international law part of US law. Several landmark Supreme Court decisions have
upheld that stance.
For Israel, there is an additional point: The country
also has a pertinent and portentous history of terrorist exchanges. In June
2003, Shurat Hadin, the Israel Law Center, in anticipation of a then-planned
terrorist releases, condemned Israel’s freeing of 100 Palestinian prisoners.
Later, almost five times that number were freed by then-prime minister Ariel
Sharon. In her letter to the prime minister and members of his cabinet, Shurat
Hadin director Nitsana Darshan-Leitner wrote that releasing terrorists for any
reason would reignite Arab terrorism against defenseless Jewish men, women and
Nitsana was correct. Soon thereafter, at least two
newly released Palestinian terrorists proceeded to launch suicide bomb attacks
in Israel. In these attacks, one “military target” of the “heroic fighters” was
a cafe filled with mothers and their babies.
Every state has an
indisputable core obligation under international law to prosecute and punish
terrorists. This obligation derives in part from the “no crime without a
punishment” principle and is codified directly in many authoritative sources. It
can also be deduced 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
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Terrorism is a serious crime under international
law. The precise offenses that comprise this crime can be found at The
European Convention on the Suppression of Terrorism. Some of the Palestinian
terrorists previously released were also guilty of related crimes of war and
crimes against humanity. These are Nuremberg-category crimes, so egregious that
the perpetrators are known in law as Hostes humani generis,
“Common enemies of
International law presumes solidarity between states in the
fight against all crime, including terrorism. This presumption is mentioned as
early as the seventeenth century in Hugo Grotius’ The Law of War and
Although Israel has a clear jurisdiction to punish any crimes
committed on its own 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 inter-state solidarity, is
found in the four Geneva Conventions of August 12, 1949. These conventions
impose upon the High Contracting Parties the obligation to punish “grave
No modern government has the legal right to free terrorists in
exchange for its own kidnapped citizens, military or civilian. 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. Rather, this power is always limited precisely to
“offenses against the United States.”
In originally capturing and
punishing Palestinian terrorists, Israel acted on behalf of all states.
Moreover, because some of the terrorists had committed their crimes against
other states, Israel cannot properly pardon these offenses against other
Although Mr. Netanyahu’s impending prisoner exchange would
not, strictly speaking, represent a “pardon,” it would have exactly the same
No state possesses the authority to pardon violations of
international law. No matter what might be permissible under its own Basic Law,
any impending political freeing of terrorists by Israel would be impermissible.
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, Netanyahu’s
impending exchange, effectively analogous to a mass pardoning of criminals,
would implicate the Jewish state for a “denial of justice.” This could have
practical consequences. Although it is arguable that punishment, which is
central to justice, does not always deter future crimes, such an Israeli freeing
of terrorists would undermine the Jewish state’s legal obligation to
incapacitate violent criminals from committing new acts of mass murder.
tragic aspect of modern international law is the need to make hard and painful
choices in order to safeguard larger populations from future harm.
Mr. Netanyahu should now act accordingly.The writer is professor
of international law at Purdue University and is author of many books and
articles dealing with international criminal law.
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