Dear IRIS Subscriber, The following article was prepared by Professor Louis Rene Beres, an expert on international law at Purdue University. Information on contacting Prof. Beres appears at the beginning of the post. IRIS Staff
e-mail: BERES@polsci.purdue.edu
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Terrorism is a serious crime under international law. An authoritative listing of particular offenses that comprise this crime can be found, among other places, in the EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM. Moreover, some of the Palestinian prisoners now being released were 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 respondeat superior) complicit in multiple crimes of extraordinary horror and ferocity. And if these offenses were not enough of an 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 to 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 nonstate and state parties (Shimon Peres would call them ``partners'' in this matter now before us), impose unequal compliance obligations. Indeed, in a concurring statement in the very relevant 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 color 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 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 passing car, and later a second civilian bus. They took the passengers hostage. They tortured them, shot 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 foolish 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. Such a reminder could be delivered via appropriate acts of civil disobedience, which would - unlike Rabin/Peres policies, be authentically law- enforcing. Moreover, as international law binds all states, including the State of Israel, this reminder could take the form of a prepared suit in Israeli municipal courts.