Trading Gilad Shalit for Arab Terrorists: An Illegal and Perilous Exchange

Louis René Beres, Purdue University

Summary ... Even though Israel may want to release convicted Arab terrorists in exchange for prisoners such as Gilad Shalit, in doing so, Israel may be in direct violation of long-standing international law. Each nation has an obligation to prosecute and punish terrorists, in order to protect the world as a whole. By seeking its own interests, Israel would be releasing convicted terrorists who may act against other nations, causing harm that would have been preventable had they been kept in prison.

Under long-standing international law, every state has a primary obligation to protect its citizens. Yet, it appears that Israeli Prime Minister Benjamin Netanyahu may soon be prepared to exchange Palestinian [sic] terrorists for kidnapped IDF [Israel Defense Force] soldier Gilad Shalit. Any such exchange, however humane to Shalit and his family, would imperil thousands of other Israelis.

A core element of all civilized legal systems is the rule of iullum 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.

To the extent that US President Barack Obama should concur in this impending deal — effectively, an American act of complicity with terrorists — our own country would be in violation not only of international law, but also the law of the United States. Such violation would be two-fold because all international law has been made part of US law (the "supreme law of the land") by Article 6 of the [United States] Constitution, and by a number of landmark Supreme Court decisions.

For Israel, there is also a pertinent and portentous history of terrorist exchanges. In June 2003, the Shurat HaDin, the Israel Law Center, in anticipation of 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 especially children.

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 "no crime without a punishment." It is codified directly in many 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 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 humankind."

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 Peace. 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 interstate solidarity, is found at the four Geneva Conventions of August 12, 1949. These Conventions impose upon the High Contracting Parties the obligation to punish "Grave Breaches."

No government now 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 sovereigns. Although Mr. Netanyahu's impending prisoner exchange would not, strictly speaking, represent a "pardon," it would have exactly the same effect.

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, Prime Minister 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.

A tragic aspect of modern international law is sometimes the need to make hard and painful choices in order to safeguard larger populations from future harms. Mr. Netanyahu should now act accordingly.

[ Published: December 8, 2009 ]



Keep current with these articles

Sign up to receive free e-mail alerts.

  

Need to find additional information?



Emet Blog

The 'Palestinian' News You Don't See

The tragedy of the pro-'Palestinian' movement is its attachment to a single narrative: "Look at how wretched the lives of the 'Palestinian' people are," they tell us, "It is because of Israeli oppression." Because this narrative must be constantly reinforced, there is little room for real reporting about the failures of the 'Palestinian' leadership and the corruption and infighting that have caused the 'West Bank' [i.e., Judea & Samaria] and Gaza to languish.

The "Spontaneous" Intifada Is Orchestrated by the Palestinian Leadership

The Arab leadership is attempting to portray the current Intifada as a kind of popular, spontaneous struggle that expresses the population's despair over the political situation. In reality, it is an Intifada supported and directed by the Arab leadership of the PA/PLO-Fatah and Hamas.

Uncomfortable Questions for Comfortable Jews: The Temple Mount

Rabbi Meir Kahane points out that, contrary to popular belief, the Temple Mount is in Arab hands, the cunning Arab foxes. And the words of Motta Gur ring hollowly — and it is the Jews who are to blame. They took a miracle and disdained it. They, who took holiness and profaned it. They who were given a Zion, a Jerusalem, Temple Mount — gave it over to the jackal-foxes.

In Depth Analysis

Hamas Document - 2017

Hamas explains general principles and objectives in 42-article document.

The Real Goal of the 'Palestinian' Intifada

PA/PLO leader Abbas seems intentionally to ignore that he and his PA/PLO are responsible for the violence, as a result of their daily incitement against Israel. A recent poll found that approximately half of 'Palestinians' believe the "Intifada" should lead to the destruction of Israel.

The Hidden Hand Behind the Palestinian Terror Wave

What is really going on behind the scenes of the current terrorist attacks? It's actually a lot more than what is seen on a daily basis. Hamas is fighting to take control of the PA/PLO while Fatah is doing its best to stay in power and get Gaza back under its control.

Views/Commentary

A Matter of Priority - The Jonathan Pollard Case

US Jewish leaders blew it recently when what was a rare opportunity to ask the US president face-to-face to release Jonathan Pollard, they didn't even consider the matter as being a priority.

Obama Declares War on Israel

Obama needs to wake up. The real enemy is not Netanyahu. The real enemy is Iran, Hizb'Allah, Hamas, Islamic Jihad, and Islamic State, and the establishment of a terrorist state in the midst of Israel.

Could Barak Obama Swing the Upcoming Israeli Election?

It's no state secret that US President Barack Obama is not a huge fan of Israeli Prime Minister Benjamin Netanyahu. His distain for the Jewish leader is well-known throughout the world; he's never tried to hide it. But now that Israel is having new elections in March does it mean Obama could, either directly or indirectly, influence the elections in Israel in order to obtain a defeat for Netanyahu?