Is It Crazy To Release Terrorists? Should Israel Do So To Get Peace? We Don't Think So.

Israel as a 'crazy state': A new definition for political science?

No government on this earth has any legal right to free terrorists as a “gesture for peace.”

Benjamin Netanyahu attends the weekly cabinet meeting at his office in Jerusalem March 23, 2014. 
(Photo by: REUTERS)

When I was still a young political science professor, back in the 1970s, the term “crazy state” was used sparingly in the lexicon of academic nuclear strategy. More precisely, it was referenced in assorted learned discussions of countries that may sometime be controlled by irrational national leaders, and could therefore depart from usual rules of mutual deterrence. The potential consequence of any such departure, we had already understood, could have included nuclear aggression, or perhaps even nuclear war.

A ready example, back then, would have been a nuclear Iraq (remember Saddam Hussein and Osirak?).

Today, I am prepared to advance an altogether different but equally useful meaning of “crazy state.” This definition is any country, but in particular, one that is half the size of America's Lake Michigan, and beleaguered by determinedly existential foes that would willfully trade its terrorist prisoners for presumed enemy “good will.” Even crazier, of course, is any such country that had already made this self-destructive set of concessions several times in the past, always with a conspicuous lack of success, and always with the result of eliciting more terrorism.

Soon, Israel could become this new sort of “crazy state.” Indeed, by the end of this month, Prime Minister Binyamin Netanyahu is expected to free more Palestinian terrorists in the latest “round” of formally negotiated releases. Once again, many of those killers scheduled to be released had been directly involved with the burning, maiming, torturing and murder of Israeli noncombatants. Absolutely no one questions this heinous criminal involvement, least of all, the perpetrators.

In Jewish literature, any such impending terrorist release would at first seem to flow in part from the genre of the Wise Men of Chelm, long-cherished tales that celebrate the misadventures of recognizably hapless fools, lovable nitwits who inhabit a legendary shtetl.

But this latest political deal is hardly a comedic matter. True enough, the Israel that would be left in the wake of encroaching Palestinian statehood – isolated, fragmented, and vulnerable – could quickly come to resemble authentic shtetls. At the same time, this newly-residual Jewish community, marginalized by its own glaring lack of judgment and sense of decency, would be utterly lacking in humor.

There are also pertinent legal issues involved in any still-planned terrorist releases, egregious violations of “higher law” principles that would necessarily override those particular agreements fashioned between the so-called Palestinian Authority and Israel. Why “so-called?” On January 3, 2013, Palestinian Authority leader Mahmoud Abbas “decreed” the absorption of the “former PA” into the “State of Palestine.” This decree eliminated the PA, yet did not legally create a successor state.

To properly meet the criteria of sovereignty under international law, “Palestine” would have had to be more than self-declared. Specifically, it would have had to fulfill listed expectations of the Convention on the Rights and Duties of States (1934). This governing treaty on statehood is also sometimes known as the Montevideo Convention.

All countries coexist under a binding law of nations. A core element of this international law is the unambiguously sacred rule of Nullum crimen sine poena, or “No crime without a punishment.” An unchanging principle, drawn, significantly, from the law of Ancient Israel, it was reaffirmed for all nations at the precedent-setting Nuremberg Trials (1945-46).

To the extent that the president of the United States should concur in the upcoming Israeli terrorist release – and this extent, of course, is total – the US will also be in violation of international law. And it will be in opposition to the domestic law of the United States. International law is an integral part of US law, inter alia, by virtue of Article 6 of the US Constitution, the “Supremacy Clause,” and of a number of US Supreme Court decisions, most notably, The Paquete Habana (1900).

Every state has an unerring obligation under international law to apprehend and punish terrorists. This duty derives, in part, from the vital expectation, “No crime without a punishment.” It is codified widely and separately, but is also deducible from the authoritative Nuremberg Principles (1950). These fundamental rules emerged from the previously mentioned Nuremberg Trials.

Terrorism is more than just bad behavior. It represents a major crime under international law. In the past, some of the Palestinian terrorists released in “good will gestures” were also guilty of crimes of war and crimes against humanity. These Nuremberg-category crimes are so serious that the perpetrators are known in jurisprudence as Hostes humani generis, or “Common enemies of humankind.”  

Always, international law presumes solidarity between individual states in the obligatory fight against terrorism. Israel has incontestable jurisdiction to punish crimes committed on its own territory; on occasion, it may also have the right to act under certain broader principles of “universal jurisdiction.” Its particular case for any such wider jurisdiction can be found, among other places, at the four Geneva Conventions of August 12, 1949.

No government on this earth has any legal right to free terrorists as a “goodwill gesture,” or as a “gesture for peace.” Terrorism is a criminally sanctionable violation of international law, a wrong that is never subject to any sanitizing manipulations by individual countries, however well-intentioned. In the United States, the president's power to pardon purposefully excludes any violations of international law.

In its original capture and punishment of Palestinian terrorists, Israel had effectively acted on behalf of all nations. Because some of these terrorists had also committed crimes directed against other states, Israel cannot now permissibly pardon these offenses contra other sovereigns. Although Prime Minister Netanyahu's next terrorist release would not, strictly speaking, represent a genuine “pardon,” it would still have the identical legal effect.

Under international law, Prime Minister Netanyahu's planned end-of-month release of Palestinian terrorists, essentially analogous to a mass pardoning of international criminals, would implicate the Jewish state for a “denial of justice.” This could have distinctly injurious new consequences. For one, any such Israeli freeing of terrorists would further undermine the Jewish state's binding legal obligation to incapacitate violent criminals from committing additional acts of barbarism and mass murder.

Will Netanyahu continue with inexcusable Israeli violations of law and justice by releasing still more Arab terrorists? If he does, his country will then fully deserve to be called a “crazy state.”

Louis René Beres was educated at Princeton (Ph.D., 1971), and is Professor of Political Science and International Law at Purdue University. He is the author of ten major books, and several hundred scholarly articles, dealing with terrorism, war, and international law. His popular essays and opinion columns have been featured in The Atlantic, The Jerusalem Post, The New York Times, Christian Science Monitor, Los Angeles Times, US News & World Report, The Washington Post, Ha'aretz and Israel National News. Dr. Beres was born in Zürich, Switzerland, at the end of World War II.