PRAYING WITH ARAFAT

LEGAL REMEDIES FOR PRESIDENTIAL
AND CONGRESSIONAL HARMS

By Louis Rene Beres

Yasser Arafat, a long­time terrorist, has been an honored guest at the White House on several occasions. He will return again to Washington on February 4th, when he will meet privately with President Clinton. This meeting is scheduled to follow Arafat's invited speech before the Congressional Prayer Breakfast. No representative from Israel has been asked to attend.

This visit, even more than its several predecessors, will represent a serious violation of international law. Moreover, as all international law is a part of the law of the United States, Presidential and Congressional reception of Arafat will be a serious crime under American law ­ a boldfaced rejection of both Article 6 of the U.S. Constitution and of several major decisions of the Supreme Court. While Senators and Congressmen repeat the daily mantra of concern for our Constitution in the trial of William Jefferson Clinton, they now prepare to undertake a much more substantial breach of justice on February 4th.

Neither President nor Congress has been particularly animated by considerations of law on matters of terrorism. But this does not mean that Arafat ­ the documented murderer of Israeli schoolchildren at Ma'alot (by literally cutting their throats) and of American diplomats at Khartoum ­ is immunized against all legal remedy. There are provisions under this country's laws, Presidential and Congressional disregard notwithstanding, to use United States courts to enforce human rights standards identified by international law. These provisions follow a law known as the Alien Tort Statute.

Under this eighteenth­century legislation passed by the First Congress in 1789, federal district courts have "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Significantly, this law is currently being used to bring a civil suit against Dr. Radovan Karadzic, leader of the Bosnian Serbs. Endorsed by the Clinton administration, this suit, brought by two plaintiffs known only as Jane Doe 1 and Jane Doe 2, uses United States courts to remedy another category of crimes against humanity.

The Alien Tort Statute authorizes the United States federal courts to deal with civil claims by aliens alleging acts committed against international law when the alleged wrongdoers can be found in the United States. This means that terrorists like Yasser Arafat, when within the territorial jurisdiction of this country, can be brought before our federal courts for civil remediation of their unspeakable crimes. As a practical matter, this would require an interested foreign national ­ most plausibly a citizen of Israel with some direct link to an Arafat­engineered act of criminality ­ to serve papers upon the PLO terrorist leader.

There are some special ironies in the current United States invitation to Yasser Arafat. The Palestinian Authority, which he chairs, has just released Abdallah al­Shami, one of the leaders of Islamic Jihad in Gaza. Al­Shami was detained a month ago after engaging in incitement to murder President Clinton on his recent visit to Gaza. Although he stated openly that he would be "happy if the American President were to be killed during his visit to the Palestinian Authority areas," Chairman Arafat freed al­Shami on the occasion of Muslim holiday celebrations.

Yasser Arafat is guilty of other pertinent categories of criminality as well. The PLO Chairman gave his blessings to numerous crimes of war, crimes against peace and crimes against humanity committed by Saddam Hussein during the Gulf War ­ a war in which soldiers of the United States fought bravely and at considerable personal cost. In case the President and Congress may have forgotten, units of Arafat's Palestine Liberation Army (PLA) served with Saddam's forces in occupied Kuwait, making them actively complicit in multiple mean crimes of extraordinary horror and ferocity. Regarding Arafat's direct responsibility for PLO crimes, official voices within the PLO not only accept this responsibility of their Chairman, they celebrate it. On July 13, 1994, Dr. Ahmad Tibi, senior advisor to Arafat, stated: "The person responsible on behalf of the Palestinian people for everything that was done in the Israeli­Palestinian conflict is Yasser Arafat...."

In theory, a United States led by a law­abiding President and Congress could provide venue for criminal prosecution of Yasser Arafat's crimes within our federal courts. American federal law confers jurisdiction "to try any person who, by the law of war, is subject to trial by a military tribunal...." Additionally, federal law grants jurisdiction to the federal district courts for all offenses against the laws of the United States. Since the United States was founded, we have reserved the right to enforce international law within our own courts. For a President of the United States who may have forgotten the Constitution, Article 1, Section 8, Clause 10 confers upon Congress the power "to define and punish piracies and felonies committed on the high seas and offenses against the law of nations."

It is sad, to be sure, that an American President and Congress remain so woefully indifferent to international and national law. It is tragic, nothing less than tragic, that the people's White House and Congress will be darkened by the visit of an especially malevolent terrorist. But it will be inexcusable, absolutely beyond pardon, that this honored guest of the United States, after praying with the President and Members of Congress, shall be able to exit our shores again without even any hint of legal interference by law­enforcing remedy. In the future, in the face of persistent official unwillingness to remember that international law is part of our law, civil remediation by means of the Alien Tort Statute may represent the last hope for decency and justice in Washington. It is a fitting irony that such a remedy, impractical as it is, would have to be applied by a citizen of another country.

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LOUIS RENE BERES (Ph.D., Princeton, 1971) is the author of fourteen books and several hundred journal articles dealing with international law. His next book is titled FORCE, ORDER AND JUSTICE: INTERNATIONAL LAW IN AN AGE OF ATROCITY.


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