Two Articles by Louis Rene Beres
POLLARD AND ARAFAT: AN IRONIC INVERSION OF JUSTICE
PRESIDENT CLINTON'S INVITATION TO ARAFAT VIOLATES U S LAW
Professor of International Law
Yasser Arafat will arrive at the White House on March 3. Despite his documented responsibility for multiple crimes against humanity, and despite the American constitutional obligation to punish such crimes, he will be treated by the President of the United States as an honored guest of this country, entitled to all of the perquisites accorded to a noncriminal head of state. At the same time that Arafat will be dining in great opulence with Mr. Clinton, Jonathan Pollard - a former U.S. naval intelligence officer who sought to save Israel from catastrophic war and terrorism - will remain mired in very dreadful conditions of imprisonment.
Pollard was sentenced to life in prison for transferring classified information to Israel about Arab military forces. Now in the twelfth year of his sentence, Pollard has already served more than twice as long as
anyone else convicted of a comparable crime. On July 26, 1996, President Clinton declined Pollard's third request for clemency, arguing that the prisoner is still a threat to America's national security. This argument, together with the other reasons given for refusal of Pollard's petition for commutation - namely, "the enormity of his crime" and "his lack of remorse," flys in the face of all pertinent facts.
But to understand the truest perversions of justice associated with this case, one has to compare Pollard's treatment for trying to save Israel from existential harms to President Clinton's reception of Yasser Arafat, the leading terrorist murderer of both American and Israeli citizens. While Pollard endured five years in isolation at the tough Marion Prison in Illinois, and before that, incarceration in a hospital for the criminally insane in Springfield, Missouri, PLO Chairman Arafat will soon be feted again at the White House as a "champion of peace." Even more ironically, the reception of terrorist Arafat at the White House will again follow Israel's lead in the matter, an incomprehensible inversion of justice by Prime Minister Benjamin Netanyahu.
Under authoritative international law, which is part of the law of the United States, neither the President of the United States nor a prime minister of Israel has any authority to pardon a known perpetrator of
terrorist crimes. Rather, these leaders are under a distinct and unyielding obligation to bring all such criminals to prosecution. These facts notwithstanding, leaders of Israel and of the United States still refuse to bring Yasser Arafat to trial in their respective countries and, at the same time, effectively pardon this patron of monstrous Nuremberg-category crimes by immunizing him from arrest and by embracing him (literally) in public ceremonies. If this were not odd enough, Arafat, less than six months ago, released 72 Islamic militants in an effort to pressure and punish Israel, a release of those very terrorists who had been detained for the unspeakable bombings of civilians in Tel Aviv and Jerusalem last February and March.
Tell me, President Clinton and Prime Minister Netanyahu, where is justice for Leon Klinghoffer, thrown in his wheelchair from the deck of the cruise ship Achille Lauro, or for the scores of Jewish children murdered last year on the eve of the Purim holiday while shopping for costumes? How would you feel, Mr President and Mr Prime Minister, if the killers of your children were released from detention only months after their so-called "arrest," and if the terrorist responsible for this release (not to mention
responsible for dozens of previous terrorist crimes) were then acknowledged by world leaders as a senior statesman and as a "partner in peace?" Would it impact your feelings that Yasser Arafat was a recipient of the Nobel Peace Prize, or would it not be apparent that the prize itself had become defiled, an inconceivable abomination of justice beside which Pollard's crime must pale altogether?
Jonathan Pollard was guilty of a serious crime, and it was just that he be arrested and punished. But the politically- determined excessiveness of his sentence has already become a stain on American justice, especially when it is compared to sentencing in similar cases of spying for friendly countries in U.S. courts and to ongoing U.S. Government perversions of justice in matters involving Yasser Arafat and egregious terrorist criminality. Today, Jonathan Pollard is fully remorseful for his wrongdoings, and accepts that these crimes - however well intentioned and understandable - warranted punishment. Yet it is hardly just that he should be denied parole or pardon at the same time that his country treats other American spies with substantially less severity and accords the world's leading terrorist - in utter defiance of national and international law - substantial deference and independence.
Jonathan Pollard violated U.S. law and deserved punishment. But it is wrong, unimaginably wrong, that his illegal efforts to save Israel from destruction (a goal of U.S. foreign policy) should lead to a lifetime of imprisonment while the criminal efforts of one who actively seeks Israel's annihilation now produce gala receptions in Washington. For the moment, the absurdities of Clinton justice, reinforced from Jerusalem, are triumphant in this ironic matter, but there is still ample opportunity for the triumph of real justice. By recognizing that Pollard has now served adequate prison time for his crime, President Clinton could commute the sentence to time served and proceed to deal with a far more urgent instance of criminality - the past and future terrorist murders authorized by his honored guest Yasser Arafat.
Professor of International Law
International law is an integral part of United States law. According to international law, the deliberate failure to arrest and prosecute terrorists is a serious violation. It follows that President Clinton's formal invitation to the world's principal terrorist, Yassir Arafat, to visit the White House on March 3 is illegal under our domestic law.
When the victorious allied powers established a military tribunal at Nuremberg on August 8, 1945, they reaffirmed the ancient principle of Nullum Crimen Sine Poena, "No crime without a punishment." In 1946, this reaffirmation was underscored in Principle I of the Nuremberg Principles: "Any person who commits an act which constitutes a crime under international law is responsible therefore and is liable to punishment." These Nuremberg Principles were later formulated by the United Nations International Law commission, at the request of the General Assembly, in 1950, stipulating: "Offenses against the peace and security of mankind../...are crimes under international law, for which responsible individuals shall be punished."
For the United States, the Nuremberg obligations to bring terrorist criminals to trial are doubly binding. This is because these obligations represent not only current obligations under international law, but also the obligations of a higher law embedded in the United States legal tradition. By codifying the principle that human rights are now "peremptory," that they cannot be traded off for reasons of political expedience, the Nuremberg obligations reflect perfect convergence between international law and the law of our American Republic. All international law is part of the law of the United States.
For more than two thousand years, the idea of a Higher Law has served as the ultimate jurisprudential standard of right and wrong, as the final determinant of true law as opposed to edicts based only upon raw power. Already apparent in the ANTIGONE of Sophocles and the ETHICS and RHETORIC of Aristotle, this idea - tied closely to theology for many centuries - has effectively placed law above lawmaking. At the same time, it is obvious that humankind has not only been indifferent to Higher Law, but has often coupled this indifference with adherence to undiscovered "laws" that reject justice. Here we may recall Pascal's observation: "It is odd, when one thinks of it, that there are people in the world who, having renounced all the laws of God and nature, have themselves made laws which they rigorously obey../..../.."
But what of Yassir Arafat? His criminal record of terrorism extends from the persistent murder of Israeli civilians, including the 1974 Maalot slaughter of twenty-two schoolchildren, more than twenty years ago, to the authorization of lasy year's bus bombings in Tel Aviv, Ramat Gan and Jerusalem. After the assassination of Palestinian terrorist Yechya Ayyash, known generally as "the Engineer," the "President of Palestine" delivered a eulogy in Dura, near Hebron. Speaking before a large crowd of Hamas supporters (supporters the Western press still likes to believe are at odds with the Palestinian Authority), Arafat praised all "Palestinian martyrs," including those terrorists who had slain Israeli women and children in schools, buses and homes. Referring to the "imminent" takeover of Jerusalem from "the Jews," he expressed confidence that, "../...in a few months, we will all pray together at the Al-Aksa Mosque," adding that "those who don't like it can go and drink the water of the Dead Sea."
Does Arafat deny his leadership in directing terrorist attacks? Not at all. In the words of Dr. Ahmad Tibi, his most senior adviser: "The person responsible on behalf of the Palestinian people for everything that is done in the Israeli-Palestinian conflict is Yassir Arafat." Lest we forget, this same Arafat also gave his blessings to crimes of war, crimes against peace and crimes against humanity - all Nuremberg crimes - committed by Saddam Hussein during the 1991 Gulf War. Perhaps President Clinton should now recall that units of Arafat's Palestine Liberation Army (PLA) actually served with Saddam's forces in occupied Kuwait, making the PLO Chairman (who physically embraced Saddam in Baghdad) complicit in multiple crimes of extraordinary horror and ferocity. In this connection, the President might also recall his obligation, as commander in chief, not to heap indignities upon American Gulf War veterans by now ceremoniously hosting Saddam's terrorist ally at the White House.
Some will argue, of course, that President Clinton needs to be "realistic." After all, whether we
like Arafat or not, the U.S. will need to deal with him in order to bring peace to the troubled
Middle East. Here, the argument goes, justice will simply have to yield to peace. It is a
misconceived argument, however, because a realistic peace can never be founded upon injustice.
It is precisely this understanding that lies at the heart of authoritative international law on the
punishment of terrorist crimes. Most important of all, President Clinton has absolutely no right to
violate this law, which remains a binding and integral part of the law of the United States.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) is Professor of International Law in the Department of Political Science, Purdue University and is the author of many books and articles dealing with international law. His work is well-known to Prime Minister Netanyahu.