Nullum crimen sine poena! "No crime without a punishment." This major principle of law, essential to civilized international relations, obligates all states - but especially a global superpower - to seek out and prosecute the perpetrators of crimes of war, crimes against peace and crimes against humanity. Today this obligation extends as well to crimes of terrorism. It is more than a little ironic, therefore, that Yassir Arafat, during the first week of October 1996, was hosted ceremoniously by the President of the United States at a summit with the Israeli Prime Minister. Understood in terms of international law, in particular Article 53 of the Vienna Convention on the Law of Treaties, this formal welcome represented a clear assault upon elementary principles of justice. Conflicting with what international lawyers call a "peremptory" or jus cogens norm, the principle of "no crime without a punishment," this indecent event should not have taken place. Instead, United States authorities were obligated under national and international law to arrest and prosecute Yassir Arafat.
Why, exactly, did the United States have such a responsibility? The answer lies in pertinent facts concerning Arafat's particular role in terrorist crimes and in applicable rules of law. Regarding facts, the criminal record of Arafat's Fatah branch of P.L.O. is well documented. For example, on March 5, 1975, eight members of Fatah attacked the Hotel Savoy in Tel-Aviv, a terrorist assault that left eight hostages killed, including a Dutch boy of fifteen, a German national, a Swiss citizen, and a Somali. The Fatah group's objective, according to the operation's leader, was to sabotage talks between Israel and Egypt that were about to get underway.
On November 13, 1975, a twenty-three pound bomb exploded in front of a Jerusalem coffeehouse, killing seven and injuring forty. Yassir Arafat's Fatah claimed credit, saying that it was "commemorating" their leader's U.N. address of the year before. Also being celebrated by the terrorist attack was the passage of three pro-Palestinian resolutions in the United Nations, including the "Zionist = Racism" statement.
On March 11, 1978, Fatah terrorists used a raft to land on a northern coast Israeli beach, seized a tour bus filled with women and young children, and left forty-six dead and eighty-five wounded before being stopped. Earlier in the operation, before taking the bus, the terrorists shot and killed an American woman walking on the beach. Thereafter, halting a taxi, they killed all passengers, later justifying the multiple murders with quotes from the Koran. The operation, like so many others, had been approved by Yassir Arafat.
After the assassination of terrorist Yechya Ayyash, known generally as "The Engineer," Yassir Arafat delivered a eulogy in Dura, near Hebron. Speaking before a large crowd of Hamas supporters (supporters allegedly at odds with the Palestinian Authority), Arafat praised all "Palestinian martyrs," including those who had murdered Israeli women and children in schools, buses and homes. Referring to the imminent takeover of Jerusalem from "the Jews," Arafat expressed confidence that, "../...in a few months, we will 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."
At a eulogy offered on June 15, 1995, for Abed Al Karim Al Aklok, a former PLO official, Arafat remarked: "We are all seekers of martyrdom in the path of truth and right toward Jerusalem, the capital of the State of Palestine../..../..We will continue this difficult Jihad, this long Jihad, this arduous Jihad, in the path of martyrs - via death - the path of sacrifice../..../.." On January 30, 1996, speaking to forty Arab diplomats at the Grand Hotel in Stockholm, Sweden, Arafat's topic was: "The Impending Total Collapse of Israel." Said the PLO Chief: "We Palestinians will take over everything, including all of Jerusalem../..../..All the rich Jews who will get compensation will travel to America." Further, "We of the PLO will now concentrate all our efforts on splitting Israel psychologically into two camps. Within five years we will have six to seven million Arabs living on the West Bank and in Jerusalem../..../..You understand that we plan to eliminate the State of Israel and establish a purely Palestinian State../..../..I have no use for Jews; they are and remain Jews. We now need all the help we can get from you in our battle for a united Palestine under total Arab-Moslem domination."
Conventional wisdom has it that PLO opposes Hamas and that the two terrorist organizations are altogether different and discrete. Nothing could be further from the truth. According to the September 1995 PLO-Hamas understanding, Hamas commits itself to refrain from terrorism only in PLO-controlled areas. Arafat, in turn, recognizes Hamas, Islamic Jihad, the PFLP and DFLP as a legitimate opposition, reaffirming the predominance of inter-Palestinian solidarity over PLO-Israel relations. Here, the observations of Yoram Ettinger, former Minister for Congressional Affairs at Israel's Washington embassy, are instructive:
In defiance of his commitments to the US and Israel,
but consistent with his initial September 1993
understanding with Hamas, Arafat has agreed that
Hamas' presence in the PLO-dominated areas will not
be dismantled, nor will its firearms be confiscated,
nor will its terrorists be extradited. As a
confidence-building measure, Arafat has released
from prison Hamas leaders Mahmud A-Zahr, and Ahmad
Bahr, and has pressured Prime Minister Peres to set
free Gaza's own blind sheikh, Ahmed Yassin, the
spiritual leader of Hamas terror. None of them has
renounced the pursuit of Israel's destruction.
Now, regarding renunciation of the PLO Covenant commitment to Israel's destruction, it is important to point out that such an essential doctrinal transformation has yet to take place. The decision made by the Palestinian National Council (PNC) on April 24, 1996 concerning the PLO Covenant does not satisfy the obligation laid down in the Israel-Palestinian Interim Agreement (Oslo II). The PNC did not actually amend the Covenant, but merely approved in principle that changes would be made. No specific clauses for amendation were identified by the PNC, no specific procedures, and no specific deadlines. To fulfil the obligation set out in Article XXXI(9) of Oslo II, the PNC must complete the changes by May 7, 1996.
It would appear, recalling Mark Twain, that news that the pertinent clauses of the PLO Covenant have "died" is greatly exaggerated. According to THE JERUSALEM POST:
Yasser Arafat's ability to get an overwhelming
majority of Palestine National Council members to
support changing this seminal PLO document, and the
vagueness of the announcement on Wednesday night
(that the Covenant had in fact already been changed)
served to obscure a central fact: The PNC
resolution was no more than a decision to make
changes in the Covenant. What precisely these
changes will be, and what the new version will say,
is still anyone's guess.
These are representative facts. What is the law? Consider the following: When the victorious allied powers established a special military tribunal at Nuremberg on August 8, 1945, they reaffirmed the ancient principle of "no crime without a punishment." In 1946, this reaffirmation was underscored in Principle I of the binding Nuremberg Principles: "Any person who commits an act which constitutes a crime under international law is responsible therefore and 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 the 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 political tradition. By codifying the principle that basic human rights are now "peremptory," that they cannot be traded off for reasons of political expedience or Realpolitik, the Nuremberg obligations reflect perfect convergence between international law and the law of our American Republic. Of course, all international law is part of the law of the United States, an incorporation expressed by Article VI of the U.S. Constitution and by associated Supreme Court decisions.
But what of the generic argument that international law now permits insurgent force that is directed toward support of peremptory norms? It is certainly correct that international law has consistently proscribed particular acts of terrorism. Yet, it has, at the very same time, entitled insurgents to the right to use certain levels and types of force against a regime that represses their fundamental human rights, especially "self-determination," "independence," and "national liberation." Isn't Fatah, therefore, an authentic national liberation movement, operating within the bounds of permissibility under international law?
To answer this question, two criteria must be examined: just cause and just means. These criteria allow us to distinguish a lawful insurgency from terrorism. The principle of just cause maintains that an insurgency may exercise law-enforcing measures under international law where an individual state deprives the pertinent group of peremptory human rights. To qualify as lawful insurgents, however, this group must also display appropriate respect for humanitarian international law - i.e., just means. It follows that in order to determine whether a particular group satisfies the requirements of a lawful insurgency, its resort to force must be tested against the expectations of discrimination, proportionality and military necessity. Terrorism is underway whenever the group engages in campaigns of force directed against broad segments of the general population, campaigns that blur the essential distinction between combatants and noncombatants. Similiarly, the group becomes terroristic once it begins to apply force to the fullest possible extent, restrained only by the limits of available weaponry. This suggests that national liberation movements that fail to meet settled and codified restraints of the laws of war are not protected as legitimate or permissible. The ends do not justify the means. As in the case of war between states, every use of force by insurgents must be judged twice; once with regard to the justness of the objective, and once with regard to the justness of the means used in pursuit of that objective.
Terrorist crimes, as part of a broader category called crimen contra omnes (crimes against all) by the lawyers, mandate universal cooperation in apprehension and punishment. In this connection, as punishers of "grave breaches" under international law, all states are expected to search out and prosecute, or extradite, individual perpetrators. According to Article 146 of the Fourth Geneva Convention, from which this expectation is deducible:
Each High Contracting Party shall be under the
obligation to search for persons alleged to have
committed, or to have ordered to be committed, such
grave breaches, and shall bring such persons,
regardless of their nationality, before its own
courts. It may also, if it prefers, and in accordance
with the provisions of its own legislation, hand such
persons over for trial to another High Contracting
It is arguable, on the other hand, that legal obligations must be understood within broader considerations of peace, and that in cases such as this one - the case of Yassir Arafat, Fatah terrorism and agreement with Israel - justice must yield to pragmatism. Here, of course, the law must become a mere pawn of the moment, and, over time, must be eroded altogether. Either international law, which is an integral part of United States law, is to be taken seriously or it is to be degraded for implementation of other "needs." Should it be taken seriously in the matter before us, as indeed it must, invalid agreements with the Palestine Liberation Organization must now be supplanted by the criminal prosecution of Yassir Arafat within any national court. As a professor of international law living in the "real world," I am under no illusions that this will actually happen, but I have now at least fulfilled my responsibilities in expressing what should be done.
LOUIS RENE BERES (Ph.D. Princeton) is the author of fourteen books and several hundred scholarly articles dealing with international law. His newest book is titled: FORCE, ORDER AND JUSTICE: INTERNATIONAL LAW IN AN AGE OF ATROCITY (Transnational Publishers; forthcoming).