When the victorious allied powers established a 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 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, an incorporation expressed by Article VI of the U.S. Constitution and by several associated Supreme Court decisions. It is time for President Clinton, and for all American citizens, to recall the words used by the U.S. Supreme Court in The Paquete Habana (1900), the leading case concerning the authoritative quality of international law for this country: "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction../..../.."
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 recent bus bombings in Tel Aviv 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 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 a White House summit.
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) and is author of fourteen major books and several hundred scholarly articles on international law.