On Munich, Abu Daoud and Jewish Justice: Some Considerations From International Law

Palestinian terrorist mastermind Mohammed Oudeh (Abu Daoud), planner of the 1972 Munich Olympics massacre which left seventeen people dead - including eleven Israeli athletes - holds a VIP pass issued by Israel. Presently in Jordan, Daoud would like to cross from that country through Israel in order to enter Palestinian Authority (PA) territory. Fearful of an Interpol arrest warrant issued at the request of Germany, Daoud now seeks safety at his residence in PA-controlled Ramallah.

A complex legal issue arises. Palestinian officials have already begun to try to cancel the German warrant, which is based on the principle of territorial jurisdiction (the 1972 hostage-taking and murder took place in Munich.) The Jordanians, formally at "peace" with Israel, are not interested in bringing a Palestinian terrorist to justice, least of all in Israel or in the United States. The Americans are involved in a direct, legal sense, largely because one of the murdered athletes, David Berger, was a dual American-Israeli citizen from Cleveland. U.S. laws permit the prosecution, in this country, of anyone who kills an American citizen abroad. This follows from traditional bases of international law that afford prosecutorial jurisdiction, in certain circumstances, based upon nationality of the victim.

And then there is Israel. For now, it has decided to ban the entry of Very Important Person Abu Daoud into Israel, and is urging the Clinton administration to demand that Jordan surrender Daoud for prosecution in the United States. Alternatively, Jerusalem could have authorized passage through Israel as an opportunity to arrest Daoud themselves, and thereby enforce the authoritative expectations of international law.

Would such a plan be devious and dishonest? Would it in some way reflect a manipulation of international law? Hardly. In 1973, Israeli agents, including Prime Minister-elect Barak, assassinated virtually all PLO-members involved in the Munich massacre. In view of the decentralized nature of world authority and the corollary incapacity of that authority to bring terrorist murderers to justice, these assassinations were undoubtedly law-enforcing rather than law-violating. Acknowledging the peremptory principle of Nullum crimen sine poena, "No crime without a punishment," the government of Golda Meir understood that the only alternative to extra-judicial punishment of the murderers would have been to leave them unpunished. It follows that if assassinations of terrorists in 1973 were lawful instances of justice and counterterrorism, the formal arrest of a terrorist mastermind for judicial punishment would certainly be entirely permissible. In this connection, Israel could try Abu Daoud in a fashion similar to its earlier trial of Nazi War Criminal Adolph Eichmann, although - as a practical matter - such a legal proceeding would not sit well with the expectations of Oslo and the Middle East "Peace Process." Moreover, according to traditional bases of jurisdiction in international law, the Germans have a superior right to prosecute Daoud (the Israeli right, like the American, would stem from the nationality of the victims and, conceivably, from the jurisprudentially more complicated principle of "universal jurisdiction" over Hostes humani generis, "Common enemies of humankind."

How will this all end? Only one thing can be predicted with certainty. Whatever is done will be done for considerations of Realpolitik. Whatever is done will be done for political rather than legal reasons. From the standpoint of law, however, it is essential that Daoud be prosecuted, in one jurisdiction or another, for his openly admitted crimes.

Every state has an obligation under international law to seek out and to help prosecute terrorists. This obligation derives from a long-standing principle known as Nullum crimen sine poena, "No crime without a punishment." It is codified directly in many different sources, and has origins in the ancient Jewish law of exact retaliation, or Lex Talionis, which is presented in three separate passages of the Torah. It is also deducible from binding Nuremberg Principle Number 1: "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment."

No government on earth has the right to pardon or grant immunity from prosecution to terrorists with respect to criminally sanctionable violations of international law. In the United States, it is evident from the Constitution that the President's power to pardon does not encompass violations of international law, and is limited to "Offenses Against the United States." This limitation derives from a broader prohibition that binds all states, including Jordan, Israel and the United States, namely the persistently overriding claims of Higher Law or the Law of Nature. Although indifference to Daoud's arrest and prosecution by Jordan, Israel and/or the United States would not, strictly speaking, represent exercise of the pardoning power, it would have precisely the same effect.

There is one last point - a point specifically about Israel and Jewish justice. The ancient Hebrews viewed the shedding of blood by criminals as an abomination that requires not only punishment, but also expiation by a parallel shedding of blood: "You shall not desecrate the land where you live," we learn from Numbers 35:33, "since bloodshed desecrates the land, the land can have no atonement for the blood shed on it except through the blood of him who shed it."

Today, Israel offers the murderers of its Jewish citizens a VIP pass. Today, Israel has forgotten entirely the rudiments of Jewish justice. The consequences of such a devastating lapse of memory now include nothing less than a probable renewal of terrorism against Israel.

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