Israel's plan to free Palestinian prisoners is foolish – and illegal

Outgoing Israeli Prime Minister Ehud Olmert intends to free 230 Palestinian prisoners Monday – a "gesture of goodwill" toward the Mahmoud Abbas-led Palestinians. We shouldn't worry, we're told, because the men belong to the "moderate" Fatah, not Hamas or Islamic Jihad, are "without blood on their hands," and must sign a commitment not to return to violence.

Make no mistake: These outlaws are, to all intents and purposes, terrorists bent on Israel's destruction. And, if past is prologue, Israel can expect more terror as a result of this appeasement.

A formal agreement from terrorists not to terrorize is a silly document. Likewise, the presumption that a Fatah-led "Palestine" would be better for Israel is plainly wrong. Fatah's present statements may be moderate, but its past and its hoped-for future tell a different story. In its bloody history of violence against Israelis, Fatah is essentially indistinguishable from Hamas. And a glance at official Palestinian maps of "Palestine," which encompass all of Israel, shows what it really thinks of the "two-state solution."

Mr. Olmert's gesture is based on the vain hope that Palestinian Authority President Abbas now seeks real peace with Israel. Such hope is unfounded, but keeping it alive could be helpful to Olmert's Kadima Party and prime ministerial hopeful Tzipi Livni in the Feb. 10 elections. Yet his gambit is not only bad politics; it arguably violates international law in several respects.

First, every nation has a primary legal obligation to protect its citizens. The prisoner release flouts that solemn duty.

Second, every state has an obligation to prosecute and punish terrorists. This is codified in many authoritative sources, and is also deducible from the binding Nuremberg Principles (1950). According to Principle 1: "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment."

Terrorism is a serious crime under international law. The precise offenses that make up this crime can be found at The European Convention on the Suppression of Terrorism. International law presumes solidarity between states in the fight against crime, including the crime of terrorism. This presumption is mentioned in Hugo Grotius's "The Law of War and Peace" (1625).

Although Israel has clear jurisdiction to punish crimes committed on its territory, it also has the right to act under broader principles of "universal jurisdiction." Its case for such jurisdiction, which derives from an expectation of interstate solidarity, is found in the four Geneva Conventions of Aug. 12, 1949. These conventions impose upon the high contracting parties the obligation to punish "grave breaches."

No government has the legal right to free terrorists as a goodwill gesture. In America, it is clear from the Constitution that the president's power to pardon does not encompass violations of international law. It's limited to "offenses against the United States." To the extent that President Bush should concur in Olmert's asymmetrical deal with Fatah – effectively an American act of complicity with terrorists – the US would be in violation of international law.

In capturing and punishing Arab terrorists, Israel acted on behalf of all states. Because some of the terrorists had committed crimes against other states, Israel cannot pardon these offenses against other sovereigns. Although Olmert's latest terrorist release does not, strictly speaking, represent a "pardon," it will have the same effect.

No state possesses the authority to pardon violations of international law, regardless of what might be permissible under domestic laws. The principle is also established in law that, by virtue of such releases, the releasing state itself must assume responsibility for past criminal acts and for future ones.

That's why Monday's release could implicate Israel for a "denial of justice." This could have profound security consequences for both the US and Israel. Although punishment does not always deter crimes, this freeing of terrorists will undermine the Jewish state's legal obligation to incapacitate violent criminals from committing new acts of mass murder. It needs to be stopped.

• Louis René Beres is a professor of international law at Purdue University and the author of many books and articles about international criminal law.