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Commentary

Put Arafat on Trial or Leave Him Be

September 28, 2003|Aryeh Neier | Aryeh Neier is president of the Open Society Institute and former executive director of Human Rights Watch.

Israel would love to remove Yasser Arafat from the Palestinian territories, and it is easy to understand why. More than 800 Israelis have been murdered in the second intifada, mostly in suicide bombings, since it began three years ago. Obviously, the Palestinians who strap bombs to their torsos and blow themselves up cannot be held accountable. But those who instigate, plan and abet these crimes must be punished. And many people believe that Yasser Arafat is at the very least an enabler or, at worst, an active accomplice.

Nevertheless, Israel's apparent decision to expel or even possibly kill Arafat is a mistake. Such extrajudicial actions are tricky and often backfire. Because they are not backed by the rule of law, they often play right into the hands of the terrorists, who count on their enemies to respond in a way that weakens their claims to moral authority.

If the Israeli government has evidence that Arafat aided these terrorists in any way, it should put him on trial for his part in the carnage. The evidence should be presented, Arafat and his lawyers should have a chance to respond, and a court should weigh the facts impartially until a verdict is reached. Otherwise, Israel cannot expect to be seen as a just society.

If, on the other hand, Israel's complaint against Arafat is that he has not used his power, prestige and influence among Palestinians to put an end to the bombings, then the Israelis have to think about whether to take any action at all.

A sin of omission is morally and politically reprehensible, but it does not constitute criminal guilt.

Consider an analogy. Dwight Eisenhower was president of the United States half a century ago when the Supreme Court handed down its historic decision requiring desegregation of the schools. If Eisenhower had spoken out forcefully in support of the decision, which his own attorney general, Herbert Brownell, helped bring about, it is possible that the South's "massive resistance" against the decision -- including much violence against African Americans and civil rights workers -- would never have occurred.

Yet Eisenhower never once during his presidency said a word in support of the content of the decision, limiting himself only to assertions that court orders must be obeyed. Would his sin of omission warrant criminal punishment? I doubt that anyone would seriously say so.

Expelling Arafat would be a grave error for several reasons. It would be a political mistake because it would liberate Arafat to travel without restraint to rally opposition to Israel, and it would probably further enhance his prestige among Palestinians. It would be a moral mistake because it would deprive Palestinians of their right to select their own leader, however flawed. And it would be a legal mistake because it would amount to an admission that the Israelis lack the evidence to put Arafat on trial for involvement in terrorism. Also, it would violate Israel's duty as an occupying power under the Fourth Geneva Convention not to transfer any Palestinians out of the territory it occupies.

While reconsidering its response to Arafat, Israel should think through its policy of targeted assassinations of Hamas and Islamic Jihad leaders. Presumably, Israel does have the goods on these people -- but again, the question arises as to why they are not put on trial in an Israeli courtroom.

This is a more complicated case than the question involving Arafat because of the obvious difficulty and risks involved in seizing terrorists to try them. But legal means are far preferable to Israel's current strategy. The slaughter of innocents that accompanies a missile attack against a Hamas leader on a busy Gaza street or in a crowded apartment house is both objectionable and counterproductive.

Perhaps Israel sees the Islamic militants not as criminals but as combatants -- though combatants who do not abide by the rules of war. Israel's efforts to kill them, and the inevitable concomitant deaths of members of their families and other noncombatants unlucky enough to be in their vicinity, suggest that this is the case. But in treating terrorists as combatants of any sort, Israel implicitly accepts that it is at war. And in a war, although attacks on Israeli civilians would be considered war crimes, Israeli soldiers could be considered legitimate targets.

Coping with terrorism is never simple. Since its invention in czarist Russia in the 19th century, its theorists and perpetrators have counted on the states they seek to destabilize to respond in ways that undermine their own legitimacy. Reacting in a manner that is both effective and avoids that trap is a great challenge.

To the extent that it can be done, the best way seems to be to rely on legal process even in the face of provocations that are contemptuous of all law. That is the challenge that the Israeli authorities should attempt to meet.

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