Jerusalem (CNS) Germany's issue of an international warrant for the arrest of the Palestinian planner of the 1972 Munich Olympics attack has focused attention on the moral and legal implications of Israel's decision six years ago to amnesty PLO members involved in terror.
Germany wants to put Abu Daoud, a member of Yasser Arafat's Fatah organization, on trial for masterminding the hostage-taking. The assault ended in the deaths of 11 Israeli athletes, and cast a pall over Germany's first bid to host the Olympics since the 1936 Games had been overshadowed by the Nazis.
Prompted by the arrest warrant, and reluctant to risk a diplomatic row with either Germany or the Palestinian Authority, the Israeli government this week banned Abu Daoud, 62, from crossing the Israeli-controlled border from Jordan into Palestinian Authority areas, and revoked his VIP travel pass.
In 1996, Israel's Labor government granted Abu Daoud permission to enter the self-rule areas to participate in a Palestine National Council meeting. After the session he asked to remain, and was allowed to do so.
Since then he has lived in the PA-ruled town on Ram'Allah, just north of Jerusalem. Until recently, his key role in the Munich affair was not widely known.
The Israeli government was aware, however, as were the families of victims of the Munich assault, who protested to then Prime Minister Shimon Peres when he allowed Abu Daoud to enter.
CNS reported on May 5 that Abu Daoud admitted in a recently-published autobiography to have planned the hostage-taking as an attempt to win the release of imprisoned Palestinians.
He also confirmed that Arafat was briefed on the mission.
Prime Minister Binyamin Netanyahu's office said the decision to bar entry to Abu Daoud was taken after consultations with the outgoing foreign and justice ministers, and Israel's Attorney-General, Elyakim Rubinstein.
Abu Daoud, whose real name is Mohammed Auda, has been travelling abroad and is currently in Jordan. He said he would petition the Israeli High Court to overrule the government decision, and PA officials indicated they would press Germany to rescind the warrant.
The interim bilateral agreement signed between Israel and the Palestinians the Oslo Accords stipulated that Palestinians from abroad whose entry was approved would "not be prosecuted for offenses committed prior to September 13, 1993."
Israeli political analyst Aaron Lerner said the moment Peres allowed Abu Daoud to enter the country for the PNC session, Israel was no longer able to prosecute him.
Lerner told CNS that the PA could also argue that, according to the wording of the agreement, Israel could neither be a party to the prosecution by extraditing the suspect to face charges elsewhere.
At the same time, he said, Israel has treaty obligations regarding extradition, which could possibly take precedence over an agreement with a non-state party.
Lerner added that, although Israel could not prosecute Daoud, it had no obligation under the agreement to permit Daoud to stay.
On the broader question of the Oslo amnesty, Lerner commented that it was "very odd, especially for a people who press for the prosecution of Nazi war criminals, to place expediency above [morality]."
In an editorial, the religious Hebrew-language newspaper Hatzofeh noted the irony of the extradition request by the Germans.
"For Germans, the murderers of Jews are considered fugitives to be brought to trial. Only in Israel would some wish to forgive this crime, and allow this despicable murderer to pass freely."
Ankie Spitzer, whose husband, fencing coach Andre Spitzer, was killed in Munich, told The Jerusalem Post that for her it was irrelevant whether the crime took place "before or after Oslo; that isn't the question. The government should examine the moral side."
A conservative Israeli commentator, Rabbi Gary Cooperberg summed up Israel's quandary: "It would never occur to Israel to arrest this murderer, because she has already forgiven the PLO for murdering Jews in order to make peace. But now he is on Interpol's wanted list, and, as a member of this international police organization, Israel has an obligation to arrest the murderer and deport him to Germany for trial."
"How will this all end?" Louis Rene Beres, who teaches international law at Purdue University, asked in an opinion piece sent in response to CNS queries.
"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.' "
Beres argued that the U.S. too had an interest in the matter, as one of the murdered athletes, David Berger, held dual Israeli-American citizenship.
Larry Schwartz, press officer at the U.S. Embassy in Tel Aviv told CNS that "as a matter of principle, we believe that terrorists should be brought to justice," but he declined to comment on the Abu Daoud case.
The man at the center of the row, as well as other commentators, argued that the amnesty was reasonable and should be upheld.
"Is this the reward I deserve for coming back in order to promote peace?" Abu Daoud told Ha'aretz from Amman. "It's totally illogical. Almost every Palestinian official bears some responsibility for Munich. If you deport everyone involved, you will end up deporting [Yasser Arafat]."
A Ha'aretz commentator concurred: "If Israel takes a similar line against all PA officials with similar backgrounds, there will not be too many Palestinian VIPs left."
Senior PA officials linked to terror attacks include Munich suspect Amin al-Hindi, who heads Arafat's General Intelligence Service.
Arafat himself, according to published, expert accounts, gave the direct order for Palestinian terrorists to shoot dead American Ambassador Cleo Noel and two other diplomats taken hostage at the Saudi Embassy in Khartoum, Sudan, in 1973.
Among Palestinian prisoners whose freedom the terrorists were demanding on that occasion was Abu Daoud, then in Jordanian custody.