Should Israel have agreed to releas members of Palestinian terrorist groups?

[Fang]

This has been all over the news lately, but here’s the report from Reuters:

Israel will free 210 Islamic militants as part of a wider release of 540 Palestinian prisoners, a senior official accompanying Prime Minister Ariel Sharon to Washington said on Sunday.

The 540 prisoners slated for release comprise 210 members of Islamic groups, 210 members of President Yasser Arafat’s Fatah faction, and 120 Palestinians jailed on criminal offences. [emphasis added]

There are several complicating factors. The first is that

None of the prisoners were involved in attacks on Israelis, officials said.

Interesting in its own right. As I understand it, this means they themselves never participated in attacks against Israelis, but simply are members of Hamas or PIJ (disclaimer: this fact somehow escaped my notice until I was actually posting my OP), and are being held either for minor crimes or without specific charge (presumably from round-ups during incursions into Pal towns). The other major complicating issue here, as I see it, is, according to the New York Times:

The peace plan does not specifically require Israel to release any of the roughly 6,000 Palestinian prisoners it is holding.

Israel is thus not obligated under any agreement to release these prisoners.

Now as I see it there are three possible reasons Israel might want/have to release these prisoners:

1. General moral obligation: Not applicable to the ones who have been convicted of crimes, possibly (I’d say depends on the circumstances) to the ones who are being held without charge
2. Obligation by agreement: Not relevant as per my NY Times cite
3. Long-term Israeli interest, particularly in regards to the piece process: Really the key point of the issue if you ask me. One might say this is a show of good faith on the Israeli side, putting its trust in a new Palestinian government. I would argue, however, that the release of members of Islamic terrorist groups is only increasing the problems that the new Palestinian government has to fight in the first place. One of the key points of the road map is the Palestinians’ obligation to crack down on Hamas and PIJ. So far Abbas does not really have enough political power to fight them, and so has not been able to do so. By holding members of these groups, Israel is helping disable possibly the chief threat to Abbas’ leadership, the proliferation of Islamic terrorist groups. There are plenty of other measures, more important ones at that (such as cracking down on settlements) that Israel could take to demonstrate its own commitment to peace that don’t involve releasing criminals and known members of terrorist groups. IMHO, releasing criminals for political ends is generally an immoral idea to begin with.

Interestingly enough, Professor Louis Rene Beres, an expert in international law at Purdue University claims it is a violation of international law to release these guys:

Every state has an obligation under international law to prosecute and punish terrorists. This obligation derives particularly from a long- standing rule known as NULLUM CRIMEN SINE POENA, “No crime without a punishment.” It is codified directly in many different authoritative sources, and is also deducible from the binding Nuremberg Principles. According to Principle 1: “Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.”
<snip>
NO government has the legal right to free terrorists as a “goodwill gesture.” Terrorism is a criminally sanctionable violation of international law not subject to ad hoc nullification by individual countries, even if they are organized into a “Quartet” that includes approval by the United Nations. In the United States, it is manifest from the Constitution that the President’s power to pardon does not encompass violations of international law, and is always limited to “Offenses against the United States.” This limitation stems from a wider prohibition that binds all states, namely the claims of a “Higher Law.” These claims, of course, are the very basis of American law.

I don’t tend to agree, but this might make interesting discussion as well. So, the question then is, should Israel have released these militants?