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Freeing Marwan Barghouti Would Violate International Law And Imperil Israel


U.S. Secretary of State Condoleezza Rice has reportedly asked Israeli Prime Minister Ehud Olmert to free imprisoned terrorist Marwan Barghouti. Her argument, it would appear, is that the Tanzim leader remains very popular among the Palestinians, and that he is the only Fatah representative who could successfully supplant the Hamas-led government. Whether or not she is correct in her assessment of Barghouti’s popularity, such a release would violate the most elementary principles of law and justice, and would bring new violent attacks upon Israel.

Nullum crimen sine poena. “No crime without a punishment.” Codified in multiple sources after the Nuremberg Trials, this principle (called a peremptory norm) is so fundamental in international law that it can never be disregarded. Indeed, apart from formal jurisprudence, decency and common sense dictate that – in the midst of a far-reaching war on terror – the United States not demand the release of a major terrorist. And Barghouti is a very dangerous terrorist at that. Let us not forget that the intentional murder of Jewish children in Israel was his particular specialty.

When the victorious allied powers established a military tribunal at Nuremberg on August 8, 1945, they reaffirmed an ancient and ongoing principle of law. Criminals, especially those who have committed crimes of war, crimes against peace and crimes against humanity, will be punished. Period.

In 1946, this reaffirmation was first incorporated as Principle I of the legally binding Nuremberg Principles: “Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.” These Nuremberg Principles, further formulated by the United Nations International Law Commission in 1950, stipulate: “Offenses against the peace and security of mankind…are crimes under international law, for which all responsible individuals shall be punished.”

Terrorism is a serious offense against the “peace and security of mankind.” Marwan Barghouti, leader of Tanzim and the man openly responsible for dozens of suicide bomb attacks on Israeli civilians, was – until his capture, trial and imprisonment – one of the world’s most wanted criminals. Arrested by Israeli special forces on April 15, 2002, Barghouti is currently serving multiple life sentences in an Israeli jail.

The Israeli imprisonment of Barghouti serves far more than that country’s particular national interest. It also represents indispensable support for our decentralized system of international law. Even today, when there exists an International Criminal Court, this largely self-help system must still rely upon the ready willingness of individual states to use their own domestic courts for the prosecution of international terrorists. In its trial of Barghouti, therefore, Israel acted correctly and productively on behalf of the entire civilized community of humankind.

Barghouti headed the Al Aqsa Martyrs Brigade, the Palestinian militia that systematically plans the dismemberment, burning and killing of Jewish men, women and children in schools, buses and restaurants (a group that the U.S. Secretary of State now believes to be relatively “moderate”). By the standards of contemporary international law, these terrorists are known as HOSTES HUMANI GENERIS, “common enemies of humankind.” In the fashion of pirates, who were to be hanged by the first proper authorities into whose hands they fell, these contemporary wrongdoers are international outlaws who come fully and incontestably within the scope of “universal jurisdiction.”

Punishment of violent crime must always lie at the very heart of justice. In our continuing sovereignty-centered system of world law, prosecution by individual states is still often the only available path to punishment. In the absence of Israel’s essential and law-enforcing operations against Palestinian terrorism, outlaws like Barghouti would remain forever free to commit further atrocities. Immune to the proper expectations of extradition and prosecution (the Palestinian Authority has never complied with these minimal obligations of international criminal law), Barghouti would have proceeded gleefully with his perverse organization of Palestinian children into explosive cadres of “martyrs.” It is essential, therefore, that he remain in an Israeli prison and not be mistaken for a “freedom fighter.”

Barghouti, of course, thinks of himself as a heroic liberator, not as a terrorist. But even if his objective of Palestinian self-determination could be accepted under authoritative international law, the means chosen in his use of violence were always indisputably unlawful. The Law of Armed Conflict, which applies to insurgents as well as to uniformed armies, makes it clear that the ends can never justify the means. A cause, even if it is presumed legitimate, can never excuse the deliberate use of violence against the innocent. Never.

All of Israel’s actions in the Barghouti case – custodial and juridical – are fully supported by our own American law. For the United States, the Nuremberg obligation to punish terrorists is doubly binding. This obligation represents not only the basic rules under international law, but also the calls of a Higher Law that are deeply embedded in the American system of governance. All international criminal law is part of the law of the United States, an incorporation expressed unambiguously at Article VI of the U.S. Constitution and at associated Supreme Court decisions.

On September 12, 2001, when Israeli flags were lowered to half-staff to honor America, Marwan Barghouti openly and enthusiastically celebrated our national misfortune. This Palestinian terrorist leader who Condoleezza Rice now seeks to restore to political authority and power is a sworn enemy of the United States. It should also be recalled that Barghouti is a major criminal who openly aided Saddam Hussein during his 1990-91 rape of Kuwait and who has now become a staunch supporter of Al Qaeda. It is highly improper and imprudent, therefore, that the Secretary of State of the United States now calls for his release for any reason, least of all to breathe life into a long-dead Middle East Peace Process.

Copyright: The Jewish Press, November 3, 2006. All rights reserved.

LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with international criminal law. He is Strategic and Military Affairs columnist for The Jewish Press.

About the Author: Louis René Beres (Ph.D., Princeton, 1971) is professor of political science and international law at Purdue University and the author of many books and articles dealing with international relations and strategic studies.

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