The Trial of Marwan Barghouti
16 April 2002
When the victorious allied powers established a military tribunal at Nuremberg on August 8, 1945, they
reaffirmed an ancient principle of law: Nullum crimen sine poena, "No crime without a punishment." In 1946,
this reaffirmation was codified 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, later 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
Yassir Arafat's Fatah and the man openly responsible for dozens of suicide bomb attacks on Israeli civilians, is
one of the world's most wanted terrorists. Arrested by Israeli special forces on April 15, 2002, during Prime
Minister Sharon's essential retaliatory military operations against Palestinian terrorist infrastructures,
Barghouti will be put on trial for his multiple crimes, including crimes against humanity. This judicial action
by Israel will represent indispensable support for our decentralized system of international law, a system that
always relies for its success upon the willingness of individual states to use their own courts for prosecution of
international criminals.
Barghouti heads the Al Aqsa Martyrs Brigade, the Palestinian militia that plans and celebrates the maiming,
burning and murder of Jewish men, women and children in schools, buses and restaurants. By the standards of
contemporary international law, terrorists are known as hostes humani generis, "common enemies of
humankind." In the fashion of pirates, who were to be hanged by the first authorities into whose hands they fell,
terrorists are international outlaws who come within the scope of "universal jurisdiction." The fact that
Barghouti's terrible crimes had been directed specifically against Israel removes any doubts about that
country's particular jurisdiction in this matter.
Punishment of violent crime must always lie at the very heart of justice. In our decentralized system of world
law, which still lacks a permanently functioning international criminal court, prosecution by individual states
is often the only available path to punishment. In the absence of Israel's essential operations against Palestinian
terrorism, outlaws like Barghouti would remain altogether free to commit further atrocities. Immune to the
proper expectations of extradition and prosecution (the Palestinian Authority would hardly agree to comply
with these expectations of international law), Barghouti would proceed with the organization of Palestinian
children into cadres of "martyrs." Barghouti naturally thinks of himself as a "freedom fighter," not a terrorist.
But even if his objective of Palestinian self-determination could be accepted under authoritative international
law (and this is highly problematic), the means used in his use of violence are 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 legitimate, can never excuse the use of violence against the innocent.
International law is not a suicide pact. The State of Israel, in the fashion of every state in world politics, has
not only the right but the obligation to protect its citizens' most basic human right — the right to remain alive. In
this connection, the Israeli military operation that led to Barghouti's arrest is supported not only by the
post-attack right of self-defense codified at Article 51 of the UN Charter, but also by the customary right of
anticipatory self-defense.
Israel's actions in the Barghouti case are fully supported by the law of the United States. For our own country,
the Nuremberg obligations to bring terrorists to trial are doubly binding. This is because these obligations
represent not only rules under international law, but also the obligations of a Higher Law embedded in the
American philosophic tradition. All international criminal law is part of the law of the United States, an
incorporation expressed at Article VI of the US Constitution and by associated Supreme Court decisions.
United States federal law confers jurisdiction "to try any person who, by the laws of war, is subject to trial by
a military tribunal...." (10 U.S.C. Sec. 818, 1994). Additionally, federal law grants jurisdiction to the federal
district courts for all offenses against the laws of the United States (18 U.S.C. Sec. 3231, 1994). Since the
United States was founded, our country has reserved the right to enforce international law within its own
courts. At Article 1, Sec. 8, Cl 10, the Constitution confers on Congress the power "to define and punish
piracies and felonies committed on the high seas, and offenses against the law of nations."
Israel's planned prosecution of Palestinian terrorist Marwan Barghouti is fully supported by both international
law and the law of the United States of America. Representing the best available option to support
civilizational remedies against barbarism, it is a jurisprudential effort that now warrants worldwide support. It
should also be recalled that Barghouti is a sworn enemy of the United States, a criminal who aided Saddam
Hussein in his rape of Kuwait and who is closely allied with the medieval forces behind September 11th. On
September 12th, when Israeli flags were lowered to half staff, Barghouti celebrated our national misfortune
with other Fatah leaders.
Louis Rene Beres (Ph.D., Princeton, 1971), Professor, Department of Political Science, Purdue University, |
