Now, as the next negotiated deadline for additional Israeli terrorist releases comes due, Palestinian Authority President Mahmoud Abbas has reportedly asked the Obama Administration to mediate with Jerusalem. The objective of any such inquiry is to include Barghouti among those other prisoners soon to be freed. Last year, under great pressure from Mr. Obama, Prime Minister Binyamin Netanyahu agreed to free 104 Palestinian prisoners as a gesture of "good will," but he had also explicitly excluded Barghouti from this already-unwarranted deal.
Significantly, should Netanyahu decide to soften his position on Barghouti's release going forward, it would represent not only another conspicuous act of national defilement, but also a palpable infringement of international law. At a minimum, any Barghouti release would elicit further terror attacks upon Israelis, carefully choreographed assaults that would be in prima facie violation of the law of armed conflict.
“No crime without a punishment.” Codified in multiple sources after the Nuremberg Trials, this universal legal principle is so rudimentary, as part of "peremptory" or "jus cogens" law, that it must never be disregarded. Apart from any such formal legal considerations, however, even simple human decency and common principles of morality dictate that a state must never agree to trade away justice and security in exchange for any presumed diplomatic advantage.
Why, exactly, does Barghouti remain so popular among his fellow Palestinians? The answer is revealing. It lies in incontestably widespread respect for his “operational specialty.” This area of "professional" concentration remains the willful maiming and murder of Jewish children.
So much for the Mandela analogy.
When the victorious allied powers first established a special military tribunal at Nuremberg, on August 8, 1945, they reaffirmed an ancient principle of law, Nullum crimen, sine poena. It was that criminals, especially those who had committed crimes of war, crimes against peace, or crimes against humanity, must always be punished.
In 1946, this reaffirmation was further incorporated as Principle I of the authoritative Nuremberg Principles: "Any person who commits an act which constitutes a crime under international law is responsible therefore, and liable to punishment." These principles, additionally 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."
In law, terrorism is much more than bad behavior. It represents a distinctly codified offense, among other things, a recognizably grave breach against the "peace and security of mankind." Meaningfully, back in 2002, Israel had assumed considerable risks, both operational and political, to bring Barghouti to trial. It would have been much easier, of course, to handle his case as one subject to remediation by "targeted killing," or extra-judicial execution. Ironically, this direct-killing method has been favored by none other than US President Braack Obama, most notably in the plainly high-profile cases of Osama bin-Laden and Anwar al-Awlaki.
In the al-Awlaki matter, there is an especially pertinent legal nuance. This meticulously determined target of a CIA drone assassination in Yemen was also a US citizen; hence, he had been unambiguously entitled to at least minimal Fifth Amendment protections regarding "due process of law."
The continued imprisonment of Barghouti would serve more than "merely" Israel's immediate national security interests. It would also represent vital Israeli support for the larger international community's broadly self-help system of international law. Even today, when there already exists an International Criminal Court, this largely cooperative and decentralized system must rely upon the steady willingness of individual states to use their own domestic courts for the prosecution of both terrorists and genociders - that is, perpetrators of Nuremberg-category harms.
This is precisely what Israel initiated fifty-four years ago, in its precedent-setting capture and trial of major Nazi war criminal, Adolph Eichmann. In its later trial of Barghouti, just as with the much earlier Eichmann trial, Israel had acted on behalf of the entire world community. This position was explained explicitly by the very capable and learned Israeli prosecutor, Professor Gideon Hausner.
In both trials, Eichmann and Barghouti, Israel’s judicial actions were correct and exemplary. To wit, we may consider the words of William Blackstone, whose classic Commentaries on the Laws of England had become the core basis of US law in the eighteenth century: "Each state is expected to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against that universal law." Blackstone himself was thoroughly familiar with the writings of Swiss legal philosopher, Emmerich de Vattel, who says, in The Law of Nations (1758): "Men who are by profession poisoners, assassins, or incendiaries, may be exterminated wherever they are caught; for they direct their disastrous attacks against all nations, by destroying the foundations of their common safety."
Here, of course, Vattel - from whom Thomas Jefferson had drawn substantial inspiration in drafting the Declaration of Independence - went far beyond any punishment that Israel now proposes for terrorist Marwan Barghouti. Israel calls not for this modern assassin/incendiary's "extermination," but only for his continued legal imprisonment.
Barghouti had headed the Fatah militia that still plans and glorifies the dismemberment, burning, and killing of Jewish men, women and children in schools, buses, and restaurants. By the standards of contemporary international law, these terrorists are known forthrightly as Hostes humani generis, or "common enemies of humankind." In the fashion of pirates, who were to be hanged by the first national authorities into whose hands they fell, such evident wrongdoers are international outlaws who fall well within the prescribed scope of "universal jurisdiction."
In all civilized nations, punishment of violent crime must always lie at the heart of justice. In our sovereignty-centered system of world law, prosecution by individual states is still the most readily available path to required punishment. This means that in the absence of Israel's essential and law-enforcing operations against Palestinian terrorism, murderous outlaws like Barghouti would likely remain free to commit additional crimes. With regard to still-growing ties between Palestinian terrorists and certain al-Qaida insurgents in the region, moreover, the consequences could ultimately be suffered not "only" in Tel-Aviv and Haifa, but also in New York or Washington.
Once effectively immune to any plausible legal expectations of extradition and prosecution, a freed Barghouti could then proceed to organize orchestrated groups of Palestinian children into cheerfully explosive cadres of "martyrs." Interestingly, Palestinian-hero Barghouti has never expressed any interest in martyrdom for himself.
Nonetheless, Barghouti thinks of himself as an heroic liberator. But even if his declared objective of Palestinian self-determination could somehow be accepted under authoritative international law, the indiscriminately violent means he had selected are always indisputably unlawful. The Law of Armed Conflict, which now applies to insurgents as well as to uniformed soldiers, makes very clear that the ends of an insurgency can never justify the means. No cause, none, even if it is presumed to be thoroughly sacred, can ever excuse the deliberate use of violence against the innocent.
In law, the conveniently facile adage, "One man's terrorist is another man's freedom fighter," is vacant on its face. It remains, therefore, an empty witticism, a seemingly clever phrase suitable for favorable cocktail party impressions, but also without any jurisprudential content.
In principle, at least, American law supports all of Israel’s past actions in the Barghouti case, both custodial and juridical. And for the United States, the Nuremberg obligation to punish terrorists is doubly binding. This more compelling expectation reflects not only binding rules under international law, but also the overriding call of a Higher Law. All international criminal law, it should be remembered, is part of the law of the United States, an incorporation prominently expressed at Article VI of the US Constitution, and also at associated Supreme Court decisions, especially The Paquete Habana (1900).
On September 12th, 2001, when Israeli flags were lowered to half staff to honor America’s several-thousand civilian fallen, Marwan Barghouti conspicuously celebrated our national misfortune. This Palestinian terrorist leader, who some Israelis and Americans would now seek to restore to a position of political authority and power, is unrepentant, still a sworn enemy of the United States, irremediable, and utterly refractory. It is also worth recalling here that Barghouti had energetically aided Saddam Hussein during his 1990-91 rape and plunder of Kuwait. At that time, the documented crimes spearheaded in Iraq by the Palestine Liberation Army (PLA) were quite literally unspeakable.
In Jerusalem, it would be improper, imprudent, and illegal to go ahead with any still-impending terrorist release, especially the freeing of "common enemy" (Hostes humani generis) Marwan Barghouti. At a minimum, any such concession would gratuitously imperil the lives and safety of many Israeli men, women, and children.
Exactly what sort of justice or "peace" would this action represent?
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LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971), and is the author of many books and articles dealing with international criminal law. His most recent scholarly publications can be found at the Case Western Reserve Journal of International Law; The International Journal of Intelligence and Counterintelligence; The Harvard National Security Journal (Harvard Law School); Herzliya Conference 2013 Policy Papers (Israel); The Israel Journal of Foreign Affairs; The Brown Journal of World Affairs; Parameters: Journal of the US Army War College (Pentagon); and The Atlantic. Professor Beres was born in Zürich, Switzerland, on August 31, 1945.