Doc's Talk: Why Marwan Barghouti Should Not Be Freed The Binding Obligations Of International Law

Saturday, August 22, 2009

Why Marwan Barghouti Should Not Be Freed The Binding Obligations Of International Law

Louis Rene Beres
Posted Aug 19 2009
http://www.jewishpress.com/pageroute.do/40486/

Back in October 2006, then-US Secretary of State Condoleezza Rice had urged Israeli Prime Minister Ehud Olmert to free imprisoned terrorist Marwan Barghouti. Her obviously naïve argument was that the Tanzim leader remained very popular among Palestinians, and that he was likely the only Fatah representative who could successfully advance the U.S.-led "Middle East Peace Process." Today, not without irony, similar arguments are being raised in Israel itself, even in the Knesset. Following the election of Barghouti to Fatah's powerful Central Committee on August 11, Minority Affairs Minister Avishay Braverman (Labor) said: "In light of the election results, we must consider releasing him in order to create a moderate and strong political leadership among the Palestinians."

On its face, Mr. Braverman's argument is also naïve and flawed. But the overall case against freeing this terrorist must now be understood not only from the standpoint of geopolitics, but also in terms of binding international law. Not only is MK Braverman ignoring that a Barghouti release could elicit new terror attacks upon Israelis, he also overlooks that such a "pragmatic" release would violate basic and indispensable principles of law and justice.
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NAFSHENU ORCHESTRA

"Nullum crimen sine poena - No crime without a punishment." Codified in multiple sources after the Nuremberg Trials, this principle (called a peremptory or jus cogens norm in jurisprudence) is so rudimentary under international law that it can "never be disregarded." Indeed, apart from formal legal considerations, even simple decency and common morality dictate that a state should not trade away justice in exchange for presumed and momentary diplomatic expedience. Let us also not forget that Barghouti's great popularity among Palestinians remains rooted in his "operational specialty." This was the willful murder of Jewish children in Israel.

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

In 1946, this reaffirmation was incorporated at Principle I of the Nuremberg Principles: "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment." These 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."

In law, terrorism is a codified offense (a so-called "grave breach") 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. He was arrested by Israeli Special forces on April 15, 2002, and then brought to trial, even though it would surely have been much easier to dispatch his case with a more immediate form of summary justice.

The Israeli imprisonment of Barghouti serves far more than that country's own national interest. It also represents vital support for our largely self-help system of international law. Even today, when there already exists an International Criminal Court, this largely volitional or cooperative system must rely upon the steady willingness of individual states to use their own domestic courts for the prosecution of terrorists. In its trial of Barghouti, as was also the case in the Adolph Eichmann trial held in Jerusalem many years earlier, Israel thus acted judicially on behalf of the entire international community. In both cases, moreover, Israel's legal actions were altogether correct and even exemplary.

Barghouti headed the Al Aqsa Martyrs Brigade, the Palestinian militia that systematically plans and glorifies the dismemberment, burning and killing of Jewish men, women and children in schools, buses and restaurants. (Al Aqsa is the military wing of Fatah, an umbrella group that the current President of the United States identifies as "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 wrongdoers are international outlaws who come fully within the scope of "universal jurisdiction."

Always, punishment of violent crime must lie at the heart of justice. In our sovereignty-centered system of world law, prosecution by individual states is still generally the only available path to punishment. In the absence of Israel's essential and law-enforcing operations against Palestinian terrorism, murderous outlaws like Barghouti would remain free to commit further egregious crimes. Immune to the legal expectations of extradition and prosecution (the Palestinian Authority has never complied with these obligations of international criminal law, not under Oslo and not under theRoad Map), Barghouti would have proceeded contentedly with his organization of Palestinian children into explosive cadres of "martyrs." Naturally, he has never had any corollary intentions to explode himself.

Barghouti, of course, thinks of himself as a heroic "liberator." But even if his declared objective of Palestinian self-determination could somehow be accepted under authoritative international law, the particularly violent means he chose were 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. No cause, even if it is presumed legitimate, can ever excuse the deliberate use of violence against the innocent.

Our own American law supports all of Israel's past actions in the Barghouti case, custodial and juridical. For the United States, the Nuremberg obligation to punish terrorists is doubly binding. This obligation represents not only basic rules under international law, but also the call of a Higher Law that is deeply embedded in the American legal system. All international criminal law is part of the law of the United States, an incorporation expressed at Article VI of the US Constitution, and also at associated Supreme Court decisions.

On September 12, 2001, when Israeli flags were all lowered to half-staff to honor America's most recent fallen, Marwan Barghouti enthusiastically celebrated our national misfortune. This unrepentant Palestinian terrorist leader who some Israelis (incomprehensibly) seek to restore to political authority and power is a sworn enemy of the United States. We should also recall that Barghouti openly aided Saddam Hussein during his 1990-91 rape of Kuwait. It is improper and imprudent, therefore, that anyone in Israel, least of all any Member of Knesset, should now call for this patently obscene terrorist's release.

LOUIS RENÉ 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.

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The IDF’s Minorities in Numbers and Pictures

In honor of IDF Diversity Week, we present diversity through numbers and pictures. Each year, more and more Muslims, Christians, Druze, Bedouin and immigrants from around the world take on the responsibility of defending Israel.

MUSLIMS:

Muslim Arab Israelis are not required to draft in the IDF, but there are many who volunteer. In 2013, there were over 200 Muslims serving in the IDF and over 300 in the reserves.

Bedouins:

Bedouins are nomadic Muslims who were in Israel when modern borders were set in place and are now considered Israeli citizens. They are not required to draft but a growing number choose to enlist. In 2012, there were over 1,400 Bedouin Muslim soldiers doing regular IDF service and almost 1,500 in the reserves.

Read more:http://www.idfblog.com/2014/02/27/truth-idf-numbers-pictures/#more-34027

Are you aware that in 2013, Middle class taxes go up-significantly?

In January of next year, the federal income tax rate for middle-class taxpayers is scheduled to rise from 25 percent to 28 percent, and the payroll tax is scheduled to rise from 13.3 percent to 15.3 percent… This drives the marginal tax rate based on the aforementioned three taxes to 48.12 percent. Add in state and local property, corporate, excise, and other state and local taxes, and the percentage of each additional dollar that is taxed hovers around 50 percent… When half of each additional dollar earned is taxed away, taxpayers experience a disincentive to start businesses or expand existing ones. This leads to fewer jobs being created.

Why is HAMAS Inside Tampa Schools?

Clare Lopez

Kelly Miliziano, who teaches history classes at Steinbrenner High School in the Tampa, Florida area apparently thinks it’s perfectly OK to invite a senior official of a HAMAS-affiliated organization into her classroom to discuss Islam with her students. According to local media reports, not only has this been going on for years, but in spite of the civil and criminal proceedings that could result from such reckless negligence, the Hillsborough County school superintendent, Mary Ellen Elia, and the chairman of the school board, Candy Olson, also expressed approval for students under their responsibility to be exposed repeatedly to guest speaker, Hassan Shibly, who is the Executive Director for the Council on American-Islamic Relations (CAIR) in the Tampa area.
More...

Did You Know... Ignoring the Call to Islam will Bring Jihad

‘Conquest through Da’wa [proselytizing] that is what we hope for. We will conquer Europe, we will conquer America! Not through sword but through Da’wa.’
-- Yousef al-Qaradawi , Muslim Brotherhood spiritual leader The Arabic word ‘Da’wa’ means the “call to Islam.” But do not think that Da’wa is the same thing as an invitation to an optional holiday event. The classical Islamic doctrine of jihad mandates that enemies must be given the opportunity to convert to Islam or pay the jizya tax before it is permissible to attack them.
Clare M. Lopez

Who is being discriminated-facts tell the truth

Religious bias

Hate crimes motivated by religious bias accounted for 1,409 offenses reported by law enforcement. A breakdown of the bias motivation of religious-bias offenses showed:

65.4 percent were anti-Jewish.
13.2 percent were anti-Islamic.
9.5 percent were anti-other religion, i.e., those not specified.
4.3 percent were anti-Catholic.
3.8 percent were anti-multiple religions, group.
3.3 percent were anti-Protestant.
0.5 percent were anti-Atheism/Agnosticism/etc.

http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2010/narratives/hate-crime-2010-incidents-and-offenses.

On March 31, 1977, the Dutch newspaper Trouw published an interview

with PLO executive committee member Zahir Muhsein. Here's what he said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct "Palestinian people" to oppose Zionism.

For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

In March 1977, Zahir Muhsein, a PLO executive, said:

"The Palestinian people does not exist. The creation of a Palestinian state is only a means for continuing our struggle against the state of Israel for our Arab unity. In reality today there is no difference between Jordanians, Palestinians, Syrians and Lebanese. Only for political and tactical reasons do we speak today about the existence of a Palestinian people, since Arab national interests demand that we posit the existence of a distinct Palestinian people to oppose Zionism."

"For tactical reasons, Jordan, which is a sovereign state with defined borders, cannot raise claims to Haifa and Jaffa, while as a Palestinian, I can undoubtedly demand Haifa, Jaffa, Beer-Sheva and Jerusalem. However, the moment we reclaim our right to all of Palestine, we will not wait even a minute to unite Palestine and Jordan."

The Arab Apartheid

Ben-Dror Yemini
In 1948, the Arab countries refused to accept the UN partition proposal and they launched a war of annihilation against the State of Israel which had barely been established. All precedents in this matter showed that the party that starts the war - and with a declaration of annihilation, yet - pays a price for it. Between 550,000 and 710,000 Arabs fled because of the war and a larger number of 850,000 Jews were expelled or fled from Arab countries (the "Jewish nakba").
Population exchanges and expulsions were the norm at that time, occurring in dozens of other conflict points and affecting about 52 million people. In all the population exchange precedents that occurred during or at the end of an armed conflict, there was no return of refugees to the previous region, which had turned into a new national state.
Only the Arab states acted completely differently from the rest of the world. Instead of assimilating the refugees, they crushed them despite the fact that they were their coreligionists and members of the Arab nation - instituting a regime of apartheid. So the "nakba" was not caused by the actual dispossession, which had also been experienced by tens of millions of others. The "nakba" is the story of the apartheid, oppression, abuse and denial of rights suffered by the Arab refugees at the hands of the Arab countries. (Maariv)

International Law and Military Operations in Practice - Col. Richard Kemp

"Islamist fighting groups study the international laws of armed conflict carefully and they understand it well. They know that a British or Israeli commander and his men are bound by international law and the rules of engagement that flow from it. They then do their utmost to exploit what they view as one of their enemy's main weaknesses. Their very modus operandi is built on the correct assumption that Western armies will normally abide by the rules, while these insurgents employ a deliberate policy of operating consistently outside international law. "

Lost Historical Moments

What Rabin’s last Knesset speech really said:repudiation of a Palestinian state

Rabin ruled out a fully sovereign Palestinian state :

“We view the permanent solution in the framework of State of Israel which will include most of the area of the Land of Israel as it was under the rule of the British Mandate, and alongside it a Palestinian entity which will be a home to most of the Palestinian residents living in the Gaza Strip and the West Bank. We would like this to be an entity which is less than a state, and which will independently run the lives of the Palestinians under its authority.”

Rabin ruled out a total withdrawal from Judea and Samaria and thus a return to the pre-June 1967 borders :

“The borders of the State of Israel, during the permanent solution, will be beyond the lines which existed before the Six Day War. We will not return to the 4 June 1967 lines.”

Rabin ruled out withdrawing form the Jordan Valley:

“The security border of the State of Israel will be located in the Jordan Valley, in the broadest meaning of that term.”

Rabin ruled out uprooting settlement blocs, like the Gush Katif bloc in Gaza (which was subsequently uprooted by former Prime Minister Ariel Sharon):

“The establishment of blocs of settlements in Judea and Samaria, like the one in Gush Katif.

AND

Rabin ruled out removing any settlement before coming to a full peace agreement with the Palestinians:

“I want to remind you: we committed ourselves, that is, we came to an agreement, and committed ourselves before the Knesset, not to uproot a single settlement in the framework of the interim agreement, and not to hinder building for natural growth.”

Rabin insisted on Israel retaining full security control of the borders with Egypt and Jordan, contrary to Israel’s relinquishment of the Philadelphia Corridor on the border with Egypt:

“The responsibility for external security along the borders with Egypt and Jordan, as well as control over the airspace above all of the territories and Gaza Strip maritime zone, remains in our hands.”

Correcting Oslo Myths-Part 2

3) Kuttab laments that the post-1993 Oslo process resulted in a Palestinian Authority "whose ministers and legislators are not guaranteed passage between Gaza and the West Bank ...."

Before free passage or other perquisites, PA leaders were obligated, among other things, to eliminate the terrorist infrastructure in the West Bank and Gaza Strip, end anti-Israeli, antisemitic incitement in schools, mosques, and communications media, and resolve all outstanding issues through peaceful negotiations. They met none of these commitments, sometimes bolstering terrorism and greatly increasing incitement.

4) Kuttab complains that under Oslo the PA got "lightly armed police ---- but no real sovereignty over the land or contiguity between our communities in Gaza and the West Bank."

Oslo agreements repeatedly were revised, regardless of Palestinian non-compliance, until the authorized number of police grew from 8,000 to 40,000. Though they were to be the only armed forces in the territories, Israeli estimates early in the second intifada put the number of gunmen - police, "security services," terrorists, and armed gangs - at 85,000. Their armament reportedly included not only heavy machine guns and rocket-propelled grenades, but also anti-tank and anti-aircraft missiles.

Sovereignty was to be negotiated in the envisioned 1998 "final status" talks - after a five-year period of confidence-building. Palestinian leadership chronically undermined the process. Palestinian terrorism made the 1993 - 1998 Oslo period more deadly for Israelis than the 15 years preceding it.

The United States doesn't have contiguity between the lower 48 states and Alaska and Hawaii; territorial contiguity between the West Bank and Gaza Strip - that is, through the 20 miles of Israeli territory between them - was never promised and would destroy Israeli contiguity.

5) "Palestinians have been made to endure hundreds of checkpoints in the West Bank, an eight-foot wall deep in our territories, and tight Israeli control over borders."

The security barrier is not "deep in Palestinian territories," but rather encompasses less than 8 percent of Judea and Samaria, and is mostly a fence, rarely a wall; the land in question is not "our [Palestinian] territories" but disputed territory to which, according to the authors of U.N. Security Council Resolution 242, Jews as well as Arabs have claims; and there are no international borders, only the 1949 armistice lines with Jordan. Under 242, borders remain to be negotiated. As for checkpoints - like the security barrier and "tight Israeli control" - Palestinian Arabs precipitated these measures themselves. No terrorism and there would be no fence or tight Israeli control and few checkpoints - like before the first intifada.

Correcting Some Oslo Myths

1) In Oslo "Israeli, Palestinian and other world leaders promised that ... Palestinian sovereignty would be solidified."

No, they didn't. The 1993 Declaration of Principles and subsequent Oslo agreements outlined a process by which final status negotiations about the West Bank and Gaza Strip would be reached. The process required an end to anti-Israel terrorism and incitement and a commitment to peaceful negotiations. The PA, Fatah, Hamas, Islamic Jihad, the Popular Front for the Liberation of Palestine, and other terrorist groups, sabotaged the process from the start.

2) "The reality is that, in defiance of U.N. Security Council Resolution 242, which states that it is inadmissible to occupy land by force, Palestinian territories are still under foreign military occupation."
Wrong again. Resolution 242 (1967) does note "the inadmissibility of the acquisition of territory by war." It also affirms the right of every state in the area "to live in peace with secure and recognized boundaries free from threats or acts of force." There were no "Palestinian territories." Jordan occupied the West Bank, Egypt controlled Gaza. Israel did not have "secure and recognized boundaries," so retention of some of those territories was possible under 242. Israel is not a "foreign" military occupier in the West Bank but, pending final negotiations, the lawful military administrator as a result of a successful war of self-defense.

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