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Memory, Justice and the Trial of Marwan Barghouti

Louis Rene Beres Purdue University June 18, 2003

In a letter on June 17th to Israeli Prime Minister Sharon, Attorney-General Elyakim Rubinstein argued forcefully against any negotiated freeing of terrorist leader Marwan Barghouti. At a time when the “Road Map” may demand certain Palestinian terrorist releases as a sign of Israeli “good will,” Rubinstein correctly stated that any freedom for Barghouti in the middle of his trial would be in contempt of court. Even more importantly, perhaps, such freedom would be an express rejection of the most elementary principles of justice.

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 at 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 Tanzim and the man openly responsible for dozens of suicide bomb attacks on Israeli civilians, was – until his capture – one of the world’s most wanted criminals. Arrested by Israeli special forces on April 15, 2002, during one of Prime Minister Sharon’s essential retalitory military operations against Palestinian terrorist infrastructures, Barghouti is currently in the dock for multiple crimes. Had he been tried in an international criminal court, the carges would also have included Crimes Against Humanity.

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