ישראל נאמן | Lectures, Articles, Tours: Israel | Mideast onTarget | Elliot Chodoff & Yisrael Ne'eman | Barghouti and the Fourth Geneva Convention 24.5.04

Barghouti and the Fourth Geneva Convention

24 May 2004

By Yisrael Ne'eman

Fatah/PLO activist and Tanzim leader in the West Bank (Judea and Samaria), Marwan Barghouti was convicted by an Israeli civilian court last Thursday of carrying out four terror attacks which resulted in five murders. Captured over two years ago, he was accused of committing 37 terror attacks resulting in the deaths of 26, and causing injury to dozens of others. Barghouti rejected legal representation and refused to recognize the authority of the court, declaring himself a “freedom fighter” while condemning Israel as an “occupying power”.

Undercutting his claim of political persecution, Israel decided to try Barghouti in a civilian court and treat him as a common murderer, using the precedent of those who organized Jewish terror activities against Arabs in the 1990s. It was further hoped to reduce his stature from that of a Palestinian leader to one of a criminal in a well publicized trial. Being a civilian criminal trial, the state had to prove Barghouti’s direct involvement. Showing a chain of command, with his position just under Palestinian Authority Chairman Yasir Arafat and with the actual perpetrators beneath him, could not grant the prosecution a conviction. Hence, he was not found guilty in the murder of 21 victims.

From the outset the “civilian court” idea was less than successful, especially since it played on the illusion that such a venue was compatible with the status of the accused. However, the Jews convicted of hostile actions against Arabs are Israeli citizens - Barghouti is not, and thereby he touched a valid point by refusing to recognize the jurisdiction of the court. Due to full media access, each time he entered the court, he made a circus of the proceedings through his well-publicized “freedom fighter” claims and emotional antics.

Israelis must face reality, Barghouti lives under Israeli occupation and therefore should have been tried for gross violation of the 1949 Fourth Geneva Convention. Barghouti’s crimes fit the charge of being a “saboteur”, “engaged in activities hostile to the security of the State” and accordingly, he would lose “such rights and privileges” guaranteed to non-combatants (Article 5). Like other terrorists, he should have been tried in a military court in the West Bank without media attention.

Article 68 states that the Occupying Power “may impose the death penalty against a protected person only in cases where the person is guilty of espionage, of serious acts of sabotage against the military installations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishable by death under the law of the occupied territory in force before the occupation began.” The Jordanians had a death penalty (1949-1967) as did the British during the Mandate. Israel has no capital punishment and in granting him a reprieve from execution (as is done with all terrorists), the media spotlight would have shifted to the more humane side of Israeli justice, once the trial was concluded.

Barghouti is not a common criminal, but a terrorist involved in dozens of murders. Worse yet, his most recent acts of terror were committed after he swore allegiance to the Oslo Accords and fraudulently presented himself as a Palestinian moderate and symbol of peace and coexistence with Israel.