Marwan Barghouti, the proud and acknowledged leader of the Tanzim terrorist organization, an arm of the Palestinian military Fatah movement, has been tried in Israeli court and convicted. And what by all rights should be a victory for justice, a monumental step forward in the fight against terror, is significantly — not. And that is a shame.
Actually, the Barghouti conviction is a significant setback and a major failure for the fight against terror and sets a terrible precedent in the effort to try terrorist leaders in democratic courts.
Yes, Barghouti was found guilty on five counts of murder and one count of attempted murder. So what’s the problem?
He was tried for and found not guilty of 21 other murder charges. That’s the problem!
Why?
Because Israeli courts, like U.S. courts and other democratic courts, have never been set up to deal with the legal fallout from terror. There is no way to try the leaders of terrorist organizations in democratic courts. The only way to earn a conviction is by drawing a direct link from the person to the act.
For example, the court ruled that even though he was the leader, mentor, Tanzim cheerleader and mastermind, Barghouti could only be held responsible for those acts in which he played a direct role as participant. Using that legal principle, one of his four convictions was for the murder of a Greek Orthodox priest — mistakenly thought to be a Jew — shot to death while driving his car. The two terrorists, the people who actually pulled the trigger, admitted that they had earlier received their AK-47 assault rifle directly from the hands of Barghouti. Not only did their leader supply them with the means, but he also wished them luck and gave a blessing for success on their mission.
Ironically, by a mere stroke of luck as far as this court was concerned, evidence allowed for Barghouti’s conviction. The shooters could have received their weapon in any number of different ways. It was not Barghouti’s personal policy to personally hand out guns. But blessings, that’s another story.
Handing out blessings, that’s where terrorist leaders play one of their most significant roles. And that is one area where, apparently, they are least culpable. Barghouti was guilty because he gave the weapon, not because he sanctioned, approved, inspired and blessed the attack. That appalls and scares me.
Think of all the damage he did as a terrorist leader. All of his talk about the need to kill Jewish settlers and Israelis — conversations that I personally had with Barghouti. His public justification for the murder of children. His terrorist leadership. His incitement. His terrorist organization.
It is all considered legally irrelevant. All his connections and contacts and the loyalty of his followers to their leader’s vision are rendered legally irrelevant.
Israel chose to try Marwan Barghouti in a civilian court and not in a military court in the hopes of showing the fairness of its legal system. They thought that by conducting a transparent trial, international outrage would be assuaged. They even believed that they could try Palestinian leader Yasser Arafat as if in absentia by trying Barghouti.
How naive and how mistaken!
There are no laws against being a terrorist leader. Not in the United States and not in Israel. There are no rules that will result in prosecution. To try terrorist leaders simply as murderers, as is done to their followers, is too simple and it’s a mistake. Trying to turn them into contractors — mafia style — is a crapshoot.
This frightens me.
What happened to Marwan Barghouti is exactly what will happen to Osama bin Laden if he is ever tried by the civilian court system of the United States, unless laws are amended and amended quickly.
If changes to the legal system are not made, there are alternative ways to deal with terrorist leaders. One is to try them in a military court where the rules of procedure are different and where they would have fewer rights. Another is to target them, which is just another way of saying, assassinate.
If laws are not changed, one has to ask if it is worth it to charge terrorist leaders at all. Why bother? If a terrorist leader is not convicted, does that not, de facto, mean that he is not guilty? And if he is not guilty, is he so bad? And if he is not so bad, why are we fighting this war?
What message are we sending to the innocent, peaceful public? And what message are we sending to terrorists?
We must approach terrorists and terrorist leaders differently from murderers. Only then will it allow us to try the real power behind the terror — organizers, supporters, leaders. We must change our laws if we hope to win this war.
Micah D. Halpern is a political and social commentator and author of “What You Need to Know About: Terror.”