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Marwan Barghouti trial: A Mandela in the making?

After two years in detention, Palestinian leader Marwan Barghouti was last week convicted in what is widely regarded outside Israel as a political show trial, writes Jonathan Cook

Al Ahram Weekly – 27 May 2004

The panel of three judges found Palestinian West Bank leader Marwan Barghouti guilty in the murders of four Israelis and a Greek Orthodox priest in three attacks dating back to 2001 and 2002. He was also convicted of orchestrating a failed car bombing at a shopping mall in Jerusalem and of belonging to a terrorist organisation.

He is due to be sentenced on his 45th birthday, on 6 June, when it is expected he will receive several life sentences. Barghouti, an elected member of the Palestinian legislature, had refused to cooperate from the trial’s outset and offered no legal defence. His lawyers said they would not appeal the decision.

Challenging the head of the panel, Judge Sara Sirota, as she handed down the verdict, he called out: “I’m no more involved in these attacks than you are.”

In a move that surprised some legal observers, the court acquitted Barghouti of 33 charges listed by the prosecution. The judges argued that the evidence proved only that these other attacks were carried out on the initiative of local leaders of the Al-Aqsa Martyrs’ Brigades, Fatah’s armed wing that was founded by Barghouti. There was insufficient proof, they said, linking the attacks directly to Barghouti.

“Think about it,” said Marwan Dalal, a lawyer with the Adalah Legal Centre for Minority Rights inside Israel. “The attorney-general approves indicting him with 37 charges related to attacks that led to the deaths of dozens of people. The prosecution then claims it has proof in documents confiscated by the army from the Palestinian Authority that Barghouti was personally responsible for those killings. Barghouti remains silent. And the verdict: the court throws out 33 of the charges for lack of evidence. It leaves a lot of questions about the judgement of the attorney-general and the credibility of the so-called ‘proof’ found by the army.”

On this occasion the court followed a path well trodden by the Israeli judiciary: it attempted to satisfy Israel’s political and military establishment and the Israeli public, who demanded a conviction, while at the same time not too blatantly overriding the principles of either Israeli or international law.

This has been its long-standing strategy when adjudicating on the abuse of Palestinian rights during the Intifada, such as in the case of the Israeli army imposing curfews, using civilians as human shields, deporting families and carrying out house demolitions. So far, none of these practices has been effectively prevented by the courts.

So, while rejecting most of the prosecution case, the judges made it clear that they held Barghouti indirectly responsible for all the other attacks, claiming that it was “infuriating” that under Israeli law they could not convict him for these too.

They concluded that although he did not have full control over the local leaders of the Brigades and often did not know of attacks beforehand, he had “significant influence” over them. Most importantly, the panel claimed that it was within Barghouti’s power to instruct the local Brigades to stop or restart attacks, based on orders he received from Palestinian leader Yasser Arafat.

This was the ammunition the government had been seeking when it launched Barghouti’s trial. After the verdict was handed down, the Justice Minister Tommy Lapid warned, “We might have to consider putting Arafat on trial one of these days.”

However, Lapid’s threats were half-hearted and barely taken up by the Israeli media. With Arafat penned up in his Ramallah compound, largely ignored by both Western and Arab leaders, and with the Israeli prime minister now more interested in unilateral solutions, Arafat’s scalp is far less precious than it once was.

But the court’s refusal to rubber-stamp a mass conviction was doubtless meant to refute those critics, including Barghouti, who accused the judges of simply following orders. Following the verdict, Barghouti again questioned the independence of the panel: “I knew ahead of time that the honourable judges would not be able to try me according to their will, but were under instructions from the security services.”

There is no doubt the government’s decision to try Barghouti in a civilian court using criminal law put the judges in an uncomfortable position. All other Palestinian detainees — including Hossam Khader, the only other Palestinian legislator being held captive by Israel — have been tried under military regulations before military tribunals. But Barghouti’s conviction by uniformed judges in secret chambers, it was assumed, would not play well with world opinion.

The judges themselves may have felt that their courtroom was not the arena for this kind of politicised case. As the legal analyst Moshe Gorali opined in the daily Ha’aretz newspaper, “In its ruling, the court sent a message to the authorities — next time, bring us the murderers or their dispatchers, not their leader.”

In comparison, Barghouti’s two deputies received far harsher convictions: Nasser Avis was given 14 life sentences and Nasser Abu Hamid seven.

A leader of the Al-Aqsa Brigades in Gaza warned Israel that now it would make the abduction of soldiers its “top priority” and use them as bargaining chips for the release of Barghouti and other prisoners.

With Israel apparently intent on destroying the last vestiges of the Palestinian Authority, and its figureheads, the safest place for Barghouti may be in jail. His ratings in opinion polls have soared since his arrest and trial, putting him in second place only to Arafat.

As the Palestinian Knesset member Azmi Bishara observed after the trial, “In the end, [Israelis] will have to negotiate with people like Barghouti. Otherwise, who will be left as negotiation partners?”

“Barghouti doesn’t deny that he played a leadership role in the Intifada, but in the eyes of the Palestinian people that is a heroic endeavour.”

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