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Op-Ed: Past Crimes as Legal Prologue to Statehood

Israel, Iraq, Palestinian Arab statehood are connected and Palestinian Arabs may learn a problematic lesson from the past. .
Published: Thursday, April 03, 2014 2:54 PM



International law is not a suicide pact, not before, and not now. Every state maintains an "inherent" right of self-defense.
Relentlessly, from the very beginnings of its notably brief history, Israel's most basic rights under international law have been under attack. In addition to a near-universal disregard for Israel's ongoing struggles against both aggression and terrorism, the so-called "international community" has routinely ignored that country's most elementary expectations of justice. More precisely, the persistent orientation of this international community toward Israel has generally been to punish the Israeli victims, and to more-or-less lavishly reward the encircling criminals.

Today, virtually no one even remembers the myriad threats and brazen attacks once launched from Iraq, including the then-commanding figure of Saddam Hussein. Virtually no one has any interest in, or reasonable recollection of, the Iraqi dictator's trial and subsequent punishment. When Saddam was finally captured by U.S. forces on December 13, 2003, his multiple egregious crimes had included 39 rocket attacks on Israeli cities. Earlier, of course, he had used chemical weapons against Iraqi Kurds and others with de facto impunity.

The Jewish State was never offered an audible voice in the specially created Iraqi Special Tribunal. Rather, all prosecutorial authority over Saddam was quickly and firmly vested in an ad hoc municipal institution, a newly-synthesized court of justice from which Israel had intentionally and very specifically been excluded. The U.S. decided not to try Saddam in any American military tribunal, for fear of eliciting further Arab terrorism, and also because Washington did not want to give the Iraqi dictator any viable pretext for claiming "Head of State immunity."

The Iraqi Special Tribunal began its formal proceedings on October 19, 2005. At the end, taking a proper page from the precedent-setting Nuremberg judgments after World War II, Saddam Hussein was executed by hanging. The gallows date was December 30, 2006.

Missing from Saddam’s criminal prosecution was even a single count for Iraq’s manifold 1991 aggressions against Israel. Jerusalem, however, did have a "peremptory" or incontestable right to participate in this post-Nuremberg Tribunal. Indeed, by any reasonable jurisprudential measure, Israel's deliberate exclusion from the IST proceedings had violated one of the world's most elementary legal principles of judicial jurisdiction.  After all, the crimes committed against Israel had taken place on Israel's own lands. There was no need for Jerusalem to make any case for "universal jurisdiction," as it had done for Adolph Eichmann, and as could have been done for the Tanzim terrorist leader, Marwan Barghouti.

Nullum crimen sine poena; "No crime without a punishment." Stemming from at least three separate passages of the Torah (in their sequence of probable antiquity, they are Exod. 21:22-25; Deut. 19: 19-21; and Lev. 24: 17-21), the Lex Talionis or "law of exact retaliation" was altogether integral to the Nuremberg Trial. In 1946, when the Special Military Tribunal justified a portion of its sentencing on long-standing arguments for retributive justice, it strongly reaffirmed this binding principle. Its precise words were: "Any person who commits an act which constitutes a crime under international law is responsible therefore, and liable to punishment."

When facing the Iraqi Special Tribunal, Saddam was charged with genocide, war crimes, and crimes against humanity, but not with aggression against Israel. Yet, aggression is plainly codified in several authoritative legal sources, and as a particularly serious crime that must never be accepted "without a punishment."

Whatever the practical arguments might have been for excluding Israel, therefore, and there were certainly a few of these, there could never have been any correct legal justification for ignoring Iraq's Gulf War missile attacks upon innocent Israeli civilian populations.  

On Friday, January 18, 1991, Saddam Hussein had launched eight Scuds directly at non-combatant targets in Tel Aviv. For more than a month, this initial attack was followed by thirty-one additional missiles, fired at random, at assorted Israeli neighborhoods. The very last Iraqi missile attack against Israel took place on February 25, 1991.

In compliance with both U.S. and allied geopolitical expectations, Israel never fired back. Needless to say, the right of an Israeli retaliation in self-defense - subject, of course, to usual limitations of humanitarian international law, namely discrimination,proportionality, and military necessity - would have been beyond legal question.

 Iraq's thirty-nine Scuds killed only one Israeli directly. Twelve additional deaths were the indirect result of these missile attacks. Nearly two-hundred persons were injured; 4393 buildings were damaged. This included 3991 apartments and residential buildings; 331 public institutions; 17 educational institutions; and 54 businesses.

Yes, it could have been much worse. Nonetheless, the obvious tactical failures of Iraq's primitive weapons did not, in themselves, provide any exculpatory legal argument for Saddam. Not at all.

Although Saddam Hussein's own personal responsibility for aggression against Israel was limited to the 1991 attacks, Iraq had already amassed a long history of unpunished crimes against the beleaguered mini-country, including barbarous public executions of leaders of the Iraqi Jewish community. Here, of course, the hangings were justified by Baghdad on the basis of utterly concocted charges that Iraqi Jews were spies for Israel.

Also, Iraq sent expeditionary forces against a microscopic Israel during the 1948 War of Independence, the Six Day War (1967), and also the Yom Kippur War (1973). During the 1948 conflict, which all Arab armies had openly regarded and proclaimed as a war of "annihilation," Iraqi forces entered Transjordan,  thereafter engaging greatly outnumbered Israeli forces in Western Samaria.

After the 1967 war, Iraqi forces, deployed in Jordan, remained purposely pre-positioned for several years. During the 1973 war, Iraq committed an entire one-third of its then 95,000 man armed forces to assist Hafez al-Assad's Syria, in its campaign of determinedly existential violence against Israel, on the Golan Heights. Since then, Bashar, the son, has already gone beyond both his father and Saddam in the willful gassing of his own countrymen.

International law is not a suicide pact, not then, and not now. Every state maintains an "inherent" right of self-defense. Participating in the prosecution of Saddam Hussein for prior aggression against Israel would have represented a fully authoritative expression of this basic right. In the absence of such participation, moreover, the stage has been set for yet another Arab jurisprudential assault upon Israel - this time, in particular reference to "Palestine."

According to Emmerich de Vattel's classic 1758 work on "The Law of Nations", a text that heavily influenced the thinking of Thomas Jefferson in America, "The right to punish injustice is derived from the right of self-protection." The core right of self-defense in international law is itself drawn from Natural Law or Higher Law, and can never be subordinated to any "man-made" international agreements, or to any extra-legal considerations of power politics.

Not only did Israel have an unquestioned right to join in the trial of Saddam Hussein, there had also been a corresponding obligation of all other states to ensure such participation. As Blackstone observed in his conspicuously famous Commentaries, which formed much of the early law of the United States, international law exists to provide "for the eternal and immutable laws of good and evil." Each state, Blackstone had warned, is bound "to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against the universal law...."

Natural Law, which is the indisputable basis of all consequent international law, stems originally from the Decalogue (Ten Commandments), and from the Covenant Code of Israel. This Natural Law is expressed not only in the Declaration of Independence,but also in the Bill of Rights. The Ninth Amendment, in stipulating that "the enumeration of certain rights in this Constitution shall not prejudice other rights not so enumerated," reflects an immutable belief in a Higher Law, one that is always superior to the flawed will of human governance.

Looking back, following fully appropriate legal procedure, Israel ought to have been encouraged to prepare a formal criminal complaint against Saddam Hussein, and then to file the relevant documents with the Iraqi Special Tribunal.  Jerusalem's next step should have been in the United Nations. There, in the General Assembly, Israel could have called upon that august body to promptly request an Advisory Opinion on the significant Israeli charges from the International Court of Justice.

This retrospective point of justice is important today, not because of anything left to do with regard to Iraqi crimes against Israel, but because of what it implies concerning still-impending Palestinian crimes against the Jewish State. In this connection, the most evident expected crime has to do with Palestinian plans for a "One State Solution." In spite of popular rhetoric calling for a "Two State Solution," there is literally nothing in the actual charters and codes of Fatah, Hamas, or Islamic Jihad that can allow for a surviving Jewish state anywhere in the Dar al-Islam.

Returning to the matter of Israel and Saddam Hussein, an Advisory Opinion could also have been requested by the United States, in the Security Council. This American obligation to render pertinent assistance to Israel would have derived not only from the Constitutional incorporation of international law into United States law, especially Article 6 of the US Constitution (the Supremacy Clause), but also from the indisputably Natural Law foundations of U.S. law. 

In a now irreversibly lost opportunity, any U.S. initiative to punish Saddam Hussein's crime of aggression against Israel would have represented essential support for both international law, and for America's own most durably sacred and derivative principles of justice.

Now, at a perilous moment when Israel’s basic rights under international law are again being expressly disregarded, and once again in the United Nations, which has already declared the Palestinian Authority to be a "non member observer state," it is sobering to remember that Jerusalem has been down this road before.

This time, however, even with explicit "guidance" from the Road Map, the consequences of global legal indifference could be substantially more serious.

This time, especially if Palestinian President Mahmoud Abbas should bring his carefully contrived claim to statehood for  U.N. endorsement, a potentially-genocidal "One State Solution" could be the outcome. This would be the case even though "Palestine" would still not have met any of the core expectations for sovereignty identified in the Convention on the Rights and Duties of States, sometimes also called the Montevideo Convention (1934)

It will be in the alleged interests of "self-determination," always a most respectable and peremptory legal objective, that a new terror state will soon be presented to allegedly "coexist with Israel." This 23rd Arab state, however, already infused with distinctly encouraging memories of earlier unpunished Iraqi crimes committed against Israel, will immediately plan to replace the Jewish State. Essentially a new launching pad for war and terror against Israel, this new Arab state will be called “Palestine.”

Louis René Beres (Ph.D., Princeton, 1971) lectures and publishes widely on international law. He is the author of ten major books and several hundred articles dealing with strategic and jurisprudential matters. Professor Beres was born in Zürich, Switzerland, on August 31, 1945.