At a moment when Israel is under new daily assaults from the international community, especially from the Palestinian Authority and its oddly eager mentors at the United Nations, it is worth noting that there is a discernible and continuous pattern here of legal double-standards. No matter how often Israel is victimized by instances of Palestinian terrorism, Jerusalem’s most basic rights under international law are flagrantly disregarded. Although core documents in jurisprudence refer hopefully and optimistically to “general principles of law recognized by civilized nations,” the actual orientation of states toward Israel has generally been to punish the innocent victims, and reward the terrorist.
As a suitable reference point, let us consider the trial and subsequent punishment of Saddam Hussein. U.S. forces had captured the Iraqi dictator on December 13, 2003. Significantly, Saddam’s many egregious crimes had included the Jewish state and its citizens as victims. Still, Israel was never given any voice in the specially created judicial forum. Rather, all prosecutorial authority over Saddam was quickly vested in an ad hoc institution from which Israel had been totally excluded.
This official trial venue was called the Iraqi Special Tribunal. It began its formal proceedings on October 19, 2005. Saddam Hussein was subsequently executed by hanging on December 30, 2006.
Clearly missing from Saddam’s criminal prosecution were any specific counts for Iraq’s multiple 1991 aggressions against Israel. The Jewish state, however, did have a “peremptory” legal right to participate in the Iraqi Special Tribunal, and its deliberate exclusion from the proceedings plainly violated one of the world’s most elementary jurisdictional principles of justice.
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 integral to the precedent-setting Nuremberg Trial after World War II. Indeed, in 1946, when the Special Military Tribunal justified its sentencing on arguments for retributive justice, it strongly reaffirmed this binding principle. In its precise words: “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 fully codified in several sources as a very serious crime, and must never be accepted “without a punishment.” Whatever the practical arguments had been for excluding Israel, there could never be any proper legal justification for having ignored Iraq’s Gulf War missile attacks upon Israeli cities.
On Friday, January 18, 1991, Saddam Hussein’s government launched eight Scuds directly at civilian targets in Tel Aviv. This attack was followed for more than a month by thirty-one additional missiles fired at Israeli noncombatants. Baghdad’s last missile attack against Israel took place on February 25, 1991. In compliance with U.S. and allied expectations, Israel never fired back.
Iraq’s thirty-nine Scuds managed to kill only one Israeli directly. Twelve additional deaths resulted indirectly from missile attacks. Nearly two hundred persons were injured. Also, 4393 buildings were damaged: 3991 apartments and residential buildings; 331 public institutions; 17 educational institutions; and 54 businesses. It could have been much worse. But the particular tactical failures of Saddam’s primitive missiles do not provide an exculpatory argument for Saddam under international law.
Although Saddam Hussein’s personal responsibility for aggression here must be limited to the 1991 attacks, Iraq already had a long history of unpunished crimes against Israel. Baghdad had sent expeditionary forces against the tiny Jewish state during the 1948 War of Independence, the Six Day War (1967), and the Yom Kippur War (1973). During the 1948 war, Iraqi forces entered Transjordan and engaged Israeli forces in Western Samaria. In the aftermath of the 1967 war, Iraqi forces remained deployed in Jordan for several years. During the 1973 war, Iraq committed about one-third of its then 95,000-man armed forces to assist Syria in its determined campaign of violence against Israel on the Golan Heights.