Every state has an inherent right of self-defense. Participating in the prosecution of Saddam Hussein for prior aggression against Israel would have been an authoritative expression of this right. According to Emmerich de Vattel’s classic 1758 text on The Law of Nations, “The right to punish injustice is derived from the right of self-protection.” Moreover, the right of self-defense in international law is drawn from Natural Law or Higher Law, and can, therefore, never be subordinated to particular international agreements, or even to certain pragmatic considerations of geopolitics.
Natural Law, which is the true basis of all international law, stems from the Decalogue (Ten Commandments), and the Covenant Code of Israel. 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 belief in a Higher Law that is superior to the will of all human governance.
According to correct legal procedure, Israel certainly ought to have been permitted 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 body to promptly request an Advisory Opinion on relevant Israeli charges from the International Court of Justice.
An Advisory Opinion in the matter of Israel and Saddam Hussein could also have been requested by the United States in the Security Council. The American obligation to render such assistance to Israel would have derived not only from the Constitutional incorporation of international law into United States law (see especially Article 6 of the US Constitution), but also from the Natural Law foundations of U.S. law. Any U.S. initiative to punish Saddam Hussein’s crime of aggression against Israel would thus have represented essential support for both international law, and for America’s own most sacred principles of justice.
So, at a time when Israel’s basic rights under international law are again being expressly disregarded, it is sobering to remember that Jerusalem has been down this same battered path before. This time, however, the consequences of global legal indifference could be far more serious.. This time, especially if Palestinian statehood receives successful UN endorsement, a “One State Solution” would be implemented, probably in sequential and synergistic increments. In the presumed interests of self-determination, always a convenient jurisprudential objective, a new terror state would wholly replace Israel. This 23rd Arab state, of course, would be called Palestine.