At a moment when Israel is under new jurisprudential assaults from those world leaders who would pay no attention to pertinent international law (most conspicuously, President Obama’s commitment to a still one-sided “Road Map”), it may be a good time to recall previous episodes of more-or-less similar disregard. One such episode was the trial and subsequent punishment of Saddam Hussein, who had been captured by U.S. forces on December 13, 2003. Although Saddam’s multiple egregious crimes had prominently included the Jewish State and its citizens as victims, Israel was never given any voice in the specially created judicial forum. Rather, all prosecutorial authority over the captured Iraqi dictator was placed in an ad hoc institution from which Israel had been carefully (for geopolitical reasons) excluded. This was called the Iraqi Special Tribunal, which began its formal proceedings on October 19, 2005. Saddam was executed by hanging on December 30, 2006.
Clearly missing from Saddam’s criminal prosecution were any counts for Iraq’s multiple 1991 aggressions against Israel. The Jewish State, however, did have a distinct legal right to participate in the Iraqi Special Tribunal, and its deliberate exclusion from the proceedings did violate one of the world’s most elementary principles of justice. Consider the following:
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 Exodus 21:22-25; Deuteronomy 19: 19-21; and Leviticus 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. Never.
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 31 additional missiles fired at Israeli noncombatants. Baghdad’s last missile attack against Israel took place on February 25, 1991. In compliance with US and allied expectations, Israel never fired back.
Iraq’s 39 Scuds managed to kill only one Israeli directly. Twelve additional deaths resulted indirectly from missile attacks. Nearly 200 persons were injured. Also, 4,393 buildings were damaged: 3,991 apartments and residential buildings; 331 public institutions; 17 educational institutions; and 54 businesses. To be sure, 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, deployed in Jordan, remained there 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.
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 pragmatic considerations of geopolitics.
Not only did Israel have an incontestable right to join in the trial of Saddam Hussein, but there had also been a corresponding obligation of all other states to ensure such participation. As Blackstone observed in his famous Commentaries, which – significantly – actually formed the early law of these United States, international law exists to provide a code “for the eternal and immutable laws of good and evil.” Each state is therefore 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 core basis of 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 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 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 US law. Any US initiative to punish Saddam Hussein’s crime of aggression against Israel would have represented essential support for both international law and for America’s most sacred principles of justice.
At a time when Israel’s basic rights under international law are again being expressly disregarded, it is sobering to recall that Jerusalem has been down this path before. This time, however, the consequences of legal indifference could be far more serious. This time, especially if U.S. President Obama has his way with a Jewish settlement freeze, disregard for Israel’s particular legal rights could pave the way for a “One State Solution.” To be sure, the state that replaces Israel would be called “Palestine.”
Louis René Beres (Ph.D., Princeton, 1971) lectures and publishes widely on international law. He is Strategic and Military Affairs columnist for The Jewish Press.