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December 20, 2014 / 28 Kislev, 5775
 
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Posts Tagged ‘Genocide Convention’

What A Surprise! Diplomatic Sanctions Won’t Work For Iran

Wednesday, March 28th, 2007

One would think, certainly by now, that foolish optimism about Iran should have been swept completely away. One would now assume, with altogether good reason, that Iran has absolutely no intention of abandoning its nuclear program, and that it does not display markedly genocidal stripes only for Islamic public consumption. Rather, it should now be evident to anyone who can read or watch the TV news that Iran’s President Mahmoud Ahmadinejad fully intends to become a regional superpower, and that he plans to do this on the vaporized collective corpse of the exterminated Jewish state.

So, we might ask as Jews, “What else is new?” At the same time, we do need to inquire seriously: “What is to be done?” There is, of course, no easy answer to the question of ongoing Iranian nuclearization. All remedial options are manifestly unattractive, and all will have substantial costs. Oddly enough, diplomacy still seems to be the preferred path to crisis resolution, but only because polite conversation and empty threats will seemingly protect all parties from assorted political risks.

In the matter of Iran’s ambitious and genocidal program for nuclear weapons, further diplomacy has absolutely no chance of success. None at all. No UN sanctions will have any effect on the pace and substance of Tehran’s illegal operations. Whether we like it or not, unless there is a near-term defensive first-strike at pertinent elements of Iran’s expanding nuclear infrastructures, that country will become a member of the nuclear club.

Such membership would pose a genuinely existential hazard, especially to Israel. A nuclear Iran would not resemble any other extant nuclear power, and there could be no stable “balance of terror” involving that martyr-frenzied Islamic republic. Unlike the Cold War, which was always governed by mutual assumptions of rationality, a world with a nuclear-armed Iran could explode at any moment into apocalyptic chaos. Although it is possible to suggest a postponement of preemption until Iran was more openly nuclear, the collateral consequences of any such delayed self-defense could be staggering.

The very idea of an apocalypse was born in ancient Persia. There, the Zoroastrians first conceived of a stark polarity between Good and Evil, between Light and Dark. Their dualistic faith was called Manicheanism. Precisely how this faith ultimately found its way into contemporary Islamic eschatology, and into certain Islamic expectations of a cataclysmic war to bring forth the missing 12th Imam, is a question for further scholarly examination. But for now, all that we really need to know is that Iran’s leadership genuinely believes in the coming of the Mahdi, the Islamic redeemer, and that a total war against “The Jews” would meet all pertinent criteria of their own scriptural prophesy.

So, in the best-of-all-possible worlds, diplomatic settlement with Iran could still be taken seriously, and military solutions would be happily out of place. But we surely don’t live in such a world, and we now have little choice but to compare the costs of prompt preemptive action against Iran with the costs of both: 1. inaction; and 2. delayed military action. Here it would be apparent that all available options are going to be costly, and that putting our heads back in the sand will only make us blind.

Iran’s president maintains that his country’s nuclear program is intended only to produce electricity, but there is no reasonable argument or evidence to support this disingenuous statement. Ahmadinejad blames Israel for war and terror in the Middle East, but it is Iran that calls for “wiping Israel off the map.” From the standpoint of codified international law, this call is more than an expression of exceptionally bad manners. As I have made clear in some of my earlier columns here in The Jewish Press, it is also an egregious violation of the Genocide Convention of 1948. For its part, Israel has never threatened any other state with nuclear weapons, and – indeed – does not acknowledge that any such weapons even exist.

Iran must be stopped immediately from acquiring atomic arms, and this can only be accomplished through anticipatory self-defense. An appropriately precise set of defensive attacks against Iran’s nuclear assets could be distinctly legal. Contrary to the conventional wisdom, authorization for preemptive action against Iran would not have to come from a collective decision by the UN Security Council. At this point, the United States and/or Israel could choose to act on behalf of the entire international community, and could do so lawfully without wider approvals.

The right of self-defense by forestalling an attack appears in Hugo Grotius’ classic, The Law Of War And Peace (1625). Recognizing the need for protection against “present danger” and threatening behavior that is imminent, Grotius – who was influenced by the Torah − indicates that self-defense is permitted not only after an attack has already been suffered, but also in advance, “where the deed may be anticipated.” Continues Grotius: “It be lawful to kill him who is preparing to kill.”

Emmerich de Vattel takes a similar position in his The Law Of Nations (1758). Here, he argues that it is lawful to resist and even to anticipate attacks by other nations so long as aggression is truly forthcoming: “The safest plan,” says Vattel, “is to prevent evil, where that is possible. A Nation has the right to resist the injury another seeks to inflict upon it, and to use force and every other just means of resistance against the aggressor.”

Some current scholars will argue that the specific language of Article 51 of the UN Charter overrides the customary right of anticipatory self-defense. In this view, Article 51, which speaks of self-defense only after an armed attack has already been absorbed, fashions a more restrictive statement of self-defense. This narrow interpretation ignores that international law is not a suicide pact. When Israel launched a successful preemptive strike against the Iraqi Osiraq nuclear reactor on June 7, 1981 (“Operation Opera”), neither the UN Security Council nor the General Assembly censured the attack.

There is little time left to deal with Iran. In fact, the operational success of any essential preemption against Iranian military targets is already in doubt. To make matters worse, any action against Iran would likely entail large numbers of civilian casualties. This is because of the Iranian policy of deliberately placing military assets in the midst of civilian populations – a policy called “perfidy” under international law. Still, further postponements will only multiply the number of casualties from any future preemption, or – in the worst-case scenario – permit Iran to become fully nuclear. In that eventuality, Israel could face the unimaginable post-Holocaust prospect of literally millions of prompt fatalities.

Copyright The Jewish Press, March 30, 2007. All rights reserved.

LOUIS RENE BERES was educated at Princeton (Ph.D., 1971). Professor of International Law at Purdue, he is the author of many books and articles on nuclear strategy and nuclear war, and is Chair of “Project Daniel.” Professor Beres is Strategic and Military Affairs columnist for The Jewish Press.

Ahmadinejad’s Calls For Genocide Are Crimes Against Humanity

Wednesday, March 14th, 2007

“The more things change,” goes the well-worn maxim, “the more they remain the same.” Readers of The Jewish Press are already well acquainted with now incessant Iranian calls for the annihilation of Israel. What might not be so apparent, however, is that such calls to “wipe Israel off the map” constitute a serious crime under international law. And as this particular crime centers on genocide, such calls for crimes against humanity should have an especially disturbing resonance for the Jewish State.

Genocide has always been prohibited by international law. According to the Genocide Convention, a binding multilateral treaty that codified post-Nuremberg norms and entered into force in 1951, precisely the sorts of murderous acts openly advocated by Mahmoud Ahmadinejad and Iran’s surrogate terror groups qualify straightforwardly as genocide.

It follows that if international law is ever to be taken seriously, some pertinent authorities in our so-called “international community” must immediately step forward with both condemnation and conclusive enforcement action.

In this connection, it is also important to understand that war and genocide need not be mutually exclusive. More specifically, war can be an entirely efficient instrument of genocide. Our enemies no longer need to work out the complex logistics of bringing Jews to the gas. Rather, the “gas” can now be brought directly to the Jews.

Current Iranian preparations for a Final Battle with “The Jews” are not only for a presumably indispensable and unavoidable war but – ultimately and religiously – for the planned extermination of an entire people. Under international law, President Ahmadinejad’s calls for the mass murder of Jews – whether indirectly in Jihad or directly through missile attack – constitute authentic calls for genocide.

The international community, therefore, must now acknowledge that the very same individuals who continually call for commission of the world’s most egregious crime cannot be a proper partner for honest negotiation or diplomatic reconciliation.

While most of the world outside of Washington and Jerusalem still chooses to ignore explicit Iranian calls for the commission of genocide, international law does have an unswerving obligation to stop and take notice. Expressed by leaders of the major states in world politics, the relevant norms and principles of international law should be invoked in time.

Certainly, this must happen before the calls for genocide against Israel’s Jews are allowed to become the materialized foreign policy of a rogue state that has been allowed to arm with nuclear weapons.

Lest anyone be overly optimistic, the fusion of genocidal intent with genocidal capacity is now well within reach for Iran. As my readers here are well aware, a failure to preemptively destroy Iran’s key nuclear infrastructures in a timely fashion will place Israel at existential risk.

Significantly, it is jurisprudentially clear that such preemption could assuredly meet the settled criteria of anticipatory self-defense. No Israeli government would need to put off life-saving preemptions for fear that it would be acting in violation of international law.

Naturally, any lawful expression of anticipatory self-defense would still have to be consistent with expectations of the law of war – that is, discrimination, proportionality and military necessity. Under international law, even where there isjust cause, there must also be just means.

Iran and its assorted proxy terror groups (most notably, Hizbullah in Lebanon and also Hamas in Gaza) are obligated to refrain from incitement against Israel.

What is not widely understood is that the Genocide Convention criminalizes not only the various actual acts of genocide, but also (Article III) conspiracy to commit genocide and direct and public incitement to commit genocide. Articles II, III and IV of the Genocide Convention are fully applicable to Iran in all cases of direct and public incitement to commit genocide.

For the Convention to be invoked, it is sufficient that any one of the state parties call for a meeting – through the United Nations – of all the state parties (Article VIII). Although this has never been done, the United States should consider very seriously taking this imperative step. From a purely jurisprudential point of view, Israel, too, should be an obvious co-participant in this call, but it is unlikely – for entirely pragmatic reasons – that any Israeli government would seek legal redress under broad multilateral conventions.

The Genocide Convention is not the only authoritative criminalization that should be invoked against interminable Iranian calls for the mass murder of Israel’s Jews. The 1965 International Convention on the Elimination of All Forms of Racial Discrimination could also come productively into play.

This treaty condemns “all propaganda and all organizations which attempt to justify or promote racial hatred and discrimination in any form,” obliging, at Article 4(a) state parties to declare as “an offense punishable by law, all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons.”

Article 4(b) affirms that state parties “Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offense punishable by law.”

Further authority for curtailing and punishing Iranian calls for genocidal destruction of Jews can be found at Article 20(2) of the International Covenant on Civil and Political Rights: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” All of these treaty norms are now an incontestable part of customary international law, and are therefore binding upon all states – whether or not they are actual parties to the particular conventions.

The chief message of the law-making judgments at Nuremberg was to ensure that all future crimes against humanity be identified, prosecuted and punished. This point should now be kept in mind as Mahmoud Ahmadinejad and his surrogates advocate the genocidal extermination of Israel.

In essence, because it is a process that is accompanied by genocidal threats, steady Iranian nuclearization has already become a punishable crime against humanity.

Let me conclude with a non-legal but still altogether vital observation on the deeper meaning of Iran’s intended genocide. Iran’s aggressive behavior represents a crime against humanity not only because of its obvious violation of certain major legal norms, but also because the fate of the entire world – the fate of humanity – is utterly and always inseparable from the fate of Israel. The genocidal destruction of Israel by Iran would have unimaginably dire implications for all of humanity.

As he has written so movingly in The Jewish Press, Rabbi Eliezer Waldman reminds us that the “eternal flame of Jewish life in Israel” burns brightly on behalf of all humankind. By preventing genocide against Israel, we protect the entire planet. By working for the redemption of Israel, we work to bring a blessing to all peoples of the world.

If there is ever to be any sort of meaningful international community, there must first be a safe and secure State of Israel.

Copyright The Jewish Press, March 16, 2007. All rights reserved.

LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with terrorism, war and international law. He is Strategic and Military Affairs columnist for THE JEWISH PRESS.

Arab Anti-Semitism – Genocide, Terrorism And International Law (First of Two Parts)

Wednesday, June 9th, 2004

A comparable legal case could just as easily have been made on behalf of Israel. Still reeling from an organized chorus of barbarous calls for individual and collective Jewish annihilation, Israel itself must now continuously remind the world of its own incontestable and established rights to self-defense. In addition to the widely-understood individual and collective right to resist armed force that is codified at Article 51 of the UN Charter and in customary international law, these rights also pertain to certain defiling images and language created in the Arab world. I refer, of course, to images and language that insistently glorify both terror and
genocide against Jews.

The particular case in question involves a December 2003 decision by the International Criminal Tribunal in Rwanda (ICTR). Here, three African media executives were found guilty of genocide, incitement to commit genocide and crimes against humanity. These guilty verdicts were based upon provocative reports and editorials that had been published in the early 1990s before and during orchestrated mass murder of the Tutsi Rwandan minority by Hutus. Significantly, as Darshan-Leitner indicated, the defendants were not convicted of any specific acts of violence, but only of a heinous abuse of words.

What, exactly, has all this to do with Israel? Today, and for more than the past 40 months of intifada, anti-Jewish and anti-Israel diatribes are entirely standard fare on Palestinian Authority, Syrian, Egyptian, Saudi Arabian and Hizbullah television. As for the Arab print-media, the general and unrelenting theme is that Jewish “infidels” are distinctly less than human, inherently degenerate and suitable only for sacrificial killing. Indeed, as these media now routinely remind all of their readers, the murder of Jews, children and infants included, is always a religiously meritorious act. Currently, there is little to distinguish the bloodcurdling anti-Semitic cries of Arab television and newspapers from the Nazi propaganda of Der Stuermer or from Rwandan media exhortations during the frenzied 1994 genocide in that African country.

Genocide has always been prohibited by international law. In the words of the Genocide Convention, a binding multilateral treaty that codified post-Nuremberg norms and entered into force in 1951, the sorts of murderous acts long advocated by Arab leaders and Arab terror groups qualify very precisely as genocide. The Fatah organization website still calls openly for the “eradication” of Israel. This call echoes earlier genocidal codifications in the still unchanged Palestinian National Charter, in Fatah’s ongoing calls for Inqirad mujtama (the extinction of Israeli society), and in the Charter of Hamas (“There is no solution to the Palestinian problem except by Jihad….I swear by that who holds in His Hands the Soul of Muhammad! I indeed wish to go to war for the sake of Allah! I will assault and kill, assault and kill, assault and kill.”)

War and genocide need not be mutually exclusive. Arab preparations for a Final Solution for the Jews are not only for an “unavoidable” war, but also for the extermination of an entire People. Regarding ties with PLO, the Hamas Charter says the following: “The PLO is among the closest to the Hamas, for it constitutes a father, a brother, a relative a friend.” On the primacy of hatred toward Judaism, not Israel, the Charter states: “Israel, by virtue of its being Jewish, and of having a Jewish population, defies Islam and the Muslims.”

Under international law, all Arab calls for the killing of Jews – whether indirectly in Jihad or directly through mass murder - constitute calls for genocide. Ironically, the national and terror group authorities who issue such calls, including of course Nobel Laureate Yasir Arafat, are widely recognized by the international community outside the United States as official emissaries of “peace.” It is time now for this community to acknowledge that the same individuals who call for commission of the world’s most egregious crime cannot possibly be a proper source of partnership and reconciliation with Israel. At the same time, it is unlikely that such an acknowledgment will arise anywhere in Europe, where the view is currently widespread that Israel – a state less than half the size of Lake Michigan – is the world’s second most dangerous country (The most dangerous, of course, is the United States).

As ruled explicitly by the ICTR, media and government calls for genocide are an egregious offense, fully punishable under international law. Arab media and leadership elites assuredly do not have protected speech in their calling for the mass murder of Jews. In the precise language of the ICTR’s 350-page decision, governments and authorities have a distinct obligation to restrict speech that advocates “national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” This language, of course, is derivative from already-existing codifications of international criminal law, especially the Genocide Convention, the earlier London Charter of August 1945, which defined and criminalized crimes against humanity, and a number of other sources that will be briefly noted below.

Following a recent suicide bombing in which small Jewish children were blown to bits, prominent Palestinian columnist Fahd al-Rimawi – writing with obvious approval of Yasir Arafat in Amman al-Majd, celebrated the monstrous act of terror: “Let us rejoice and applaud the operation with the sweetest of songs and ululations (sic). We greet that act of ingeniousness with the sweetest of chants and we bid farewell to our bold martyrs who have lit the night of Jerusalem… and given luster and meaning to Arab valor…. We will not apologize for the Jewish blood that will be spilt nor denounce the heroic actions of the mujahidin who represent the soul of this nation and echo the pulse of the masses and the Palestinian people’s conscience….”

Copyright (c) The Jewish Press, 2004. All rights reserved.

LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with genocide, terrorism, war and international law. Strategic and Military Affairs columnist for THE JEWISH PRESS, he is Professor of International Law at Purdue University, and is currently participating in the preparation of legal arguments for the prosecution of Saddam Hussein.

Printed from: http://www.jewishpress.com/indepth/columns/louis-bene-beres/arab-anti-semitism-genocide-terrorism-and-international-law-first-of-two-parts/2004/06/09/

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