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April 19, 2014 / 19 Nisan, 5774
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Posts Tagged ‘Natural Law’

Looking Back At The Trial Of Saddam Hussein: Implications Of Indifference To Israel’s Earlier Rights Under International Law

Wednesday, July 8th, 2009

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.

If It Looks Like A Duck… Why Suicide Bombers Can Never Be Freedom Fighters

Wednesday, August 1st, 2007

We Jews know a terrorist when we see one. Surely we don’t need the elegant refinements of international law to help us distinguish a suicide bomber from a freedom fighter. If it looks like a duck Nothing could possibly be easier to understand.

Still, from a practical standpoint, legal distinctions can often be quite helpful. What is obvious to us about terrorism is certainly not obvious to many others. Even after a monster in human form walks into an Israeli school, mall, or bakery and blows up innocent human beings within range, many in the “civilized” world will somehow find merit in the mayhem. Indeed, more often than we may care to admit, the journalists and pundits as well as ordinary observers will respond in partial or even full defense of the murderer. For them, terrorism has become just another form of revolutionary violence, and revolution, they presume, is always romantic and fundamentally good. Just ask almost any university professor, even in Israel.

But terrorism, especially suicide bombing, is never authentic revolution and it is never good. From the standpoint of authoritative international law, suicide bombers can never be considered “freedom fighters.” Jurisprudentially, there is simply no cause that can ever warrant the intentional mutilation and murder of civilians. By even the unwritten and merely customary standards of civilized human behavior, these actions are always criminal.

Supporters of barbarous Palestinian violence against Israeli citizens always claim that the insurgent Arab force is directed against an “occupation,” and thus warrants “any means necessary.” In law, this claim is altogether baseless and incorrect. Even where the use of insurgent force may actually be justified – and this is certainly not the case with Palestinian terrorism – deliberate attacks upon noncombatants are always illegal. There is no more sacred principle of law and justice than the imperative to protect the innocent.

“One man’s terrorist is another man’s freedom fighter.” Although repeated again and again, this contrived mantra has absolutely no grounding in law. There do exist very precise and settled legal criteria that distinguish the terrorist from the freedom fighter. According to international law, any insurgent who willfully causes the explosive incineration of men, women and children at lunch or at prayer or at a wedding ceremony or on a bus or at a shopping mall or at a bakery is a terrorist- period!

It is true that certain insurgencies can be judged lawful. Yet, even these insurgencies must conform to the laws of war. The ends can never justify the means. Wherever an insurgent group resorts to unjust means, as in the recent case of a blown-up family bakery in Eilat, its actions are unpardonable.

How shall we judge precisely when insurgent force is just or unjust? The determinable standards that must be applied are known in law as just cause and just means. These two standards, and these two standards alone, allow us to differentiate lawful insurgency from terrorism.

National liberation movements that fail to meet the test of just means are not protected as legitimate. Leaving aside the unsupportable argument that Palestinian organizations satisfy the legal standards of “national liberation”, it is abundantly clear that they do not meet the just means standards of discrimination, proportionality and military necessity. These formal criteria, long applicable under the Laws of War, have been applied to all insurgent organizations by the common Article 3 of the four Geneva Conventions of 1949 and by the two protocols to these Conventions of 1977. They are now directly binding upon all combatants by virtue of both customary and conventional international law, and – according to article 38 of the Statute of the International Court of Justice – by “the general principles of law recognized by civilized nations.”

Under law, the ends can never justify the means. As in the case of war between states, every use of force by insurgents must be judged twice, once with regard to the justness of the objective (the avowed Hamas/PA objective is a Palestinian state built upon the charred ruins of Israel) and once with regard to the justness of the adopted means. A Palestinian organization that deliberately targets civilians with an expressed intent to maximize pain and suffering can certainly never claim to be “freedom fighters.”

Ironically, as it continues with its present “surge” in Iraq, the Bush Administration still supports the idea of a “Road Map” to peace in the Middle East. Oddly enough, all American and European supporters of a Palestinian State continue to presume that it will somehow be part of a “two-state solution.” These smug supporters of Oslo-redux maintain that a 23rd Arab state will simply exist side-by-side with the existing Jewish State. Significantly, this curious presumption is dismissed everywhere in the Arab/Islamic world.

Terrorist crimes, as part of a broader category of harms called crimen contra omens (crimes against all), mandate universal cooperation in apprehension and punishment. As punishers of “grave breaches” under international law, all states are expected to search out and prosecute, or extradite, individual terrorist perpetrators. In no circumstances are any states permitted to characterize terrorists as “freedom fighters”. This prohibition is especially pertinent for the United States, which incorporates all international law as the “supreme law of the land” at Article 6 of the Constitution, and which was explicitly formed by the Founding Fathers according to the timeless and universal principles of Natural Law.

Palestinian terrorists are not “freedom fighters.” They are “common enemies of mankind” who exceed all moral and legal authority in their persistently cruel attacks. Until July 7, 2005, British newspapers had always referred to such murderers as “militants,” but when the al-Qaeda allies of Islamic Jihad and Hamas launched suicide attacks in London the media in Great Britain abruptly changed their vocabulary. Once the victims were Londoners, the perpetrators quickly became “terrorists.”

If it looks like a duck. Although obvious enough to us, the rest of the world often finds it convenient to confuse suicide bombers with freedom fighters. It follows that the unassailable criteria of international law do have their distinctly proper place in distinguishing one from the other, and that the architects of Israeli foreign policy would now do well to understand and to publicize these criteria.

Copyright, The Jewish Press, August 3, 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 and international law. He is Strategic and Military Affairs columnist for The Jewish Press.

Prosecute Saddam For Crime Of Aggression Against Israel

Wednesday, October 20th, 2004
One of the most elementary principles of law is known as Nullum Crimen Sine Poena: “No crime without a punishment.” Stemming from at least three separate passages of the Torah (Exod. 21:22-25; Lev. 24:17-21; Deut. 19:19-21), the Lex Talionis or “law of exact retaliation” was absolutely integral to the Nuremberg Trial and judgment. Indeed, in 1946, when the Special Military Tribunal justified its sentencing on arguments for retributive justice, it strongly reaffirmed this elementary principle. The precise wording of the binding Nuremberg Principles is: “Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.”

At the request of the U.N. General Assembly in 1950, the Nuremberg Principles were later formulated as follows by the United Nations International Law Commission: “Offenses against the peace and security of mankind…. are crimes under international law, for which the responsible individuals shall be punished.” This formulation has special relevance to the impending trial of Saddam Hussein. Moreover, the State of Israel should now be allowed to participate in this important prosecution.

Former Iraqi dictator Saddam Hussein is, of course, in American custody, awaiting trial before an Iraqi court. When facing the Iraqi Special Tribunal, Saddam will be formally charged with genocide, war crimes and crimes against humanity. Missing from the indictment, however, will be any counts for Iraq’s multiple 1991 aggressions against Israel. Codified in several sources as an especially serious crime, aggression must never be accepted “without a punishment.” Although the world is now well accustomed to disregarding Israel’s particular rights under international law – a flagrant indifference most openly apparent in the recent advisory opinion of the International Court of Justice on Israel’s security fence – there can never be any legal justification for simply ignoring Iraq’s missile attacks upon Israeli cities.

Let us remember what the world has so quickly forgotten. On Friday, January 18, 1991, Saddam Hussein’s government in Iraq launched eight Scud missiles directly at civilian targets in Tel-Aviv. This attack was followed for more than a month by 31 additional Scuds, fired purposefully 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.

Remarkably, 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. Israel has every right under international law to seek damages for these unmistakable acts of aggression, and to seek criminal prosecution of Saddam Hussein for his obvious authorization of these crimes.

Although Saddam Hussein’s personal responsibility for aggression against Israel should be limited to the 1991 missile attacks, Iraq has a long history of unpunished aggressions against Israel. Baghdad 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 campaign of violence against Israel on the Golan Heights.

Every state, including Israel, has an “inherent” right of self-defense. To a significant extent, participating in the prosecution of Saddam Hussein for prior aggression against Israel would be an 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 does Israel have a fixed and incontestable right to participate in the prosecution of Saddam Hussein, but there is also a corresponding obligation of all other states to ensure such participation. As Blackstone observed in his famous Commentaries, which form the very basis of the law of the United States, international law exists so as 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 foundation stone of international law, stems conspicuously 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.

From the standpoint of legal procedure, Israel must now prepare a formal criminal complaint against Saddam Hussein, and file the relevant documents with the Iraqi Special Tribunal. But as it is certain that the Iraqi court will refuse to honor its prosecutorial obligations to the Jewish State, Jerusalem’s next step should be in the United Nations. There, in the General Assembly, Israel should call upon that body to promptly request an Advisory Opinion on Israeli charges from the International Court of Justice. Such an authoritative request would be difficult to brush aside, even by a “World Court” that only recently ruled that the lives of Israelis threatened by Arab terror are of no importance.

An Advisory Opinion in the matter of Israel and Saddam Hussein could also be requested by the United States in the UN Security Council. The American obligation to render such assistance to Israel would derive not only from the Constitutional incorporation of international law into United States law (see especially Article 6 of the U.S. Constitution), but also from the Natural Law foundations of US law. Any U.S. initiative to punish Saddam Hussein’s crime of aggression against Israel would represent essential support for both international law and for America’s most sacred principles of justice.

LOUIS RENE BERES (Ph.D., Princeton, 1971) lectures and publishes widely on international law. He is Strategic and Military Affairs columnist for The Jewish Press.

Printed from: http://www.jewishpress.com/indepth/columns/louis-bene-beres/prosecute-saddam-for-crime-of-aggression-against-israel/2004/10/20/

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