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April 18, 2014 / 18 Nisan, 5774
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Posts Tagged ‘Self Defense’

Iran’s Unhidden Plan For Genocide: Israel’s Decision (Third of Three Parts)

Thursday, April 4th, 2013

Published in the print edition under the title, “Iran’s Unhidden Plan For Genocide: A Legal Assessment (Third of Three Parts).” Click here for part one and here for part two.

In the post-Holocaust and post-Nuremberg international system, the right of individual states to defend themselves against genocide is overriding, and thoroughly beyond legal question.

This right does not stem directly from the language of the Genocide Convention, which does not explicitly link genocide to aggressive war, but it can still be extrapolated from (1) the precise legal language of anticipatory self-defense, including an 1837 case known as The Caroline; and (2) all subsequent authoritative reaffirmations of law identifiable at Article 38 of the Statute of the International Court of Justice. The right of anticipatory self-defense to prevent genocide can also be deduced from certain basic principles of self-protection codified at the Vienna Convention on the Law of Treaties, and, more generally, from the confluence of persistently anarchic international relations with now-obligatory norms of basic human rights.

Should Israeli decision-makers finally determine they do have a compelling right to act first against Iran to prevent genocidal aggression, any resultant Israeli resorts to preemptive force would still have to be consistent with the laws of war of international law, or the law of armed conflict. In detail, this would mean, for Israel, respecting the always indisputable primary belligerent requirements of “distinction” (avoiding injury to noncombatants), “proportionality,” and “military necessity.”

What about the future? What happens next concerning a steadily nuclearizing Iran? What about anticipatory self-defense in this particular case?

International custom is one of several proper sources of international law listed at Article 38 of the Statute of the International Court of Justice. Where it is understood as anticipatory self-defense, the customary right to preempt has its modern origins in an incident known in appropriate jurisprudence as The Caroline. During the unsuccessful rebellion of 1837 in Upper Canada against British rule, The Caroline had established that even a serious threat of armed attack may justify militarily defensive action.

In an exchange of diplomatic notes between the governments of the United States and Great Britain, then-U.S. Secretary of State Daniel Webster outlined a framework for self‑defense which did not require a prior attack. Here, military response to a threat was judged permissible, but only so long as the danger posed was “instant, overwhelming, leaving no choice of means and no moment of deliberation.”

Strategic circumstances and the consequences of strategic surprise have changed a great deal since The Caroline, thereby greatly (and sensibly) expanding legal grounds for anticipatory self-defense. Today, in an age of chemical/biological/nuclear weaponry, the time available to any vulnerable state under attack could be only a matter of minutes. From the special standpoint of Israel, soon to face an Iran armed with nuclear weapons, an appropriately hard-target resort to anticipatory self-defense could be both lawful and law-enforcing.

Before the start of the Atomic Age, any justification of anticipatory self-defense would have to have been limited to expected threats of aggression from other states, not genocide. Today, however, the conceivable fusion of nuclear weapons capacity with aggression could transform war into genocide. Although there are no true precedents of resorting to preemption as a law-enforcing means of preventing genocide or “conspiracy to commit genocide” by one state against another, the pertinent right to such pre-attack self-defense is rooted, inter alia, in The Caroline.

After all, if it was already legal, long before nuclear weapons, to strike preemptively in order to prevent entirely conventional aggressions, how much more permissible must it be to strike preemptively to defend against a potentially genocidal nuclear war?

Nonetheless, some legal scholars argue that the right of anticipatory self‑defense expressed by The Caroline has been overridden by the more limiting language of the United Nations Charter. In this view, Article 51 of the Charter offers a far more restrictive statement on self‑defense, one that relies on the strict qualification of a prior armed attack. This very narrowly technical interpretation ignores the larger antecedent point, that international law is never a suicide pact.

Sensibly, law can never compel a state to wait until it has absorbed a devastating or even genocidal first strike before acting to protect itself. Both the Security Council and the General Assembly correctly refused to condemn Israel for its 1967 preemptive attacks. Incorrectly, however, whether or not it had then accepted the existence of a formal state of war between Israel and Iraq – a condition of belligerency openly insisted on by Baghdad – the UN did condemn Israel for Operation Opera in 1981. Of course, this legally incorrect condemnation was the direct result of regionally recurrent circumstances, conditions wherein an exterminatory power politics or geopolitics trumps law.

News From Poland

Wednesday, May 3rd, 2006

Polish Coalition Makes Jews Uneasy




The conservative minority government of Poland’s Law and Justice party has agreed to enter a coalition with two extreme-right parties. The two parties that signed the agreement, the League of Polish Families and the Self-Defense party, have a history of anti-Semitic stances. Jan Maria Jackowski, a prominent member of the League of Polish Families, has warned against Poland becoming a “land reserve” for Jewish settlement, and called accusations of pedophilia against a Polish priest a “Judeo-Communist plot.”


The party is also closely aligned with Radio Maryja, frequently cited for its anti-Semitic broadcasts. Andrzej Lepper, leader of the populist Self-Defense party, has referred enthusiastically to Goebbel’s “propaganda skills” and Hitler’s “economic policy,” according to the Stephen Roth Institute for the Study of Contemporary Anti-Semitism and Racism at Tel Aviv University. According to Polish media reports, Lepper has also received an honorary degree and supported Ukraine’s Interregional Academy of Personnel Management, or MAUP, which frequently publishes anti-Semitic material. The Law and Justice party has struggled to form a coalition since a narrow parliamentary election victory in September.

 

Good Friday March Criticized In Poland




The Simon Wiesenthal Center complained about the “anti-Semitic tenor” of a Good Friday procession not far from the Auschwitz death camp. Shimon Samuels, the center’s director for international relations, wrote to Polish Foreign Minister Stefan Meller that the ceremony, which included marchers with long beards and Stars of David, fueled stereotypes of Jews.


“This ceremony contravenes Polish responsibility to combat anti-Semitism under its obligation to the European Union and the Organization for Security and Cooperation in Europe,” he wrote. The center urged Poland to discipline organizers to ensure that such desecration is not repeated. “To do otherwise would endorse a message to Polish youth that is in contradiction with this new era of Polish-Jewish reconciliation,” Samuels wrote.

 


Pope’s Auschwitz Visit Finalized




Details of Pope Benedict XVI’s upcoming trip to Poland have been announced by the Vatican: A stop at Auschwitz is set for the last day of the pope’s May 25-28 visit, during which he is expected to deliver a significant address. At the former Nazi death camp, he will visit the site’s Centre for Dialogue and Prayer and take part in a memorial service for Nazi victims, according to the Catholic News Service.

Printed from: http://www.jewishpress.com/indepth/columns/news-from-poland/2006/05/03/

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