By Louis René Beres
Nullum crimen sine poena, “No crime without a punishment.”
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– Nuremberg Tribunal, Final Judgment, 1946
Whether formally codified or merely personal, memory must always lie at the heart of justice. Today, however, almost no one remembers the myriad threats and actual missile attacks once launched at Israel from Iraq. Indeed, virtually no one even remembers Saddam Hussein, or has any recollection of the Iraqi dictator’s subsequent trial and punishment. Significantly, though not even a minor factor in his indictment after capture by U.S. forces on December 13, 2003, Saddam’s multiple and overlapping crimes had included 39 rocket attacks on Israeli cities. Earlier, perhaps as a long-forgotten precursor (premonition?) of Syria‘s Bashar al-Assad, Saddam used devastating chemical weapons against Iraqi Kurds and others with de facto impunity.
In any event, Israel was kept entirely out of the prosecutorial “loop.” More precisely, the Jewish State was never offered any marginal voice in the specially created Iraqi Special Tribunal. Instead, all prosecutorial authority over Saddam was quickly and firmly vested in an ad hoc municipal institution, a newly-synthesized court of justice from which Israel had intentionally and very specifically been excluded. At the time, the U.S. decided not to try Saddam in an American military tribunal, for fear of eliciting further Arab terrorism, and because Washington did not want to give the Iraqi dictator a viable pretext for claiming “Head of State immunity.”
The Iraqi Special Tribunal began its proceedings on October 19, 2005. At the end, of course, taking a conclusive page from the precedent-setting Nuremberg judgments rendered after World War II, Saddam Hussein was executed by hanging. The gallows date was set for December 30, 2006.
Still missing from Saddam’s criminal prosecution was even a single count for Iraq’s manifold 1991 aggression against Israel. Nonetheless, Jerusalem had a “peremptory” or incontestable right to participate in this important post-Nuremberg Tribunal. By any reasonable measure, Israel’s deliberate exclusion from the IST proceedings effectively violated one of the world’s most elementary legal principles of judicial jurisdiction. After all, the substantial crimes committed against Israel had taken place with that state as the only selected target, and on Israel’s own lands. Here, therefore, was no need for Jerusalem to make any conspicuous case for “universal jurisdiction,” a case it had made earlier for Adolf Eichmann.
Nullum crimen sine poena or “No crime without a punishment” stems from at least three separate passages of the Torah (in their sequence of probable antiquity, they are Exod. 21:22-25; Deut. 19: 19-21; and Lev. 24: 17-21), the Lex Talionis or “law of exact retaliation” was integral to the Nuremberg Trial and its various specialized successor tribunals. In 1946, when the Special Military Tribunal justified a portion of its sentencing on long-standing arguments for retributive justice, it strongly reaffirmed this binding principle. Its exact words were: “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 plainly codified in several fully authoritative legal sources, and as an especially serious crime that must never be accepted “without a punishment.” The Tribunal’s exact words were: “So far from it being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished.”
Whatever the practical arguments at the time might have been for excluding Israel, and there were certainly more than a few of those, there could never have been any correct legal justification for totally ignoring Iraq’s Gulf War missile attacks upon innocent Israeli civilian populations. In compliance with both U.S. and allied geopolitical expectations, Israel never fired back. Needless to say, the right to launch an Israeli retaliation in self-defense – subject, of course, to usual limitations of humanitarian international law, namely discrimination (sometimes called distinction), proportionality, and military necessity – would have been beyond all legal question.
Iraq’s thirty-nine Scuds killed only one Israeli directly. Twelve additional deaths were the indirect result of these missile attacks. Nearly two-hundred persons were injured; 4393 buildings were damaged. This included 3991 apartments and residential buildings; 331 public institutions; 17 educational institutions; and 54 businesses.
Yes, it could have been much worse. But the obvious tactical failures of Iraq’s primitive weapons did not, in themselves, provide an exculpatory legal argument for Saddam. In all such critical legal matters, guilt or criminal responsibility is established primarily by criminal intent and not narrowly by operational outcome.
Although Saddam Hussein’s own personal responsibility for aggression against Israel was limited to the 1991 attacks, Iraq had previously amassed a long history of unpunished crimes against the beleaguered country, including barbarous public executions of leaders of the Iraqi Jewish community. These barbarous hangings were then justified by Baghdad on the basis of fully concocted charges that, seemingly by definition, all Iraqi Jews were spies for Israel. Also worth noting is that Iraq had sent expeditionary forces against Israel during the 1948 War of Independence, the Six Day War (1967), and even the Yom Kippur War (1973).
During the 1948 conflict, which all of the Arab armies had openly regarded and proclaimed as a purifying war of “annihilation,” Iraqi forces entered Transjordan, thereby engaging greatly outnumbered Israeli forces in Western Samaria.
After the 1967 war, Iraqi forces, deployed in Jordan, remained purposely pre-positioned for several years. During the 1973 war, Iraq committed an entire one-third of its then 95,000 man armed forces to assist Hafez al-Assad’s Syria, in its campaign of violence against Israel, on the Golan Heights. Since then, as is well-known today, Bashar, the son, has gone beyond both his father and Saddam in the willful gassing of his own countrymen.
International law is not a suicide pact, not then and not now. Accordingly, every state maintains an “inherent” right of self-defense. Participating in the prosecution of Saddam Hussein for prior aggression against Israel would have represented a manifestly authoritative expression of that basic right. In the absence of such participation, the stage was set for yet another Arab jurisprudential assault upon Israel – this time, in the form of yet another enemy state. This new enemy state would be called “Palestine.”
There is more. According to Emmerich de Vattel’s classic 1758 work on The Law of Nations, a text that influenced the legal thinking of Thomas Jefferson in America, “The right to punish injustice is derived from the right of self-protection.” The core right of self-defense in international law is itself drawn from Natural Law or Higher Law, and can never be subordinated to any “man-made” international agreements, or to any extra-legal considerations of power politics.
All things considered, not only did Israel have an unquestioned right to join in the trial of Saddam Hussein, there had also been a corresponding obligation of all other cooperating states to actively ensure such participation. As Blackstone observed, international law exists to provide “for the eternal and immutable laws of good and evil.” Each state, Blackstone had then warned, is 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 indisputable basis of all consequent international law, stems originally from the Decalogue (Ten Commandments), and from the Covenant Code of Israel. This 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 an utterly immutable belief in a Higher Law, one that is always superior to the inherently flawed will of human governance.
Looking back, following fully appropriate legal procedure, Israel ought to have been encouraged to prepare a formal criminal complaint against Saddam Hussein for pertinent crimes, and then to file 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 usefully called upon that body to promptly request an Advisory Opinion on the relevant Israeli charges from the International Court of Justice. This retrospective point of justice is important today, not because anything is left to do with regard to earlier Iraqi crimes against Israel, but because of what it implies concerning still-impending Palestinian crimes against the Jewish State.
In this connection, the most evident expected crime has to do with Palestinian plans for a “One State Solution,” plans that are unambiguously expressed in the official maps of all major Palestinian insurgent organizations. On all of these maps, the State of Israel is identified as “Occupied Palestine.” Taken together with the fact that the Palestine Liberation Organization (PLO) was founded in 1964, three years before there were any “Occupied Territories,” this identification makes very clear that the Palestinian side in any “peace process” is seeking much more than coexistence. It is seeking replacement.
In essence, in spite of still-popular rhetoric calling for a “Two State Solution,” there is literally nothing in the charters or derivative codes of Fatah, Hamas, and Islamic Jihad that could allow for a surviving Jewish state anywhere in the Dar al-Islam.
In essence, these charters and maps already call for at least a cartographic genocide.
In the earlier matter of Israel and Saddam Hussein, an Advisory Opinion could have been requested by the United States in the Security Council. This American action to render pertinent assistance to Israel would have derived not only from the Constitutional incorporation of international law into United States law, especially Article 6 of the US Constitution (the Supremacy Clause), but also from the indisputably Natural Law foundations of U.S. law. In a now irreversibly lost opportunity, any U.S. initiative to punish Saddam Hussein’s crime of aggression against Israel would have represented essential support for both international criminal law and for America’s own most durably sacred principles of international justice.
Now, at another perilous moment when Israel’s basic rights under international law are being expressly disregarded, and once again in the United Nations (which several years ago declared the Palestinian Authority a “nonmember observer state”), it is sobering to remember that Jerusalem has been down this road before. This time, however, even with very explicit “guidance” from the so-called Road Map or whatever the most current iteration of a “Middle East Peace Process,” the consequences of global legal indifference could become substantially more serious. This time, especially if Palestinian President Mahmoud Abbas should bring his claim to sovereign statehood for U.N. endorsement, a potentially-annihilationist “One State Solution” could eventually be the outcome.
This could be the case, moreover, even though “Palestine” would still not have met any of the core expectations for sovereignty expressly identified in the Convention on the Rights and Duties of States, sometimes called the Montevideo Convention (1934).
It would be in the alleged interests of “self-determination,” in principle, always a respectable and peremptory legal objective, that any new Arab state be required to “coexist with Israel.” Almost certainly, however, this 23rd Arab state, plausibly infused with various encouraging memories of Iraq’s earlier unpunished Nuremberg-category crimes against Israel, would diligently plan to remove and replace the pre-existing Jewish State. In any such expectedly proposed “final solution” for Arab-Israeli conflict, the immutable obligations of memory to justice would once again have been trampled upon or ignored.
None of this is meant to suggest that the fundamental human rights of any Palestinian populations should be purposely overlooked or disregarded, but only that these rights must necessarily stop short of Israel’s corresponding or reciprocal extinction. To be sure, any such suggestion of genuine coexistence is altogether reasonable and beyond legal question.
Louis René Beres was educated at Princeton (Ph.D., 1971), and is Emeritus Professor of International Law at Purdue. His twelfth book, Surviving Amid Chaos: Israel’s Nuclear Strategy, was published in 2016. His other writings have been published in Harvard National Security Journal; Yale Global Online; World Politics; Bulletin of the Atomic Scientists; Israel Defense; Parameters: Journal of the US Army War College; Special Warfare; Oxford University Press; The Jerusalem Post; Infinity Journal; BESA Perspectives; US News & World Report; The Hill; and The Atlantic.
This article was first published in jurist.org