- The Washington Times - Sunday, August 8, 2004

When the victorious allied powers established a special military tribunal at Nuremberg on Aug. 8, 1945, they reaffirmed a basic principle of law: “No crime without a punishment.” In 1946, this action was seconded in the binding Nuremberg Principles: “Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.” And these Nuremberg Principles were later codified by the U.N. International Law Commission.

Former Iraqi dictator Saddam Hussein now faces the Iraqi Special Tribunal. He 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. Under law, these aggressions must never be accepted “without a punishment.” Although the world is now used to disregarding Israel’s rights under international law, there can never be any legal justification for ignoring Iraq’s barbarous missile attacks upon Israeli cities.

On Friday, Jan. 18, 1991, Saddam’s government launched eight Scud missiles at civilian targets in Tel-Aviv. This attack was followed by 31 additional Scuds fired at Israeli noncombatants over the next five weeks or so. Baghdad’s last missile attack against Israel took place on Feb. 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 for his authorization of these crimes.

Every state, including Israel, has an “inherent” right of self-defense. To a significant extent, participating in the prosecution of Saddam 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, 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 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 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 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 also could be requested by the United States in the U.N. Security Council. The American obligation to render such assistance to Israel would derive not only from the constitutional incorporation of international law into U.S. law, but also from the natural law foundations of U.S. law. Any U.S. initiative to punish Saddam’s crime of aggression against Israel would represent essential support for both international law and our own country’s most sacred principles of justice.

Louis Rene Beres lectures and publishes widely on international law.

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