By Louis Rene Beres
September 22, 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 \u2014 a flagrant indifference most openly apparent in the recent advisory opinion of the International Court of Justice on Israel`s security fence \u2014 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.