By Beryl Wajsman
Thursday, July 27, 2006
"Mississippi find yourself another country to be part of."
~ Phil Ochs
Folksinger Phil Ochs wrote the above immortal line in the midst of the struggle for civil rights in the american South in the 1960s. Today, we are in the midst of another struggle against prejudice that is far more subtle.
Crimes of prejudice take many forms. Some are manifested through classic violence and are categorized as hate crimes. Others, while more subliminal, produce equally damaging and equally dangerous threats to the commonweal. Each must be responded to with unyielding vigour and resolve.
UN Human Rights Commissioner Louise arbour's scurrilous insinuation that Israel's defensive military actions against Hezbollah terror may constitute a war crime because civilians have been killed is an insidious example of what the Italian legal philosopher Beccaria called the "…the tyranny of the mindless…" This crime of prejudice - prejudice to what is true and just - does as much violence to the spirit as the other does to the body.
We cannot abide an international civil servant like arbour speaking with impunity casting the victim as victimizer. We can no longer acquiesce in silence to a United Nations held hostage by tinpot dictators; overseen by a Secretary-General protecting his son from the oil-for-food fraud; and represented by senior officials spouting diatribes that exhibit, at best, woeful ignorance and, at worst, deliberate distortion.
For those of us who have chosen to be involved in the public affairs of our world - to be engaged in the temper of our times - remaining silent on Louise arbour would be an act of complicity in the UN's continuing retreat from reason and allow it to wallow in its pallid orthodoxies of false pieties that will inevitably result in the slow undoing of the natural liberties of free nations and free peoples.
Louise arbour, find yourself another world to be part of.
arbour's position misses the central critical element in international law for this type of charge. Intent. Collateral civilian deaths in a defensive military action have never been considered war crimes. This is not the ethnic cleansing of the Balkans; nor the genocide of Darfur; nor the tribal massacres of Rwanda, nor even the premeditated attacks on civilians by Hezbollah which is a component of both the political and military elements of the Lebanese state. If her comments should have been directed at anyone, they should have been directed at Hezbollah. But her politically-correct voice was as silent on that as it has been vocal as an apologist for UN inaction in all the other cases of true war crimes just mentioned.
arbour is less a political moralist than a political opportunist. as a member of the Supreme Court of Canada in 2002 she voted in a unanimous decision in favour of deporting people who face a substantial risk of torture "in exceptional circumstances". That Court was wrong and its decision violated all civilized international norms. In her attack on Israel, she chooses to invent international norms that don't exist.
She stated that international law prohibits "the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians." This is complete nonsense. as Harvard Law Professor alan Dershowitz wrote, "…her knowledge of international law is as questionable as her understanding of morality…" International chattering-class hypocrisy courses in her veins. In the 1999 Kosovo campaign, NaTO planes killed some 500 civilians. But that campaign was termed "humanitarian intervention" for Kosovar albanians. Very trendy and popular among salon liberals. Israeli self-defence is not quite so fashionable.
Kelsen's "Principles of International Law" states that it is unquestioned that armed response may be undertaken when breaches of international law are committed (Hezbollah's attacks) and where the governing authority (Lebanon in the current case) fails to take action to prevent further breaches. In such a situation the illegal acts may be imputed to the governing authority. The government is as liable as if it conducted the action through its regular armed forces or direct orders. He writes, "…states are obliged by general international law to prevent certain acts injurious to other states from being committed …"
Oppenheim's "International Law" goes even further. He takes the position that if a government knew of activities which violated international legal norms and did not suppress those activities then that state is responsible for those actions and anyone or anything belonging to that governmental authority may be the target of a reprisal other than individuals of the delinquent state living abroad and public debts owed by that state. He goes on to write that "…when a State is informed of a threat, and the danger can be removed through an appeal to the authorities of the neighbouring country or international authorities, no case of necessity has arisen. However if such an appeal is fruitless or not possible, or if there is danger in delay, a case of necessity arises and the threatened State is justified in invading that country and neutralizing the threat."
Derek Bowett in "Self-Defence in International Law" concludes that "The right of self-defence is common to all systems of law. as a legal concept its function and its scope may well vary with the degree of maturity attained by the system of the law in which it finds a place. In any immature system of law, where there is absent any centralized machinery for the enforcement of the law and the protection of the rights of individuals, or where such machinery is inefficacious or dilatory in securing those ends, the need to allow action by those whose rights and security are endangered by a breach of the law in order to protect their rights and security by their own action is obvious."
Robert Tucker in "Reprisals and Self-Defense" writes that though the U.N. has attempted to discourage armed response, the functional equivalent of such measures are permitted as self-defense and that the U.N.'s own definitions of the latter term include all measures necessary for the protection of a state's territorial integrity and any other interests making up the state's security. Tucker is clear that certainly under customary standards, but even under U.N. definitions, armed response can be utilized as self-defense in response to threats quantitatively and qualitatively different than a traditional invasion by one state of another. Tucker's classic example of this is the U.S. blockade of Cuba where america justified resort to forceable measures and invoked the self-help doctrine of self-defense even though neither the Soviet Union nor Cuba had technically violated any norm of international law.
In our current Mid-East Crisis we have considerable violations by Lebanon, Hezbollah and Hamas of both customary and treaty law.
Finally, due to Canada's sponsorship of the International Commission on State Sovereignty and Intervention (ICSSI) we have yet another dimension to "self-help", that being the "responsibility to protect". Two successive Canadian administrations have embraced and endorsed this ICSSI doctrine. a doctrine which not only obligates a state to protect its own citizens against attack as Israel is doing, but goes further and imposes on obligation on the family of nations to protect any population that has been the victim of aggression and violence by its own leaders within its own borders over-riding the ancient Westphalian standard of physical borders being sovereign and sacrosanct.
arbour's ignorance of the international legal order makes her, and her modern-day colleagues, unworthy heirs of the founders of the United Nations who dreamed of determined united defiance against tyrants and tyranny. Sadly, there are times when there is a critical and compelling imperative to assault. The future of the free world cannot be allowed to be compromised or cudgelled by today's fey and feckless United Nations functionaries always ready to protect the right of failed states right to be wrong. If Louise arbour cannot understand that, she, and the UN, should find another world to be part of.
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