Jordan Paust on Israel’s Right of Self-Defense Against IranPosted: January 17, 2013
Respected University of Houston Law Professor Jordan Paust has recently posted an op-ed at the Jurist website, in which he gives his analysis and opinion on when Israel would be legally justified in acting in self-defense, pursuant to Article 51 of the U.N. Charter, against Iran.
He hinges his analysis on determining the point at which it could be said, in some hypothetical future context, that Iran had commenced an “armed attack” against Israel. Jordan’s conclusion is stated as follows:
In context, given the facts that: (1) Iran is publicly “gunning” for Israel, (2) Iran has already been continuously complicit in ongoing armed attacks against Israel by Hezbollah and Hamas in violation of international law, and (3) Iran is bound by treaty law to not produce weapons-grade nuclear material and nuclear weapons, one can recognize that an attack would begin at least when Iran continues to violate international law, creates a nuclear warhead, and starts to load it onto a missile without backing down and making such clearly known. If it is known that Iran is building a nuclear weapon for use against Israel, in context it would be logical to claim that an armed attack is underway when Iran starts to create such a weapon.
I have to say that I disagree with Jordan on several points in this analysis. First, I do not agree with his characterization of Iran publicly gunning for Israel, or having made threats against Israel’s security. I addressed this often misunderstood point in a previous post here.
I also would take issue with Jordan’s conclusion that Iran is legally responsible, under the law of state responsibility, for attacks on Israel committed by Hamas and Hezbollah. I’m not categorically saying that Iran is not responsible, but I think the elements of state responsibility would have to be much more clearly made out in these cases. I think that both the Nicaragua and Tadic cases stand for the proposition that financing and general support for the actions of a non-state actor, are not enough for those actions to be legally attributable to a state. As stated in the Tadic case, in order for international legal responsibility to attach, a state must have control over the non-state actor’s activities “going beyond the mere financing or equipping of such forces, and involving also participation in the planning and supervision of military operations.”
Regarding Jordan’s ultimate assessment that “an attack would begin at least when Iran continues to violate international law, creates a nuclear warhead, and starts to load it onto a missile without backing down and making such clearly known,” I would say that what Jordan has essentially done here is argue that, because in his view Iran would have at this point breached several rules of international law, these breaches cumulatively would create a lower threshold for determining when Iran had commenced an armed attack, than would be operative for other states. I think this is a new idea that is not very persuasive, and is actually quite dangerous. It’s kind of like arguing that, because an individual has a criminal record already, the legal standard for them to be convicted of committing a subsequent crime will be more easily met by a prosecutor than if they did not have a prior rap sheet. The law doesn’t work that way. Each legal analysis must be made on its own terms and according to established criteria, and can’t be partially pre-determined by reference to previous actions.
This is also quite a dangerous idea. I mean, look at it from the perspective of, well, any other country in the Middle East. They are firmly of the view (supported by the ICJ and multiple U.N. fact finding missions) that Israel has a checkered recent history of violations of international law in its dealings with the Palestinians. Israel has also used military force in violation of international law against neighboring states, at least in the 1981 Osirak and 2007 Syria airstrikes. Israel has also made multiple threats against Iran that it would attack Iran to keep it from developing nuclear weapons. Israel refuses to even sign onto the treaty that Iran and pretty much the whole of the rest of the world has signed onto, prohibiting nuclear weapons. And as for Jordan’s final criterion, Israel already has nuclear weapons on top of missiles. This is a widely known fact. And who are these nuclear missiles primarily supposed to be used against? Regional threats such as Israel perceives Iran to be. So I would ask Jordan: couldn’t his criteria be applied to justify Iran in attacking Israel in self-defense, just as persuasively or more persuasively than they could be applied to justify Israel in attacking Iran?
I would say that, pursuant to Jordan’s criteria, there are quite a few states in the world that have already commenced armed attacks against their neighbors, who can now respond militarily in self-defense (e.g. Pakistan v. India, NK v. Japan, US v. Iran). I don’t think it’s a good idea to legally recognize this active right of self-defense in such a broad set of contexts.