Jordan Paust on Israel’s Right of Self-Defense Against Iran

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.

For my views on the question of whether an attack by Israel on Iran’s nuclear facilities would be legally justified, see my prior posts here and here.

 

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15 Comments on “Jordan Paust on Israel’s Right of Self-Defense Against Iran”

  1. Patrick S. O'Donnell says:

    Well said. I’m surprised, frankly, at the weakness if not sloppiness of this argument. It seems that “Iranophobia” (Haggai Ram) is not simply an Israeli obsession

    Having done a fair amount of research on Hamas of late (which I hope to post soon about at Ratio Juris), I can say with some confidence that Paust is way off base.

    Somewhat relatedly, have you seen David Patrikarakos’ Nuclear Iran: The Birth of an Atomic State (I.B. Tauris, 2012)? I’ve just started reading it, and it is very good.

  2. Patrick S. O'Donnell says:

    I’m might have mentioned that, in addition to works by Avner Cohen on Israel its nuclear weapons, everyone should read Part III, “Israel’s Nuclear Policy,” by Zeev Maoz in his brilliant study, Defending the Holy Land: A Critical Analysis of Israel’s Security and Foreign Policy (University of Michigan Press, 2009 ed.): 301-357. [‘more persuasively’ indeed!]

  3. Johnboy says:

    DJ: “I mean, look at it from the perspective of, well, any other country in the Middle East.”

    Whoah! Where’d ya’ get that whacky idea from?

    Convoluted arguments such as Jordan’s are only supposed to be read with blinkers on.

    Heaven forbid that anyone applies the most basic of sniff-tests i.e. to ask out loud What Happens If We Apply The Same Argument To Ourselves?

    Because if you do that then all too often the answer is: Holy Shit! We’re Actually Worse Than They Are!

    DJ: “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.”

    But that’s the rub, isn’t it?

    People like Jordan like to p.r.e.t.e.n.d. that they are talking about general, universal principles of law when, in reality, they are suffering from tunnel-vision.

    It should be obvious that the first thing to do is exactly what you have done i.e. to insist that a universal principle of law should continue to hold true when you run that ruler over other like-situations.

    But if applying the test elsewhere produces results that are manifestly absurd then – gosh! – maybe the argument itself is manifestly absurd, if not deliberately dishonest.

    You know, like Jordan’s…..

  4. Bibi Jon says:

    “Gunning for Israel” ???

    Here’s a comment from Nima Shirazi:

    http://www.raceforiran.com/rules-and-regulations-for-www-raceforiran-com-2#comment-80845

    Quote:

    ….Ahmadinejad has not only never threatened to attack Israel militarily, he has specifically spoken out against such a possibility. In September 2007, Ahmadinejad was asked by the Associated Press whether Iran “would ever make a first strike against Israel.” He replied, “Iran will not attack any country,” and insisted Iran has “always maintained a defensive policy, not an offensive one” and has no interest in territorial expansion, something Israel could never seriously claim.

    At a news conference during the 2008 D8 Summit in Kuala Lumpur, Ahmadinejad told reporters that the Zionist enterprise is “inherently doomed” to failure and, as such, “there is no need for Iranians to take action.” He also assured the press, “You should not be concerned about a new war.”

    Even more recently, Ahmadinejad told an Al Jazeera correspondent during an October 2011 interview in Tehran, “We will never enter any war against the U.S. or against any other country. This is our policy…We have never attacked anybody. Why should we do that? Why should we start a war?”

    End Quote

    Also, in reference to a NNWS’s alleged gunning for a NWS a full 10 years before the NNWS has such capacity, Col. Liron Libman agreed “It would have been stupid of them to declare such an intention.”

    http://armscontrollaw.com/2012/10/29/colonel-liron-libman-head-of-the-israeli-idf-international-law-department-responds-to-my-post/comment-page-1/#comment-814

  5. Denis says:

    Having read his Jurist piece, I am incredulous that Prof. Paust would be so bold as to attempt to float his “armed aggression” arguments as to why an Israeli attack on Iran would be “self-defense” under Chapter VII, Article 51 of the UN Charter. Paust’s argument would be laughable if, as Dan points out, it wasn’t potentially so dangerous.

    The “Iran problem” is in a quiet phase for the moment, but it won’t be for long. The US elections are over and Obama is choosing his new policy-makers. The Israeli elections will be over in the next few days. More saber rattling – or worse – can’t be far off. Israel has been pushing for a preemptive attack on Iran for years. Last year Iran said publicly that given the constant threats of attack made by Israel that it (Iran) would be justified in making a preemptive attack.

    The last thing we need in this environment is a “respected” law professor analyzing this dangerous situation in the Middle East on the basis of the script from “High Noon.” Paust (from Texas, no less) applies an illogical cowboy analogy and argues that a person being gunned for (“the good guy” in Paust’s words) has a right to draw first on the person doing the gunning (“the bad guy” in Paust’s words), so long as the person being gunned for knows that the other person is gunning for him. This sounds like some absurdity that could only have come from the pen of some ex-Bush speech-writer now employed by the NRA.

    Pardon me, but no objective person can allow Paust’s cowboy analogy to go without the ridicule it deserves. Paust doesn’t say it explicitly, but we all know that to Americans the “good guy” is always the guy with the 6-pointed star pinned to his shirt. If we disabuse ourselves of that universal American misconception that 6-pointed stars indicate who the good guys are, then we are left, as Dan suggests, with an analogy that revolves around the question of precisely who is gunning for whom here? Who is the gunner and who is the gunnee in the Israel/Iran dust-up? With five dead Iranian scientists lying in the dirt and Stuxnet out of the corral, I would hardly consider Israel to be either the good guy or the gunnee.

    I think the goose/gander analogy is far more helpful for understanding the “Iran problem” than Paust’s good guy/bad guy analogy. That sort of cowboy thinking is both puerile and dangerous.

    A less obviously ludicrous, but by no means less dangerous, argument made by Paust is that the phrase “armed attack” used by Chap VII, Artcle 51 of the UN Charter is translated into French as “armed aggression” and therefore all Israel requires to justify a hair-trigger “self-defense” preemptive attack on Iran is some subjective aggression by Iran, not an actual attack on the territory of Israel. This argument is so disingenuous as to raise serious concerns about Paust’s motives.

    The clause at issue is in the first sentence of Article 51. The English version says:

    “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, . . .”

    The French version says:

    “Aucune disposition de la présente Charte ne porte atteinte au droit naturel de légitime défense, individuelle ou collective, dans le cas où un Membre des Nations Unies est l’objet d’une agression armée,. . .”

    Paust has lifted the phrase “agression armée” out of the French version and, apparently, run it through Google Translate and come up with “armed aggression,” and on that basis he has down-graded the original concept of Article 51 that an “armed attack” is required to justify self-defense to the concept that “armed aggression” is sufficient.

    But hold on a sec’ . . . the phrase of the French version that needs to be translated is not “agression armée,” it is “l’objet d’une agression armée,” which translates to “the object of an armed attack.” The problem is the phrase “occurs against.” It is nonsense in both English and French to say “if an armed aggression occurs against a Member State.” Any armed aggression that “occurs against” someone is an attack. Although the original French version of Article 51 should have said “est l’objet d’une attaque armée,” the existing “l’objet d’une agression armée” is properly translated [by Google Translate] to “the object of an armed attack” not “the object of an armed aggression.”

    This comports with the English translations of the Charter in all five non-English languages [Arabic, Chinese, Russian, French, Spanish] provided on the UN website. I have translated Article 51 of every one of the non-English versions to English via Google Translate and in every case the translation is “armed attack,” not “armed aggression.”

    With all due respect to the professor, I would apply another Texas analogy in characterizing his analysis: Paust is dumping a load of bulls&%t on us with this “armed aggression” nonsense.

  6. I agree with Denis above that the Iran issue is only somewhat quiet at this point, almost entirely because the Obama administration is re-organizing itself. Once that is done, and the elections in Israel are over, Iran will resume the forefront of news – after Syria, that is.

    It’s also clear the Paust is just trying to justify an Israeli attack on Iran, not conduct a serious legal argument.

    He is correct about one thing: Israel WOULD undoubtedly attack Iran if Iran ever actually developed a nuclear warhead and put it on a missile. I’ve little doubt about that.

    But the point is moot because Iran has made it clear it will never do such a thing. There are no strategic or tactical use cases for Iranian nuclear weapons and the leadership of Iran have repeatedly made it clear they understand that. They fully understand that they would be attacked if they ever developed nukes. It’s obvious since they are being threatened while NOT having nukes.

    Contrary to a lot of so-called “expert” opinion, in my view Iran will never develop nukes EVEN if attacked. First because it will be impossible to do so while under attack from a military force the size of the US, and secondly because again there would be no feasible use case that would not invite repeated, probably even nuclear, attack.

    Sweden in the 1950’s was well on the way to being a nuclear power until Russia informed them that if they did so they would be placed on the target list. They stopped. Iran is equally rational.

    • yousaf says:

      It is hard to say. I think a strike on Iran could change their latent nuclear weapons capability into an active weaponization program.

      That is what happened in Iraq post-Osirak.

      It would empower the hawks in Iran’s national security apparatus ensuring the expulsion of IAEA inspectors and a likely race to the bomb – not to mention the possibility of a region-wide conflagration and sky-high gas prices. Such a strike would also have a “rally-around-the-flag” effect on Iranians, allowing the regime to crack down further on political opponents and silence critics, further cementing the regime’s authority.

      Recent analysis shows that the Israeli strike on Iraq’s civilian Osirak nuclear reactor complex led Saddam Hussein to demand a nuclear deterrent and was actually the trigger for Iraq launching a full-scale effort to weaponize. A decade later, by the time of the 1991 Gulf War, Iraq was on the verge of a nuclear weapons capability.

      http://belfercenter.ksg.harvard.edu/publication/21174/revisiting_osirak.html

      As researcher Malfrid Braut-Hegghammer explains in a recent International Security article, such ostensibly “preventive attacks can increase the long-term proliferation risk posed by the targeted state.”

      • You can’t compare the Iraq Osirak case and Iran. The two governments are totally different, their motivations and use cases are totally different.

        In fact, the ONLY reason Iran EVER had a nuclear weapons feasibility studies program prior to 2003 was because of concern that Saddam had one. Saddam with nukes was an existential threat to Iran. Iran is not concerned about Israel or the US ever attacking it with nuclear weapons due to the geopolitical consequences restraining those countries. And they understand that the pursuit of nuclear weapons would only lead to a conventional attack on them by one or both of those countries. The fact that they are likely to be attacked even without pursuing nukes doesn’t change that calculus.

  7. Abdollah Abedini says:

    Failed test taking again?

    Apart from political arguments around Iran’s nuclear issue, in this essay it is attempted to have a glance at the recent argument by Jordan Paust. It should be recalled that the rule use of force prohibition is the main aim of the United Nations (Article 2 (4) of UN charter) and any activity in international relations based on cooperation among subjects of international law, amounted to jus cogens, depends upon doing so by them. So, it is commenced by this question that whether it is permitted applying right to self-defence based on the kind of weapon and its alleged claims under international law? This is, indeed, re-examination of established rules and explained in two twofold: first, circumstances under which article 51 of UN Charter can be applied and second, immutability of an act to a state.

    Before turning to main discussion, it is worthy to be noted, in a manner to notice a dangerous position which will probably be happened in the future, the writer based his claims on the pre-judging fact that up to now, the related technical institution, that is, International Atomic Energy Agency (IAEA) has not approved this fact and Iran had a good endeavor to resolve few remaining matters that this process from 2006 to now is observable and IAEA had been declared its satisfaction in this regard. This comes true as to the Security Council (SC) behavior by adopting some resolutions and undergoing negotiation with IAEA and so-called 5+1 group is underway.

    Under international law, recourse to force by justification of self-defence has some conditions that under which any use of force, permitted under article 51 and other related articles of United Nations Charter, must be interpreted in this regard. This article states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” Under literal interpretation, it is obvious that when the SC has taken measures necessary to maintain international peace and security, the right to self-defence no longer applicable. As this is the case, whether true or not, about referral situation of Iran to the SC by IAEA.
    Under customary international law that upheld by International court of Justice (ICJ) in several cases; any use of force should have to two fundamental tests: necessity and proportionality. In regard to necessity, there should be some grounds based on necessity in order to recourse to self-defence. Is there any necessity based simply on the allegations by some persons who don’t pay attention to authorized institutions such as IAEA generally and SC particularly? In fact, when the matter is under the scrutiny of these bodies, recourse to take measures in respect to jeopardize one of the pivotal and fundamental rules of international law, i,e use of force prohibition, by unjustified self-defence is a matter that falls, from the state responsibility view, within article 41 of Draft Articles of State Responsibility for Internationally Wrongful Acts 2001 (DASRIWA).

    http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf

    As the ICJ in operative clause (para. D) of Wall Advisory Opinion 2004 maintained:” [A]ll States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction…”.

    http://www.icj-cij.org/docket/files/131/1671.pdf

    Illegality of adopting actions on the countermeasures by unilateral actions of states and organizations against Iran is debated as well here.

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2086415

    Moreover, operation in Iraq with allegation existence weapons of mass destruction in 2003 showed that any innovation on established conditions on the self-defence, for example pre-emptive or preventive one, amounts to instability in international law.

    http://www.asil.org/taskforce/oconnell.pdf

    On the attribution an act to a state, it is mentioned in article 8 of DASRIWA that states: “The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.” As a rule inspired by the established case law of ICJ, ILC commentary 1 of this article said “[A]s a general principle, the conduct of private persons or entities is not attributable to the State under international law…” and by giving ICJ’s attitude to conclude effective control should be based as a general rule to attributing an act to state. The ICJ in Military and Paramilitary Activities in and against Nicaragua case held:” [t]o give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.”(para 115)

    http://www.icj-cij.org/docket/files/70/6503.pdf

    This position upheld by ICJ in Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Paras. 406-7). So, attributing actions of other entities to Iran must be seen from the perspective of international law and interpreting otherwise by other criteria such as overall control results to draw wrong conclusion, as ICJ correctly in mentioned case pointed out: “[t]he “overall control” test has the major drawback of broadening the scope of State responsibility well beyond the fundamental principle governing the law of international responsibility…”(para. 406)

    http://www.icj-cij.org/docket/files/91/13685.pdf

    As Thomas Franck on the article 51 and anticipatory self-defence said “That claim…is not supported by the Charter’s literal text. And anticipatory self-defence, too, is vulnerable to reductio ad absurdum. If every state were free to determine for itself when to initiate the use of force in “anticipation” of an attack, there would be nothing left of Articles 2(4) and 51, or of Lauterpacht’s “primordial duty” to eschew violence.”(p.4)

    http://www.cambridge.org/gb/knowledge/isbn/item1170290/?site_locale=en_GB

    Therefore, respecting to rule of law, particularly embedded provisions that empowered IAEA under its statute and the SC to act under UN Charter, that is, collective security, requires all member states from avoiding any actions lead to instability of basis of international relation.

  8. yousaf says:

    Carnegie event on US-Iran relations — a must see presentation:

    http://www.ustream.tv/recorded/28587029

    • Denis says:

      yousaf, thanks for the link. Thought provoking comments by the Leveretts, but did you notice that in well over an hour of discussing US/Iran relations the world “Israel” was said only once, and that was in passing, 47 minutes into the talk.

      They kept pushing the Nixon/China analogy, and lauded Nixon for calling off the CIA dogs and the 7th Fleet sharks as a good will gesture to China to soften them up. Seems that that analogy pretty well falls flat on its face when one realizes that Nixon didn’t have Bibi and a Congress full of Israel-firsters standing between him and detente w/ Mao. Besides, I don’t think Iranians play ping-pong, do they?

      And when Hillary Leverett said Obama should go to Tehran, I bust a gut. How disconnected from reality can a human being be? This lady must be living in LaLa Land. Yeah, Obama will go to Iran when AIPAC offers to buy his plane ticket.

      • Mohammad says:

        “Besides, I don’t think Iranians play ping-pong, do they?”

        Sure we do. It’s actually a quite popular sport here. We even had ping-pong competitions both at my [middle] school and my university.

        But I think a better choice would be Wrestling (almost the national sport of Iran), Football/Soccer (the most popular sport in Iran) or Basketball (which is quite popular in Iran, with sportsmen of both countries playing in each other’s national leagues).

      • I don’t believe the Leveretts actually think Obama could or would go to Iran. If you’ve followed a lot of their posts over at http://www.raceforiran.com, now http://www.goingtotehran.com, you’ll see that they’re quite critical and realistic about Obama’s failures in this arena.

        What they are saying is that he SHOULD. That’s all.

        Yes, they do tend to ignore the fact that there is a huge military-industrial complex, oil industry, and Israel Lobby that are roadblocks to any realistic Middle East foreign policy. They’re like most pundits – they can’t afford to sound like “conspiracy theorists” – so they don’t say things like that. It’s left to “paranoid nutcases” like me to say them.

      • Denis says:

        @ Mohammad

        Brilliant reply. Thanks for the link. I have no doubt Iran has some spectacular ping pong players. Would love to have a game with you some day.

        You may be too young to relate to my dumb jab.

        In the 70’s Nixon and Mao broke the diplomatic ice by exchanging ping-pong teams in what became known as ping-pong diplomacy. It was orchestrated by Zhou Enlai, and was a brilliant move. I still recall all the MSM analysis about the American “short, basement” style vs. the Chinese “long” style. Can’t remember who won. Nobody cared.

        Unfortunately, Zhou’s lesson was lost and sport is not used as effectively as it could be in diplomacy. The Olympics has become too gaudy and mercenary to accomplish its original goals. I would love to see Iran and Israel square off on the football field, first in Tehran, then Tel Aviv.

        Better yet, the world needs to build more golf courses. If you could get some of these radical, militant people obsessed with golf, it would do wonders for world peace. Look what happened to US-Vietnam relations once VN began building golf courses . . . lol


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