JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that, if Iran proceeds with building nuclear arms, Israel may be legally justified in launching a military attack as a means of self-defense...
nder international law, would Israel have a right to engage in measures of self-defense against Iran if Iran creates a nuclear warhead and continues to proclaim its desire to wipe Israel off the map? A number of persons might assume that if such a significant weaponization occurs Iran will not be mounting an armed attack and they might initially conclude that Israel would not have a right to engage in self-defense. But the matter is more complex, and Iran's creation of a nuclear weapon could result in an extreme loss of lives an outcome that no one should prefer.
Under Article 51 of the Charter of the United Nations, Israel would clearly have an inherent right of self-defense "if an armed attack occurs," although the equally authentic French version uses the phrase "armed aggression" (agression armée) instead of the more narrow attaque armée, and the word aggression might arguably apply to conduct prior to initiation of an attack. A minority of states and textwriters prefer that the express limitation of the right of self-defense to a circumstance where an armed attack or armed aggression "occurs" not pertain when an armed attack is "imminent," especially an imminent attack with a powerful nuclear weapon that can produce deadly effects in a matter of minutes. This latter preference is best labeled "anticipatory" self-defense as opposed to an extremely rare preference for a manifestly impermissible form of "preemptive" self-defense when merely a significant threat is posed but an armed attack is not imminent. Some in the US government have even used the phrase "imminent threat" but, of course, an imminent threat logically is not even a present threat and use of such a criterion would be legal nonsense. In any event, the majority view, backed by decisions of the International Court of Justice (ICJ), is that the inherent right of self-defense is conditioned by the need for an initiation of an armed attack and the ICJ has not chosen a different criterion under what might logically be a broader reach when using the French phrase agression armée. But exactly when does an armed attack commence?
The ICJ has ruled that "the financing, organizing, training, [and] supplying and equipping" by a state of a group engaged in armed violence against another state is not an armed attack by the first state against the second state, even though the first state is complicit in group attacks and has responsibility under international law for its violations of international law. For an armed attack to be attributed or "imputed" to the first state, the ICJ has ruled that it would have to have control over the group that is engaged in armed violence. With respect to Iranian financing, training, supplying and equipping of Hezbollah and Hamas while they are engaged in continued armed attacks against Israel, under the ICJ test Iran is recognizably violating international law and engaged in what some term indirect aggression, but such unlawful conduct does not itself amount to an armed attack on Israel by Iran. Nonetheless, Iran's continued complicity in armed attacks on Israel and its stated animosity to the very existence of Israel are necessarily significant features of context with respect to Iranian intent and its overall conduct in relation to Israel.
Iran would also be violating international law if it created a nuclear weapon. Iran is a party to the Treaty on the Non-Proliferation of Nuclear Weapons and, as such, is bound by treaty law to not "manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices." Additionally, the UN Security Council (UNSC) has demanded that Iran suspend all of its nuclear enrichment-related and reprocessing activities, and Iran is in violation of the resolutions of the UNSC and subject to economic and other sanctions for its violations. In a recent letter to US President Barack Obama, 57 US senators have also warned that Iran "has taken a significant step closer to possible weapons-grade uranium by enriching up to 20 percent." Although an Iranian violation of the non-proliferation treaty and its continued violation of UNSC decisions would not themselves constitute an armed attack, these violations would also necessarily be part of important features of context with respect to Iranian intent and its overall conduct during a time of extreme tension. Such conduct includes a stated desire to wipe Israel off the map, continued unlawful complicity in armed attacks on Israel, and the significant and unlawful creation of a nuclear warhead that could have a devastating impact within Israel in a matter of minutes.
Although it can provide an imperfect analogy, recalling what allegedly happened in the old West when one person went gunning for another and they met in the street, staring each other down, can allow recognition of the fact that a process of attack can move through various stages and can be underway prior to the firing of a weapon. In movie and television portrayals, the "good guy" was often faster on the draw than the "bad guy" who was gunning for him. The good guy usually waited until the bad guy began to draw his pistol from his holster, but the good guy was faster and accurate, defending himself with a precise and deadly shot. It was not necessary that the bad guy shoot first, although this happened occasionally. Moreover, upon reflection it is evident that the good guy could have drawn first once it was known that the bad guy was gunning for him and they were staring each other down in the street. Someone was about to draw first and, in context, the process of attack had begun and a right of self-defense had been triggered even though it was possible that the bad guy might back down and make this clearly known before the good guy fired.
By analogy, when would an armed attack by Iran begin? It is evident that an attack would begin not merely when Iran has fired a missile with a nuclear warhead toward Israel, not merely when Iran has "drawn" a missile with a nuclear warhead and aimed it at Israel, and not merely when Iran has pulled a missile with a nuclear warhead out of its "holster." 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.
Many fear that Iran will create a nuclear warhead in the near future. If so, Iran might trigger a disastrous defensive response by Israel that would otherwise involve a lawful measure of self-defense under international law. Iran claims that if this happens, its response will also be devastating. Israel might also receive assistance from the US as part of permissible collective self-defense and Iran might expand the conflagration as it has warned if the US uses military force. Instead of massive death and destruction, one hopes that Iran's leaders will wisely decide to avoid a predictable catastrophe for both the Iranian and Israeli people (as well as others in the Middle East), shift their attention to peace, and comply with the Treaty on the Non-Proliferation of Nuclear Weapons and relevant UNSC resolutions and not create a nuclear weapon. Working towards peace is still possible.
Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston Law Center and has extensive experience in international law. Professor Paust is one of the most cited law professors in the US and has published over 185 articles, book chapters, papers and essays addressing treaty law, customary international law and the incorporation of international law into US domestic law.
Suggested citation: Jordan Paust, Iran's Nuclear Weapons Program and Lawful Israeli Self-Defense, JURIST - Forum, Jan. 15, 2012, http://jurist.org/forum/2013/01/jordan-paust-iran-israel.php
This article was prepared for publication by Caleb Pittman, head of JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentaåry@jurist.org
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