Jordan Paust: Why the UN Charter allows
Israel to shoot first and, basically, not worry about asking questions at
Dan Joyner, a professor of international law at
University of Alabama School of Law runs a very interesting website called Arms
Control Law. In my experience these nuclear arms control blogs tend to
operate at a higher, more academic level than the standard rant-and-rave blogs
like, well . . . LogoPhere. For one thing, there’s not as much cussin’
from the academic types.
Today Dan initiated a discussion about an academic piece
in Jurist written by one Jordan
Paust, who is a law professor at the University of Houston Law Center.
Basically, Paust is arguing that under the self-defense provisions of the UN
Charter, Israel is justified in preemptively attacking Iran, and that such an
attack would be "self-defense." I know exactly what you’re thinking
. . . nobody but a rabid Zionist on the IDF payroll would attempt to make such
an argument, but there you have it.
Below is an instant-replay of my
response, put up on Dan’s blog, amended here with relevant links.
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. [Source
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 Iranian scientists lying face down in the dirt and Stuxnet out of
the corral, I would hardly consider Israel to be either the good guy or the
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
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 o 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,
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
bullshit on us with this "armed aggression" nonsense.
In addition to Dan Joyner’s careful, academic treatment of
Paust’s BS, I would recommend Nima
Shirazi’s take-down , too – inciteful and insightful, as