Jordan Paust's Bad Law:UH Law Professor Tries & Fails to Legalize an Israeli Attack on Iran

On January 15, 2013, University of Houston Law Center professor Jordan Paust penned an article entitled "Iran's Nuclear Weapons Program and Lawful Israeli Self-Defense," which was published on Jurist, a website of analysis and opinion pieces written by law professors, lawyers, and legal scholars. It is clear throughout Paust's piece that his arguments are neither sound nor based in fact, and unfortunately rely entirely on false premises and long debunked propaganda.  Paust himself is a contributing editor to Jurist.

To begin with, the title of Paust's analysis itself betrays both its agenda and its absurdity, considering Iran doesn't have a nuclear weapons program according to all Western and Israeli intelligence agencies and unprovoked, "preventative," "anticipatory" or "preemptive" military assaults are not only totally illegal but also can not possibly be justified as "self-defense."

And that's just the beginning; the falsehoods continue to stack up.  In fact, Paust reveals his utter ignorance from the get-go, writing - in his very first sentence, no less - that the Iranian leadership "continues to proclaim its desire to wipe Israel off the map" - something even Israel's own Deputy Prime Minister Dan Meridor admits it has never done.  His understanding of Article 51 of the United Nations Charter (which affirms the right to retaliatory self-defense if attacked first) is bizarrely lacking, especially considering he's a well-respected professor and incredibly prolific legal scholar.  He joins the shameful company of Alan Dershowitz in this regard.

Paust goes on to (1) accuse of Hezbollah and Hamas of terrorism and serving as Iranian proxies, without ever mentioning Israel's decades of international law violations and continuing war crimes and occupation or the fact that they are autonomous organizations that don't take direction from Iran; (2) ignore all facts pertaining to the illegality of initiating of a "war of aggression" (the "supreme international crime," according to the Nuremberg Tribunal); and (3) claim that Iran is violating UNSC resolutions regarding the cessation of uranium enrichment, a demand many have long acknowledged is ultra vires, itself abrogates the NPT and the resolutions are themselves illegal.

Apparently, though, these facts aren't important to Professor Paust, who describes himself as "one of the most widely cited law professors in the United States."

Furthermore, among the "facts" that Paust marshals to advance his argument that Israel could legally launch a preemptive attack on Iran is the contention that "Iran is publicly 'gunning' for Israel." Yes, he wrote that. And he still has a law degree. And is presumably literate.

From there, Paust launches into a bizarre and wholly inapplicable "Wild West Showdown" analogy in which the (Israeli) "good guy" is justified in "shoot[ing] first" since he knows the (Iranian) "bad guy" is out to get him.  It is "not necessary that the bad guy shoot first," Paust writes, elaborating (for some inexplicable reason) 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."  By way of trying to make this dumbfounding, Manichean analogy make sense, he explains,  "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."

If this passes for astute legal analysis these days, it's no wonder the United States has little to no respect for basic tenets of international law.

The analysis is so strained, based entirely on presumptions and assumptions with no basis in fact (only in Netanyahu-approved talking points), that Paust discredits himself simply by writing it in the first place.

In the end, Paust pines for a peaceful way out.  His solution?  That Iranian leaders "shift their attention to peace,...comply with the Treaty on the Non-Proliferation of Nuclear Weapons" and not build a bomb.  As countless IAEA reports have demonstrated, Iran's nuclear program remains peaceful and no nuclear material has ever been diverted to a military program.  Iran has also never been found to have violated its obligations to the NPT.  Its leaders, for decades now, have repeated denounced nuclear weapons as, not only amoral and religiously sinful, but also strategically useless and politically irrelevant.  Far from "publicly gunning for Israel," they have also dismissed any intention to militarily attack any nation, Israel included.

But you wouldn't know that from reading Jurist.

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UPDATE:

January 17, 2013 - Dan Joyner, law professor at the University of Alabama School of Law, has written another critique (a far more measured and professional one, no doubt) at his excellent blog, Arms Control Law.

Joyner's credentials are impressive; he is the author of books entitled International Law and the Proliferation of Weapons of Mass Destruction (2009) and Interpreting the Nuclear Nonproliferation Treaty (2011) and co-edited Nonproliferation Law as a Special Regime: A Contribution to Fragmentation Theory in International Law (2012). He is also a member of the International Law Association's Committee on Nuclear Weapons, Non-proliferation and Contemporary International Law.

In his analysis of Paust's article, Joyner determines that Paust's conclusion that an Israeli strike on Iran would be legal (given the enumerated contingencies) is not only "not very persuasive," but also "actually quite dangerous."

Joyner has previously addressed the legality of an Israeli attack on Iran, as well as the IAEA's overstepping its legal mandate with regard to the Iranian nuclear program and reference of the Iranian file to the United Nations Security Council.  The later article, written in November 2011, was published on Jurist.

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