Lindsey Graham on All Options Open re Iran and Nukes

by Kenneth Anderson

Tod Lindberg, editor of the Hoover Institution’s Policy Review, reports in the Weekly Standard on a blunt message delivered by Senator Lindsey Graham (R-NC) at a discussion meeting of senior transatlantic policy makers, the Halifax International Security Forum.  It’s not a forum that would attract a lot of attention, but the attendees are very senior in transatlantic relations and NATO.  Quoting from Graham:

Nobody would like to see the sanctions work any more than I would because I’m still in the military [Graham is a colonel in the Air Force reserves who has served active duty during Senate breaks in Iraq and Afghanistan] and I get to meet these young men and women on a regular basis, and I know what it’s been like for the last nine years. So the last thing America needs is another military conflict. But the last thing the world needs is a nuclear-armed Iran. And if you use military force, if sanctions are not going to work and a year from now it’s pretty clear they’re not going to work, what do our friends in Israel do? So I would like the president to make it abundantly clear that all options are on the table. And we all know what that means.

Tod LIndberg’s report adds that Graham was just winding up:

And if that day ever came, my advice to the president, in open session here, if you take military action against Iran as the last effort to stop their nuclear ambitions, you do open up Pandora’s box. But if you let them acquire nuclear weapons, you’ll empty Pandora’s box. So my view of military force would be not to just neutralize their nuclear program, which are probably dispersed and hardened, but to sink their navy, destroy their air force, and deliver a decisive blow to the Revolutionary Guard. In other words, neuter that regime. Destroy their ability to fight back and hope that people .  .  . inside Iran would have a chance to take back their government and be good neighbors to the world in the future. So that’s what I mean by being tough, sir, that everything is on the table and that we need to start talking more openly about that because time is not on our side.

From the standpoint of OJ as an international law blog, I suppose I’d note this as in the long tradition of state practice and opinio juris on what the use of force under the Charter actually means.  The diplomats and officials there might have been shocked and disturbed at the prospect that the US might decide to attack Iran and seek to end its ability to acquire nuclear weapons; that some international lawyers might regard it as per se illegal under the Charter does not seem to have been the source of their dismay.  One can continue to argue the literal words of the Charter and express concern about violations of them; one can go with the Justice Sima route and note that state practice suggests that literal reading is not plausible any longer; or one can go full-on desuetude as Michael Glennon does.  What I don’t think works is simply to ignore the record of state practice and recite the formula of the Charter; I accept the Glennon view while others might sharply disagree, but in any case, it seems to me not possible now, if it ever was possible, not to address the facts of how states behave in this of all matters.

ps.  I should belatedly add two things.  I’m not commenting here on Graham’s views on the politics of the situation, inside or outside Iran; I think it would be hard to come up with an international action with more possible unintended and unforeseeable consequences.  On the legal issues, I’m here referring not just to things like Israel bombing nuclear facilities, but Michael Glennon’s claim about the “desuetude” of the legal rule regarding the Charter role of the Security Council – a broader claim about state practice and opinio juris than this situation, but also one that his paper (and in his new book, Fog of Law) limits to that particular Charter rule.

11 Responses

  1. I think it is indeed very important to look at this kind of state practice – one might argue that it is just ‘words’, but if this was indeed the official position of a UN member states, it would clearly amount to a threat of unlawful use of force, i.e., a threat to international peace and security.
    In other words, I agree that one should not ‘ignore the record of state practice and recite the formula of the Charter’, as Professor Anderson states. Actually, assuming these statements are attributable to a government of a UN member state (and lacking any act/threat of aggression by Iran or SC approval), the record of state practice in this case would show a breach of the binding obligation to abstain from threatening aggression against other states. No more, no less. As Judge Meron put it in the ICTY Brdjanin Appeal Judgment (on torture), ‘No matter how powerful or influential a country is, its practice does not automatically become customary international law’ (par. 247).

  2. True enough, Guy, though I think there have been a fair number of “bellicose utterances” from Iranian officials as well, no?  In fact, one wonders whether Graham would have made these statements without the preceding Iranian statements. 

    Don’t get me wrong.  I express no opinion on the adoption of an “all options on the table” policy toward this situation.  I simply don’t want an unbalanced view of the situation to stand without comment.

  3. I do believe that Israel has some 150 nuclear bombs right now so if Iran went that way, Israel would respond with overwhelming force – independent of any US action. 

    So what is Lindsey Graham saying here? 

    That military action a la 1953 should be done to block Iran from getting nuclear weapons?  Does he seriously think that we will be welcomed with open arms by the Iranians?
    Does Graham think that Iran will seek to use weapons against anyone that will immediately lead to its destruction?

    Does he seriously think that his suggested military action will get UN Security Council approval?  Does he really think that we will go down the path of an AUMF for Iran also and that all will be hunky-dory in this armed conflict?
    Graham is just doing the “hawk-jig” to show his toughness preparing for a Presidential race in 2012.

  4. Graham is amazing.  How does he find the time to serve active duty over seas between stints working in Congress?

  5. Dear Prof Dehn,
    Of course, when Iranian officials talk about wiping out a fellow UN member state from the map, this is also arguably unlawful. However, for some reason, one would expect the only country ever to use nuclear weapons to be a bit softer on other countries’ nuclear capabilities. Moreover, maybe wrongly, we somehow expect certain behaviour/moderation/insight from democracies that we do not always expect from other regimes. But maybe this is expecting too much.

  6. Moreover, maybe wrongly, we somehow expect certain behaviour/moderation/insight from democracies that we do not always expect from other regimes. But maybe this is expecting too much.

    It is too much.  Laws ostensibly universal unavoidably lose that character if held only to bind one side.  The world’s democracies, if told openly that the charter shall bind you, but shall not bind autocracies and theocratic oligarchies, would never have signed up – or would have consented to one rule for their mutual relations and another for their relations with those outside the system. 

    The charter expresses what might be called an ideal of upright behavior among nations.  But in that moment at the end of the Second World War, it was not written as mere idealist aspiration.  The only remaining great military powers on the globe were the victorious allies.  Such was their dominance that all the world might plausibly believe that if the victorious powers committed themselves to enforcing a regime of virtue, all other nations might find that their security would be best served by virtuous behavior. 

    It need hardly be said that this did not prove to be the case.  Security has not, since 1945, ineluctably followed virtuous behavior under the charter.  The UN is too weak, the Security Council too fractious, the commitment of its members to enforcing the more idealist aspects of its charter too tenuous, and the relative dominance of the permanent five now too far diminished, for such a security guarantee even to look possible.

    In the situation at hand, there is a choice between two futures.  In one, Iran acquires nuclear weapons, and all the other Mideast states pour resources into their nascent nuclear programs until the whole region is a bevy of mutually distrustful nuclear-armed camps.  Even if conflagration is avoided, the chances that a terrorist group acquires a bomb – or at least dirty material – multiply exponentially.  In the other future, Iran is by pressure, or by technically illegal threats, or by military attack, stopped short.  In which event the other states might be persuaded to halt their nuclear programs.  And for as long as that balance holds, the situation looks a good deal less frightening.

    That is the choice before us.  If the security guarantee of the UN, just plausible in the postwar moment, were credible now, if Lindsey Graham could “seriously think that” – some – “military action [would] get UN Security Council approval,” then the censures expressed for violating the charter would have moral weight.  But in the world as it is, they are a straining at a gnat to swallow a camel.  To make that choice of futures on no consideration other than allegiance to elements of a charter once ratified as a real security guarantee, then plausibly operative, but now historically defunct, reduced in practical content to expressions of idealist aspiration, openly admitted to be selectively enforced (though even full adherence by the select would not resurrect the old guarantee) – this is not virtue.  It is myopia.

  7. I think myopia is not following the rules binding on everybody. According to your reasoning, each one of us (persons or States alike) could pick and chose at any given time what rules are defunct and what rules should still be followed. I do not want to live in such a community/society.
    And before you say that you would not like to live in a society where the most violent take advantage of loopholes in the law, I should add that of course laws are not suicidal pacts – there is always the possibility of breaching the law taking a moral stand, thus admitting guilt and trying to impress on others the moral reasons for the breach in question. This is the only possibility I see short of changing the rules. Either we accept that there are rules (requiring that Iran does not threaten its neighbours, but also that the US does not threaten others) and we follow them, or we should just give up any hope about an international legal order.

  8. Guy,

    Thanks for the response.  My reasoning is not at all that “each one of us (persons or States alike) could pick and chose at any given time what rules are defunct and what rules should still be followed.”  It is, rather, that the particular rules we have been discussing (the prohibition of state threats in the UN Charter) are defunct, and for a very specific reason. 

    The rules were designedly part of a structure (the UN) intended to provide a security guarantee that would largely obviate the incentive for robust military posturing.  If your neighbor became bellicose, the UN would shut him down.  That was the promise of the founding, and, for a moment in 1945, it was perhaps believable.   But subsequent history has proven that the UN does not really provide such a security guarantee.  The UN can agree that Iran should not develop nuclear weapons.  But the UN is exceedingly unlikely to approve or believably threaten the kinds of actions that would be necessary to stop Iran short.  Hence the Saudi, Qatari, and Jordanian nuclear programs.  

    Therefore, those elements of the charter are defunct – or in disuse – not because the US arbitrarily wishes it so, but rather because they are intimately wrapped up with the unfulfilled security promise of the UN’s founding.  Real adherence to them inseparably depends upon the performance of the promised security guarantee.  Precisely because the UN has proven unable to fulfill that guarantee, those provisions are in disuse – or are defunct.

    The generation that founded the UN was not a generation of starry-eyed dreamers who believed that the bare fact of having signed professions of moral virtue would be a sufficient deterrence to national bellicosity.  Cordell Hull had spend half the thirties working on disarmament and trying to persuade Germany that, if only they were patient, all nations would reduce their forces to the level allowed the Germans under Versailles.  Hull and the rest knew well that if they could not make national virtue align closely with national interest, virtue would swiftly fall by the way side.  The Charter was not a moral instrument merely: the structure itself was intended to provide a security guarantee that would make virtuous behavior possible.  The elements of the Charter we have been discussing were not ratified in isolation: they stand or fall with the success or failure of the UN security guarantee.

    Lawyers may argue what the operative law is based on theories of formal ratification and denunciation, or re-interpretation to fit observed state practice, or desuetude absent formal denunciation, but the simple reality is that national practice ignores these provisions because the UN has not been able to do what the ratifiers hoped it could.

    So, no, I am not at all an advocate of arbitrarily picking and choosing which rules to abide by and which to ignore.  I am an advocate of recognizing that when the UN cannot provide the necessary security, it does not behoove us to stand on punctilios of legal order written assuming a strength the UN does not possess – particularly when there is at stake a choice of futures so stark as the one before us.

  9. Sorry – I am sympathetic to your pleas, but this is still too unilateral: by your reasoning, each country could say the same about a different objective enshrined in the Charter (peace, self-determination, good faith fulfilment of obligations, political independence etc) and start picking and choosing which rules it ought to follow. If the US is ready to recognize that other countries can do the same and start discarding their obligations when they consider that the ‘security [or other] promise of the UN’s founding’ is unfulfilled, this would still be problematic, but at least reasonable.
    The ‘stark choices’ confronting the US (and all of us) led, for instance, to a harmful invasion of Iraq on the basis of false premises, to funding of all kinds of extremists around the world, to criminal coups against lawfully elected governments – it is just too easy for one country to fool itself that it is acting in the best interests of the world when it acts without checks and balances. I simply advocate thinking a bit harder and in good faith when proposing to bend or violate the rules (and assuming responsibility afterwards).

  10. I appreciate the reply.  This will probably be my final comment.

    In reply, I would say two things.  First, the account I have provided for the desuetude of the provisions of the charter Ken Anderson pointed to is not generalizable to provisions to which states may adhere regardless of the strength of the UN security guarantee.

    Second, my comment was largely descriptive.  Countries other than the US do, in fact, ignore the literal words of the Charter in this way.  The US is not alone; nor are US objections to other countries’ actions in violation of these provisions (if indeed the US does object) typically premised on the bare fact of Charter violation. 

    The 1999 NATO threats and, ultimately, airstrikes against Serbia proceeded without Security Council approval.  They are not legally distinguishable from what Senator Graham proposes.  Though the US participated and provided military muscle, these actions were taken primarily at the behest of European leaders, who were also the public face of NATO in its dealings with Serbia.  The NATO alliance made no apology for its actions, which arrested Serbian “ethnic cleansing.”  The UN could not act in this case because of the Russian veto.

    So these provisions of the Charter are simply in general disuse: their violation is not solely the province of US cowboy militarism.  If the UN cannot act to prevent ethnic cleansing, do you fault NATO for violating the Charter? 

    For the record, I opposed the invasion of Iraq.  But it is hard to conceive of anything more dangerous to the peace of the world than a nuclear arms race in the Middle East.  If the UN can agree that Iran should not acquire the bomb, but cannot act to prevent it, it means the UN has failed.  It would be consistent with customary state pratice, and no indictment of themselves, if US and its allies do what the UN cannot, the literal formula of the Charter notwithstanding.

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