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-SC [corrected]) 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 international law, I’d note this as being in the long tradition of state practice and opinio juris on what the use of force under the UN Charter at Articles 2(4) actually means. Some of the diplomats and officials in the Halifax meeting 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.
In other words, one can continue to argue the literal words of the Charter and express concern about violations of them, but it seems to me that one has to do it taking serious account of state practice and declarations that are plainly not about defending against an attack that has taken place across one’s borders. One can go that way, and somehow account for the obviously different and extensive state practice. One can go with the Justice Sima route (in a famous concurrence in an opinion of the International Court of Justice) and note that state practice suggests that literal reading is not plausible any longer, and so “de-fang” the literal language of the Charter while not throwing that particular clause out as irrelevant. Or one can go full-on “desuetude” as Michael Glennon does, and say that this particular clause of the Charter has fallen into “desuetude” over time and is no longer the actual rule of international law.
What I don’t think works is simply to ignore the record of state practice and recite the formula of the Charter, with a sort of magnificent disdain for what states actually do and say – and states that actually engage in uses of force or are in the “international security” business, not Luxembourg or Belize. 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 and how they account for their behavior in this of all matters.
ps. A friend emails with a question what state practice I am referring to, other than the Israeli bombing at Osirak. Meaning, is the state practice all that extensive? Apologies if I wasn’t clear what I was referring to here. I don’t mean state practice related to cross border bombing of allegedly threatening facilities (although as I start to think of them, there are more than one have thought at first blush). I mean the broader proposition of the literal language of Article 51 in the Charter, referring to “armed attack” occurring against a member state, in connection with Article 2(4) and the obligation to refrain from the “threat or use of force.” I was here referring to the proposition that Michael Glennon puts out in his recent book, Fog of Law, referring to the rule of the Security Council under the Charter language as in “desuetude.” Referring to situations in which states resorted to force in ways that would not appear to be consistent with the literal language of the Charter provisions on the use of force, and not simply to cross border attacks of a narrower kind against threatening facilities, the list is pretty long, as many sources have agreed, without agreeing on what it means or what to do about it.