Michael Spies

The New York Times recently reopened the issue of Iranian President Mahmoud Ahmadinejad’s notorious appeal to “wipe Israel off the map”. The Times piece focuses exclusively on the translation — or possible mistranslation — of the statement in order to determine if it constituted a threat against Israel and a call for war. The original phrase in Farsi, borrowed from rhetoric used by Ayatollah Khomeini, lacks a direct literal equivalent in English. The closest expression is to remove from the “pages of time of history”. Despite this, the Times noted that Ahmadinejad’s personal translators chose the wording “wipe off the map” in the posting on the President’s web site. The Times concludes that it remains an open question of whether Ahmadinejad called for war against Israel.

In a recent Washington Post Op-Ed, David Rifkin argued that this statement alone constituted an illegal threat to Israeli territorial integrity, and political independence, in contravention of Article 2.4 of the UN Charter. He reasoned that the utterance alone is sufficient grounds for Israel to exercise its right to self defense, preserved in Article 51 of the Charter. Moreover, he argued that Ahmadinejad’s statement, taken with his prediction of a coming “nuclear conflagration”, equates to a threat to commit genocide, in violation of the 1948 Genocide Convention.

Rifkin reiterated this argument Monday night at the New York Bar Association at an event examining the legality of the use of force by the United States against Iran. The event was inspired by Seymour Hersh’s article, “The Iran Plans“. The other panelists included Gary Solis, a professor of law who formerly taught at West Point, and Charles Moxley, a professor of law at the Fordham Law School. After their presentations John Burroughs, (Executive Director of Lawyers’ Committee on Nuclear Policy and a contributor to this blog) asked the panel a straightforward, but challenging, legal question: what constitutes a threat under international law?

There is little guidance in the body of international law on the question of what constitutes a threat. Article 2.4 of the UN Charter stipulates that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Yet there is no definition of threat provided in the Charter or other international instruments.

John Burroughs has suggested (see Legal Framework, p. 30), from an orthodox point of view, that core elements of a threat are a demand that another state do or refrain from doing something coupled with the statement that military action will be taken if the demand is not complied with. Taking off from that basic point as well as international relations theory, I would identify several criteria for determining what is a threat in the context of Article 2.4. States employ many available foreign policy tools to achieve a desired policy outcome, including the use of force. To constitute a threat, a state must show intent, through either its actions or statements, to use force to achieve its policy. Intent to use force could come through a demand or ultimatum to another state, stipulating explicit consequences for a failure to comply. Intent can also be revealed through a pattern of behavior, appropriate for achieving the policy goal, such as building up armed forces or engaging in arms races, or otherwise preparing for the use of force. Other factors can mitigate or aggravate the perception of threat, such as previous foreign policy practice, more precise articulations of the policy in question, or doctrines governing the threat or use of force. Credibility is key to intent and to the question of threat. If the state making the threat lacks the capability to achieve its policy through the use of force, any threat it makes lacks credibility and constitutes nothing more than belligerent, hard-line rhetoric.

Turning back to the question of Ahmadinjad’s utterance, the question is still as the Times framed it, “how far did [those words] go?” Can the Iranian President’s phrase actually be construed as threat in the sense of Article 2.4 of the UN Charter? As it turns out, understanding the precise meaning of the phrase is irrelevant. Unfortunately this is where the Times analysis ends, leaving readers hanging on the central issue, what hawks contend for Israel is a valid casus belli. A little more digging by the Times would have quickly revealed Amadinejad’s elaboration on Iran’s long-standing policy toward Israel, which sheds much needed light on the question of whether his words equated to a threat of force. To quote a little more extensively from Ahmadinejad’s infamous speech:

“The issue of Palestine will only be resolved when all of Palestine comes under Palestinian rule, when all the refugees return to their homes, and when a popular government chosen by this nation takes the affairs in its hands.”

The Iranian president explained what he means by a “popular government” in more recent speech at a conference supporting the rights of the Palestinian people in April 2006. In his remarks, Ahmadinejad more cautiously articulated his position toward Israel, seriously casting doubt on Rifkin’s wild theory of an Iranian intent to commit genocide:

“Only a government chosen by the people can resolve the problem of Palestine and the people of the region. The right to govern belongs to all people of Palestine and they must decide the governing model of their choice and elect their own officials.

“For this purpose, there must be an opportunity for all genuine Palestinians; be they Muslims, Christians, or Jews, residing in Palestine or in Diaspora, to participate in a referendum to decide the political system of their choice and elect their leaders.

“In other words, the only rational way which is compatible with the generally recognized international norms is holding of a referendum for all genuine Palestinians.”

Ahmadinejad has very clearly and crudely called for an end to the current regime in Israel. His statements have been in line with Iran’s policy, dating back to Ayatollah Khomeini, advocating a one state solution for Palestine. The Iranian president’s suggestion for a referendum to solve the question of Palestine seems to preclude the use of force. The establishment of a single state of Palestine, contrasted with the two state solution envisioned by the U.S. backed Road Map, would essentially wipe Israel from the “pages of time of history” by replacing it with a single inclusive state where “Muslims, Christians, or Jews” would live side by side. From this context, the phrase “wipe off the map”, while irresponsible and inflammatory, does not reveal an intent to use force or an intent to commit genocide.

Even if Ahmadinejad intended to imply that Iran would use force to remove the Israeli regime, such a threat would lack credibility. Backed and supplied by the United States, the Israeli armed forces are indisputably the dominant military power in the region. In the 1980-88 war with Iraq, Iran’s troops were only able to operate outside its own territory during the closing years of the conflict. At present to reach Israel the ill-equipped Iranian military would have to make it past the American military presence in Iraq and the other Gulf states, and across the territory of Jordan and Syria to reach Israel. Such an overt act of aggression would likely infuriate the Arab states and prompt an immediate military response from the U.S.

The contention that Iran is developing a nuclear weapons capability to wipe out Israel is even more at odds with public statements by top Iranian officials and influential religious figures. At a Wednesday night discussion on Iran at the New School in Manhattan sponsored by Physicians for Social Responsibility, historian Ervand Abrahamian noted that the acquisition or use of nuclear weapons by Iran would not only be morally repugnant to Islam, but would also violate fatwas issued by Ayatollah Khomenei. Professor Abrahamian further mentioned that so-called pragmatic conservatives in Iran, such as former President Rafsanjani and the chief of national security policy, Ali Larijani, have articulated that it is not in Iran’s interest to acquire a nuclear weapon. Both these men have more influence over Iran’s foreign and nuclear policy than the President, who has little real power aside from his ability to make speeches and appoint ambassadors, subject to veto from the supreme leader.

In the view of Professor Abrahamian, Iranian policy makers are cognizant of the likelihood that if Iran were to acquire nuclear weapons, it would undermine its influence in the region. The Arab Gulf states, which already house a significant U.S. military presence, would be likely to seek shelter under the U.S. nuclear umbrella in such an event. It could also lead to an nuclear arms race with other major Arab states, notably Saudi Arabia and Egypt. Due to the better ties with the West that these two states enjoy, coupled with fewer restrictions on the flow of technology, it would be an arms race that Iran would certainly lose.

On the question of whether Iran would use a nuclear weapon if it were to acquire one, it would make little sense to strike Israel with a nuclear weapon in order to wipe out the Jews. In addition to the moral and religious restrictions cited above, there are also logical reasons why an Iranian nuclear strike against Israel would make little sense. Israel is densely populated state with a mixed population of Muslims and Jews living interspersed. Not only would such an attack result in the death in as many or more Muslims and Arabs, accounting the effects of subsequent fallout, but it would also result in the destruction of numerous revered sites in Islam.

Ahmadinejad’s belligerent statements toward Israel constitute nothing more than tough-man rhetoric geared toward particular elements of a domestic audience. At various meetings, discussions, and forums around the city focused on the Iran issue, Iranians and Iran-Americans have consistently expressed their embarrassment by Ahmadinejad’s belligerent pronouncements. His inflammatory utterances have been justifiably condemned by many international leaders. But given his lack of decisive political power his statements can not be construed as a casus belli, and should not be used as an excuse to derail the diplomatic process.

The Iranian President is not the only player in the region to engage in what would could be perceived as a “threat”. President Bush labeled Iran as a member of the Axis of Evil, along with North Korea and Iraq. Of the two other members of the Axis, the regime in Iraq has been removed and near state of war has existed between North Korea and the United States for almost half a century. The 2001 Nuclear Posture Review listed Iran as one of seven states now targeted by U.S. nuclear weapons. The 2006 National Security Strategy states that the U.S. “may face no greater challenge from a single country than from Iran.” Also troubling is the U.S. policy of regime change in Iran, which was also the policy toward Iraq prior to the 2003 U.S. led invasion, and the entrenchment of the doctrine of preventive war. For a more in depth discussion of U.S. doctrine and its legality under international law see: Jus ad Bellum: Law Regulating Resort to Force, Nicole Deller and John Burroughs.

On the nuclear issue the goal of U.S. policy is to achieve the complete cessation of all nuclear fuel cycle research and development in Iran. Toward this end President Bush has stated that all options are on the table, not only an allusion to the use of force but also to the possible use of nuclear weapons to strike underground targets. Specifically for these purposes, the U.S. has engaged in extensive planning for possible air-strikes against Iran. For more discussion on the revelation of U.S. war planning against Iran see: “‘Divine Strake’ and the talk of a nuclear attack on Iran” and “Hersh’s Bombshell“.

Perceptions of threat and security work both ways. The U.S. maintains active combat troops on the ground in the countries bordering Iran and its airbases ring the Middle East. There is no question as to the credibility of the U.S. ability to use force against Iran. Beyond empty or militaristic rhetoric, the evolving preventive war doctrine and the extensive U.S. war planning and can easily construed to constitute an intent to use force. If Ahmadinejad’s statement can be argued to constitute a “threat”, then U.S. doctrine and policy toward Iran is an undeniable threat within the context of Article 2.4 of the UN Charter.