MOON OF ALABAMA
The Trump administration wants to abolish the nuclear agreement with Iran. The big European countries want to keep the formal agreement but are actively looking for other reasons, specifically Iran's ballistic missiles, to put new sanctions on Iran. A detailed look into the issue reveals that those European countries are willfully misreading the relevant UN resolutions and mislead the public about their real motivations.
Elijah Magnier just published an excellent piece on the history of U.S. attempts to restrict Iran in the Middle East and to again put it again under its tutelage. He touches on the nuclear deal with Iran and the Trump administration attempts to abolish it. The deal was cosigned by three European countries, the United Kingdom, France and Germany, as well as by Russia and China. Magnier writes:
Iran will not re-negotiate the nuclear deal and relies on Europe to stand firm, confirming its signature and commitment. Europe is in need of Iran because the Islamic Republic is part of the continent’s national security and an advanced guard against terrorism. Europe has had enough of wars [… .]
[The] Iranians and their allies are the partners Europe is looking for, ready to stand back from the US, that faraway continent that is less vulnerable than nearby Europe to terrorism and terrorists.
That assessment of the European position is wrong.
1. The European governments care about terrorism just as much as the U.S. government does – which means they do not care at all. Remember that the war on Libya, with the help of Qatari paid Takfiris of the Libyan Islamic Fighting Group, was cooked up by the French President Sarkozy and the Britain Prime Minister Cameron a full year before it happened. Ghaddafi was killed, Libya drowned in blood and terrorism thrived. The blow back came in May 2017 when a Libyan Takfiri blew himself up and killed more than 20 people in Manchester UK. No one was held responsible. Instead the Europeans repeat the same scheme in Syria and are still supporting the terrorist assaults against the legitimate Syrian government.
2. These Europeans want Iran back under a strict sanction regime just like the U.S. wants it. They Europeans do not want to formally break the nuclear agreement. (They might fear that some companies would file for indemnity.) But they are actively looking for ways to circumvent it. They want to provoke Iran into breaking the agreement by claiming that Iran's ballistic missile program is in violation of the nuclear agreement and the relevant UN resolutions. If they use the issue to apply unilateral sanctions or to "snap back" old ones, Iran has little choice but to declare the agreement null and void.
Some relevant headlines:
- EU countries defend nuclear deal with Iran and express concerns over Tehran’s ballistic missiles … – Jan 11 2018
- Germany weighs new sanctions against Iran – report – Jan 20 2018
- Germany is lobbying among European allies to agree new sanctions against Iran in an attempt to prevent U.S. President Donald Trump from terminating an international deal curbing Tehran’s nuclear programme, Der Spiegel magazine reported on Saturday.
These European countries say they are under pressure from Trump to offer something and are therefore taking up the ballistic missile issue:
The strategy could include threatening Iran with targeted economic sanctions if it does not agree to curtail its ballistic weapons arsenal, which the West believes contains longer-range missiles potentially capable of carrying nuclear warheads.
But why would anyone believe that Trump would not just take whatever Europeans offer and simply continue on his path. If Trump wants to break the nuclear agreement the Europeans should let him do so and not risk to add to the damage.
Moreover – the claim that these Europeans are moving against Iran's ballistic missiles because of Trump is deeply dishonest. The same European countries started their campaign about the alleged Iranian ballistic missile violation under then President Obama. As DW reported on March 30 2016(!):
The United States and its European allies have accused Iran of defying a UN Security Council resolution by launching nuclear-capable missiles.
The US, Britain, France and Germany leveled the charges Tuesday in a joint letter addressed to Spain's UN ambassador and UN chief Ban Ki-moon. In the letter, US and European officials said Iran's recent ballistic tests involved missiles capable of delivering nuclear weapons and were "in defiance of" council resolution 2231, adopted last July.
Iran had launched missiles that were "inherently capable of delivering nuclear weapons," the letter said. It called on the Security Council to discuss appropriate responses to Tehran's failure to comply with its obligations.
That 2016 letter itself was based on two lies. As discussed in detail below the UNSC Resolution 2231 (2015) does NOT prohibit any ballistic missile activities in Iran. It especially does NOT prohibit missiles "inherently capable of delivering nuclear weapons". It does not even "demand" such. Iran acted as much "in defiance" as someone who rejects an "obligation" to "suck on this" (vid).
As DW correctly noted:
Council diplomats said the case for new UN sanctions on Iran was weak. Moreover, Western officials said that although the launches went against 2231, they were not a violation of the core nuclear agreement …
Diplomats say key powers agree the resolution's language is not legally binding and cannot be enforced through the use of sanctions or military force. But Western nations view the language as a ban and say Iran has a political obligation to comply.
Iran denies its missiles are able to carry nuclear weapons …
[A] rebuke from the Security Council could provide a legal framework for the US and European countries to consider new sanctions against Iran, according to Western diplomats. France has also suggested there could be unilateral European sanctions over Iran's missile launches.
The European claim now that they want to press Iran on ballistic missiles to prevent Trump from ripping the nuclear agreement apart. This claim is obviously false. The same three Europeans attempted to press Iran on ballistic missiles, in circumvention of the nuclear deal, way before anyone but Trump himself dreamed that he might become President of the United States.
Iran's Ballistic Missile Program
Iran has sensible reasons to have a ballistic missile force. During the Iraq-Iran war the Iraqi army launched the War of the Cities on Iran. Five large waves of air raids and dozens of ballistic missiles with conventional and chemical weapon payloads hit Iranian cities and caused several thousands of casualties within the civilian population. Iran had no way to defend against these attacks or to retaliate in kind. As the Wikipedia entry on the War of the Cities linked above notes:
The conflict caused [the] initiation of Iran's missile program by [the] IRGC.
Currently two of Iran's immediate neighbors have medium range ballistic missile capabilities. Saudi Arabia has a ballistic missile force of older Chinese DF-3 missiles as well as newer Chinese CSS-5 (DF-21). Both types have a range of 1,500-2.5000 miles and a payload capacity of up to 2 tons. Pakistan, Iran's eastern neighbor, has a significant ballistic missile force armed with conventional and nuclear warheads. Israel has medium range ballistic missiles, likely nuclear armed, which can hit Iran. The U.S. has, of course, a missile force with global reach.
Three of Iran's main adversaries, Saudi Arabia, Israel and the United States, have missiles capable of hitting Iran. Iran does not want to repeat the experience of the Iraq-Iran war. Iran will not give up its own ballistic missile force. Those missiles are its only means to deter especially its Wahabbi and Zionist neighbors and the imperial U.S. from using their missiles against Iranian cities. Iran thus rejects any negotiations about its ballistic missile programs but it has put sensible restrictions on its active forces.
Iran's Supreme Leader voluntarily limited the range of Iran's ballistic missiles:
Speaking on the sidelines of a conference in Tehran, Gen. Mohammad Ali Jafari [the head of the paramilitary Revolutionary Guard] told journalists that the capability of Iran’s ballistic missiles is “enough for now.” The Guard runs Iran’s missile program, answering only to Khamenei.
“Today, the range of our missiles, as the policies of Iran’s supreme leader dictate, are limited to 2,000 kilometers, even though we are capable of increasing this range,” he said.
The Iranian ballistic missile program is obviously not directed at Europe. Its missiles can not reach any European city. There is no reason for European countries to worry about them. This could change though if Europe acts hostile against Iran.
No European government has yet plausibly explained why Iran's ballistic missile program should be of any more concerns than Saudi Arabia's or Israel's.
What the UN Security Council resolutions say about Iran's ballistic missiles
To understand the legal aspects we have to dip into the history and language of the relevant UNSC resolutions.
Before the nuclear agreement the UN Security Council Resolution 1929, adopted on June 9 2010, restricted Iran's ballistic missile program in a legally binding form:
Acting under Article 41 of Chapter VII of the Charter of the United Nations, [the UNSC]
[…] 9. Decides that Iran shall not undertake any activity related to ballistic missiles capable of delivering nuclear weapons, including launches using ballistic missile technology, and that States shall take all necessary measures to prevent the transfer of technology or technical assistance to Iran related to such activities;
Note the specific description of "missiles capable of delivering nuclear weapons".
On July 20 2015 the UN Security Council unanimously adopted Resolution 2231. It endorsesthe Joint Comprehensive Plan of Action, JCPOA or nuclear agreement, which the five permanent UNSC members and Germany had negotiated with Iran.
In the new resolution the UNSC decides under point 7 that …:
(a) The provisions of resolutions 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008), 1929 (2010) and 2224 (2015) shall be terminated;
That paragraph lifts all old restrictions on Iran's ballistic missile activities. The limits of UNSCR 1929 (2010) on ballistic missiles no longer apply.
[Excursus – "snap back"]
There is a tricky issue following the above point 7 in para 10 to 15 of UNSCR 2231 under the title "Application of Provisions of Previous Resolutions". The termination of the old resolutions and the sanctions those applied can, under certain conditions, itself be terminated. This is the "snap back" provisions the Obama administration held out against its critics. A National Public Radio piece explained the process:
Here's how it would work: If U.S. officials believe Iran is violating the deal, they would bring the allegation to the Security Council. At that point, sanctions would be imposed automatically — the first unusual twist in the deal. If members of the security council — Russia, China or others — rise to Iran's defense, they can block the new sanctions only by passing a new resolution.
That could be stopped by a U.S. veto. The U.S. is one of five permanent council members — including Great Britain, France, Russia and China — with veto power.
In other words, instead of making sanctions vulnerable to a veto by the five permanent Security Council members, the deal flips that around, and gives the U.S. (or others) power to stop any attempt to block the imposition of sanctions.
To come to the point where the "snap-back" provision apply, the U.S. or other states must only "notify" the UNSC that it found an issues it "believes constitutes significant non-performance of commitments under the JCPOA."
Iran's Supreme Leader Khamenei has said that such a "snap back" of sanctions, based on dubious allegations, would be considered by Iran as a violation of the nuclear agreement.
The U.S. and the west-Europeans seem to believe that this backdoor to reintroduce the old sanction regime against Iran can be triggered by their lamenting over Iranian ballistic missiles activities. A precise reading of the resolution shows that this is not the case.
[End of the "snap back" excursus]
The new UNSCR 2231 (2015) itself does not mention ballistic missiles at all. But it has two annexes. Annex A is a copy of the JCPOA as adopted in Vienna on July 14 2015 by all JCPOA parties including Iran. Annex B is simply headline "Statement". It accompanied JCPOA but was issued only by the 5+1 states, not by Iran. The exact legal status of the Annex B "Statement" within the UNSCR is not clear (at least to me). But even if we consider it a binding part of the resolution it does not give the legal backing for the current claims against Iran.
The Annex B Statement provides that:
3. Iran is called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons, including launches using such ballistic missile technology, until the date eight years after the JCPOA Adoption Day or […]
That point 3 in the Annex B is the only item in UNSCR 2231 (2015) that is relevant to Iran's current ballistic missiles.
- UNSCR 2231 (2015) lifts the strict, legally binding provision ("decides") of UNSCR 1929 (2010) against any and all ballistic missiles in Iran.
- UNSCR 2231 (2015) introduces a new point in an Annex Statement that asks Iran in a legally non-binding way ("calls upon") to limit its ballistic missile activities.
- There is a significant change of language in the description of the relevant ballistic missiles between the two resolutions. While 1929 (2010) talks about "missiles capable of delivering nuclear weapons", 2231 (2015) talks about "missiles designed to be capable of delivering nuclear weapons".
Some people, like the US Ambassador to the UN and some European ministers, are trying to build on the "calls upon" provision in the Annex B Statement to accuse Iran of legally violating the resolution.
This is nonsense. The UN issued "Editorial Guidelines" for writing resolutions. The "calls upon" phrase is listed as a "common operative verb" distinct from other, much stronger common operative verbs likes "decides" or "demands". The European Institute for Peace noteson UN resolutions that:
[B]inding paragraphs start with “decides” instead of “urges”, “invites” or “calls upon”.
The "call upon" phrase in UN resolutions is non-binding. It is Diplomatese for "pretty please". Saying "No!" to someones "pretty please" is not defying an "obligation". It is not against the "spirit" of anything. Acting against the request expressed in a "calls upon" clause is NOT a violation of a resolution. It can thus not trigger any legal consequences.
In addition to that the change of language in the ballistic missile description from 1929 (2010) to 2231 (2015) acknowledges that there are ballistic missile types to which even the "calls upon" clause does not apply.
The old formulation practically designated all missiles that have a certain lift capacity and allow for a payload size theoretically large enough to hold a nuclear weapon. This first formulation includes, for example, missiles developed to launch satellites into space as well as some conventional short range artillery missiles.
The second, new formulation is much less restrictive. It applies only to missiles which are consciously "designed", i.e. developed and engineered, with nuclear weapon capability in mind. The technical specificity of such a "design" must go beyond the simple provision of a certain lift capacity and payload size like it is used for space launchers or conventional ballistic missiles. Such differentiating and qualifying language as the resolutions use would otherwise make no sense. The authors and legal editors of such resolutions do not use different technical descriptions for the same specific issue.
Iran says that none of its missiles are "designed to be capable of delivering nuclear weapons." Thus even the non-binding "calls upon" clause does not apply to them.
It is interesting to note that the change on ballistic missiles between the two resolution was made against the will of the Obama administration. As Philip Gordon, the White House coordinator for the Middle East in the Obama administration, recalled:
[W]hen Mr. Obama sought to include a prohibition on ballistic missiles in the Iran deal, or at least extend a previous Security Council resolution banning them, not just Russia and China but even our European allies in the nuclear negotiations refused. They argued that the ballistic missile ban was put in place in 2010 only to pressure Iran to reach a nuclear deal, and they refused to extend it once that deal had been concluded.
All commentators, except the most partisan against Iran, accept the change between the resolutions 1929 and 2231 and see no violation in Iran's ballistic missile program.
But now the Europeans are trying to revert that position. While they try to keep the nuclear agreement intact they now attempt to build up a new case against Iran based on the ballistic missile nonsense.
- The claim of the three European countries that they now want to press Iran on ballistic missiles only to soothe Trump and to make him stick to the JCPOA is a lie. They used the same irrelevant pressure point in 2016 under the Obama administration.
- The claim that the ongoing ballistic missile program of Iran is falling under the UNSCR 2231 missile definition is false. There is no evidence that any Iranian ballistic missiles was specifically "designed to be capable of delivering nuclear weapons".
- Even if there were such evidence Iran would not be in any legally relevant violation of the UNSCR 2231. The "calls upon" phrase used in the relevant paragraph is non-binding. (The implied assertion that the Annex II Statement is a fully operational part of the UNSCR might also be questionable.)
All the above shows that the Europeans are not honest with regards to Iran. While they want to keep the formal nuclear agreement intact they still want to take hostile actions against Iran and reintroduce or create new sanctions against it. Iran can not and should hope for any support from Europe.