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Iran and the ICC: Untangling the Nuclear Knot

Posted By SASAN SAM SHOAMANESH On June 29, 2009 @ 11:28 am In WEB | Comments
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Today, the Iran question has two critically important facets. The first is the domestic political
situation in Iran, precipitated by allegations of fraud during the recent presidential elections.
These disputed elections have issued in two principal divisive camps, each competing for
power in Tehran, and have unleashed a large segment of the Iranian population into the
streets of the country, risking life and limb in their own struggle for reform and democracy.
They have been met with a muscular crackdown by the Iranian authorities. The second facet
is Iran’s international relations– in particular, Iran’s troubled relations with the West, most
notably over its nuclear programme. There is obviously much to be said about the first facet
– to wit, the treatment of the demonstrators in violation of their most basic human rights.
However, this piece will focus on the second facet of the Iran puzzle, which, if left unresolved,
could generate further instability, conflict and suffering for not only Iranians and the region,
but equally for the international community.

While Barack Obama’s Presidency affords reasonable hope for the prospects of renewed,
more tactful American diplomacy, Iran’s nuclear programme continues, stubbornly, to top the
list of America’s (and the West’s) strategic challenges – and without any apparent solution in
sight. And while the final outcome of the disputed recent Iranian presidential elections has
the potential of translating into domestic changes for Iran – if, for instance, the current
turmoil is resolved in favour of Mir Hussein Moussavi, as opposed to the incumbent president,
Mahmoud Ahmadinejad, or if some sort of compromise power-sharing is reached between the
opposing factions – it is unlikely to change Tehran’s position on exercising its right to nuclear
energy under the Nuclear Non-Proliferation Treaty. To be clear: the call to advance with the
country’s nuclear programme, which the Iranian authorities assert is for civilian purposes
only, reaches across political party lines in Tehran.

To date, diplomatic efforts ranging from the 2004 Paris Agreement to Security Council
referrals and ensuing sanctions (UN SC Resolutions 1737, 1747, 1803, and 1835) have not
generated the desired dividends from Tehran. Worse still, a record of reliance on aggressive
language, inflexible positions and the overhanging threat of war from the preceding US
Administration have only served to toughen Iranian resolve in advancing the nuclear
programme. The US and Israel, in particular the latter, continue to declare that all options
are on the table. Indeed, Israel’s skirmishes with Hezbollah in Lebanon in 2006, and
subsequently with Hamas in Gaza, both seen as Iranian proxies along Israel’s borders,
together lend support to the views of certain analysts that such military moves are both
geopolitical messages of strength to Iran, and strategically consistent with Israel preparing
the groundwork for potential confrontation with Iran.

It stands to reason that the US (Israel, and indeed the West at large) should absolutely seek
to avoid war with Iran over the nuclear question. Such a war – not necessarily ‘winnable,’ by
any stretch – would surely result in great casualties, regional blowback and significant
radicalization of Iranian domestic forces – progressive and otherwise – in support of the very
nuclear option it would seek to prevent. Further, because war is subject to ‘strategic quantum
physics,’ such a war, even if successfully waged, would – in time – likely generate unintended
and unpredictable consequences. In the timeless and sagacious words of Benjamin Disraeli,
“[w]ar is never a solution; it is an aggravation.” In short, the diplomatic process must
prevail.

Of course, we must observe frankly that the current diplomatic deadlock is in desperate need
of imaginative terms. So is there low-hanging fruit to be found?

Given that Iran has expressed interest in the International Criminal Court (ICC) – the country
played an enthusiastic role in the negotiations of the Rome Statute, the Court’s founding
treaty – one ostensible solution to defuse the crisis would be to explore Iran’s ratification of
the Rome Statute of the ICC as part of eventual global nuclear negotiations with Tehran. The
ICC, based in The Hague, is the first permanent international court with jurisdiction to hold
individuals – including heads of states – criminally responsible for genocide, crimes against

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humanity, war crimes and indeed crimes of aggression, once the legal definition of the latter
is resolved.

Based on the existing evidence, the International Atomic Energy Agency (IAEA) has to date
maintained that Iran’s nuclear programme remains within the boundaries of peaceful civilian
purposes, even if questions concerning a potential military dimension of the Iranian
programme remain unresolved, given that full cooperation from the Iranian authorities
suffered a setback after the country’s referral to the Security Council in 2006 (UN SC
Resolution 1696). It follows that, at this stage, strictly speaking, the nuclear crisis is centered
on the hypothetical threat of Iran’s eventual acquisition of nuclear weapons and, in particular,
the subsequent hypothetical use of such weapons. On this logic, Iran’s proprio motu
ratification of the Rome Statute, as part of the nuclear negotiations, could potentially be just
the deal-clincher to defuse the crisis, break the impasse and avert a war with ripple effects
that would likely spread well beyond the immediate Middle East.

ICC ratification would not only clarify Iranian intentions, but would also present a clear
disincentive for potential malfeasance and concomitant legal accountability in the event of
violations of the crimes falling within the Court’s jurisdiction. In short, the trust-building
dividend offered by Iran’s ratification, while certainly not a panacea, is well worth further
exploration in the growing diplomatic dialogue.

Once the dust of the current domestic political crisis in Iran settles, the country could be
swayed to ratify the Rome Statute based primarily on the sour lessons of the eight-year
bloody Iran-Iraq war (1980-88), where it became the victim of Saddam Hussein’s aggression,
as well as of the regular violation of the laws and customs of war by the Iraqi army. That war
issued in hundreds of thousands of Iranian casualties. Iran never had the benefit of
international legal recourse – something never lost on Iranians. Furthermore, the country’s
turbulent geopolitical reality and a history of foreign intrusions both lend support to the
possibility that Iranians could in fact look upon ICC ratification favourably.

In October 1998, Dr. Saeid Mirzaei Yengejeh, Representative of the Islamic Republic of Iran
before the Sixth Committee on the Establishment of an International Criminal Court in New
York, said the following:

“The delegation of the Islamic Republic of Iran was among 160 delegations participating in
the Diplomatic Conference on the Establishment of an International Criminal Court, and
endeavoured to the best of its ability for the successful conclusion of the Conference and the
adoption of the Statute of the International Criminal Court on July 17, 1998. By the adoption
of the ICC Statute the international community has laid down another milestone, at the turn
of century, towards achieving peace and justice – two indivisible components of a global
society.”

Similar sentiments have been echoed by other senior Iranians officials. So clearly, while Iran
has not yet ratified the Rome Statute, holding out with, among others, the US and Israel,
Iranian interest in the Court exists.

The central thesis advocated above is given further support through the following:

1. Ratification would build much needed confidence and clear the air of ‘unknown’ Iranian
intentions. Mohammad El-Baradei, Director General of the IAEA, at the last World Economic
Forum in Davos, publicly stated that the international community’s anxieties about Iran’s
nuclear programme stem primarily from uncertainty regarding Iran’s future intentions. By
subjecting itself to the legal mandate of the ICC, Iran would have the opportunity to
demonstrate that it has nothing to hide and that its nuclear programme is transparent,
peaceful and for civilian purposes only. This is fundamentally important.

2. Ratification would facilitate the reach of the Court and provide legal recourse for all sides
to the dispute in the case of violations of the crimes falling with the ambit of the Court’s
jurisdiction (e.g. war crimes, crimes against humanity, etc.). More signally, it could have a
deterrent or disciplining effect on Iran’s behaviour (and perhaps even that of the US and
Israel – the two other major state stakeholders).

3. Tehran’s reservations regarding ratification have to date been predicated for the most part

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on misconceptions of the Court’s legal machinery, jurisdiction and independence. When these
are properly understood, its views of ratification would likely be increasingly favourable.

4. Iranian authorities’ concerns that the Court has no judges trained in Islamic jurisprudence
are moot to the extent that a judge’s religious background has no real bearing on how the
law is applied at the ICC, due to the operation of Article 21 of the Rome Statute and its
hierarchy of applicable law. (Note that, in any event, a state can nominate its own candidates
for election as ICC judges only if it has ratified the Rome Statute to begin with.) To be sure,
many Islamic states with Islamic constitutions, like the Islamic Republic of Afghanistan, have
already ratified the Rome Statute.

Further to point No. 4, the larger issue of Iranian claims that the Rome Statute has a peculiar
‘Western’ bias need to be addressed head on. International humanitarian law and
international criminal law work in concert to, inter alia, deter and minimize the occurrence of
hostilities and the suffering caused by war, as well as to hold accountable those responsible
for the commission of the most serious crimes of concern to the international community.
The wrath of war neither spares nor is limited to race, sex, religion or regional alliance. It
does not discriminate between East, West, North or South. Its misery on mankind has
universal application, as do the laws that have been created to bring method to the madness
of war.

Indeed, Islamic scholars will confirm that, under Islamic law (Siyar), countless provisions
exist to deal with unacceptable conduct during hostilities. The claim, therefore, that certain
provisions of the Rome Statute may not be compatible with the strict application of Islamic
law (Shari’a) – in place in Iran since the 1979 Revolution – and that the country cannot, as a
consequence, ratify the Statute overshoots gravely. This is all the more true when, as
mentioned, numerous State Parties of the ICC have Islamic constitutions and Islam as their
official religion or as the religion of the majority of their population. Rigid Iranian insistence
on its sui generis Islamic character as a pretext for non-ratification of the Rome Statute, as
against the current 109 State Parties of the Court, would seem to condemn that country to a
future that is inward-looking and divorced from an increasingly interconnected international
community.

Henry A. Kissinger astutely stated in a July 2006 Washington Post column:

“A modern, strong, peaceful Iran could become a pillar of stability and progress in the [Middle
East] region. This cannot happen unless Iran’s leaders decide whether they are representing
a cause or a nation – whether their basic motivation is crusading or international cooperation
[…]”

It bears noting that Iran, aside from its vast material resources, boasts formidably rich
historical and cultural traditions. Thousands of years of the history of the Iranian people
entered the record of time before the introduction of Islam in the country in 633 A.D. after
the defeat of the Sassanid Persians. The culture of Iranians is profound, shaped by their
country’s long history, the diversity of its people, and the religious, philosophical and social
movements that have sculpted the national conscience over millennia. Although Islam and
Islamic (Shi’a) values are certainly an important part of Iranian society, secular views, as
well as a wide mosaic of other religious beliefs – Zoroastrianism, Judaism, Christianity,
Mandeanism, Hinduism, Sunni Islam, Sufism, and Bahai tenets, among others – have also
merged to construct the Iranian psyche and the Iranian will. A Shi’a theocracy has been in
place in Iran for 30 years since the 1979 Revolution – a mere droplet in a thousand seas of
history and cultural and philosophical ferment. Moreover, apart from being the benefactor of
the Cyrus Cylinder, considered the first charter of human rights in recorded history, Iran is a
founding member of the UN and the signatory to countless international covenants, including
the International Covenant on Civil and Political Rights and Convention on the Rights of the
Child. In 1968, the country hosted the twentieth anniversary of the Universal Declaration of
Human Rights in Tehran, not least because Iranian diplomats (Fereiydoun Hoveyda, former
Ambassador of Iran to the UN) were involved in the drafting of the Declaration itself. It would
seem perfectly reasonable to hold that the universal values of respect and protection for
human rights as enshrined in the Rome Statute are not only not inconsistent with Shari’a
principles, but rather very much consonant with the country’s multiethnic, multi-religious
heritage.

In the current context, with the potentially positive effects ratification could have on the

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nuclear crisis, failing to ratify the Rome Statute as part of eventual global negotiations, on
shakeable grounds of cultural relativism, could well be a serious missed opportunity for Iran
and Iranians, the West and all parties genuinely in search of a peaceable solution to the
present diplomatic impasse.

When the time comes and it is appropriate to sit and negotiate with Tehran on the nuclear
question, it is hoped that diplomacy through bona fide negotiations and innovative thinking
will untangle this proverbial knot.

Sasan Sam Shoamanesh is a legal advisor with the International Criminal Court
(ICC) and has had extensive training in diplomatic negotiations and conflict
resolution. The views expressed in this article have been provided in the author’s
personal capacity, and do not necessarily reflect the views of the ICC.

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