‘Flow of Arms Must Stop’

With news that the U.S. will be transferring arms to the rebels in Syria this afternoon, the question we should be asking is: What is the likely outcome from U.S. intervention? Will transfers of arms to rebels lead to a reduction in violence and reprieve for those civilians caught in the ongoing firefight? Or, can we expect the antagonisms to deepen and the civil war to continue on its interminable path?

We’ll hear a lot from the humanitarian intervention crowd in the next few days on how the Obama administration has made the heroic leap into the Syrian conflict. But don’t expect them to frame this question, much less answer it. If there is one thing the interventionist crowd does so well is ignore what should be central to their analysis of any given situation: Will intervention increase or reduce violence? Will intervention help or harm the people we are, at least rhetorically, aiming to ‘rescue’?

In Syria, we’ve got an answer to these questions. Not two weeks ago, Navi Pillay, the UN Human Rights Commissioner, issued a statement titled ‘Urgent Debate on the Human Rights Situation in Syria,’ in which she said:

The solution must be political. It will not be military. Outside forces, including some States, are reported to be actively fueling the conflict by providing weapons and ammunition to one side or the other. This emboldens the belligerents . . . If the current situation persists, or deteriorates further, increased inter-communal massacres are a certainty, rather than a risk.

Ending, the UN Human Rights Commissioner held:

The Council should send a clear message to all parties to the conflict, and the external actors wittingly or unwittingly fueling it: the conflict must cease, with an immediate cease-fire as a confidence-building measure leading up to the Geneva conference; the flow of arms must stop; and the process of national dialogue must begin now.

Well, the Obama Administration seems to have different things on its mind than alleviating the ongoing bloodshed in Syria. And when the humanitarian intervention crowd tries to rally popular favor for Obama’s decision, please cut them down a notch and point them to this statement. It is the clearest sign of what we can expect in Syria from now on.

Sanctions and Law

As I’ve mentioned below, I’ve been using my time wisely in law school this semester to draft three separate papers — all of which deal in some way with the legal issues raised by a coercive sanctions regime. Below, I detailed a particular problem with the UN sanctions imposed on Iraq, procedurally flawed and thus perhaps ultra vires. Here, I introduce the question of what are the legal rights of a civilian population living under sanctions and what are the legal obligations of a State imposing sanctions on a target. Obviously, the central concern I have these days is the case of Iran, where the U.S. has imposed a comprehensive regime of sanctions that has begun to deliver real harms to Iran’s civilian population. This Paper, it is hoped, will provide a useful analytic framework within which to advocate for the rights of Iranians suffering under sanctions. Below is the Introduction — the rest of the Paper will come later.

What law, if any, is applicable to the multilateral and unilateral imposition of coercive economic sanctions on a target State and its population? Driven in large part by the grave humanitarian consequences of the United Nations sanctions on Iraq and Haiti in the 1990s,[1] legal scholars and rights advocates sought to answer this very question.[2] Inevitably, these answers turned to the preexisting legal frameworks offered by international human rights law,[3] international humanitarian law,[4] and the law of countermeasures.[5] While no perfect fit was found, scholars and advocates nonetheless derived certain principles and parameters from each framework, thereby helping inform the project of an international sanctions law.

However, that project remains largely unfulfilled. Few, if any, have taken the time to assert a comprehensive legal framework in which both policymakers and advocates alike can judge the legality of a particular regime of coercive sanctions.[6] This has been to the detriment of both parties. Unbound by law, those in positions of authority to impose sanctions on a target State have done so largely adverse to the humanitarian consequences of their policy decisions.[7] This has left civilian populations of target States at the ultimate mercy of a policy framework that de facto excludes their interest (and perhaps their right) in remaining unharmed. Part of the problem is that the rights of civilians in a target State and the obligations of the sanctioning State remain such elastic and underdetermined concepts that they become of little value in preventing harm to civilians. Less importantly, but not without significance, the lack of a comprehensive legal framework to which policymakers can turn leaves them vulnerable to legal sanction and perhaps criminal punishment as well, especially if the law governing the use of sanctions stems (as many believes it does) from such venerable principles of international law as those of distinction and proportionality. Meanwhile, rights advocates have been largely unsuccessful in their attempts at limiting the scope of sanctions regimes and protecting civilian populations from undue and undeserved harm.[8] Part of the problem, of course, is the lack of a common framework – and thus a common language – with which to advocate for the rights of those living under sanctions. So long as that framework eludes clear definition, rights advocates will be stymied in their ability to build coherent campaigns aimed at pressuring States to take adequate account of civilian needs when utilizing coercive economic sanctions.

The law of armed conflict provides a useful foil to the indeterminacy of an international sanctions law. Under the law of armed conflict, detailed treatment is given to the rights enjoyed by civilians and the obligations incurred by belligerents during times of war.[9] In principle, those in positions of military command draw on the law of armed conflict when drafting the rules of engagement that will govern their forces in the field.[10] Failure to follow these rules and regulations will promise stern treatment from rights advocates, who are able to compare the actual conduct of hostilities with applicable law and thus determine (and publicize) violations.[11] In this way, the determinacy of the law of armed conflict creates a series of relationships that helps avoid and manage the risk of civilian harm during periods of armed conflict. This same kind of interaction – that between law, policymakers, and rights advocates – should be demanded of international sanctions law, if limiting civilian harm is a principle to be observed. Thus, the law of armed conflict stands as exemplar for the kind of analytic framework to which an emerging international sanctions law must strive.

In this Paper, I seek to aid the construction of a comprehensive legal framework with which to analyze the legality of a State’s use of coercive economic sanctions. While much work has focused on the role that principles drawn from international humanitarian law need play when constructing or critiquing a sanctions regime[12] – especially those of proportionality and distinction – I argue that human rights law should not and cannot be excluded from consideration. In fact, I argue that international human rights law forms the centerpiece with which to consider a particular sanctions regime, granting as it does substantive rights to civilians especially affected by State action and mediating the relationship of State and individual. However, in legal scholarship, the momentum is in the opposite direction – leaving behind the human rights frame in favor of the dual principles of proportionality and distinction.[13] In this Paper, I contend that scholarship has left behind the human rights frame for reasons that are unconvincing, and further that by doing so, has left the civilian populations of target States at the mercy of relatively unclear and undefined principles of law. This Paper seeks to remedy the problem.

Below, I first detail why this problem deserves attention, providing a brief summary of the United Nations sanctions on Iraq and Haiti during the 1990s and their continued relevance today as the United States and European Union exact a similar regime on Iran at present. Next, I briefly give an overview of some of the most important work done on the subject, discussing both advances made towards an international sanctions law and the shortcomings of existing scholarship in accounting for the human rights of targeted populations. Following this, I proceed to dig into the substantive law of human rights so as to dig out applicable principles of law in the context of coercive economic sanctions. Finally, I weave this thread together to suggest the ways in which international human rights law interacts with principles drawn from international humanitarian law and the law of countermeasures to offer a conceptually coherent analytic framework with which policymakers and advocates alike can determine the rights and obligations of various parties to a sanctions regime.[14]

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[1] See infra Part I.

[2] See infra Part II.

[3] See e.g., August Reinisch, Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions, 95 Am. J. Int’l L. 851 (2001); Marc Bossuyt, The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights, (Working Paper: Subcommittee on the Promotion and Protection of Human Rights), E/CN.4/Sub.2/2000/33, June 21, 2000.

[4] See e.g., W. Michael Reisman, Sanctions and International Law, 4 Intercultural Hum. Rts. L. Rev. 9 (2009); Matthew Craven, Humanitarianism and the Quest for Smarter Sanctions, 13 Eur. J. Int’l L. 43 (2002); Anna Segall, Economic Sanctions: Legal and Policy Constraints, 18 Int’l Rev. Red Cross 763 (1999)W. Michael Reisman & Douglas L. Stevick, The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 Eur. J. Int’l L. 86 (1998).

[5] See e.g., Mary Ellen O’Connell, Debating the Law of Sanctions, 13 Eur. J. Int’l L. 63, 74-77 (2002); James Crawford, The Relationship between Sanctions and Countermeasures, in United Nations Sanctions and International Law (Vera Gowlland-Debbas ed., 2001).

[6] One exception being, Marc Bossuyt, The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights, (Working Paper: Subcommittee on the Promotion and Protection of Human Rights), E/CN.4/Sub.2/2000/33, June 21, 2000.

[7] See David Cortright & George A. Lopez, Economic Sanctions and Human Rights: Part of the Problem of Part of the Solution?, 1 Int’l J. of Human Rts. 1, 5 (finding that the “dominant concern of policy-makers and scholars alike remains focused on instrumental objectives,” not human rights issues).

[8] In Iraq, the first UN delegation arrived in March 1991, along with delegates from UNICEF, WHO, UNDP, FAO, and UNHCR. This delegation produced a report detailing the extent of the damage inflicted on Iraq by the United States during the First Gulf War and worrying about the effects of the UN sanctions on Iraq’s recovery. The UN Secretary-General’s special envoy, Martti Ahtisaari, noted in the report that “[m]ost means of modern life support have been destroyed or rendered tenuous [in Iraq].” Proceeding, the report warned that “Iraq has, for some time to come, been relegated to a pre-industrial age, but with all the disabilities of post-industrial dependency. . .” United Nations, Report to the Secretary-General on Humanitarian Needs in Kuwait and Iraq in the Immediate Post-Crisis Environment by a Mission to the Area Led by Mr. Martti Ahtisaari, Under-Secretary General for Administration and Management, Dated Mar. 20, 1991, S/22366, ¶ 8 (1991). Despite this report, however, the major humanitarian agencies failed to prevent an exacerbation of the situation by the UN’s sanctions regime. In large part, this is being reproduced in regards to the U.S. sanctions on Iran, where rights advocates have stepped up their warnings of the impending health crisis in Iran but have been unable to produce any real change in U.S. policies.

[9] This treatment is codified in international treaties, like the Geneva Conventions and Hague Regulations, as well as found in customary international law.

[10] As part of its two-volume work on customary international humanitarian law, the ICRC compiled the rules of engagement from all participating countries. See International Committee of the Red Cross, Customary International Humanitarian Law – Volume 2: Practice (Henckaerts eds., 2005).

[11] This is, in fact, the role of the International Committee of the Red Cross and its subsidiary organizations.

[12]  See note 2.

[13] See Mary Ellen O’Connell, Debating the Law of Sanctions, 13 Eur. J. Int’l L. 63, 64 (2002) (providing a historical overview of the sanctions debate among legal scholars and arguing that the “next phase of the legal debate is developing around the concept of proportionality,” “international humanitarian law standards and countermeasures standards [being] more appropriate alternatives” to the human rights frame).

[14] What this Paper does not answer is the question of just how such rights and obligations would be enforced in the international system. While enforceability of legal norms is something of a systemic problem in international law, this Paper proceeds on the basis that, prior to determining just how rights and obligations are to be enforced, those rights and obligations must be enumerated. In doing so, it is believed that enumerated rights constrain policymakers even in the absence of systems of accountability. This is true where there are powerful rights advocacy organizations publicizing human rights violatons. Enumeration should thus be the first step for international lawyers invested in “humanizing” economic sanctions.

UN Sanctions on Iran: A Legal Problem

Sanctions on Iran largely come in three shades — those imposed by the United Nations, those by the United States, and those by the European Union. Each of these regimes has its share of legal, not to mention moral, problems, and I’ve spent some time of late working on detailing the exact nature of these issues. Below is the introduction to a paper I’m presently working on (functionally the equivalent of an abstract), and I wanted to share it in case people were interested in some of the nittier-and-grittier issues of the sanctions on Iran.

Under Chapter VII of the UN Charter, the Security Council is granted sweeping powers to deal with specific situations constituting threats to international peace and security.[1] These powers, thought to be extensive at the founding of the United Nations, have ballooned since the fall of the Soviet Union to render permissible arguably any possible action the Council finds fit to take[2]  – so long as the predicate to Council action exists (i.e., a determination that a specific situation poses a threat to the peace). This ballooning of the Council’s powers, if such it can be called, has placed the Council – in the words of one legal scholar – at the “apex of authority in international security law, with essentially unlimited power…”[3]

However, this ascent has not been without its critics. Serious questions have been raised as to the legality and legitimacy of the Council’s actions.[4] More troubling, there exists real concern that the Council, viewing itself as the ultimate arbiter of the legality of its own decisions, acts unbound by law.[5] This has led legal authorities and scholars alike to interrogate the scope and limits of Council action, situating the Council back inside a legal context where it is placed under the rule of law.[6] Some have gone so far as to ask what remedies Member-States may have at their command should the Council continue to act outside the parameters of its Charter-designated authorities and remain unbound by law.[7] Nonetheless, the Council’s response to this criticism has been negligible, and it has proceeded to expand and sharpen its powers. Whether, in doing so, the Council risks itself and the international legal order set up by UN drafters following the Second World War is a serious question worth being asked.

This Article starts the task by taking a look at a little-noticed but nonetheless critical procedural defect in the Council’s resolutions regarding Iran’s nuclear program.[9] There, the Council triggered its enforcement powers under Chapter VII without making the requisite Article 39 determination that Iran’s nuclear program constituted a threat to the peace.[10] Because the Council’s substantive powers under Chapter VII have been rendered virtually limitless via the Council’s own practice, it becomes all the more critical that the Council ensure UN Member-States that when it undertakes coercive action under Chapter VII, it does so on the basis of a particular threat spelled out clearly and unambiguously.[11] This involves, at the least, adhering to the word and spirit of Article 39 and determining that a specific situation indeed does constitute a threat to the peace. Failure to do so, as in the case of the Iran sanctions regime, threatens to further undermine the legitimacy of the Council and encourage disobedience from Member-States. Should that disobedience ever become organized, the Council could well find itself sidelined and rendered impotent in the face of future international conflicts.

This Article thus proceeds in step-wise fashion, first providing short review of the breadth of the Council’s substantive powers under Chapter VII so as to better understand why it is so critical that the predicate to Council action be spelled out clearly and unambiguously. Next, at the heart of this paper, this Article will assess whether indeed Article 39 of the UN Charter legally requires that the Council make explicit its determination that a particular situation constitutes a threat to the peace. This will involve both looking at the text, context, and object and purpose of Article 39, as well as the Council’s own practice in regards to the question. While good reasons warrant the conclusion that the Council is required to make explicit such a determination before triggering its Chapter VII powers, this Article will assess the balance of the argument on the other side – i.e., that the Council can make an implicit determination that a particular situation constitutes a threat to the peace simply by triggering Chapter VII and that such determination was in fact made in the Council resolutions regarding Iran’s nuclear program. Finally, this Article considers the import of this problem both for the Council and its future relationship with Member-States, as well as for the international legal order the UN founders erected following the Second World War.

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[1] UN Charter Arts. 39-51.

[2] For the argument that the Council could take any action it deemed necessary to combat a threat to the peace, see Gabriel H. Oosthuizen, Playing the Devil’s Advocate: The United Nations Security Council is Unbound by Law, Leiden J. Intl L. (Sept. 1999). As to the evolution of the Council’s powers over time, see Frederic L. Kirgis Jr., The Security Council’s First Fifty Years, 89 Am. J. Int’l L 506,  (1995) (arguing that the Council’s practice has “left little doubt that the legal modalities of, and constraints upon, Security Council action today are not what they were thought to be in 1945.”).

[3] Daniel H. Joyner, The Security Council as Legal Hegemon, 43 Georg. J. Intl L. 225 (2012).

[4] David D. Caron, The Legitimacy of the Collective Authority of the Security Council, 87 Am. J. Int’l L 552 (1993) (suggesting “how perceptions of illegitimacy may work against the effectiveness of the [Council]”).

[5] For a good overview of scholarly debate on whether the Council is bound by law, see Joy Gordon, The Sword of Damocles: Revisiting the Question of Whether the United Nations Security Council is Bound by International Law, 12 Chi. J. Intl L. 605 (2012). Recall that it was none other than John Foster Dulles, the eminent U.S. statesman, who maintained that the Council:

“…is not a body that merely enforces agreed law. It is a law unto itself. If it considers any situation as a threat to the peace, it may decide what measures shall be taken. No principles of law are laid down to guide it; it can decide in accordance with what it thinks is expedient.”

[6] See e.g., Prosecutor v. Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, IT-94-1, ¶ 28 (ICTY 1995); The UN Security Council and the Rule of Law: The Role of the Security Council in Strengthening a Rules-Based International System, Final Report and Recommendations from the Austrian Initiative, 2004-2008 (2008).

[7] See e.g., Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (Oxford 2011).

[8] The particular Council resolutions at issue here are: SC Res. 1696 (July 31, 2006), SC Res. 1737 (Dec. 23, 2006), SC Res. 1747 (March 24, 2007), SC Res. 1803 (March 3, 2008), SC Res. 1929 (June 9, 2010). In each of them, the Council fails to determine that Iran’s nuclear program constitutes a threat to the peace under Article 39.

[9] See Kirgis, The Security Council’s First Fifty Years (1995) (arguing that the Council should make “principled Article 39 determinations, publicly explicated, that do not set unlimited or unintended precedents.”).

Closing Remarks

Tonight, the BU Antiwar Coalition debated the BU Students for Israel over the U.S. sanctions regime on Iran. Below is a transcript of the BU Antiwar Coalition’s closing remarks (hyperlinks will follow soon):

Perhaps the most asked question we get is this: What’s the alternative? What should the United States be doing to prevent a nuclear-weaponized Iran?

While I have hesitations in answering the question as posed – for the rest of the world may ask of the present nuclear powers the same question – the fact that it has become a refrain merits some attention. What should the U.S. be doing, and specifically, the Obama administration at this time? We suggest that the answers are quite clear and have been for awhile.

First, the U.S. should undertake good-faith negotiations with Iran on all issues of mutual concern – including Iran’s real security concerns in the Middle East. That means that the U.S. will need to come to an understanding on how its own policies have exacerbated Iran’s security crises (including the invasions and occupations of Iraq and Afghanistan, Iran’s two neighbors; the stationing of the U.S. Fifth Fleet right across the Gulf in Bahrain; the constant threats of U.S.-Israeli attacks; etc.), as well as how those policies have led Iran to the calculus that pursuing an indigenous nuclear program (even if not a weaponized one) is the rational course to take in this threat environment. Even Israel’s Defense Minister, Ehud Barak, admitted in a Charlie Rose program that if he were Iran, he would probably want nuclear weapons. This was a sentiment shared by leading Israeli military strategist and historian, Martin Van Creveld, a hawk himself, who wrote that “Iran would be crazy not to develop nuclear weapons considering the security threats.” Nonetheless, as U.S. and Israeli intelligence both agree, Iran has yet to make a determination to pursue nuclear weapons. The U.S. should consider the restraint Iran’s leadership has shown in refraining from making a final-go at weaponization.

Just as importantly, the U.S. should start giving up something at the negotiating table. For those who care about the historical development of U.S.-Iran nuclear dispute, it is clear that the U.S. has been an absentee at the negotiating table, while Iran has, at times, made strong efforts at resolving the dispute diplomatically. This includes Iran’s 2003 ‘Grand Bargain’ to the Bush administration, an offer approved at the highest levels of the Iranian Government, in which Iran agreed to place its nuclear program under intensive inspections to alleviate fears of weaponization (including signing onto the Additional Protocol of the NPT and permitting extensive U.S. involvement in the program itself); agreed to end its support for Hamas and Islamic Jihad and to work towards transforming Hezbollah into a purely political party (thereby supporting disarmament of the Lebanese militia); and agreed to cooperate (and in many ways, continue to cooperate) with the U.S. on jailing al-Qaeda militants fleeing Afghanistan. Perhaps above all, Iran agreed to accept the Beirut Declaration (also known as the Arab Peace Plan), in which the Arab states offered collective peace with Israel provided that Israel agree to withdraw from all the Occupied Palestinian Territories. In return, Iran wanted the U.S. to provide security guarantees to the Islamic Republic and re-establish healthy relations with Tehran; acknowledgement that Iran has the legal right to pursue a civilian nuclear program; and U.S. cooperation in capturing MEK members in Iraq (a until-recently U.S.-designated terrorist organization that has staged horrific attacks on Iran).

The U.S. response to Iran’s Grand Bargain (an unprecedented concession) was pointed: “Why talk to Iran when the U.S. believed it could simply dictate terms from its imperial position?” Lawrence Wilkerson, Defense Secretary Colin Powell’s Chief of Staff at the time, relayed the internal discussions amongst the Bush administration and highlighted that the general feeling in the Administration was that the U.S. didn’t need to talk to Iran because Tehran was next on the map in the Administration’s imperial misadventures. That being so, the U.S. didn’t even give Iran the courtesy of a reply. Instead, Iran’s offer was tossed aside.

But we should be asking: How has this decision played out? The U.S. never marched into Tehran, and Iran has since then accelerated its civilian nuclear program to the point where it has virtual breakout capacity – meaning, the point at which it could make a final-go at weaponization should it so desire. We think it is clear that the Bush administration’s reaction was a colossal strategic error, one that the U.S. and Iran are both paying the price for right now. The U.S. sanctions regime, we argue, repeats this strategic error – by believing that “crippling” sanctions will force Iran to back down in its pursuit of the fuel cycle, the U.S. demonstrates to Iran exactly why it might very well be necessary to have a nuclear deterrent.

Second, the U.S. should recognize Iran’s right to enrich uranium and support efforts at building up the robust inspections regime that came into existence briefly between 2003-2005. Per Article IV of the NPT, State-parties have “the inalienable right…to develop research, production, and use of nuclear energy for peaceful purposes without discrimination.” The fact that the U.S. withholds recognition of this legal right tells a tale of the level of U.S. hostilities towards Iran and its unwillingness to grant even a morsel. In fact, this failure to accord Iran recognition of its right to a civilian nuclear program led to the breakdown in talks in 2005 – Iran had signed the Additional Protocol; opened its nuclear program up to highly intrusive inspections; stopped enriching uranium during the talks; and had come clean over its past activities to the IAEA, and in return, had received a flippant offer of future promises on the part of the Europeans to aid Iran in its nuclear program. It is clear, as former Iranian diplomat and now-fellow at Princeton University, Seyed Hossein Mousavian, what the terms of a future deal will be – it is just simply that the U.S. and the Europeans (alone in the world) refuse to accept those terms and offer them to the Iranian Government. Until that happens, we can expect the worse.

Third, and perhaps most important, the U.S. should support efforts at establishing a nuclear weapons free zone in the Middle East (NWFZ) – a project that Iran has strongly backed and that has regained currency after the UN General Assembly’s vote in 2010. This past December, Finland was to play host to a conference on establishing exactly such, but the U.S. backed out in the weeks leading up to it and thus effectively cancelled it (all at the prodding of the region’s sole nuclear weapons power, Israel). But there continues to be strong public support for a Middle East Nuclear Weapons Free Zone amongst the region and its people, including in Israel (where 64% of Israeli Jews supported the idea even considering that Israel would need to disarm). The U.S. should accede to the wishes of the overwhelming majorities and end its unilateral opposition to the idea of a nuclear weapons free zone in the Middle East.

These are but three steps that the U.S. should take if it is interested in settling the dispute and avoiding a weaponized Iran. Good-faith negotiations; recognition of Iran’s legal rights; and the establishment of a Middle East Nuclear Weapon Free Zone – all eminently practical and all perhaps game-changing.

Before ending, though, I want to turn back to Milad, the 8-year old Iranian boy suffering from severe hemophilia and facing the loss of his treatment – but most especially, I want to turn to his mother. Dealing with the worst of fates – that of watching one’s own child suffer without warrant and being able to do little to ameliorate the child’s pain – she said something that should be a source of shame for each of us. Noting that she did not know which countries were imposing the sanctions that had caused the shortages in her son’s drug treatment, she said, “I am really worried. My son’s life is at risk…No human beings can be so brutal to [the sick].” We, though, — I submit – have the grave misfortune of being such human beings. Little more than a decade after the terrible historical precedent that we ourselves set – in which more than half-a-million Iraqi children under the age of 5 died as a result of the U.S. sanctions on Iraq during the 1990s – our Government is back at it again, disregarding the human costs of ‘crippling’ sanctions (a phrase our Presidential candidates repeated ad nauseum) and pretending as if sanctions are a legitimate alternative to war. But sanctions are not. Not unlike a landmine, the U.S. sanctions will turn Milad – a small child, innocent to the world – into an amputee. We hope every one of us goes home considering this small but terrible fact and thinks about the ways we all can work together to change the direction of U.S. policy towards Iran.

It Takes A Movement

We’re not doing enough. That much is clear. With every other month bringing a tightening of the noose on Iran (via U.S. sanctions) and mid-2013 promising U.S.-Israel military action, there can be little doubt that all the momentum at this time sides with the belligerents. Even now, as the U.S., Europe, and Iran gear up for what could be a final round of talks, we’re hearing the incessant clamoring for war, all with the aim of making dialogue and compromise impossible between the parties. It looks increasingly like no deal will be had and the red-line will be reached and war will be provoked.

This is our problem. In the run-up to the Iraq War, the U.S. peace movement organized a mass demo in New York City and other major cities across the country and the world. Many consider February 15th to be the largest day of action ever recorded in human history, as literally millions the world over rose up to express their deep-rooted opposition to military conflict with Iraq. However, it was too late. The U.S. public had already been prepped for war and little could stop the single-minded focus of the Bush White House from carrying out their long-planned takeover of Iraq. Without an active and robust peace movement already in existence, the narrative for war could not be effectively challenged and war could not be averted. It’s time the lesson was learned. It’s time the belligerents calling for war on Iran – many the same exact people who led us into war with Iraq – face an organized opposition with a long reach in cities and communities throughout the country.

Not long ago, the U.S. peace movement was putting in place exactly this kind of opposition. United For Peace and Justice, the largest of the U.S. antiwar coalitions, was composed of national, regional, and local groups, including church and labor, racial justice and student organizations, with a presence in almost every urban area of note. Programmatic work was being developed to aid local groups in building bases of support. In Washington D.C., some of the long-time inside-the-Beltway peace groups had won over significant numbers of Congress in opposition to the Iraq War’s continuance. Mass rallies were planned. Local demos were supported. The U.S. public started to reject endless war and put their votes in candidates calling for the troops to come home. The tide was changing, and the kind of institutional base the peace movement needed to sustain itself over the long term was taking shape.

But the shift in public attitudes towards the war in Iraq came with a cost. First, the question of whether the peace movement could not just change attitudes, but provoke actual political opposition in the public sphere was left unanswered. While large majorities were seen calling for the immediate return of the troops in poll after poll, UFPJ’s demonstrations saw decreased numbers and local groups, burnt-out by the longevity of the war, fell by the wayside. Second, the more successful the peace movement was, the more its perceived use diminished in the eyes of many. With the tide having turned, lots of people stopped contributing to the peace movement and put their financial and political support elsewhere. This had its costs, both literally and figuratively, as the lack of full- or part-time staff made the development of program work that much more difficult. Third, the peace movement failed to develop a coherent response to the Obama campaign and, even more critically, the Obama presidency. Faced with one of the sharpest public-relations campaigns the world had ever seen, the incoherent messaging on the part of the peace movement left it out in the cold once Obama was elected and once his presidency started to codify the very policies that the movement had opposed over the previous eight years.

This is not an exhaustive list of the problems the peace movement faced and what ultimately caused its collapse on the eve of the Obama presidency. But what is enumerated above does deserve our serious consideration. How we go about rebuilding our movement will be critical to our potential for success. Learn the appropriate lessons from the past and we stand a chance of bringing into being the kind of long-term, well-connected (to the grassroots) movement we’ve been waiting to join all these years now.

Now is the operative word here, too. We need to start building this now. Tensions are spilling over with Iran as we speak, and unless there develops significant opposition to the U.S. approach to the Islamic Republic, we will bear witness to one of two things: (1) our country engaging in the slow and painful torture of another people via sanctions (as we saw in Iraq in the 1990s), or (2) our country unleashing its military prowess on one more Muslim-majority country in the Middle East.

Most of the groups that favor our approach (resumption of dialogue; good-faith negotiations aimed at a ‘Grand Bargain’-type deal; an end to economic sanctions and threats of war; etc.) only exist inside-the-Beltway. Judging by the votes cast in Congress, too, these groups are seriously outmatched in funds and resources and are losing badly. Not surprisingly, either. The chambers of the U.S. Congress have never been all that receptive to people-power. Especially when there’s very few people. But that’s where these groups stand today. Fighting for a cause without money, without staffing, and without the public support needed to overcome the former. Groups like the National Iranian American Council; Peace Action; Just Foreign Policy; Peace Action West; etc., stand little chance of success unless there develops a movement at the grassroots, building public knowledge and support for their positions and invoking in good-faith the people-power needed to overcome Congressional resistance.

That’s where we are needed today. We’re needed in building a base at the grassroots. To be honest, too, we’ve got advantages today that we didn’t back in February 2003. While lots of regional and local peace groups fell out of existence between the beginning and end of the Iraq War, burnt out from lifting the load all those years, so many contacts and connections were made during that time, all waiting to serve their use. This is one of the advantages of movement-building. We’re thrown into relationships with people we’d otherwise be strangers to, and these relationships can provide aid when we need it most.

We’ve also got some fantastic groups carrying out the hard and difficult work already. Havaar, a New York-based group of Iranian-American activists, stand opposed to war and sanctions and state repression in Iran, a trifecta that is not only principled but exudes an air of legitimacy to a movement that has to fight for it otherwise. Havaar has been behind several important actions, including: speaking on panels throughout the East Coast; staging sit-in rallies at Apple Stores to highlight how U.S. sanctions are target-less and permit the kind of discrimination Iranian-Americans have faced trying to purchase Apple products; performance art in front of the UN building to highlight the plight of ordinary Iranians under the stress of U.S. sanctions; etc. This is a collective of young people, teeming with new ideas of their own on how to shape a peace movement to public taste. Who wouldn’t want to join up with this?

I know we’re all busy with work elsewhere. The last time I spoke to them, Havaar was prepared to start up an organizing campaign aimed at tackling the U.S.-EU sanctions on Iran. But Hurricane Sandy hit, and the members of Havaar ran to the trenches to offer reprieve to the victims of the disaster and to help rebuild lives lost as part of Occupy Sandy. I suppose that campaign is still in the works, but we live in tough times where it feels as if we’re being attacked from all sides and distraction is inevitable.

But distraction’s not a problem when we have in place a movement. When we have people-power, we can afford all this. That’s the central point. These are the big questions we need to be asking. How do we build a Left movement, nonviolent but militant in character, that does not merely react to old and new events, but is already-existing, already in place when its calling arrives?

Look at us now, and the problem’s not hard to identify. We’ve been losing the war for public opinion when it comes to Iran for close to a decade now. Why? Because we have either (a) not been attuned to the problem or (b) not been a cohesive whole capable of challenging folks who have a lot more funds, a lot more resources, and a lot more access to people in power. We failed to sustain the movement we had built over the course of the Iraq War. For that perhaps, the people of Iran will be made to suffer the consequences – that is, unless we hobble onto our horse and turn the tide once more. When we turn the tide this time, too, let’s make sure we don’t run into this same problem next time. Let’s put our pedal to the metal and leave it there. Let’s build a sustainable peace movement.

Gun Control and Movement-Building

Some on the Left are curiously pushing back on the idea that gun control is a struggle worth fighting for. Their argument is not unlike that of right-wing militias: if people are not allowed access to arms, then the State has monopolized the tools of violence and social revolution becomes impossible. But have proponents of this view succumbed to a sudden bout of ahistoricism?

Tunisia, it has been pointed out, had one of the lowest gun ownership rates in the world before its people staged a revolution. It is hardly an outlier, too. In their study on the comparative effectiveness of violent and nonviolent resistance movements, Erica Chenoweth and Maria J. Stephen find convincing evidence that, on average, nonviolent resistance has double the effectiveness of violent struggle. You can quibble with some of the methodologies utilized in the study, but on balance, it is difficult to contest some of the more obvious examples of the success of nonviolent movements: the Iranian Revolution, the First Palestinian Intifada, etc. In sum, Chenoweth and Stephen have done enough research into various social movements to justify the tentative conclusions they reach.

As Mohammed Bamyeh noted shortly after the Tunisian Revolution, “when there is enough reason for it, a revolution invents the resources that are appropriate for it.” Start building a social movement and when the time is ready for eruption, you’ll find all the tools at your disposal to carry out your work. Opposing the surge in support for gun control, however, is a poor means of building that initial movement and stands a positive chance of alienating more than attracting people to our cause. Why some on the Left have taken the position they have, with pride, too, is confusing and signals one further misstep made in navigating our movements forward.

What of Iran’s “Right” to Enrich?

Reuters has a headline right now that reads: “Iran Insists on Nuclear ‘Right’ Ahead of Talks.” The heart of Reuters’ story is that by insisting on this alleged ‘right’, Iran has effectively doomed its upcoming meeting with the P5+1 parties.

This is not the first time that Reuters (and other major news media) have treated Iran’s right to the nuclear fuel cycle as an alleged right rather than a right in fact. Time and again, the news media have presented the U.S. and European offers as generous and favorable to the Iranians, while describing the Iranians as belligerents who have chosen to hide behind this perceived ‘right’ rather than engage with the P5+1 proposals. In doing so, the media has played an important, if not decisive, role in cementing Iran as the stonewalling party in the ongoing negotiations and readying the U.S. public’s appetite for military conflict.

But what is the basis for Iran’s claim of a right? Under the Nuclear Non-Proliferation Treaty (NPT), the instrument governing nuclear-related issues, State-parties have the “inalienable right…to develop research, production, and use of nuclear energy for peaceful purposes without discrimination.” Iran, as State-party to the NPT, has this right; and if words have meaning, Iran is unable to give up this right (inalienable as it is), no matter what the outcome of negotiations with the P5+1. The fact that the U.S. and European negotiators refuse to admit what is non-controversial says a lot about the alleged ‘good-faith’ of their proposals – just as Reuters’ refusal to accurately report the basis for Iran’s claim signals its ideological allegiances.

Iran believes that U.S. hostilities toward it have more to do with Iran’s relative independence in the region, especially in matters of foreign policy, than with its nuclear program. The U.S.’s refusal to recognize Iran’s legitimate right to the nuclear fuel cycle provides credence to this view, as it suggests that what the U.S. is interested in has less to do with nuclear transparency than with the need for Iran to be subservient to U.S. wishes.

By using recognition of Iran’s nuclear right as a bargaining chip (and perhaps not even that) in negotiations, the U.S. is signaling all the wrong things to Iran and enforcing the attitude (especially among Iran’s conservative elite) that hostilities between the two countries will be enduring. Likewise, by suggesting that Iran’s right to enrich is alleged rather than de jure, Reuters reinforces the dominant attitudes in the U.S. that look on Iran as an implacable negotiating partner. It will be tough to forge a peaceful resolution between the two States if this is the treatment of fact.

UPDATE: Some may argue with the above analysis and slyly suggest that Iran has no right to enrich because such rights have been suspended thanks to UN Security Council Resolution 1696. That is likely true (Council resolutions have precedence over treaty rights), but it does nothing to dispute the point I’ve made. In this article, Iran is not claiming it continues to have a right to enrich (which it does do elsewhere), but rather that its right to enrich should be part of any negotiated settlement to the ongoing dispute. That is, even if Iran’s right to the nuclear fuel cycle is presently rendered incapacitate, once Iran’s obligations under the Council resolution are met and a settlement is reached, Iran’s rights under the NPT are revived and assume their status as inalienable. The fact that the U.S. refuses to recognize this right signals its lack of intent to come to peaceful terms with the Iranian regime.

UPDATE II: As a side note, too, it is unclear whether the resolutions on Iran are within the powers of the Council. In order to trigger Chapter VII action (which does the job of permitting the imposition of all coercive measures), the Council must make a determination that Iran’s nuclear program is a threat of the peace. The Council has never made such a determination but has invoked Chapter VII as the basis of its action regardless. Part of the reason for this is that, during the initial negotiations of UNSC Res. 1696’s text, Russia threatened to veto any resolution that made such a determination.

Argument is often made that by triggering Chapter VII the Council has implicitly made the legally-mandated determination, but that is hard to square with the drafting history of UNSC Res. 1696. Whether the Council is acting ultra vires, then, in enacting sanctions on Iran (including the revocation of Iran’s right to enrich) is an open question that deserves attention.