Global Policy Forum

Iran's Nuclear Crisis: Why ICC Ratification Could Help Ease Tensions and Avert War

Tehran's ratification of the ICC as part of its nuclear negotiations undermines the argument for war against the country. The legal mandate of the Rome Statute would accord Iran the opportunity to clarify its nuclear intentions and present a clear disincentive for potential malfeasance and serious breaches of international law.


By Sam Sasan Shoamanesh

Huffington Post

August 17, 2010


The drums of war against Iran in response to its nuclear program are getting ever louder, with headlines in Western media adopting a tone increasingly similar to those heard in the period leading up to the 2003 invasion of Iraq.

The prototypical example of such incendiary rhetoric is none other than the "Point of No Return" -- a provocative article recently published by the national correspondent of Atlantic magazine, Jeffrey Goldberg.

The underlying objective of Goldberg's war serenade appears to be aimed at implanting in popular consciousness the belief that military confrontation with Iran is inevitable as the only 'real' option left to effectively neutralize Iran's 'nuclear threat' (see a contrario a detailed reply to Goldberg's piece: "A Campaign for War with Iran Begins" written by Trita Parsi, an expert on US-Iranian relations and the recipient of the 2010 Grawemeyer Award for Ideas Improving World Order).

This precarious line of reasoning is being successfully propagated, generating receptive listeners, notwithstanding warnings by experts that war with Iran would be "disastrous" and its " consequences [...] so serious that they should not be encouraged in any shape or form."

Nonetheless, 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 perceived 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 the country.

The US, Israel, and the West at large should seek to avoid war with Iran over the nuclear question. Such a war will have perilous consequences. Apart from the crushing blow that would be inflicted on the Iranian people's indigenous calls for democracy and civil liberties, military confrontation in response to Iran's nuclear program will surely result in great casualties on all sides, 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, as war is subject to strategic quantum physics, such a war, even if successfully waged from a military stand point, 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.

Meanwhile, suspicions over Iranian intentions in advancing with the country's nuclear program prevail. Tehran, on the other hand, vigorously maintains that as a signatory to the Nuclear Non-Proliferation Treaty the country is exercising its legal right to peaceful nuclear energy. The call to advance with the country's nuclear program, which the Iranian authorities assert is for civilian purposes only, reaches across political party lines in Tehran.

The fact remains that while Barack Obama's Presidency affords reasonable hope for more tactful American diplomacy, no apparent solution is in sight, and when opportunities have been presented to assuage the crisis -the nuclear fuel-swap deal brokered by Brazil and Turkey comes to mind- they have been hastily squandered.

Diplomatic efforts ranging from the 2004 Paris Agreement to Security Council referrals and ensuing sanctions have equally failed to generate the desired dividends from Tehran. Ironically, these sanctions, it has been argued, have only strengthened the incumbent government in Tehran and served as grounds to further "suppress the opposition."

To be sure, increasing sanctions coupled with a record of reliance on aggressive language, inflexible positions and the overhanging threat of war have only served to toughen Iranian resolve in pushing ahead with the nuclear program.

We must observe frankly that the current diplomatic deadlock is in desperate need of imaginative terms. In a recent policy report published in July, the Oxford Research Group in warning against a military response to Iran's nuclear program concludes by stating that: "[h]owever difficult, other ways must be found to resolve the Iranian nuclear crisis."

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 the new round of 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 humanity, war crimes and indeed crime of aggression.

Based on the existing evidence, the International Atomic Energy Agency (IAEA) has to date maintained that Iran's nuclear program remains within the boundaries of peaceful civilian purposes, even if questions concerning a potential military dimension of the Iranian program 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) and the ensuing sanctions.

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 - the purported nucleus of this escalating conflict -, 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 ongoing diplomatic dialogue.

Iran has signed the Rome Statute but has not yet ratified the treaty. The country could be swayed and would do well to do so based primarily on the sour lessons of the bloody eight-year 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 and outside threats lend support to the possibility that Iranians could in fact look upon ICC ratification favorably.

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. In June 2010 for instance, Iran sent a delegation to the ICC's first Review Conference in Kampala, Uganda, where the country "[a]s a victim of an act of aggression in the 20th century", expressed its support for the Court.

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, and pragmatic voices within the establishment could be open to the formula proposed.

Giving added support to the above proposal are the following points:

1. Ratification would build much needed confidence and clear the air of 'unknown' Iranian intentions.

In 2009, Mohammad El-Baradei, former Director General of the IAEA, at the World Economic Forum in Davos, publicly stated that the international community's anxieties about Iran's nuclear program stem primarily from uncertainty regarding Iran's future intentions.

Indeed, this suspicion is 'the stated' driving force behind placing Iran under sanctions or calling for a military response.

By subjecting itself to the legal mandate of the ICC, Iran would have the opportunity to demonstrate that if in fact it has nothing to hide and that its nuclear program is transparent, peaceful and for civilian purposes only and in turn, call for the immediate lifting of sanctions.

Further, by so doing, the argument of those lobbying for war against the country would be seriously undermined.

2. Ratification could have a deterrent or disciplining effect on Iran's behavior and that of the US and Israel - the two other major state stakeholders - preventing the incidence of a destabilizing war and preserving territorial integrity.

3. 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 within the ambit of the Court's jurisdiction.

4. To date, Tehran's reservations regarding ratification, and generally those emanating from the Middle East, have been predicated for the most part on misconceptions of the Court's legal machinery, jurisdiction and independence.

When these are properly understood, Tehran's views on ratification would likely be increasingly favorable.

5. A government's raison d'être is to protect and advance the interests and well-being of all citizens of the country it serves. Against the background of post-presidential election violence of 2009 in Iran, proposing and then ratifying the Rome Statute can serve as a bona fide attempt at national reconciliation by Tehran, and at ensuring that the crimes witnessed in the post election violence are not repeated in the future.

Unless Article 12.3 of the Statute is invoked by Iran itself, as a rule, the Court's jurisdiction does not apply retroactively and will only apply to crimes committed after the date of ratification by the country.

Ratification would also require the eventual adaptation of domestic laws to human rights standards enshrined in the ICC Statute - naturally, a positive consequence of ratification for human rights development in the country.

6. 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. 6, the larger issue of unfounded criticism that the Rome Statute has a particular 'Western' bias needs to be addressed head on. International humanitarian law and international criminal law work in concert to 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, 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) - entrenched formally in Iran's legal system 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 112 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.

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 age old heritage.

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 [...]"

In the current context, with the potentially positive effects ratification could have on the nuclear crisis, failing to ratify the Rome Statute as part of nuclear negotiations on shakable 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.

As part of the nuclear negotiations, Iran should place this proposal on the table as soon as possible. In any event, should the country be on the verge of being subjected to aggression, it should swiftly move to trigger ICC ratification and publicly pronounce its intention to do so.

It is hoped that diplomacy through bona fide negotiations and innovative thinking will untangle this proverbial knot.



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