The 2015 Iran Deal.I.Overview

The Iran Deal

by

Howard Adelman

I was on my island up north in the week that the Iran deal was concluded. I was not connected to the internet. My reading and analysis was focused on continuing my blogs on the United Nations Human Rights Council (UNHRC) evaluation of the Gaza War. So when I returned, I not only had to read the 159 pages of the Iran deal, but the writings of over 100 commentators on that deal. Initially, in reading the terms of the agreement and the commentators over 36 hours, I began to think I was an alien in a foreign world. For I was reading a cascade of criticisms of the deal, initially without any commentator offering a positive response. However, before the end of my reading, I breathed somewhat easier. For I was not alone. There were others who agreed that overall and on balance the deal was a good one. Those commentators consisted of only about 20% of those I read, but on this issue I felt strengthened that I was not totally out of synch with what appeared to be a dominant note from the commentators.

Unlike the UNHRC evaluation, the Iran deal is not a retrospective analysis, but a performative one in its own right. The agreement changes the world in which we live and changes it significantly. So I am temporarily suspending my analysis of the UNHRC Report on the Gaza War – I will return to it – and will offer my analysis of the Iran deal. And I will do that in reverse order, focusing first on the commentators and only in the end provide my own detailed analysis of the agreement itself. In doing so, I will mainly deal with commentators who think the deal is a bad one and, most of my discussion will focus on the comments under four categories:

  1. Goals and significance of the deal;
  2. Intentions and motives (different than the goals);
  3. Consequences;
  4. Erroneous assumptions.

Thus, I will also be dealing with the commentators in reverse to a natural order that would begin with the deal itself and then deal with its misinterpretations and effects. In this backwards approach, let me first clarify why my initial approach relies on a cool, detached analytic tone rather than on a lamentation, aichah, the first word of Lamentations as Rabbi Splansky cited in her response to the Iran deal. My oldest son, Jeremy, is named after the prophet of peace, Jeremiah, who is credited with this lamentation and who warned of the immanent threats to Israel. It is what we will be reading on the forthcoming Tisha B’Av, an annual fast day in the Jewish religious calendar commemorating a number of disasters inflicted against the Jews over the course of history. As Rabbi Splansky wrote, the word aichah is not the response of an inquisitive mind, but of an aching soul. It arises from the deep well of our being, from a history of horrific experience. The lamentation does not invite discussion, but a communion of crying and screaming “Alas!” and “Woe are we!”

Rabbi Splansky asks us to understand the deal and view ourselves as Jews within the large arch of Jewish history. However, looking at the Iran deal from the perspective of the three weeks of mourning for the destruction of the Temple in Jerusalem does not invite questioning, including the questioning of whether mourning is the appropriate response. It may help us understand the deep roots of that response and why the leaders of the opposition in Israel line up with Prime Minister Benjamin Netanyahu in deploring the deal, but restricting their criticism to how he allowed this to happen on his watch, as if the Prime Minister of a small country like Israel could manipulate and control the outcome, not just of American thinking and policy, but of all of the five powerful states who are the permanent members of the Security Council as well as Germany in whose name this deal has been made. To claim that Netanyahu was guilty of failing to stop the juggernaut of China, Russia, France, Britain as well as America, not to speak of Germany, is just chutzpah and partisan politics. It deserves to be largely ignored.

Unlike Rabbi Splansky who says that, “Everyone is watching, worrying, wondering, but God only knows,” I take the position that even God does not know. For God has always been very poor at prophecy dealing with the future and was often on the wrong side of history. Further, unlike the watchers and kvetchers and those stunned in awe, either in fear and bewilderment or in wondrous appreciation, I believe in the power of an inquisitive mind that can enlighten us on this deal, on its significance, on its intentions, on its possible and even likely consequences, and, most of all, on the actual contents of the deal instead of the projections onto that agreement sometimes, to be charitable, propelled more by fear and worry than by detached analysis.

Let me begin by putting my approach up front after my reading the commentators – well over one hundred – and my very initial reading of the deal. (I will return to that reading near the end of this series.) Not surprising, since I have written about this a number of times in the past, overall my reaction closely resembles that of President Obama who, in an interview with Tom Friedman of The New York Times, offered his own evaluation of the deal. I have arrived at similar, but not identical conclusions. They are as follows:

In contrast to the view that the deal should have eliminated Iran’s nuclear infrastructure altogether given the powerful effects of the sanctions and the enormous powers arrayed against Iran, and the evaluation that the leverage has been squandered, I hold that this was never the premise nor the intention of the negotiations, nor one that could have been achieved or needed to have been achieved. If in the late thirties, a deal depriving Hitler of any capacity to make nuclear arms with a full scale inspection regime (admittedly a far-fetched imaginative stretch), such a deal would have been preferable to a Nazi Germany that could arm itself with nuclear weapons within three months while doing nothing about Hitler’s anti-Semitic genocidal plans and his record of persecutions or his ambitions for hegemonic conquest of Europe. The issue is not about whether Iran is an evil regime or about depriving Iran of even an ability to enhance its peaceful development of nuclear energy, if only to save face. The deal is only about control of nuclear weapons over which there was a global consensus. There was no consensus about depriving Iran of its nuclear infrastructure, only of its capacity to make nuclear weapons against th terms of the International Non-Proliferation Treaty.

Second, such an agreement does not rely on trust. Given Iran’s horrific treatment of dissidents and minorities, particularly of Bahá’is, its hegemonic ambitions in the Middle East, its overt support of terrorists such as Hezbollah and Hamas, and its repeated pronouncements of an intention to wipe Israel from the face of the earth, let alone Iran’s past record of working on the development of a nuclear weapons capacity behind the backs of international inspectors, any agreement has to be based on a deep distrust of Iran and putting in place an unprecedented inspection regime that could come as close as possible to reducing any chance that Iran could deceive the international community and revert to advancing its nuclear weapons program.

What is required and is in question is whether a powerful, but not perfect – an impossible dream – verifiable regime to cut off Iran’s capacity to enrich uranium, remove the majority of its cascades, including all of those of the most advanced technology, remove almost all of its highly enriched uranium needed for nuclear bombs, initiate a very intrusive and extensive inspections regime (we will have to see whether it is as intrusive and extensive as Obama argues that it is), and shut down Iran’s capacity to produce plutonium, is sufficient. However, if inspectors have to give 24 days – not 24 hours – notice for inspections, as too many interpreters have insisted, then that would certainly raise questions about the adequacy of the inspections regime. But, to adumbrate and deviate from the order of my presentation that I announced, the agreement definitely does not say that 24 days notice must be given for an inspection.

For all the facilities on the list (known sites for nuclear work), the 150 inspectors stationed in Iran will have immediate access at any time of the day or night and with no notice. Further, the inspection of Iran’s nuclear regime has no termination date; it continues “forever”. Only the inspection of non-nuclear facilities terminates, and then only after 25 years. The 24 days notice applies to suspected, illicit or unreported sites. 24 days is a maximum not a requisite. The section on inspections provides for the following:

Inspectors must be allowed to enter any suspect facility in Iran within at most (my italics) 24 days. If they aren’t, this will be considered a violation that could lead to renewed sanctions.

The procedure for those 24 days is as follows: If IAEA inspectors suspect that illicit or undeclared nuclear activity is taking place at an unmonitored facility, like a military base, it must first request explanations from Iran. If the explanations don’t satisfy the inspectors, they can ask to visit the facility.

The Iranians can then suggest ways of resolving the issue that don’t involve a visit. But if the inspectors remain unsatisfied 14 days after first broaching their suspicions to Iran, the matter will be transferred to the eight-member committee overseeing the deal’s implementation.

The committee will have seven days to try to find a solution that satisfies everyone. But if no such solution is found, the committee will then vote on whether Iran must allow the visit.

That decision requires only a simple majority – five of the eight members. Since Iran enjoys reliable backing from only two other panel members, Russia and China, it will have trouble preventing a decision ordering it to allow the visit. If such a decision is made, Iran must permit the visit within three days, hence the 24 day maximum period.

Certainly, aside from the routine monitoring required under the agreement, if inspections cannot realistically be done to cover research and development and to cover possibly new secret facilities under development, then the agreement might be just a sham and a cover for further cheating. Thus, evaluating the quality of the inspection regime will be crucial.  However, when a commentator insists that 24 days notice must be given for any inspection, one immediately recognizes that the individual has not read the agreement and that the comments are worth far less than the value of the paper on which those comments have been printed or, if in electronic version, far less than even the infinitesimal cost of electronic publishing. Or else the author is an outright liar.

To revert to my initial main point, regime change, or even deprivation of Iran’s capacity to the peaceful use of nuclear energy, was never the goal of the negotiations. If those had been the ambitions, there never would have been any negotiations in the first place. So one has to ask whether we are better off with an Iran on the verge of developing a nuclear military capacity or an Iran prevented from so doing, but at a cost, the opening of the dams that had confined Iran’s earnings from its oil into reserves which Iran could not access, but now would be able to do so, thereby enabling Iran to expand its purchase of conventional weapons and expand its support of terrorism. This was the critical choice between the Scylla of an Iran on the verge of producing nuclear weapons or the Charybdis of an Iran with its treasury replenished and enabled to enhance its terrorist and hegemonic foreign policy. Over this choice, there can be reasonable differences and very varied conclusions. But criticizing the deal for its failure to produce deliverables which it never was intended to produce nor could produce is simply misplaced and disingenuous.

Would the deal, however, advance the process of regime change or even open the possibility of regime change? I think this is not a likely possibility. Others argue that it is. I find the latter to be wishful thinking and an unsound foundation for making a deal. Others who are equally pessimistic about this possibility think that should be a reason for not making a deal. I disagree with them as well. If the deal depended on its value only if it leads to or even makes more likely regime change, then that is absolutely no ground for supporting this deal, though I welcome the fact that this deal will increase the slim possibility of facilitating regime change for a number of reasons, including reinforcing the factions that are not identical with the genocidal extremists in the regime.

As will be seen when I turn my attention to the commentators, reading all those accounts reinforces my conviction that they have deliberately shifted the debate from preventing Iran from becoming a nuclear power to the criticism that the deal does nothing, or, perhaps, by the odd moderate critic, does very little to stop this evil regime and undermine its authoritarianism within and its destructive ambitions in its foreign policy. Those criticisms are by and large correct. But they are totally beside the point. And that is their point, to distract citizens of the world from the achievements of the deal and view the agreement from the perspective of what was not and could not be achieved.

The issue is whether a deal with a non-nuclear-armed Iran is better than no deal that allows Iran to bring its nuclear armaments program to fruition – ignoring Iranian claims that they never had a goal of developing nuclear weapons. This is the core question. Some might argue that an Iran that completes its nuclear program but remains under severe sanctions that cripple its economy is a better choice because it limits the non-nuclear trouble-making in which Iran is deeply involved in the regime. Better an economically crippled nuclear–armed Iranian regime than one which is infused with cash, and, though deprived of its nuclear capacity, can now extensively expand its programs and foreign policy of undermining Saudi Arabia, keeping its satraps in place in Syria, Yemen, Lebanon and Gaza, and, thereby, significantly enhance the threats to Israel. That is an argument worthy of engagement. But, as will be seen, this is not the approach of the vast majority of the critics of the accord.

On another point, the inspection regime does not end in ten years. The inspection regime continues. The fact that I have to state this baldly, and will subsequently support this extensively, is a testament to a great deal of the misreporting and misinterpretation of the deal. Similarly, the agreement does not remove all sanctions. It only removes those put in place to enforce the Nuclear Non-proliferation Treaty. Other sanctions exist. Those sanctions could themselves be expanded. A whole set of other tools could be activated to target the Iranian abuse of human rights and its support of terrorism. The deal allows the West (and East) to further such an agenda, even though it is highly unlikely that Russia or China would join in such an effort. This may make a strong argument for using the confinement of the nuclear development program as leverage to fight against Iran’s hegemonic interests and its abuse of the rights of its own citizens rather than a goal in its own right, but it is actually shocking how few of the critics, as shall be seen, are this honest and straightforward in their criticisms.

President Obama has made the very valid point that this agreement is totally one-sided. Iran gives up its capacity to make nuclear weapons. Iran gives up almost all of its enriched uranium. Does the agreement curtail the nuclear weapons programs of China, of Russia, of France, of the U.K. or of the United States? Not at all. Nor does it restrict any of the parties from using other diplomatic, legal, economic and moral tools at its disposal for confronting the regime in other areas. What is given up is holding hostage Iran’s treasure and wealth, money which does not belong to any party except Iran, in return for Iran backing away from its nuclear arms program. Further, it removes the pressures on China and Russia, both of which have grown antsy under the sanctions regime, particularly China which has been denied access to Iranian oil in exchange for its exports. The deal removes the possibility that the sanctions regime could collapse from within because of the tensions among and different interests of the members of the negotiating team dealing with Iran.

More specifically, the U.S. and Israel (as well as Saudi Arabia and its Gulf allies) can cooperate much further in limiting Iran’s hegemonic goals. Congress is unlikely to be able to veto the deal. Then an enlarged program of dealing with Israel’s and Saudi’s enemies, specifically Iran, can be advanced. Further, if Iran does not live up to its commitments, the snap-back provision allows the sanctions to be re-imposed without a new vote in the Security Council. Now some may argue that this is correct in theory, but once Russia and Iran are offside on sanctions, they can remain offside by obfuscating and delaying any practical re-imposition of the sanctions regime. However, that is fully possible now. Further, the West has other means of leverage than diplomatic and moral suasion to keep China and Russia on side in addition to the interests of those two countries in preventing Iran from becoming a nuclear power. However, there is an even more serious problem about the snap-back provision. It would take place against a regime that had recovered its economic stability and wealth and would, consequently, make the snap-back provision much less effective, especially in the short run. Instead of starting from an advanced position with sanctions with Iran on its knees, the West would be back to a zero starting point. How does the Agreement handle such a foreseeable contingency?

So we have the following issues to sort out over the next series of blogs. To what degree can the inspections regime work? Is the inherent weaknesses of the snap-back provisions sufficient to offset the advantages Iran will have gained? Is the likelihood, not just risk, of Iran advancing its conventional arms program and its geo-political advances in the Middle East too much to pay for obtaining an Iran without nuclear weapons? Finally, since there are no deep signs of an ideological change within Iran and no signs at all of a regime change, with the momentum having been somewhat lifted with the easing of sanctions, was the gamble worth the cost? After all, Iranian Foreign Minister Mohammad Javad Zarif may have concluded that the world has changed with the Vienna Agreement, but Iran’s view of Israel as an unrepentant enemy has not altered one iota. As he said in an interview with journalists after the conclusion of the agreement, while calling for his enemies in Sunni dominated states to reconcile with Iran, there was no such call to Israel. Israel, in his view, needs, “crisis and wars to continue to hide their aggressions and their inhumane policies against the people of Lebanon, Palestine and the people of the region, so peace is an existential threat to them.” [Translation: Iran will remain an existential threat to Israel.] Given Iran’s rejection of Israel as having a place in the Middle East, Iran will clearly be better off and richer and freer to advance its implacable opposition to Israel.

I began with the words of one rabbi. Let me end with the words of another. “I understand that not all experts believe that the deal to be struck in Vienna is bad for Israel. Perhaps they know things that aren’t obvious to the public, even to those of us who follow the criticism of the current government. To end on a positive note: let’s hope that the optimists will be proven right. The alternative is too grim to contemplate.” If “Alas!” and “Woe is Me!” are not to stand in the way of reasonable and detached analysis, the other alternative of relying on hope with no basis in reality is just as bad, especially when it presumes that supporters of the deal argue that it is not bad for Israel. I have not read one who makes such an argument. Instead, most supporters argue that the deal is bad for Israel in many ways, but the alternative of no deal is even worse. Whether that argument is valid is open to question. But let us not misrepresent supporters of the deal. More importantly, DO NOT support the deal if the foundation for that support is a misplaced optimism or “hope”.

The International Criminal Court: Justice versus Judgment

The International Criminal Court: Justice versus Judgment

by

Howard Adelman

If mercy is almost inherently unjust (see yesterday’s blog), an international system of justice may be inherently merciless. A system of justice brought to the treatment of genocidaires, murderers and abductors is fraught with even more paradoxes than the humanitarian dilemma. On 16 December 2003, Yoweri Museveni, president of Uganda, referred the issue of the Lord’s Resistance Army (LRA) to the International Criminal Court (ICC). Uganda became the first sovereign state to invoke Articles 13 (a) and 14 of the Rome Statute granting the ICC jurisdiction over domestic criminality.

On 13 October 2005, the ICC unveiled its first ever arrest warrants, though they were issued on 8 July. The delay was only a result of security preparations. Four leading LRA commanders, in addition to Joseph Kony, were indicted — Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska Lukwiya. Today, only Kony remains at large and only Dominic Ongwen is under arrest in The Hague. One was killed in battle, one was captured by local militias and one, the peace negotiator, Victor Otti, was killed by Joseph Kony himself. All of them had been charged with a litany of war crimes and crimes against humanity dating only after mid-2002 since the ICC did not have jurisdiction before that date.

The United States Senate has not ratified the Rome Statute that President Bill Clinton signed in 2000. George W. Bush subsequently suspended the country’s signature. Barack Obama has never renewed the effort to sign the treaty. Instead, the United States has systematically sought and obtained bilateral immunity agreements with over 100 countries that American nationals would not be subject to prosecution outside U.S. borders. The U.S. also enjoys the protection of its status as a permanent member of the Security Council where it can veto any reference by the UNSC to the ICC. On the other hand, in 2008, Obama committed his administration to ensure justice for those who committed crimes against humanity and war crimes. Though Obama could accede to the Rome Statute in practice, that accession would have no possibility of being ratified by the Senate.

However, without even the Senate veto, there are at least four different reasons Obama will not sign the Rome statute:

  • The American Servicemembers’ Protection Act (ASPA 2002), which explicitly prohibits cooperation between the U.S. and the ICC, is still in force.
  • The Obama administration has no interest in resurrecting the issue of alleged American war crimes in Iraq and Afghanistan and does not want to make Americans vulnerable to investigations by the ICC.
  • Given statements by high-level UN officials decrying American drone strikes that are part of Obama’s war on terror, and given those officials’ allegations that targeting civilian areas is illegal under international law and a war crime, the U.S. has no interest in placing these drone strikes under an international legal microscope.
  • The U.S. opposes an ICC investigation into Israeli actions during the Gaza War, for example, and opposes the Palestinian Authority requesting such an investigation.

Not only does exempting the U.S. from the jurisdiction of the ICC undermine the principle of universal applicability, it points out the inherent tension between the ostensible universal jurisdiction of the court and the authority of a sovereign state. America’s exemption from the Rome statute seriously impairs the principle of universal international jurisdiction of the ICC.

When the ICC issued the arrest warrants for the LRA-five for enslavement, rape, and inhumane acts, inflicting serious bodily injury and suffering, as well as twenty-one counts of war crimes, including cruel treatment of civilians, intentionally directing an attack against a civilian population, pillaging, rape, and the forced enlisting of children, it did so without reference to or under the authority of the United Nations Security Council, the premier international political body in the world. The ICC had positioned itself as a court of legal jurisdiction independent of the UNSC. Without taking away the right of the UNSC to refer cases to the ICC, this tension over the independence of the ICC from the UNSC was quickly and easily dissipated when the head of the United Nations, Kofi Annan, welcomed the indictments and hailed the initiative as sending “a powerful signal around the world that those responsible for such crimes will be held accountable for their actions.”

The second issue was trickier and was left unresolved. When Museveni referred the matter to the ICC, by that request for an indictment, was Museveni, at the same time, denying his own state, Uganda, legal jurisdiction over the LRA-five? When Dominic Ongwen was captured and handed over to the Ugandan army, Kampala initially wanted to try him. But others insisted that Uganda, by referring the case to the ICC, had already granted ICC primary jurisdiction. The conflict was resolved, but not the division over principles behind it, when Uganda voluntarily granted ICC jurisdiction on the basis that Ongwen was alleged to have committed war crimes and crimes against humanity in several countries (Central African Republic, Democratic Republic of the Congo, South Sudan as well as Uganda) and, therefore The Hague would be a better place to try him. But Uganda never acceded to the principle that the ICC jurisdiction trumped that of the sovereign state of Uganda.

Many analysts are concerned that the ICC may undermine national justice systems. They offer a very strict and narrow interpretation of the complementarity provisions of the Rome Statute, namely that, “no case is admissible where a country is willing and capable of conducting its own prosecution.” The strict provision offsets a third concern, the potential manipulation of the ICC for political ends. Did Yoweri Museveni refer the LRA indictments to the ICC for political rather than legal reasons? Was it an effort to mobilize the international community behind Uganda to enhance Uganda’s efforts to eliminate the threat of the LRA?

This issue arose over the reference of the LRA-five to the ICC even before the indictments were issued. From the very beginning, the question was raised whether the charges were laid on purely legal grounds or was the issue of the arrest warrants a political act in partnership with Uganda to use international law to induce the commanders of the LRA to surrender? Earlier, the reference by Museveni of the LRA issue to the ICC put pressure on the government of Sudan. Suddenly, after the reference to the ICC, Sudan acceded to Museveni’s request that Sudan end its support for the LRA and wind up the LRA bases in South Sudan. A March 2004 Protocol to permit the UPDF to attack LRA bases in southern Sudan was also agreed upon. This was precisely at the moment that LRA abuses had reached their peak. The ICC appeared as having been used for national political purposes.

The fourth dilemma of the ICC and the international community, complementary to the one immediately above, was the tension between peacemaking and meting out justice. Kony wanted immunity from the jurisdiction of the ICC for both himself and his commanders. Most of the population on the ground wanted peace even if it meant Kony and his colleagues got away with their murder and mayhem. The bulk of the population had been interned in internally displaced persons (IDP) camps for ten years and did not want to surrender the opportunity to return to their home villages. Two million people, ninety percent of the population of Uganda’s northern Acholi provinces, had abandoned their homes presumably in exchange for shelter and security. The camps were not only crowded and unsanitary, but they had not even provided the security supposedly guaranteed. Instead, they offered a more concentrated target for raids and abductions than the widely dispersed villages.

The other side of the argument was that the failure to offer amnesty undermined peace efforts. Rebel forces would be alienated when they could not access the protection offered by the Ugandan government’s Amnesty Act of 2000. The ICC indictments counteracted the incentive to defect from the LRA. The Amnesty Act had guaranteed blanket amnesty for all rebels of any rank who voluntarily surrendered. Ugandan minister Betty Bigombe, backed by the United States, Britain, the Netherlands, Norway, and the Catholic Church, used amnesty as a negotiating tool. Face-to-face meetings between senior government officials and LRA leaders in 2004 almost resulted in a peace agreement. The issuance if the ICC indictments put the nail in the coffin of those efforts.

Bigombe loudly complained that the ICC had rushed getting out the indictments and had not given the peace channel enough time, scuttling her efforts. Even more seriously, the ICC charges, and the refusal of the ICC to set them aside, deprived future negotiators of an essential tool in negotiating peace. Archbishop Odama of the Gulu Catholic Archdiocese concurred. “This is a blow to the peace process…Confidence-building has been moving well, but now the LRA will look at whoever gets in contact with them as an agent of the ICC.” Peter Onega, chair of the Uganda Amnesty Commission, insisted that amnesty still applied to all other rebels not named in the indictment. But even then, there would be two countervailing forces. Rebels who tried to defect, or suspected of wanting to defect, would be killed by the senior commanders. Furthermore, ICC commanders below the top could not be sure they would not be indicted if they did defect. For both reasons, the ICC arrest warrants undermined peace efforts and, in particular, the role that amnesty could play.

This was not a new issue. At the time of the drafting of the Rome Statute, the Harvard Human Rights Journal (V. 19) adumbrated the problem. The journal raised the issue whether offers of amnesty should be complemented by suspension of indictments. Even more, it was argued that prosecutions would prolong conflicts since they would narrow the number of options available to the peace negotiators. Broader more exible measures in cases of mass atrocities might be more appropriate. On the other hand, there were fears that genocidaire leaders and those responsible for war crimes would escape punishment.

There was no resolution to the conundrum. Article 53(1)(c) was deliberately vague leaving it up to the ICC prosecutor, not the political and military negotiators, to decide “taking into account the gravity of the crime and interests of the victim” and balancing those factors against the interest in justice. The 1948 Genocide Convention and the 1949 Geneva Conventions had the same problem. They resolved the issue in the same way by creating a binding obligation to prosecute egregious crimes such as genocide, but taking into consideration the context of international armed conflict. It did so by an even vaguer phrasing, both with respect to the responsibility of the ICC, the extent of its reach, and the applicability and timing of its actions.

This discretional provision for jurisdiction from one perspective, seemed to provide wiggle room for political negotiators while keeping the principle of justice for perpetrators intact. After all, since Museveni referred the issue of indictments to the ICC, a number of former rebels and a high-ranking LRA brigadier did surrender under the Amnesty Act of 2000. In fact, it was argued, the fear of being indicted pushed those fighters to surrender while amnesty was still available.

Even though Kony had been pushed into a corner by the end of 2008, even though the peace negotiations between long-term the LRA and the African Union Forces had come a long way, the ICC believed that the cause of justice could not be sacrificed for the immediate gain of a promise of peace. Besides, almost no one trusted Kony to keep the peace. After all, he even had his chief peace negotiator and deputy killed for becoming too susceptible to the entreaties of the peace negotiators.

There were two other major tensions resulting from the ICC charges against Kony and his cronies. On the one hand, there were the charges of victor’s justice. On the other hand, there were the complementary accusations that the meting out of justice was unjust, for Museveni had himself been guilty of war crimes and crimes against humanity or, the very least, widely alleged to have committed such crimes. Why had a warrant of arrest not been issued against Yoweri Museveni? At the same time as the actions of the ICC were widely lauded, many organizations criticized the ICC for its failure to take broader action against human rights violations perpetrated by the government in Kampala.

In the effort to decimate the LRA, the Ugandan army, the UPDF (United People’s Defense Forces), “bombed and burned down villages, thus fueling the displacement of the Acholi.” Further, the Acholi Religious Leaders Peace Initiative and the Refugee Law Project documented numerous accounts of rapes and sexual attacks against women by UPDF soldiers and of killing civilians found outside IDP camps. In effect, Uganda was accused of setting up forced internment camps in the guise of “protection camps” or “protected villages.” These “protected villages,” which often lacked food, clean water, sanitation, and medicines, were safeguarded by local militias or the Ugandan national army. Nevertheless, the inhabitants remained easy targets. They continued to be maimed, raped, murdered, and abducted by the LRA—and reportedly mistreated by un-disciplined UPDF soldiers as well.

Luis Moreno-Ocampo, the ICC’s chief prosecutor, defended his decision not to lay any charges against individuals in the Museveni government and only charge LRA top commanders by insisting that, “[w]e analyzed the gravity of all crimes in Northern Uganda committed by the LRA and Ugandan forces. Crimes committed by the LRA were much more numerous and of much higher gravity. . .We therefore started with an investigation of the LRA.” It was the number of crimes and the gravity of the crimes not the fact that some crimes were committed by the Ugandan government that determined that only the LRA leaders were indicted. However, the appearance of one-sided justice undercut the credibility of the ICC in the eyes of Acholi leaders and the Acholi community.

Finally, there was a debate over the nature of justice itself. Critics of the ICC, especially those favouring traditional Ugandan community modes of meting out justice, stressed restorative justice that emphasized the primacy to healing and reconciliation, the restoration of the unity of the community rather than the punishment of any one individual. Odama, and other Acholi religious and political leaders, argued in favour of traditional justice, a process based on public confessions of guilt, cleansing rituals, and the eventual acceptance of LRA members back into communities. This was parallel to the way the vast number of those charged with crimes in the Rwanda genocide were dealt with in the gacaca process.

How are the interests of victims served by either process? Perhaps by neither. After all, reconciliation is generally not rooted in justice systems at all, but in narratives of the women and spiritual and evangelical religious practices. The process of ICC justice, however, was rooted in detachment and universal abstract principles both divorced from everyday practices, especially a belief in the importance of invisible forces in fostering a healing process. Enchantment was necessary to offset disenchantment. How else could relationships be restored except by concepts such as Christian forgiveness and the metaphysics of redemption? But is the abstract principle of “natural” law and “human’ rights any less invisible and magical?

At the same time, Acholi “traditional” justice is inconsistent in its practices and both violent or humiliating. The fact is that any system of justice is infused with politics and tensions. In traditional justice, there are tensions between elders and religious leaders, between the older leadership and the young. Thus, the tensions between modern international justice and traditional justice systems are but a manifestation of the reality that reasonable judgment must be exercised in mediating the multi-dimensional conflicts on all levels between justice and politics, between state and international jurisdiction, between purity of principle and the messiness of any application. In the end, there is no avoidance of the need for reasonable judgment.

The Iranian Nuclear Deal – Part I

The Iranian Nuclear Deal – Part I

by

Howard Adelman

 

The Obama Announcement and the Effectiveness of Financial Sanctions

To set the tone of the debate, at the unusual hour for a Presidential address, just after 10:30 p.m. on Saturday evening, President Barack Obama appeared on television. He announced an agreement between the Islamic Republic of Iran and the P5 +1 (the USA and its partners Britain, France, the Soviet Union and China + Germany) on Iran’s nuclear program. The agreement, itself based on phased and reciprocal steps, was depicted as a first initial tentative step. Obama reiterated his unwavering policy of preventing Iran from obtaining nuclear weapons, not the capacity to make them. Further, Obama had always stated his preference for a diplomatic agreement rather than resorting to bombing Iran’s nuclear facilities and recognized that a new opening for diplomacy emerged with the election of President Hassan Rouhani who ran on a program of opening Iran to the world. 

In 2011, after overcoming an initial strong resistance to proposals by Senator Mark Kirk, a former highly decorated naval intelligence officer, to target the Iranian Central Bank and Iranian financial institutions, America had become the leading agent in organizing the much more comprehensive sanctions that have crippled the Iranian economy. Soon after Obama’s TV announcement, Kirk, a Republican, partnered with Democratic Senator, Bob Menendez, to craft legislation  to reinstate the full force of sanctions and impose new ones should Iran fail to roll back its nuclear program in accordance with the agreement. Further, the bill not only requires a certificate of compliance by the Administration every 30 days, but insists that Iran not be guilty of sponsoring terrorism.

Iran

Retaining the architecture of the existing sanctions, as provided in the Agreement, retains that effectiveness, Any fear of sanctions erosion is greatly exaggerated. In targeting Iranian financial institutions and the Central Bank, traders are forced to choose between America and Iran since firms were subject to substantial fines. Those firms will not resume investment and substantial trade just for a six month interim deal. Iran has a foreign debt of over US$70 billion and a much larger domestic debt. Iranian workers wait for weeks for their pay and the number of unemployed grew as the value of the rial fell.  (After announcing the interim agreement, the value of the rial rose 2% in one day.) Even the  Iranian Revolutionary Guards support the agreement because they can enhance their profits from the 30% plus segment of the economy they control.

The Contents of the Agreement

Obama was equivocal about the results. He did not say that the agreement allowed the world to verify that Iran’s nuclear program is dedicated to peaceful uses and that it prevents Iran from acquiring a nuclear weapon, but only that this agreement “opens a new path” for such a result. The agreement itself does not deliver that result. Does this first step achieve anything?

Remember my past blogs depicting Iran’s current capabilities. Even though many of Iran’s centrifuge cascades are not operational, even though Iran’s enrichment program is already to a large degree on hold, even though the Arak facility is some distance from completion, Iran has achieved the goal where the time between its existing capacities and the construction of several nuclear weapons has been reduced to 4-6 weeks. The break out point had been reached; Iran has remained at this stage for the last two months. The interim agreement only extends the delay period about 50%, insignificant except symbolically in the scheme of things. Further, those modest results in freezing Iran’s progress may in part have been the consequence of the secret talks in which Iran and the US have been engaged over the last year in Oman and elsewhere.

Obama insisted that the interim agreement achieved something further. First, the progress of Iran’s nuclear program was halted (no enriching more uranium past 3.5%, etc.). Second, key parts of the program are rolled back and there would be no reprocessing or  construction for reprocessing. Third, Iran committed itself to halting certain levels of enrichment, not beginning a new line for enrichment and desisting from re-enrichment. Fourth, part of its stockpile would be neutralized; of the existing stock of enriched uranium at 20% purity, half would be retained as oxide and half diluted to no more than 5%; this is one of the most significant terms of the interim agreement. Fifth, Iran would not be permitted to use its next-generation centrifuges, important since the new centrifuges are three to five times more efficient than the older ones.

Sixth, Iran agreed to stop work on its Arak plutonium reactor; nuclear inspectors, who have not visited the Arak reactor since August 2011, have already been invited to come on 8 December to examine the state of the facility. Seventh, transparency will be built into this first step since new inspections will allow extensive (not comprehensive) access to Iran’s nuclear facilities, but sufficient access to ensure that the previous commitments can be verified. Specifically, Iran would provide an updated DIQ for the Arak reactor with an agreed safeguards approach and permit IAEA inspector access when inspectors are not present for design information verification, interim inventory verification, physical inventory verification, and unannounced inspections at Fordow and Natanz with additional access to centrifuge assembly workshops, centrifuge rotor production workshops and storage facilities; and uranium mines and mills.

Do these limitations – sometimes called “interim” and at others characterized as “substantial” – help prevent Iran from building a nuclear weapons? Obama insisted that these containment steps would probably prevent Iran from using the cover of negotiations to continue to advance its program. But it will not, and does not even claim to prevent or really set back significantly Iran’s ability to reach a break out point within several months if Iran decides to stop inspections after which it could produce several nuclear weapons. Further, the interim agreement does not address the Parchin facility, the military production complex south east of Teheran. The Iranian refusal to allow IAEA inspectors access to this site is a key missing link. In other words, Iran, in terms of distance from a break out point, would not be much further back than it is now.  

On the other side, the P5 +1 have agreed to provide what Obama dubbed “modest” relief from the sanctions while leaving the toughest sanctions in place which, when you read the list, does not appear so modest. They include stopping efforts to further reduce Iran’s crude oil sales, enabling Iran’s current customers to purchase their current average amounts of crude oil, enable the repatriation of an agreed amount of revenue held abroad, suspend the EU and U.S. sanctions on associated insurance and transportation services, suspend U.S. and EU sanctions on both Iran’s petrochemical exports and associated services as well as on gold and precious metals and associated services. The US sanctions on Iran’s auto industry and associated services would be suspended. Licensing the supply and installation in Iran of spare parts for flight safety for Iranian civil aviation and associated services would be permitted.

Second, as mentioned in the first section, there would be no new nuclear-related UN Security Council sanctions or EU nuclear-related sanctions and the U.S. Administration would refrain from imposing new nuclear-related sanctions but not threatening to impose new sanctions if Iran fails in its compliance. Third, Iran will be allowed access to a portion of the revenues to which the country had been denied as a result of the sanctions. A financial channel would be established to facilitate humanitarian trade involving food and agricultural products, medicine, medical devices, and medical expenses incurred abroad as well as used for Iran’s domestic needs employing Iranian oil revenues held abroad using specified foreign banks and non-designated Iranian banks. Relatively quickly, the immediate result would be the payment by Indian refiners of US$5.3 billion owed to Iran, payments that had been blocked by the sanctions. The same channel would enable Iran to pay its UN obligations, direct tuition payments to universities and colleges for Iranian students studying abroad, up to an agreed amount for the six month period and, finally, increase the EU authorisation thresholds for transactions for non-sanctioned trade to an agreed amount.

Fourth, as stated above, the overall architecture of the sanctions will remain in place and enforcement of those sanctions will continue with vigour. As a corollary, the relief from these economic pressures can be turned off and the full weight and even more of the sanctions regime can be quickly reinstated. Then the targets of the six months of negotiations are listed. First, Iran will retain its right to the use of nuclear energy for peaceful purposes. Second, at the end of the six months, it must be made impossible for Iran to develop nuclear weapons. Third, the burden of proof rests on Iran to prove and permit verifiable steps that Iran will not and cannot develop nuclear weapons.

There are wider goals for this agreement which neither the interim agreement nor the longer term agreement, addresses. Supposedly, but not necessarily, by the end of six months, the role of Iran as a sponsor of terrorism, the role of Iran as a threat to Israel, the role of Iran in the Syrian civil war and its support for Hezbollah in Lebanon, may or may not be addressed. But the hope, and I stress ‘hope’, is that the agreement will lead Iran along a path towards a less hostile attitude and establish Iran as a reliable partner  in promoting peace. I remain very sceptical that this goal can be achieved.

At the end of the speech, Obama certainly overreached when he insisted that “only diplomacy can bring about a durable solution to the challenge posed by Iran’s nuclear program” when it was not diplomacy but sanctions that brought Iran to the nuclear negotiations table just as Iran faced the real possibility of a military attack.  Perhaps this was a sop in the speech targeting Russia and China for the two always opposed any inclusion of a threat of military action in a UNSC resolution, hence the reference to “only diplomacy”. If that is indeed the case, then diplomacy was but the third part of the necessary triangle to complement the military threat and the actual economic sanctions. Given the Russian and Chinese positions, diplomacy was the only mechanism endorsed by the UN. 

Further, on rereading Obama’s speech, he qualified the assertion that only diplomacy could achieve the goal with the term “ultimately”. But the truth is that ultimately, only the complete destruction of Iran’s nuclear program could terminate such a possibility.

[Continued in Part II]

Obama2. His Cultural Conservative Critics.30.01.13

I vividly recall in the summer of 1987 when Michael Marrus brought up to our cottage Allan Bloom’s Closing of the American Mind. I read the book and offered Michael what I thought was a devastating critique. Though the book was a surprising best seller, little did I anticipate that it would become the cultural bible for social conservatives whom I would be analyzing 25 years later. Cultural conservatives are radically different than economic conservatives. Cultural conservatives believe strongly in using the state for social engineering, not to facilitate greater equality or even greater equality of opportunity but to facilitate the reinforcement of a set of social values. Economic conservatives are adamantly opposed to the engineering state.

 

David Frum, as an economic conservative, has been highly critical of the cultural conservative attempt to take control of the Republican Party agenda and claims that, because of them claims, “The Republican Party is becoming increasingly isolated and estranged from modern America.” (“How the GOP Got Stuck in the Past,” Newsweek, 11 November 2012) Unlike his friend and fellow economic conservative, Conrad Black, Frum opined that, “When eco­nom­ic conditions are as bad as they were in 2012 and the incumbent wins anyway, that’s not ‘close’.”  Frum is inclined to blame Romney’s election loss to Obama on the cultural conservatives (otherwise known as the combative conservatives) and the reason why “the GOP is becoming the party off yesterday’s America.” Instead of Romney running as a strong fiscal conservative with a track record as a competent manager with a pragmatic disposition, Romney was forced by the cultural conservatives into a corner in order to win the nomination to refashion himself and come across as a contradictory weak-kneed amorphous persona. My interest is to analyze the nature of that opposition and to try to understand the extent to which that opposition demonizes Obama and is responsible for the chasm between Obama’s public image and the reality of his policies and actions. Frum wanted the cultural conservatives to be reborn as social conservatives and become religious and secular activists for the needy independent of a nanny state. However, Rick Santorum was the only Republican candidate who recognized that the middle class had become economic losers.

 

This recognition is not what drives the vast majority of cultural conservatives. William Bennett, needless to say no relation to Naftali Bennett leader of the Habayit Hayehudi pro-settler party in Israel that I wrote about last week, was the Secretary of Education in the George Bush Sr. administration from 1985 to 1988.  In a CNN piece “Republicans lost the culture war” dated 14 November 2012, Bennett drew attention to the claim that the Republicans were involved in a culture war more than a war over economic doctrine. (http://www.cnn.com/2012/11/14/…/bennett-gop…/index.html – United States) Cultural conservatives are a different breed than economic conservatives. They cite Plato and his dictum that the future depends on who teaches and what they teach. For cultural conservatives, the Lefties who preach multiculturalism rather than a one-size fits all American identity, who praise socialism and disparage capitalism, who teach relativism rather than certain moral precepts, who celebrate diversity at the cost of faith in American exceptionalism, who sew class divisions with special privileges, including preferential university admissions for minorities, need to be displaced and cultural conservatives with their moral foundations in family, faith, freedom, community country and moral conduct restored to supremacy. The universities and colleges have to be retaken or America is lost. Their battle is not an intellectual exchange but an institutional takeover.

 

Though William Bennett and Naftali Bennett are not blood relatives, they share a number of common traits. Both are paired with economic conservatives to pull the conservative polity further towards what is represented as the right. In the Israeli election, Naftali Bennett was the one to make Netanyahu more extreme, yuktzan Netanyahu, in contrast to Yair Lapid who was elected to make Netanyahu more moderate, yemurkaz Netanyahu. The cultural right in America also works to pull the Republican Party more towards the right.

 

Samuel Goldman in The American Conservative offered an analysis of “Naftali Bennett and the Continuing Appeal of Religious Nationalism” (14 January 2013) just before the elections in the wildly mistaken expectation that Naftali Bennett would possess the second largest cluster of seats in the Knesset. The legacy of the religious Zionists under Rabbi Abraham Isaac Kook and his son Rabbi Yehuda Kook was revived with the settler movement to re-establish religion as the foundation of the new Israel by becoming the settlers on the new frontier of Samaria and Judea and officers in the IDF. Religious settlers would displace socialist kibbutzniks as the icon of Israel reborn. Instead of the religious playing a role of keeping religion alive simply by partnering with the secular leading Zionists, or feeding off the trough of the state as religious welfare bums, the religious would soar into a leading role through their sacrifice and messianic leadership.

 

What are the ideological similarities of both groups? Naftali Bennett proposed annexing 62% of the West Bank and turning the remainder into a self-governing Bantustans. Imperialism married to exceptional state leadership inspired by religious precepts was alive as an ideology. The cultural right in America and Habayit Hayehudi both represent religious nationalist sentiments, to return the core of the respective nations to their true home, the heartland of America and Judea and Samaria respectively. If the West Bank settlers want to occupy Israel (see Ari Shavit’s piece in Haaretz on 3 January 2013), the cultural right want to retake America. They do it with a pincer movement by effectively establishing their own party, The Tea Party in America, and by taking control of a mainstream party by driving out the more moderate members, Meridor and Begin in the Likud in Israel and Colin Powell and the Rockefeller heirs in the Republican Party in America.

 

Though cultural and religious conservatives can be distinguished, unlike the link with economic conservativism which is only opportunistic, religious and cultural conservatives overlap considerably, though only the religious conservatives openly oppose the separation of religion and state and want to revive the influence of religion on politics. Both cultural and religious conservatives want to advance their goals through political participation in party politics. Both politicize religion. Basically they believe that a nation is held together by common bonds drawn from religious or classical sources. Their enemies are relativism and diversity when it comes to the national core values. Instead of multiculturalism, they espouse a more authentic version of identity. In Israel, the foundation stones of authentic life are the land of Israel (Eretz Israel), the Torah and Am Israel (the people of Israel). In America, the foundation stones are the American heartland, the American constitution interpreted as the genesis code for a great nation, and the people of American, an identity projected in the ideal image of small town America.

 

Rogers Brubaker, a colleague consulted when we undertook our study of genocide in Rwanda, wrote an article called “Religion and Nationalism” that was published in the journal Nations and Nationalism in 2011. Instead of regarding religion and nationalism as analogous phenomena or explaining nationalism through religious motifs as Sanford Levinson did in his book on Constitutional Faith (Princeton University Press) whereby a set of beliefs that had been secularized provided a sense of coherence to the American identity by being embodied in the Constitution, or adopting a third option and demonstrating how politics and religion were intertwined by politicians such as George W. Bush or Jimmy Carter, the cultural right propagate a distinctively religious or quasi-religious form of nationalism.

 

Nationalism itself aspires to a congruity between the nation and the state. That is why separatists in Quebec and Scotland, though they currently come from the left and oppose religious nationalism, seek to secede. The state has the job of protecting the nation. Further, they espouse a fundamental ground for authority in the spirit of the nation whence the values that bind the nation arise. Those values provide the basic legitimacy for the activities of the state. The nationalism that became predominant in the nineteenth and first half of the twentieth centuries was secular and defined in opposition to and rivalry with religion. It espoused that individuals operated not only in two autonomous realms of religion and state but in a multitude of autonomous realms, the universities, the economy, the polity, civil society. The new religious nationalism said that if these realms were allowed to remain autonomous, the nation would disintegrate and wither away. The greatest danger to the nation came from the universities for they taught students that relativism and secularism were the norm. Instead of making claims for the nation that conjoined with religious claims, as Bush Jr, and Jimmy Carter had, religion was seen as providing authenticity to the nation. Instead of politicians just using religious symbols to advance their political programs, in religious nationalism, God spoke to his people; his people received their inspiration from religion which was both the foundation for the nation and the state, and the guarantor of the integrity of both.   

 

As Roger Friedland argued in an older 2001 article, (“Religious Nationalism and the Problem of Collective Representation (Annual Review of Sociology 27, 125-152), collective solidarity is located “in religious faith shared by embodied families”. The family is the backbone of the nation. Politics cannot be dependent on inclusiveness and diversity

So why do the cultural conservatives hate Obama even more than the economic conservatives? After all, Obama is a very strong family man. He is not only a Christian but claims in his writing to have been born again, not in the sense that he suddenly received the light and the spirit of Jesus took over his very being, but in the sense that he was brought up without faith in Christianity and returned to embrace that faith of his mother’s parents as an adult. He has confessed his sins and made a personal commitment to Jesus Christ as his saviour “I am a Christian, and I am a devout Christian. I believe in the redemptive death and resurrection of Jesus Christ. I believe that that faith gives me a path to be cleansed of sin and have eternal life.” As Joel Hunter (former president of the Christian Coalition started by Pat Robertson and author of A New Kind of Conservative as well as a Methodist and spiritual adviser to Obama) has testified, “There is simply no question about it: Barack Obama is a born again man who has trusted in Jesus Christ with his whole heart.” But Obama is a liberal. As he said in a 2006 speech, “secularists shouldn’t bar believers from the public square, but neither should people of faith expect America to be one vast amen corner.”

 

Most community conservatives decry these claims as a fraud and a ruse. Because Obama’s Christianity harks back to the social gospel, to social service and taking care of those in need and not to conservatism. Obama is a strong family man and a Christian who is a twentieth-century liberal. In 2008, when presented with a choice between someone who was not born again, McCain, and Obama, many actually voted for Obama. Those numbers declined in 2012, but still an estimated six million evangelicals supported Obama, particularly if they were young. Why? Because they too were Christian liberals and supported healthcare, support for education and a fairer allocation of taxation relative to income.  (http://www.christianpost.com/news/young-born-again-christians-lose-interest-in-obama-barna-group-says-84496/#2M6aplFRqYIGEz9g.99)

 

The strident opposition comes from evangelical Christians who are social conservatives for whom Obama’s family and Christian values give them apoplexy. A secular liberal is one thing but a Christian and a strong family man who is a liberal is another. The fight over alternative worlds versus alternative economic ideologies is much more heartfelt and vicious. Since it is about the moral quality of the person, it is doubly disconcerting to see the leader of your country as apparently upholding your religious and family values so if one is a community conservative, it is imperative that the ostensible believer be revealed as a fake and a dissembler. Denigration and demonization become central to the cause of discrediting Obama.   

 

So we have two groups, one adamantly and the other doubly opposed to Obama and eager to blacken his name and portray him as not only opposed to what they believe but as a failure. Is that sufficient to explain the alignment of his electoral support with his approval rating? After all, many a politician who one would not vote for is seen as a success even if one disagrees with his or her political agenda. To try to probe deeper I will examine first Obama`s cheerleaders and then his equivocal supporters.

[tags Obama, USA, President, politics, community conservatives]