WarSclerotic

Iran’s Free Hand in Testing Ballistic Missiles, Front Page Magazine, Joseph Klein, March 16, 2016

The United Nations Security Council met in an “emergency” closed door session on Monday March 14^th to discuss Iran’s recent testing of ballistic missiles reportedly designed to be capable of delivering nuclear weapons. The words “Israel must be wiped out” were written in Hebrew on the side of the missiles. These most recent tests followed in the wake of missile tests conducted last fall, which the Security Council did nothing about at the time.

While North Korea was finally hit with more UN sanctions for its nuclear and missile tests, North Korea’s nuclear weapons collaborators in Iran continue to be let off the hook without even a slap on the wrist.

U.S. Ambassador to the UN Samantha Power told reporters, after the March 14^th meeting produced no concrete results, that she will keep trying “no matter the quibbling that we heard today about this and that.” She said that Iran’s missile tests were “in defiance of provisions of UN Security Council Resolution 2231, the resolution that came into effect on January 16, on Implementation Day for the JCPOA [Joint Comprehensive Plan of Action].”

The quibbler in chief is Russia. Its UN ambassador said that Iran has not violated the resolution and that there was no need for any punitive measures against Iran.

The truth is that the Obama administration is now hoisted with its own petard. Ambassador Power complained that “Russia seems to be lawyering its way to look for reasons not to act rather than stepping up and being prepared to shoulder our collective responsibility.” Yet that would not have been as easy for Russia to do if the Obama administration had not allowed a loophole in the nuclear deal wide enough for Iran to fire a whole bunch of missiles through.

President Obama wanted the nuclear deal with Iran so badly that he gave in to Iran’s last minute demands to preserve its missile program. Iran insisted that all prior UN Security Council resolutions which had unambiguously prohibited Iran’s development, testing or procurement of ballistic missiles designed to be capable of delivering nuclear weapons must be terminated. Otherwise, Iran would not go forward with the JCPOA. To make matters worse, even though Iran had held the JCPOA hostage to its missile demands, the Obama administration also bowed to Iran’s insistence that its missile program would not be covered by the JCPOA itself. Thus, Iran would not be subject to the automatic “snap back” of sanctions when Iran is found to have violated the JCPOA, because its missile tests would be outside the scope of the JCPOA. In fact, the Obama administration agreed to language in the JCPOA to clarify that such separation of Iran’s missile program from the JCPOA was the intent. All reliance for dealing with Iran’s missile tests would be placed on the much weaker Security Council Resolution 2231.

The new Security Council Resolution 2231, which endorsed the JCPOA but drafted as separate from the JCPOA, used weaker language than the outright prohibition that had existed under the prior resolutions that were now superseded. Calling upon Iran to refrain from doing something is not the same as an enforceable ban. Moreover, even this insipid “call upon” language is included in an annex to the resolution. This annex is little more than a statement of intent by the parties negotiating with Iran, which Iran does not consider binding on itself.

The Obama administration missed the window of opportunity to clamp down on Iran’s missile testing when those tests were being conducted last fall. The previous Security Council resolutions that prohibited Iran’s missile program outright, and the sanctions regime against Iran, were then still in effect. Those resolutions were referenced in the JCPOA itself as still being binding until the JCPOA was actually implemented. Implementation in turn was dependent on verification of Iran’s compliance with certain commitments set forth in the JCPOA having to do with its enrichment and plutonium programs. Until the JCPOA’s formal implementation date of January 16, 2016, when those resolutions were terminated, the missile program ban had not been technically untethered from the JCPOA.

All the Obama administration had to do last fall was to declare Iran in breach of the JCPOA because the missile ban under those resolutions that Iran breached were effectively incorporated into the JCPOA until terminated. The sanctions were still in place. Iran’s assets were still frozen. Russia’s “lawyering” would have done it little good last fall when the United States still had the upper hand both legally and in practical terms. But President Obama frittered away the last real chance to hold Iran’s feet to the fire before the sanctions were lifted. He wanted the nuclear deal to go forward as a centerpiece of his “legacy” and let the next president worry about its fallout.

In fact, instead of pressing the case against Iran and threatening to walk away from the JCPOA when he had the leverage, Secretary of State John Kerry actually defended Iran’s position on its missile tests. “The issue of ballistic missiles is addressed by the provisions of the new United Nations Security Council Resolution (UNSCR), which do not constitute provisions of the Joint Comprehensive Plan of Action (JCPOA),” Kerry wrote in a letter to Senator Marco Rubio last September.  “Since the Security Council has called upon Iran not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons, including launches using such ballistic missile technology, any such activity would be inconsistent with the UNSCR and a serious matter for the Security Council to review.”

Rubio raised his concern with Kerry that the language in the new Security Council resolution did not appear to require Iran to refrain from pursuing its ballistic missile tests. Rubio seized upon the weak “call upon” language discussed earlier as the basis for his concern. Kerry’s response was that “if Iran were to undertake them it would be inconsistent with the UNSCR and a serious matter for the Security Council to review.”

Senator Rubio had a right to be concerned. Kerry had deliberately agreed to a circular process to deal with Iran’s missile program violations, which was doomed to fail. To placate Iran, he kicked the can down the road until the JCPOA was actually implemented and the prior, much stronger Security Council missile resolutions that were initially tied into the JCPOA by reference went away. The separation of the JCPOA and the new Security Council resolution was completed as of the formal implementation date. Kerry had to know that once the JCPOA was implemented and in full force, with sanctions lifted and the missile program separated out from the JCPOA with its automatic “snap back” provisions, Russia would likely veto any separate sanctions resolution against its ally and missile purchaser based on Iran’s missile tests. The American people got suckered by President Obama’s reckless concessions.

Iran not only will have a pathway to nuclear enrichment sufficient to produce nuclear weapons when the deal’s restrictions sunset – if not before. Thanks to the Obama administration, Iran presently has a free hand to develop and test ballistic missiles capable of delivering those nuclear weapons along any pathway of attack it chooses.