March 15, 2016

Iran's ballistic missile program - more fallout from the "Kerry Collapse"

Iran continues to develop its ballistic missile capabilities, taking advantage of yet another loophole in the Iranian nuclear deal negotiated by Secretary of State John Kerry. It seems that not a month goes by since the implementation of the agreement that we learn more details about how the Iranians outmaneuvered Mr. Kerry yet again.

Secretary Kerry has a history of being a weak negotiator - the Syrian chemical warfare agreement and the so-called cessation of hostilities in Syria are examples.* That said, the one Kerry negotiation that tops the list is the Iranian nuclear agreement, known officially as the Joint Comprehensive Plan of Action (JCPOA).

I am speaking about the slight change in wording of United Nations Security Council Resolutions (UNSCR) as part of the JCPOA negotiations that the Iranians were able to get Secretary Kerry to include in the final document. The wording is so slight to escape scrutiny during the Congressional review (if you can call it that), but the meanings are significant.

Prior to the Iran nuclear negotiations, there was a UNSCR addressing Iranian ballistic missiles in force. UNSCR 1929, adopted in June 2010, included the decision that "Iran shall not undertake any activity related to ballistic missiles capable of delivering nuclear weapons, including launches using ballistic missile technology, and that States shall take all necessary measures to prevent the transfer of technology or technical assistance to Iran related to such activities." I highlighted the words "shall not" for a reason.

During the nuclear program talks in Vienna, Iranian Foreign Minister Mohammad Javad Zarif - a skilled and experienced American-educated negotiator - demanded that the ban on ballistic missile development be lifted as part of the agreement. The Iranian argument was quite skillful and nuanced - if they were going to forgo a nuclear weapons program, any missile development therefore could not be related to systems "capable of delivering nuclear weapons," the wording in UNSCR 1929.

Here is the "Kerry Collapse." In response to Minister Zarif's demand, Secretary Kerry agreed that the missile development restriction would expire completely after eight years from the implementation of the agreement, and in the intervening period - and this is a quote - Iran is "called upon not to" develop ballistic missiles.

As a result, UNSCR 2231 of July 2015 was approved and superseded UNSCR 1929 - the JCPOA took effect in January 2016. As agreed between Kerry and Zarif, the agreement states that Iran is "called on not to" develop nuclear-capable missiles or conduct launches.

I am not a lawyer, but even I know the difference between "shall not" and "called upon not to." For those still confused, the former is mandatory; the latter is voluntary.

Since the adoption of what I consider a flawed nuclear agreement negotiated by Secretary Kerry, the State Department - including the Secretary himself - has argued in front of the Senate Foreign Relations Committee (of which Secretary Kerry was a member) that there is no difference between "shall not" and "called upon not to."

This is a transcript of of a hearing last summer:

SENATOR ROBERT MENENDEZ: Mr. Secretary, I'm seriously concerned about the lifting of the arms embargo that creeped its way into this deal. As I read the Security Council resolution on page 119, the ban on Iranian ballistic missiles has, in fact, been lifted. The new Security Council resolution is quite clear. Iran is not prohibited from carrying out ballistic missile work. The resolution merely says, quote, "Iran is called upon not to undertake such activity." Previously, in Security Council Resolution 1929, the council used mandatory language where it said, quote, "It decides that Iran shall not undertake any activity related to ballistic missiles capable of delivering nuclear weapons." Why would we accept inferior language that changes the mandatory shall to a permissive call upon. We often call upon a lot of countries to do or stop certain actions in the U.N., but it doesn't have the force of shall not which has consequences if you do. Can you answer simply, is Iran banned from ballistic missile work for the next eight years?

SECRETARY KERRY: That is not accurate. The exact same language in the embargo is in the agreement with respect to launches. And that is under Article 25 of the U.N. And that is exactly where it is today in the language. But in addition to that, Iran did not want it, and we insisted on it. They are restrained from any sharing of missile technology, purchase of missile technology, exchange of missile technology, work on missiles. They cannot do that under Aticle 41, which is Chapter VII and mandatory. And it does have the language still.

MENENDEZ: It seems -- I'm reading to you from the Security Council resolution that was adopted, codifying the...

KERRY: Yes, this agreement. The security council resolution.

MENENDEZ: And that security council resolution says Iran -- Mr. Secretary, I'm reading you explicit language. I'm not making this up. Iran is called upon...

KERRY: Correct.

MENENDEZ: ... not to undertake...

KERRY: That's the article 25, it's exactly what it is.

MENENDEZ: That's far different than shall not.

KERRY: Senator, that's exactly what it is today. It's the same language as it in the embargo now. We transferred it to this and that's what it is.

MENENDEZ: Not the same language as Security Council resolution 1929.

It goes on, but you get the idea. While Secretary Kerry may not grasp the difference, the rest of the world has. A sane person believes that John Kerry either wanted to make a deal with the Iranians no matter what the cost, or that he does not grasp the difference between "shall not" and "called upon not to."

John Kerry, a graduate of Yale University and Boston College, should be able to discern the subtle nuances between the two phrases. Most people will assume - and I agree with this assumption - that the Obama Administration's goal was a deal at any cost.

The Iranians obviously know the difference between the two phrases, and have exploited that Kerry-provided loophole to continue their aggressive missile research and development program. The Iranians also believe they have the tacit approval of the United States to continue their missile research and development, a position espoused by the American Secretary of State.

Why wouldn't they?

* See my earlier article on the Syrian cessation of hostilities agreement, Syria: Cessation of hostilities - was John Kerry outplayed?