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Status of the Iranian Supreme Leader’s Fatwa in International Law

Thursday, July 5, 2012

Aziz Shah-Mohammadi

The Supreme Leader of Iran Ayatollah Seyed Ali Khamenei announced in a meeting with the Iranian nuclear scientists on February 22, 2012, that Iran does not seek to develop nuclear weapons. During the meeting, the Leader said: “We do not pursue to build nuclear weapons. In reality, having nuclear weapons is not to our benefit. From the viewpoint of ideology, theory, and the Islamic jurisprudence (fiqh), we consider this as forbidden and proliferation of nuclear weapons as a wrong decision. We consider the use of such weapons a great sin while stockpiling it is not only pointless, but also harmful and hazardous. Therefore, we will never try to acquire such weapons. We want, on the opposite, to prove to the world that acquiring nuclear weapons does not generate power for any country because beside all their power, nuclear weapons also produce a lot of dire problems. The nuclear-weapon states dominated the world through threat of nuclear weapons, but that threat is of no use anymore. We want to tell the world that we do not seek nuclear weapons and do not believe that having nuclear weapons confers power. We want, beyond that, to show the world that we can even smash the apparent power which relies on the nuclear weapons.”

In that address, without any ambiguity and by using scientific and religious logic, the Supreme Leader enumerated his arguments about irrelevance of recourse to nuclear weapons. The Leader maintained that Iran believes in the following facts when it comes to nuclear weapons:

1. They lack economic feasibility (strategic argument);

2. Are forbidden in ideological and theoretical (actually strategic) terms;

3. There is no jurisprudential foundation which may justify the use of nuclear weapons (jurisprudential fatwa);

4. The use of nuclear weapon is a sin (jurisprudential fatwa);

5. Having nuclear weapons is harmful and hazardous (strategic argument);

6. Iran will never pursue to develop them (expression of the basic policy of the Islamic Republic of Iran);

7. Having nuclear weapons does not confer power (strategic view); and

8. Iran does not believe that having nuclear weapons will increase any country’s might and can also smash any outward power based on the nuclear weapons (strategic view).

The Leader’s words were quite clear and unequivocal without any need to additional interpretation and paraphrasing. Using this kind of explicit expression proves that the Iranian leader is outspoken and honest when announcing basic policies of the Islamic Republic on nuclear weapons. If it were otherwise, he would have used equivocal terms open to interpretation and paraphrasing.

States’ Remarks and Positions in International Customary Usage

In international customary usage, doing or not doing something by the states as well as every expression or silence on the part of statesmen has a special meaning and even sometimes, legal consequences. Sometimes states condole with, let’s say, the crash of an airplane or a natural disaster which has caused human casualties. They may also congratulate a party or a person for election win or felicitate national days of various countries. In these conditions, states are not obliged to condole with or offer congratulation to other countries. This is, however, necessary in terms of international etiquette as well as in human terms. However, if a terrorist incident or act is involved, states usually comply with their international obligations when they condemn such incidents and their perpetrators by distancing from the incident and denouncing it. This is because a state which opposes terrorism cannot remain silent toward a terrorist incident. On certain occasions, states recognize another state through speeches or by issuing statements. “Recognition” is a political and legal action which is taken by states in their foreign relations.

In practice, the conduct of the states will have both legal and political consequences. Not very long ago, the then prime minister of Japan attended a ceremony to pay tribute to Japanese officers who had been killed in war with China or Korea. The tribute enraged both Beijing and Seoul and resulted in a major diplomatic row among three countries. China and South Korea believed that officers killed in those wars were, in fact, casualties of Japan's wars of aggression against China and South Korea and the homage paid to them by the Japanese prime minister had been an inhumane act.

This example clearly proves that positions taken by leaders of countries and heads of states will certainly reverberate in the world and evoke reactions. However, it is quite surprising how the fatwa issued by the Supreme Leader of Iran fell on deaf ears and was met with total silence of the West, in general, and the United Nations, in particular. Meanwhile, if an Iranian official says something in a provincial visit to a remote village which is not liked by the Western countries, they are sure to react immediately. Perhaps it was due to high importance and legal consequences of the Supreme Leader’s fatwa that the West, especially the P5+1 group – the US, the UK, France, China, Russian and Germany – in addition to the UN preferred to remain silent. It is noteworthy that the P5+1 and the International Atomic Energy Agency (IAEA) have been intensely negotiating with Iran during the past eight years in order to make sure about the peaceful nature of Tehran’s nuclear program. Wouldn’t it been better if they had welcomed the announcement by the Supreme Leader of Iran that “possession and use of the nuclear weapons is wrong, unethical and a great sin?” Then, the UN secretary-general as well as the director general of IAEA and the Security Council could have issued statements in order to add to the legal and political significance of the Iranian Supreme Leader’s fatwa. Out of 52 Islamic countries and in a country like Iran and a region like the Middle East, the fatwa issued by the Iranian leader is not an ordinary issue to be lightly dismissed. Both the secretary-general of the United Nations and the director general of IAEA have frequently expressed hope or doubt about the progress of nuclear talks with Iran. What is really barring them from hailing the clear and explicit fatwa of the Iranian leader which needs no further comment or interpretation?

The Supreme Leader’s Fatwa and International Law

Statements and remarks made by high-ranking officials of any country which have responsibility for the state’s actions or lack of action have been recognized for their importance in international law. If a state recognizes another state by issuing a statement and if a state takes clear positions in its foreign relations, both instances will be remarkable in legal terms and will have legal consequences. With regard to the subject of this article and the “legal impact of state remarks,” the International Court of Justice has handed down an interesting verdict which happens to be related to nuclear tests.

The Case of New Zealand v. France regarding Nuclear Tests in the Pacific Ocean

Background of the Case

The South Pacific region had become a scene of military nuclear tests following the World War II. The United States carried out such tests in Marshall Islands from 1946 to 1962, while Britain did the same from 1952 to 1957 in Australia and from 1957 to 1958 in Malden and Christmas islands. France started building nuclear bombs in early 1950s and its first military nuclear test was carried out in 1960 in the African Sahara. Paris also conducted 16 nuclear tests in Algeria before the country gained its independence in 1963; twelve tests were done underground and four tests were carried out in the atmosphere. After the independence of Algeria and due to technical and economic reasons, France moved its nuclear test location from Africa to Moruroa Islands in the Pacific Ocean and carried out its first military nuclear test in that region. The tests were followed by vehement protests from nearby countries, topped by New Zealand which asked Paris to stop such tests. France argued that New Zealand’s protest was unjust and prejudiced and asked why New Zealand had not raised similar objection to prior nuclear tests by the United States and Britain. New Zealand answered by saying that scientific findings in the past 20 years from 1946 to 1966 indicated that lasting environmental damages as a result of nuclear pollution had been inflicted on the ecosystem of the Pacific Ocean and its littoral countries, adding that New Zealand’s protests emanated from scientific findings and had nothing to do with politics. Anyway, France did not care about protests by New Zealand and other regional countries and continued nuclear tests in the Pacific Ocean.

New Zealand then followed up on its protest to the French nuclear tests by filing a lawsuit with the International Court of Justice on May 9, 1973. In its application, New Zealand asked the court:

- To hand down a judgment on the necessity of security measures including complete halt on all kinds of nuclear tests until a final verdict was issued and;

- To adjudge and declare that the conduct by the French Government of nuclear tests in the South Pacific region that give rise to radioactive fallout constitutes a violation of New Zealand's rights under international law, and that these rights will be violated by any further such tests."

New Zealand's legal action was followed by a similar action taken by Australia against France. The International Court of Justice first asked the French government to stop all nuclear tests pending a final verdict. After unprecedented delay, in December 1974, the Court gave its final verdict by a proportion of nine judges to six.

Australia's application followed that of New Zealand and the court announced that since the French government had declared in later months of 1974 (prior to the court session) that it was conducing no tests in the disputed region, the purpose of Australia's application had been already met. Of course, the French authorities made the announcement under specific conditions whose study will be of value to people interested in such cases.

Therefore, in addition to international customary usage, the international judicial procedure abounds with cases which can provide multitudes of positive evidence and proof in support of the fatwa issued by the Supreme Leader. When ordinary remarks by the states can have legal consequences, a priori, Iranian Leader's fatwa will have a legal impact as well.

Intrinsic Importance of the Fatwa

The following points will suffice to shed light on the significance of the aforesaid fatwa.

1. The fatwa about possession and use of nuclear weapons being haram (religiously forbidden) has been issued by the Supreme Leader of a country which has been among few countries that have been victims of weapons of mass destruction in modern history. During its imposed war on Iran, the former Iraqi dictator, Saddam Hussein, made frequent use of chemical weapons against Iranian military and civilians. The case of Saddam's chemical attack on the western Iranian city of Sardasht is still open. Both during the war with Iraq, and afterwards, Iran never made recourse to chemical weapons and is among progressive and pioneer countries with regard to chemical weapons disarmament.

2. This fatwa was issued just a few days after Germany delivered its fourth Dolphin-class submarine to the Zionist regime of Israel. These submarines are offensive vessels capable of carrying and delivering nuclear weapons and were given to Israel free of cost. Construction of the four submarines has been reportedly financed by a number of German companies. In the meantime, Germany is also a member of the P5+1 group – which also includes the United States, Britain, France, China, and Russia – and collectively, they represent the Western and other big powers engaged in nuclear talks with Iran.

3. This fatwa has been issued at a time that "all options are still on the table" is a regular call by the Western countries and other adversaries of Iran which aim to threaten the Islamic Republic and the Iranian nation. Such threats are apart from trade and financial warfare which has been launched against Iran, various forms of sanctions, a full-fledged cyber war which has been waged by developing various kinds of computer malware and viruses against Iran, and assassination of a number of Iranian nuclear scientists. Iran also successfully grounded a US spy drone last year. So, if under these circumstances, the Iranian leader had issued a different fatwa noting that "all options for defense are on the table," what would the West have been able to do to Iran more than what is has already done?

4. The fatwa issued by the Iranian leader, is both an opportunity and a threat to the West. If the West decided to be honest with Iran, this fatwa can be an opportunity for the West as it can potentially lead to resolution of a major issue in the whole region, which is banning recourse to nuclear weapons. It can also be a threat because if the West continues to deny Iran's nuclear right and its honest initiatives, nobody will trust the West anymore.

5. The Iranian Leader issued his fatwa at a time that the West would have had to negotiate for years in order to obtain such a concession through negotiations. Iran is a member to the nuclear Non-Proliferation Treaty (NPT). All nuclear activities of Iran are under supervision of the International Atomic Energy Agency (IAEA). Therefore, Iran was not obliged, either logically, or legally, to issue a fatwa on the prohibition of developing nuclear weapons by its Supreme Leader. It took many years for the Israeli regime to convince the former head of the Palestine Liberation Organization, Yasser Arafat, to openly condemn armed struggle against Israel. It should also be noted that the West has not taken a solid step to condemn the assassination of Iran's nuclear scientists yet. Therefore, the Iranian Leader's fatwa should be considered a blessing to the international community and regional nations which can potentially allow them to experience a life in peace away from any kind of threat.

Key Words: Iranian Supreme Leader’s Fatwa, International Law, Islamic Jurisprudence, Nuclear Weapons, NPT, IAEA, Shah-Mohammadi

Source: Siasatema News Site
http://siasatema.com/

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