Connect with us

International Law

Hit and Run, Iran? The Military Dynamics of Nonproliferation

Published

on

Weapons of Mass Destruction or of mass delusion? To nail or derail

Ambiguity in Iran’s weapon acquisition dynamics exacerbates mistrust, which is the core reason for the present standoff at the negotiating table. In this paper, I elucidate the Iranian military’s capability and intention by delving into the main componential elements of weapon acquisition.

Weapons of mass destruction (WMDs) are not suitable for the Iranian Army, given its non-mechanized nature; its defensive military posture; its current status as a non-nuclear weapon state; and its sufficient conventional preparation to meet its protective security interests. This paper proposes three interlinked policy approaches to resolve the current impasse: (1) utilize Iran’s technological dependency by requiring maximum international supervision of its dual-use but peaceful technology; (2) encourage Iran’s problem-solving role and pacific behaviour by streamlining the current sanctions to avoid harming the Iranian economy as a whole; and (3) consider an alternative, noncoercive policy that respects Iran’s legitimate technological and conventional defensive needs. This non-coercive approach would open the door to collaboration rather than confrontation through a gradual, piecemeal, and reversible policy.

1. Introduction

There are five military reasons why weapons of mass destruction (WMDs) are not an appropriate class of weapons for Iran. Careful examination of these reasons may help us to understand Iran’s position on the acquisition of WMDs. First, tactically speaking, Iran is a non-possessor of nuclear, chemical, and biological weapons; second, the Iranian Army, because of its low number of armored vehicles and its logistical, communication, and command features, is a non-mechanized army; third, the Iranian Army is organized according to a defensive military posture; fourth, WMDs are not strategically suitable for Iran given its protective security interests; and finally, Iran’s current conventional destructive capability meets the regime’s core protective security interests without WMDs.

These five characteristics support the claim that WMDs are not suitable for the Iranian Army in a regional conflict. A dilemma arises, however, between Iran’s secret pursuit of an enrichment program and the last three decades of discriminatory policies refusing Iran access to modern technology. Such a conflict demonstrates the inherent tension between the Nuclear Nonproliferation Treaty’s (NPT’s) prohibition on proliferation (see Articles 1 and 2) and its provision of the right to nuclear energy (see Article 4)[1]. Ultimately, the boomerang effect of incremental sanctions and prolonged negotiations with the P5+1 may set both sides on a path with unwanted and unwarranted consequences. To avoid this, the P5+1 should strive to better understand the Iranian military’s weapon acquisition dynamics and to approach negotiations with an impartial and sound judgment.

Two main concepts in understanding weapon acquisition are means and ends. These two notions were introduced into the literature of military studies by Carl von Clausewitz. His definition of war as a “real political instrument, a continuation of political commerce…by other means” highlights the importance of military means and their political ends[2].This definition has been widely adopted by other strategists as well. For example, Liddle Hart defined strategy as “the art of distributing and applying military means to fulfill ends of policy[3],”and Hedley Bull considered strategy as “shaping means so as to promote ends in any field of conflict[4].” Barry Posen focuses on the interaction between means and ends instead of on one as the cause of the other. He defines strategy as a “chain of political ends and military means[5].”Hence weapon acquisition could be considered a political as well as a military instrument to achieve victory in war and to maintain security in peacetime. By this account, the acquisition of WMDs could be understood as the response of a state’s military policies

to these two aims. Accordingly, a state’s decision for weapon acquisition could be examined in terms of means and ends. Means encompass the tactical utility of a weapon in case of a probable war, and ends embody the strategic utility of a weapon during both war and peacetime. These two tactical and strategic concepts of the utility of WMDs are developed in this study to illuminate the appropriateness of WMDs for the Iranian Army.

2. Tactical Utility of WMDs for Iran

On the tactical level, three characteristics can help to determine Iran’s disposition toward the acquisition or rejection of WMDs. The first characteristic is whether the Iranian military currently possesses WMDs capability; the second is whether it has a mechanized army; and the third is whether the Iranian Army has developed an offensive or defensive military posture. This paper postulates that the closer the Iranian government is to possessing WMDs, the more mechanized its army, and the more offensive its military posture, the less likely it will be to reject WMDs.

2.1 IRANIAN WMDS CAPABILITY

To describe a country as a WMDs possessor means that the state has the capability of mass

producing, weaponizing, and applying lethal chemical or biological agents, or nuclear weapon grade material, in war. By this definition, Iran does not possess chemical, biological, or nuclear weapons.

wmd1

2.1.1 CHEMICAL WEAPONS CAPABILITY

Iraq’s use of chemical weapons against Iran and Iraqi-Kurdish citizens in the 1980s, which was not met with serious international opprobrium, provided sufficient reason for Iran to research, produce, and develop lethal chemical agents for military application, at least for the period of the armed conflict. Despite such a volatile history, Iran did sign the Chemical Weapons Convention (CWC) on January 13, 1993, the first day that it was open for signature, and it ratified the Convention on November 3, 1997. The CWC entered into force for Iran on December 3, 1997[6].Iran has publicly acknowledged the existence of a chemical weapons program that was developed during the latter stages of the 1980 to 1988 war with Iraq. On ratifying the CWC, Iran opened its facilities to international inspection and confirmed that all its chemical weapons activities had been terminated and the facilities destroyed prior to the treaty’s entry into force. The CWC utilizes three different verification systems: routine

inspection, challenge inspection, and clarification on State declarations. Since 1999 the Organisation for the Prohibition of Chemical Weapons (OPCW) has conducted scores of routine inspections in Iran, and to date no state has chosen to activate the challenge inspection provisions against Iran. There is only one report that the United States and Britain called for a challenge inspection to question Iran’s initial declaration[7],but this was resolved by a clarification from Iran.

Iran’s capability in chemical technology and material originated in old chemical industries, such as the Abadan refinery, the first of its kind in the Middle East. A more recent example is Pars Chlorine, a large factory in the north of Iran, which has the technological capability to produce dual-use chemicals. Pars Chlorine started operation in the city of Tabriz on November 22, 1998, with an export capability of two million U.S. dollars. The factory produces various chemicals, such as liquid chlorine, caustic soda, and chlorine acid, which are mainly used in water chlorination, detergents, paper mills, soap, and glass manufacturing[8]. There is sufficient domestic peaceful use for these products in Iran, and the Iranian general balance of trade does not show a significant change in export or import of chemical agents by which one could deduce that Iran is covering up chemical weapons production[9].

Iranian pursuit of chemical weapons defence has a long history. Between the years 1955 and 1960, eleven Iranian officers attended U.S. Army chemical and biological weapons (CBW) training courses to prepare for chemical weapons defence, given the probability of a Soviet chemical attack[10]. In April 1988, the Yasa Factory of the National Industries Organization began producing gas masks, initially in limited numbers, and a new area decontamination system known as Deraksh-6 was introduced at the same time[11].11 These preparations provided Iran with sufficient defensive power against chemical weapon attacks in any future war. Although Iran did develop the know-how for mass production of chemical weapons and is prepared for chemical weapons defence operations, it is not currently in possession of chemical weapons, and is therefore considered a non-possessor in this study.

2.1.2 BIOLOGICAL WEAPONS CAPABILITY

The Central Intelligence Agency believes that “Iran probably has the capability to produce at least small quantities of BW [biological warfare] agents[12].”The U.S. Office of the Director of National Intelligence’s (ODNI’s) January 1 to December 31, 2006, report to Congress, addressing Iranian biological warfare programs, stated that “Iran probably has the capability to produce large-quantities of some Biological Warfare (BW) agents for offensive purposes, if it made the decision to do so[13].”The 2010 ODNI report changed its 2006 assertion, however, assessing that “Iran probably has the capability to produce some biological warfare (BW) agents for offensive purposes, if it made the decision to do so.” This qualified assessment could be interpreted as an indication that “U.S intelligence probably does not have evidence of any current Iranian BW program[14].”

Allegations made by Iranian opposition groups regarding Iranian biological warfare programs have never been substantiated, but the level of techniques utilized by Iranian institutes speaks for itself. Iran’s high level of technology and experience suggests that, although Iran has not yet realized an offensive biological weapons program, it has the capability should it decide to do so[15]. The fact is that Iran did accede to the Geneva Protocol in 1929 and ratify the Biological and Toxin Weapons Convention (BTWC) in 1973, and it has actively participated in all subsequent negotiations to develop the Convention. In 1998 Iran hosted a trial inspection visit of the Razi Institute, the biggest institute of its kind in the country, on behalf of the BTWC[16].

2.1.3 NUCLEAR WEAPONS CAPABILITY

The issue of Iran’s nuclear weapons capability is more complicated and more sensitive than its chemical and biological capabilities, thus it absorbs a great deal of international diplomatic and academic attention[17]. Iran and the International Atomic Energy Agency (IAEA) entered into an agreement for the application of safeguards in connection with the Treaty on the Nonproliferation of Nuclear Weapons. The agreement was entered into force on May 15, 1974, after being circulated by the IAEA on December 13, 1974[18].18 The IAEA’s most comprehensive report, however, in November 2011, expressed its “serious concerns regarding possible military dimensions to Iran’s nuclear programme[19].”19 These concerns were not actually new but were rooted in earlier reports confirming Iran’s failure in a number of instances over an extended period of time to meet its obligations under its Safeguards Agreement, with respect to the reporting of nuclear material; its processing and its

use; and the declaration of facilities where such material has been processed and stored. The same controversial 2011 report, however, as well as a few reports in 2012, detracted from the above concerns by conveying that “the Agency continues to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs [locations outside of the facilities] declared by Iran under its Safeguards Agreement[20].”

Meanwhile, past estimates about when Iran might be able to produce a nuclear weapon have been proven unreliable[21]. In 2011 Director of the IISS Non-Proliferation and Disarmament Programme Mark Fitzpatrick concluded that, if Iran uses all its centrifuges at Natanz for weapons purposes, and if these centrifuges can continue to perform at their maximum output, then “a little over a year and seven months would be required for the first bomb’s worth of HEU [highly-enriched uranium][22].” Fitzpatrick concluded in an October 2011 report that “[w]e can have high confidence that Iran does not today have a nuclear weapon and that it won’t have one…a year from now,” but he confirmed in the same report that “I have no confidence that Iran won’t have a nuclear weapon two years from now. If they wanted to go for it and if everything went right[23].”This assessment does not take into account the time needed for the weaponization of the HEU or the gap between a nuclear explosive

device and a deliverable weapon. If we also consider the estimation of outgoing Mossad Director Meir Dagan, that “Iran will not have a nuclear bomb earlier than 2015[24],”the unreliability of current forecasts would be doubled.

Joseph Cirincione discusses five factors that are drivers or barriers for nuclear proliferation, namely (1) national security enhancement; (2) symbolic value of prestige; (3) domestic politics of three musketeers associating soldier, scientist, and political leadership ; (4) technology to maintain scientific achievements; and (5) economics that is commonly shared by the other four dynamics[25]. Cirincione believes that, of these five dynamics for proliferation, security is the most relevant factor for Iran, given Iran’s peripheral stance that it would have much to gain and little to lose, while the other elements play minor roles. Nuclear weapons are non-prestigious to Iran because Iran has identified itself as being against proliferation in many regional and international conferences, and it has gained much prestige for its anti-proliferation disposition.

Domestically, harmony between military and scientific bureaucrats in exaggerating unsubstantiated security threats and/ or overstating the utilities of nuclear weapons may not be sufficient to convince Iran’s theological leadership, who declared WMDs a religiously forbidden (haraam) class of weapons[26]. Technologically, the case of Iraq proved that developing countries are vulnerable to a “technology-denial strategy.” In fact, the combination of sanctions and UN inspections crippled Iraq’s nuclear project[27]. Nuclear weapons are neither economically reasonable nor could they be substitutes for conventional weapons[28]. Each class of weapons is designed for a particular mission and function, thus a WMD cannot replace conventional weapons, nor can it compensate for any weaknesses in conventional arms.

Finally, could nuclear weapons be an ultimate security guarantor against an existential threat to the Islamic Republic of Iran? Does any existential enmity exist around Iran to threaten its core and principal security interests? The second part of this study examines the background of the enmity and the regional conflicts surrounding Iran. It deduces that, after the fall of Saddam Hussein in Iraq, there has been no core security threat near Iran that is likely to necessitate the use of WMDs. Thus, a security model could not be applied to gain support for Iran acquiring nuclear weapons. Two classic cases that appear similar to Iran, South Africa during apartheid and Israel, are rejected because the Cold War has ended and the threats surrounding Iran are non-existential.

It is questionable, however, why the Islamic Republic decided to secretly pursue its enrichment program in the mid-1980s, in the middle of the war with Iraq. The Iranian concealment policy and its safeguard failures could be explained on two accounts: (1) technological discriminatory restrains; and (2) Saddam’s WMD preparation. Iran’s decision was in part a response to the explicit technological discrimination envisaged in the Western countries’ policy of refusing Iran technological access, and to the Western countries’ self-assigned role of denying Iran its legal rights under the NPT to access the peaceful uses of nuclear technology. In addition, Iraq’s application of WMD against not only military targets but also civilians during the Iran-Iraq War left Iran with no choice but to engage in preliminary phases of enrichment, far short of a nuclear deterrence, to discourage such

a belligerent enemy from entering into a mutually expensive nuclear arms race. The multifaceted capability of Iraqi preparation for nuclear, chemical, and biological weapons was revealed after Iraq’s first defeat in 1991, but secret reports of its activities were circulated to Iranian services much earlier through Iraqi oppositionists living in Iran during the war. Those reports of Iraqi WMD activities and actual use of chemical weapons substantiated a real threat to Iranian security until the collapse of Saddam’s regime. Hence, mutual understanding between Iran and the IAEA regarding past Iraqi threats, as well as a discussion of technological discriminatory restraints, formed the cornerstone of their agreement in 2003 to initiate corrective measurements to resolve past issues.

The IAEA report on Iran, published August 30, 2012, confirmed that Iran has increased its production of twenty-percent-enriched uranium, and it has doubled the number of centrifuges it has installed (without feeding uranium hexafluoride [UF6] to start working) at the Fordow underground site. It was also revealed, however, that Iran had converted about half of its twentypercent- enriched uranium into fuel plates for a small research reactor in Tehran[29]. Iran’s decision to convert so much of its twenty-percent-enriched uranium into fuel plates makes it very difficult to reconvert the uranium back again to be used in weapons application, and thus moves Iran further away from a weapon capability.

Despite many speculations that Iran is looking for nuclear weapons, the country is a member of the NPT and has repeatedly denied any intention of acquiring nuclear weapons. It has, however, long been involved in developing nuclear technology. Thus, if Iran decides to produce a nuclear explosive device, there is an embryonic capability to do so in a certain period of time, albeit under harsh and risky international, as well as regional, circumstances.

2.2 A MECHANIZED OR NON-MECHANIZED ARMY

The second major characteristic to consider in determining Iran’s disposition toward the acquisition of weapons of mass destruction is whether it has a mechanized or a non-mechanized (infantry-based) army. The infantry-based force differs from the mechanized-based army primarily in terms of size, technological level, and the ability to integrate arms into operations[30].

Infantry-based forces have some armor, but they rely on dismounted or motorized infantry for the bulk of their combat power. At the most, they conduct set-piece operations, integrating arms at the tactical level. There is a significant change in the outcome of a mass destructive war depending on whether an army is mechanized. Mechanized armies have two advantages over non-mechanized armies in such wars. First, a mechanized army has a greater maneuvering capability and greater speed, which will help to minimize the effects of WMDs in combat. Second, armored vehicles are sealed to be resistant to a WMDs attack’s side-effects, such as nuclear heat and radiation orbiological and chemical contamination.

To define an army as mechanized, the percentage of armored vehicles could be considered a crucial element. According to U.S. military authorities, “Mechanized-based armies normally mount at least 40 percent of their ground forces in armored vehicles[31]”.

Thus, one way to assess whether an army is mechanized or non-mechanized is to divide the total active military personnel of the army by the number of its armored vehicles to determine the quantitative ratio of the personnel to the mechanized power of the army. The bigger this number, the less mechanized an army.

With 523,000 active military personnel, Iran has the most populous army of the Persian Gulf region. But this large manpower is not matched by a proportionate number of armored vehicles. The total number of military armored vehicles in the Iranian Army, according to the Military Balance for 2011, is approximately 2,978[32].Thus, there are only 5.7 armored vehicles for every 1,000 active military personnel (including the army, navy and air force). This ratio is 27.6 per 1,000 for Saudi Arabia and 81.5 per 1,000 for Israel. Table 2 shows the ratios across the Persian Gulf[33].

wmd2

Iranian efforts to build up a mechanized army have made slow progress since the end of the war with Iraq given financial problems, foreign restrictions, and above all, the state’s lack of an urgent objective to enlarge the mechanized echelon of the army.

Still, it is not sufficient to count main battle tanks and armored personnel carriers to judge whether an army is mechanized. At least two qualitative elements should be added to the quantitative analysis: (1) the power of mobilization or maneuverability; and (2) organizational coordination[34].In determining the mobilization power of a mechanized army, logistics can produce qualitative improvements in military effectiveness. The organizational effectiveness of an army can be explained as the coordination between the different arms of a force, not only between ground forces, but also between the army, the air force, and other participants in an operation.

The qualitative shortfall of the Iranian Army to provide a professional mechanized force could be traced to its logistical and coordination problems, which have historic and social roots. Iran’s modern army is almost eighty-five years old, and its official formation dates back to the first conscript army in 1926, which came after a controversial approval by the parliament under the direct influence and insistence of Reza Shah Pahlavi[35]. The logistical problems of the Iranian Army did not begin with the revolution. Two determinant factors were in place before 1979, and they have not yet been resolved. The first is the diversification of military purchases, and the second is the lack of a united military command, even at the regional level. By 1979 Iran had military procurement contracts with thirty-three nations[36]. It is almost impossible to prepare the logistics necessary for such a diversified army in a war for an extended period of time.

Even before 1979, the Iranian Army’s lack of unified command was represented in its regional divisions’ separate operational and logistics commands. Although regionally organized, military units were not concentrated, and their operational and logistics commands reported separately to Tehran[37]. The political reasoning behind these military decisions was to avoid a power base that might attempt a coup. This prevented military divisions from achieving rapid action and organizational mobilization, and thus loosened the basic infrastructure necessary for the operation of a mechanized army.

Since the Islamic Revolution of 1979, another military division has grown: the Islamic Revolutionary Guard Corps (IRGC), or Sepah Pasdaran Enghelab Islami. The IRGC competes with the national army in terms of allocation of resources and loyalty to the regime. In 2005 a new doctrine was introduced to the Iranian Army, namely the mosaic defense, which was designed to overhaul the command-and-control structure of the IRGC’s land forces, increasing their independence and flexibility in responding to local events. This new doctrine, while helpful in defensive operations, may not succeed in offensive operations, because of both insufficient power projection capability and institutional and bureaucratic differentiations between the IRGC and the regular national army[38]. The duality in the armies of one state decreases the effectiveness of the whole army and divides material units, command, and communication into two groups of independent, parallel players. Therefore, because of its low number of armored vehicles; its thin logistical preparation; and its lack of effective communication, control, command, and military coordination to sustain a massive offensive operation, the Iranian Army is non-mechanized.

wmd3

2.3 MILITARY POSTURE

Finally, the importance of WMDs for an army can be determined by its military posture. WMDs are primarily used as offensive weapons because of their surprise effect. They are, therefore, well suited to an army with an offensive military posture. Each military posture necessitates specific, measurable preparations and capabilities. A country with a defensive military posture does not want to start a WMDs war because it would not be prepared for such a war. In broad terms, a state’s military posture includes force structure and operational strategy, and it can be determined by examining four factors: geography, military technology, economy, and politics. The Iranian military posture is defensive in each of these regards.

Geographical conditions compose the strategic depth of a state. Iran, with over 75 million inhabitants populated across 1.64 million square kilometers of uneven land, has enough natural and human resources that its national security could be better served by resorting to a defensive military posture.

wmd4

 

Technological improvements and their military usage can result in the destruction of enemies at much greater distances and with much greater accuracy. Information technology, particularly in satellite command and control, could diminish the strategic value of land. Any such decreases could increase the probability of preemptive, and thus offensive, considerations in the military posture of a state. Yet modern military equipment and its related technology are imported commodities in Iran. The Western boycott of military technology and equipment to Iran has diminished its technological improvements, particularly in the high-tech military industry and modern warfare. These restrains have pushed Iran’s military thinkers to rely on their own capabilities, which were modest at best during wartime and highly protracted afterward. This is particularly true with regard to more complicated technologies. Achievements have primarily been in less complicated weapon systems, such as small arms and light weapons, mortars, ammunitions, and light army personnel carriers. According to The Military Balance, “neither the IRGC nor Artesh (national army) is sufficiently well organized, equipped or trained to conduct sustained battle beyond Iran’s borders[39].”

Economic conditions can also act as a barrier to an offensive military posture, given the cost of keeping a military force in an alert position. Offensive forces, in comparison with defensive ones, should be greater in number and have better training and equipment to perform successful operations, which makes the whole process an expensive one. Thus, financial problems may motivate a state to take a defensive military posture. Comprehensive sanctions by the UN Security Council and even more severe unilateral sanctions by the United States and the European Union, which most recently extended to the financial transactions of the Central Bank of Iran, have highly affected Iran’s economy, to the extent that the country cannot even realize the benefits from its high rate of oil exports and the surplus made in relation to its imports. The high percentage of the annual inflation rate, in addition to economic stagnation and diminishing economic growth from 7.5 percent in 2002 to 5.1 percent in 2004 and 1.8 percent in 2009, in the face of ever rising oil prices, has held the whole economy of Iran in a futile situation[40]. Therefore, economic problems motivate Iran to take a defensive military posture.

Finally, political circumstances, which compel a country to take an offensive or a defensive military posture, have both internal and external origins. Internally, they could involve the revolutionary, ideological, and hegemonic expectations that a state promotes. External political conditions are based on the level of uncertainty a state is suffering from with regard to its surrounding neighbors or the international system. Internally, more than three decades of revolutionary life, hard economic conditions afterward, and internal factional rivalry, particularly after the 2009 presidential election, have led to restraint in the idea of exporting the Islamic Revolution. Iran’s revolutionary and ideological self-expectations are now practically limited to its national boundaries[41].

It is arguable that Iranian support for the Shiite Hezbollah and Sunni Hamas groups against Israeli occupational forces represents an offensive military posture beyond Iranian borders. This support, however, demonstrates a religious commitment, and it is more support for a global Islamic idea than for an Iranian ideological policymaking that could instigate Israeli antagonism. The fact that the Organization of Islamic Cooperation (OIC), the second largest intergovernmental organization after the United Nations, with membership from fifty-sevenstates spread over four continents, was established in 1969, only after the arson of al-Aqsa Mosque in occupied Jerusalem, speaks for itself[42].42 The majority of resolutions approved by this organization are about Palestine. Each year, the OIC special committee of Palestine confirms all the resolutions in three areas: (1) the “question of Palestine”; (2) “AlQuds” (the Arabic term for Jerusalem); and (3) the “Arab-Israeli conflict” adopted by the Islamic conferences and AlQuds Committee. It also reaffirms the centrality of Palestine’s cause for the whole Islamic community (literally named as Ummah)[43]. Beyond any ideological difficulty, the fact that Iran does not share a border with Israel changes the nature of their hostility into a proxy war at most, far from their core security interests.

After the occupation of Iraq and the formation of a new, friendly government with a Shiite majority in power, the major threat of Iraq to Iran has been sharply diminished. The U.S. presence at both the eastern and western borders of Iran could be considered a new threat, of course, but this is a temporary situation that will change over time. In addition, both Iran and the United States share the interest of keeping current administrations in Iraq and Afghanistan stable, under their influence, and working properly—at least until they have better alternatives. Iran, therefore, has no pressing reasons to feel that its national security is threatened by its current neighbors.

Iran is unwilling to use WMDs as a strategic deterrent because this would entail costs similar to an offensive doctrine, including heavy costs for preliminary requirements, extensive material preparations, and participation in arms races,. It would also go beyond Iran’s natural position, which is based on denying any war objectives against its core security interests. While offensive doctrine aims to disarm an adversary by destroying its armed forces, defensive doctrine sets its sights on denying an adversary’s probable war objectives. Deterrent doctrine aims to punish an aggressor and to raise their costs without reducing one’s own, thus encompassing the main characteristics of “denial” and “retaliation” of both defensive and offensive doctrines[44].As a result, a deterrent doctrine is considered to have the same effect and to need the same preparations as an offensive doctrine. Offensive and deterrent doctrines increase the probability and intensity of arm races because they create the logic of a preemptive attack[45].Defensive doctrine, by contrast, produces fewer such destabilizing effects. Iran would therefore be better off with a defensive military posture.

wmd5

3. The Strategic Utility of WMDs for Iran

The strategic utility of WMDs is not in the military field, but against urban-industrial centers to trigger a collapse on the enemy’s “home front[46].”Thus, the strategic utility of WMDs could be analyzed in two specific ways: the preparation for a mass destructive capability, and the core aggressive or protective security interests that could lead to such massive destruction. It is postulated that, to the extent that Iran’s mass destructive power is based more on WMDs than on conventional weapons, and to the extent that its core security interests are more aggressive than protective, it is less likely to abandon its pursuit of weapons of mass destruction. Thus, Iran’s mass destructive capability could be analyzed based on its preparation for applying WMDs or on its conventional substitutions. These conventional substitutions could utilize high-explosive ammunition, and their delivery systems could consist of ballistic missiles and air strategic bombers. The next step is to study the background of enmity in the region to determine whether Iran is likely to require weapons of mass destruction to advance a core security interest. The background of enmity involves the history of regional conflicts, which affect the national security of a state. Core security interests can be classified as protective or aggressive. Protective security interests are those national security issues that must be protected to avoid a core security threat to the state (e.g., the territorial integrity of a state). Aggressive security interests are those that can push a state to threaten a core security interest of another state.

3.1 IRAN’S CONVENTIONAL MASS DESTRUCTIVE CAPABILITY

Conventional high-explosive ammunitions could be considered to have massive destructive capabilities when delivered to crowded urban areas. Thus, the analysis of Iranian conventional mass destructive capability includes ballistic missiles and combat aircraft. Iran has a number of mediumand short-range ballistic missiles. The short-range ballistic missiles are mostly developed internally. More important to this study is Iran’s improving medium-range missile capability, which includes Scud B and C; Shahab 1, 2, and 3; Ghadr 1; and Sejjil 2 missiles. The Military Balance reported in 2005, and again in 2011, that Iran has about 18 Scud B/C launchers, with 200 to 300 surface-tosurface Scud B/C missiles; and 30 CSS-8 launchers, with 175 tactical missiles[47].Scud B missiles, particularly the North Korean made, have a 320 to 340 kilometer (km) range and a 1,000 kilogram (kg) payload. Scud C with a half payload has a 500 to 600 km range[48].

Shahab is a liquid propellant missile system that was indigenously developed. Shahab 1 and 2 are reverse-engineered copies of Scud B and Scud C. They are therefore included in the above estimate of Iran’s Scud missiles inventory. Shahab 3 is a modified No-dong North Korean system with a 1,300–1,500 km range and 760–1,100 kg warhead, and Iran is likely capable of deploying a single battalion consisting of 6 launchers and 24 missiles in the field. Therefore, as Gary Samore confirmed, it seems that Iran has established a technologically advanced ballistic missile program, which suggests that Iran intends to rely on missiles as long-range strike capabilities[49]. Two other long-range missiles under development by Iran are Ghadr 1 and Sejjil 2, which are supposed to be launched by the same 6 launchers as the Shahab 3[50]. The Sejjile 2, with a 2,200 to 2,400 km range, is the longest range solid-fuel missile under development. Despite success in its flight test, the Sejjile 2 is still a couple of years and several tests away from becoming operational[51]. From a military perspective, the utility of Iran’s missile strike would be severely limited by its poor accuracy; hence, without a high casualty rate, it could not be applied against critical military activities in the field, or even against the enemy’s cities and economic industrial complexes[52]. It is thus questionable why Iran has developed its ballistic missile program to such an extent, given that it is too inaccurate to use effectively with any conventional explosives.

The Iranian missile program has a history that makes it a legitimate conventional program, despite its shortcomings and unreliability as a system. Historically, the Iranian missile program is a remnant of two events during the 1980–88 war: the Iraqi use of Scud missiles against Iranian cities; and the U.S. military arms embargo. First, the Iranian air defense establishment had the ability to intercept planes and siren their imminent attack to the cities; long range-missiles, however, could escape short range interception. Hence, during the war, missiles had an effect like a surprise, large-scale terrorist attack against the Iranian home front. Second, the existing U.S. arms embargo on complicated arms, including U.S. fighter jets and long-range missiles, left Iran empty handed and unable to respond in kind to the Iraqi missile attack. The Iranian indigenous missile industry was therefore established in response to a real threat in kind from Iraq. Although the program was formed only later in the war, and in much more limited scope and numbers than Iraq’s program, the continuation of the U.S. ban on Iranian military imports provided enough reasons to continue its development.

Another point to consider is the crosswise gap between Iran’s furthest points in the northwest and the southeast, which is longer than the range of any Iranian missiles. Iran’s diagonal distance from the Azerbaijan Province in the northwest to the Sisstan Province in the southeast is approximately 2,333 km[53]. Such a long distance could provide a militarily convincing reason, based on defensive rationality, for the high range of Iran’s missile capability.

Combat aircraft, which are normally equipped to deliver ordnance in air-to-air or air-to-surface operations, include Fighter Aircraft (FTR) and Fighter Ground Attack (FGA). FTR is specified for aerial, while FGA is a dual-capable aircraft fighter, reconnaissance, and even bomber. Thus, FGA is more suitable for mass destruction. Iran has 108 FGA, including 65 F-4D/ E Phantom II; 30 Su-24MK; 7 Su-25K; and 10 Mirage F-1E (including former Iraqi fighters); and up to 3 Saegheh indigenously developed FGA[54]. A long-range bomber must have an unrefueled radius of action of greater than 5,000 km; medium range, 1,000-5,000 km; and short-range, less than 1,000 km. Light bombers are those with a payload of under 10,000 kg[55]. By this definition, all Iranian bombers can be classified as short-range light bombers. Iran therefore has a limited number of missiles with a range of up to 600 km, and a few more missiles with a range of up to 1,300 km; it also has short range aircraft bombers with less than a 1,000 km combat radius, which gives it a limited capacity for conventional mass destruction. Thus, the Iranian Army could be considered regionally to have a limited massive destructive capability, given its conventional capability.

wmd6

 

3.2 IRAN’S CORE SECURITY INTERESTS AND THE HISTORY OF REGIONAL ENMITY

Does a major enough threat or background of enmity exist between Iran and its rival neighbors to accelerate the probability of the use of weapons of mass destruction? The background of enmity in the region should be assessed to explain the regional conflicts that could have an effect on the national security of Iran. As many experts have observed, Iran’s security environment has improved dramatically over the past decade, with the neutralization of its two greatest external threats: Saddam Hussein’s Ba’athist regime in Iraq; and the Taliban in Afghanistan[56].The elimination of Tehran’s traditional security threats does not mean that Iran has stable relationships with its neighbors across the board, but they have not yet threatened its homeland and core national security interests. In the meantime, there are other possible reasons why Iran would be in need of a strategic deterrent as a basic insurance policy, including variables such as the presence of U.S. forces on both Iran’s western and eastern borders, representing a hostile and nuclear-armed superpower; a history of enmity with neighboring Iraq, which has harbored ambitions of nuclear WMD attacks in the region; and the surrounding presence of other nuclear-armed states, including Russia and Pakistan.

Although the presence of U.S. military forces in Iraq, Afghanistan, and the Persian Gulf presents new challenges, it has a temporary nature and is not threatening to the territorial integrity of Iran. The professional behavior of the Iranian and U.S. Navies in the Persian Gulf over the last two decades exemplifies the possibility of harmony and even cooperation in harsh situations such as fighting piracy and responding to natural sea disasters.

Other than the two World Wars, Iran has faced a military threat to its national security only twice during the twentieth century, namely the Soviet occupation of the north-western part of the Iranian Azerbaijan Province; and the war with Iraq. In the first incident, Soviet troops supported the call for the separation and independence of Iranian Azerbaijan and its unification with the Republic of the Soviet Azerbaijan in the aftermath of World War II . Although this was solved diplomatically, the incident left a legacy of ambition for the unification of a greater Azerbaijan that would include several Iranian provinces and one of the Soviet republics in the region. Following the disintegration of the Soviet Union, Iran has developed good relationships with the three new republics of Armenia, Azerbaijan, and Turkmenistan in bilateral as well as regional agreements, such as the Economic Cooperation Organization. In addition, the political and military weaknesses of these republics, along with the cooperative bilateral relationship between Iran and Russia, prevent these newly emerged states—Azerbaijan in particular—from making any boundary claims against Iran. Moreover, Iran plays a balancer role in relation to these republics, maintaining peace and preventing one from gaining superiority over the others.

The second threat was the Iraq-Iran border disputes and clashes. Iraqi claims over the boundary river of Arvand, or Shatt al-Arab, have led to fighting between the two countries on three occasions. There were two minor conflicts before the Islamic Revolution and one major war from 1980 to 1988. The two minor conflicts concluded with the Algeria Agreement in 1975, and the major one ended after the Iraqi invasion of Kuwait in 1990. The U.S. occupation of Iraq in 2003, which led to the removal of Iraq’s anti-Iran Ba’athist regime and the instatement of a friendly regime with a majority Shiite sector in power, further reduced Iraq’s threat to Iran.

Two other threats to the national security of Iran are: (1) Iran’s rivalry with Pakistan over Afghanistan; and (2) its dispute with Sharjah, one of the seven Sheikhdoms of the United Arab Emirates (UAE), regarding the sovereignty of Iran over three islands in the Persian Gulf. The difficult situation in Afghanistan involves not only the remnants of Taliban and al-Qaida, but also narcotics and well-organized gangs. Illegal operations have already corrupted part of the Afghan administration, particularly in the provinces farthest from Kabul. It is estimated that about 2,000 illegal armed groups operate throughout the country[57].They are heavily engaged in the narcotics trade, which threatens the security and the stability of Afghan society and of its neighbors—Iran in particular—to the extent that “criminality is probably a more serious threat than terrorism[58].”

The rivalry between Iran and Pakistan in Afghanistan has not been a core security threat for either country, more closely resembling a proxy war far removed from the heartlands of the two countries. Traditionally, Iran has sympathized with the Shiite minority, Tajikistan has supported the Tajik minority, and Pakistan has supported the Sunni Pashtoon minority. In the meantime, the gradual reduction of U.S. and European NATO troops, and their replacement with the Afghan National Army, diminishes the U.S. threat to Iran, while increasing Iran’s responsibility as a major player in the security of the region. Since the defeat of the Taliban, Iran has actively participated in the reconstruction process of Afghanistan, and it is among the biggest donors. By contrast, Pakistan has lost the majority of its influence. The nature of threat coming from Afghanistan has therefore witnessed a major shift from military-political to a softer social threat.

The acquisition of nuclear weapons is not, in fact, a matter of national security for Iran. “Nuclear weapons for Iran are not critically vital as they are for Pakistan in relation to its more populous and stronger rival, India, or for India in relation to China and their rival global context[59].” With the destruction of the Iraqi mass destructive capability, Iran is left with no rivals among its neighbours that possess a similar capability, with the exception of Pakistan. Pakistan is not considered a critical threat, however, because of Iran’s support for Pakistan in its dispute with India over Kashmir, as well as the old and profound friendly relationship between the two countries: Iran was the first country to recognize the independence of Pakistan and to militarily support it during its war with India; and Pakistan in turn supported Iran in its war with Iraq. In addition, there remains a large Shiite minority in Pakistan and, finally, one should not forget that the initial Iranian centrifuge technology and material was imported from Pakistan with the full knowledge of Pakistani military and intelligence.

One more minor dispute between Iran and its neighbors is with Sharjah, but this dispute has already shifted to a regional debate over Iranian sovereignty in the Persian Gulf. Iran followed a bilateral solution for Abu Musa and the two Tonbs, and signed a modus vivendi memorandum of understanding (MoU) with the ruler of Sharjah in 1971 for economic and security cooperation over Abu Musa[60]. The MoU ruled out the possibility of violent actions over Abu Musa by either side in the future. Support by the Gulf Cooperation Council (GCC) member states for the UAE’s sovereignty over all three islands, however, changed an ordinary bilateral debate into a regional discussion. Iran challenged the GCC support for the UAE by declaring a twelve-mile limit for its territorial water, which placed all three islands within the sovereignty of Iran[61]. These three islands represent a strategic concern for Iran because all of its crude oil is exported through the Persian Gulf and the straits of Hormuz—thus, these islands guarantee the safe passage of Iranian oil to the whole world. No other country on the Persian Gulf is in a similar position. By delivering the responsibility for the security of Abu Musa to Iran in the aftermath of the British evacuation, the MoU of 1971 indirectly recognized sovereignty of Iran over this island. The military presence of Iran in these islands is not a threat to the other Persian Gulf states, given the improbability of war. For all these reasons, Iran’s security interests are protective, not aggressive.

4. Conclusion and Policy Recommendations

Iran is a non-possessor of nuclear weapons and, despite its preparation for defense against chemical weapons and its procurement of the know-how for their mass production, it is also a non-possessor of chemical weapons. Iran has not exploited any offensive biological weapons program, although it has the capability to develop such a program if it so decides. The Iranian Army, because of its low number of armored vehicles, and also its logistical, communication, and command features, in comparison with its rival neighbors, is quantitatively and qualitatively a non-mechanized army organized according to a defensive military posture. In sum, Iran is unlikely to pursue the acquisition of nuclear weapons for the following reasons:

  • Iran would not be in a position to integrate WMD systems into its war-fighting doctrine, because Iran has not been preparing for the different aspects of a massive operation utilizing WMDs. Thus, they would not be tactically appropriate in a regional conflict.
  • The Iranian Army, because of its low number of armored vehicles and its logistical, communication, and command features, is both quantitatively and qualitatively a non-mechanized army organized according to a defensive military posture.
  • Iran’s security interests are protective, not aggressive, and its conventional destructive capability meets its core protective security interests without mass destructive weapons. Iran would not need strategic weapons to coerce adversaries or to pursue aggressive interests, because there are no such compelling interests within the core security interests of Iran.

Why, then, is Iran’s position regarding WMDs frequently distorted? Western countries’ discriminatory export control regimes over the last thirty years could be considered a main tactical explanation for Iran’s ostensible pursuit of mass destructive weapons. Long time regimes of export control and military embargoes, even on conventional weapons, which commenced long before the opening of the Iranian nuclear file, have had a boomerang effect. When added to the current mixture of unilateral, multinational, and international sanctions, it may explain the current stalemate in negotiations, Iran’s lack of trust of the P5+1 negotiation objectives, and the failure of the UN machinery to resolve this issue.

This paper offers three main policy recommendations to help resolve the current impasse in negotiations. First, the non-indigenous nature of the Iranian nuclear industry and its technological dependency on foreign suppliers suggest that possession of dual-use technology and materials is necessary but not sufficient for proliferation. This is because of Iran’s vulnerability to foreign supply for sensitive materials and technology. Thus, this technological dependency, in addition to the strict international supervision that Iran is under (such as the IAEA Safeguards and OPCW inspections), could be utilized interdependently in a balancing approach to manage Iran’s possession of dual use, but reasonably proliferation-free, technology. An intrusive system of tense and thorough observation by the international professional community could help to support this approach. The link between the promotional and regulatory aspects of a multilateral agreement on employing dual use technology may work as a means of crisis management through strict regulation and continuous supervision. It could be much more successful than current incremental sanctions that have entailed crisis augmentation.

Second, the P5+1 and the United States, in particular, should support Iran’s role as a balancer in the region. The non-adversarial and non-ideological nature of Iranian foreign policymaking in relation to its neighboring countries could make Iran a vital player in better stabilizing the region. Iranian behavior in the region shows a history of pacifism and problem solving. Take, for example, Iran’s tacit and indirect cooperation with the United States during the Afghanistan campaign against the Taliban; its calming and controlling of Shiite extremists in Iraq; its role as a middleman between Azerbaijan and Armenia; and its avoidance of radicalization on a range of regional issues, from Chechnya to the Bahrain uprisings. The professional behavior of the Iranian Navy and the U.S. Navy in the Persian Gulf over the last two decades is another example of the possibility for harmony and cooperation in the region.

Finally, the current U.S. policies of isolation, threats, sabotage, and sanctions have been applied and have proven to be unsuccessful in curbing the question of the Iranian nuclear file, or even in slowing down Iran’s mastery of nuclear enrichment. As Kenneth Katzman most recently reported to the U.S. Congress, “The principal objective of international sanctions—tocompel Iran to verifiably confine its nuclear program to purely peaceful uses—has not produced that outcome to date[62]”.It is therefore time to rethink the efficiency of the policy of coercion by testing an alternative, non-coercive policy. This includes respecting Iran’s legitimate technological and conventional defensive needs, and streamlining the current sanctions to avoid harming the Iranian economy as a whole, which only weakens and thins the middle class—the key sponsors of temperate policies in Iranian society and body politic—rather than curtailing suspicious nuclear activity in Iran. The non-coercive approach would be an opening to collaboration rather than to confrontation as a gradual, piecemeal, and reversible policy. Not only can it open breathing space for a constructive approach to break

the current stalemate, but by addressing legitimate concerns on both sides, it could initiate a move toward a more stable Persian Gulf through mutual understanding, cooperation, and trust.

 


[1] United Nations Office for Disarmament Affairs (UNODA), “Treaty on the Non-Proliferation of Nuclear

Weapons” (New York: UNODA), http://www.un.org/disarmament/WMD/Nuclear/NPTtext.shtml.

[2] Carl von Clausewitz, On War, Vol. 1, trans. J.J. Graham (London: Kegan Paul, 1911), p. 23.

[3] Barry Buzan, An Introduction to Strategic Studies: Military Technology and International Relations, (London:Macmillan, 1987), p. 3.

[4] Ibid., p. 3.

[5] Barry R. Posen, The Sources of Military Doctrine: France, Britain, and Germany between the World Wars (Ithaca, N.Y.: Cornell University Press, 1984), p. 25.

[6] See the Organisation for the Prohibition of Chemical Weapons, http://www.opcw.org/about-opcw/memberstates

[7] Gary Samore, Iran’s Strategic Weapons Programs: A Net Assessment (London: International Institute for Strategic Studies [IISS], 2005), p. 73.

[8] British Broadcasting Corporation, Summary of World Broadcasts, weekly report, MEW/0566 WME/[13], p. 4.

[9] International Trade Statistic Year Book 2002, Vol. 1(New York: UN Reproduction Section, 2004), pp. 489–493

[10] Gordon M. Burck and Charles C. Flowerree, International Handbook on Chemical Weapons Proliferation (Boulder, Colo.: Westview, 1991), p. 252.

[11] Ibid., p. 252.

[12] See: http://www.armscontrol.org/factsheets/iranprofile

[13] “Unclassified Report to Congress on the Acquisition of Technology Relating to Weapons of Mass Destruction and Advanced Conventional Munitions for the Period 1 January to 31 December 2006” (Washington, D.C.: Office of the Director of National Intelligence, 2008), p. 4, http://www.counterwmd.gov/files/Acquisition_Technology_Report_030308.pdf.

[14] »Unclassified Report to Congress on the Acquisition of Technology Relating to Weapons of Mass Destruction« and Advanced Conventional Munitions, Covering 1 January to 31 December 2010” (Washington, D.C.: Director

of National Intelligence), https://www.fas.org/irp/threat/wmd-acq2010.pdf. Cited in the Nuclear Threat Initiative’s (NTI’s) report on WMD in Iran, http://www.nti.org/country-profiles/iran/.

[15] For a detailed analysis, see Richard F. Pilch and Raymond A. Zilinskas, eds, Encyclopedia of Bioterrorism Defense (Hoboken, N.J.: Wiley-Liss, 2005), pp. 278–280.

[16] “Unclassified Report to Congress on the Acquisition of Technology Relating to Weapons of Mass Destruction and Advanced Conventional Munitions for the period 1 January to 31 December 2006,” http://www.counterwmd.gov/files/Acquisition_Technology_Report_030308.pdf.

[17] For a reliable account of reports, resolutions, and background facts and figures, see “IAEA & Iran,” http://www.

iaea.org/newscenter/focus/iaeairan/index.shtml. See also Bruno Pellaud, Negotiating with Iran: Testing Alternative Approaches, in Joachim Krause, ed., Iran’s Nuclear Programme: Strategic Implications (New York: Routledge, 2012), pp. 53–81.

[18] See the International Atomic Energy Agency (IAEA), “The Text of the Agreement between Iran and the Agency for the Application of Safeguards in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons,” INFCIRC/214 (Vienna: IAEA, December 1973), http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc214.pdf.

[19] See IAEA, “Implementation of the NPT Safeguards Agreement and relevant provisions of Security Council

resolutions in the Islamic Republic of Iran,” report by the director general of the IAEA to the boards of governors, GOV/2011/65 (Vienna: IAEA, November 8, 2011), par. 53,

http://www.iaea.org/Publications/Documents/Board/2011/gov2011-65.pdf.

[20] See ibid., par. 52.

[21] “Weapons Proliferation in the New World Order,” 102nd Congress, 2nd sess., January 1992, which concluded that Iran would have the bomb by 2000. Cited in Joseph Cirincione, Jon B.Wolfsthal, and Miriam Rajkumar, Deadly Arsenals, Nuclear, Biological, and Chemical Threats, 2nd ed. (Washington, D.C.: Carnegie Endowment for International Peace, 2005), pp. 295, 308.

[22] Mark Fitzpatrick, Iran’s Nuclear, Chemical, and Biological Capabilities: A Net Assessment, Executive Summary (London: IISS, February 3, 2011), http://www.iiss.org/publications/strategic-dossiers/irans-nuclear-chemical-andbiological-capabilities/.

[23] Ibid., Iran Nuclear Brief (London: The Arms Control Association, IISS, October 3, 2011), p.1.

[24] In his retirement speech to the Israeli Knesset Foreign Affairs and Defence Committee on January 7, 2011,

Mossad Chief Meir Dagan stated that Iran would not be able to produce a viable nuclear weapon before 2015. He elaborated that Iran is still far from being capable of producing nuclear weapons and that a series of malfunctions and failures have set the Iranian nuclear weapons program back by several years. Yossi Melman, “Outgoing Mossad Chief:Iran Won’t Have Nuclear Capability Before 2015,” Haaretz, January 7, 2011, http://www.haaretz.com/print-edition/news/outgoing-mossad-chief-iran-won-t-have-nuclear-capability-before-2015-1.335656.

[25] Joseph Cirincione, Bomb Scare: The History & Future of Nuclear Weapons (New York: Columbia University

Press, 2007), p. 47.

[26] “On numerous occasions, the Iranian people and government officials have announced that they do not seek

to develop nuclear weapons and that nuclear weapons have no place among the needs of the nation and the military system of the country. We believe that using nuclear weapons is haraam and prohibited and that it is everybody’s duty to make efforts to protect humanity against this great disaster. We believe that besides nuclear weapons, other types of weapons of mass destruction such as chemical and biological weapons also pose a serious threat to humanity The Iranian nation which is itself a victim of chemical weapons feels more than any other nation the danger that is caused by the production and stockpiling of such weapons and is prepared to make use of all its facilities to counter such threats.” The Center for Preserving and Publishing the Works of Grand Ayatollah Sayyid Ali Khamenei, “The Supreme Leader’s View of Nuclear Energy,” April 13, 2011, http://english.khamenei.ir//index.php?option=com_content&task=view&id=1442&Itemid=13.

[27] Cirincione, Bomb Scare, p. 75.

[28] Ibid., p. 77.

[29] See “Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran,” GOV/2012/37 (Vienna: IAEA, August 30, 2012), par. 23–25, 37, http://www.iaea.org/Publications/Documents/Board/2012/gov2012-37.pdf.

[30] Armor- and Mechanized-Based Opposing Force: Organization Guide, Field Manual Headquarters, No. 100-

60 (Washington, D.C.: Department of the Army, July 16, 1997), p. iv, http://www.fas.org/man/dod-101/sys/land/

row/100-60.pdf.

[31] Ibid., p. iii.

[32] IISS, The Military Balance, 2011 (London: IISS, 2011), p. 309.

[33] Information for this chart extracted from ibid.

[34] See John Chipman and Sidney Bearman, Strategic Survey, 1995–1996 (London: IISS, 1996), p. 30.

[35] Stephanie Cronin, “Conscription and Popular Resistance in Iran, 1925–1941,” International Review of Social

History, Vol. 43, No. 3 (December 1998), pp. 451–471, http://journals.cambridge.org/action/displayFulltext?type=1&fid=69726&jid=ISH&volumeId=43&issueId=03&aid=69725.

[36] Richard A. Gabriel, ed., Fighting Armies: Antagonists in the Middle East: A Combat Assessment (London: Greenwood, 1983), p. 99.

[37] Ibid, pp. 97–99.

[38] IISS, The Military Balance, 2011, p. 297.

[39] Ibid, p. 298.

[40] The Economist Intelligence Unit (EIU), “Country Report: Iran, March 2005” (London: EIU, 2005), pp. 27, 30. See also World Bank Statistics, “Iran, Islamic Rep. at a Glance” (Washington, D.C.: The World Bank, March 29, 2012), http://devdata.worldbank.org/AAG/irn_aag.pdf.

[41] Anthony H. Cordesman, Iran’s Developing Military Capabilities, draft report on CD (Washington, D.C.: Center for Strategic and International Studies, December 14, 2004), p. 2.

[42] See the official site of the Organisation of Islamic Cooperation (OIC), http://www.oic-oci.org/.

[43] See Annual Ministerial Sessions reports See also “Report of the Meeting of the OIC Six-Member Committee on Palestine Submitted to the Annual Coordination Meeting of Foreign Ministers of OIC Member States” (New York: United Nations, September 28, 2012), http://www.oic-oci.org/english/conf/fm/acm2012/REP-PALESTINE-ENGLISH.pdf.

[44] Barry Posen’s definition of offensive, defensive, and deterrent military doctrines may help us to identify the particular task of weapons in each military doctrine. See Posen, The Sources of Military Doctrine, pp. 14–16.

[45] On the logic of pre-emptive attack in a nuclear war, see: Bruce G. Blair, The Logic of Accidental Nuclear War

[46] The concept of targeting weapons of mass destruction on urban-industrial centers originates from the development of air power theory in the 1920s and the 1930s and the strategic bombing campaigns of World War II. One of the leading air-power strategists was Giulio Douhet, who believed that bombing could be used directly against an enemy’s industrial, commercial, transportation, and civil population. See Jeffrey Legro, Cooperation under Fire: Anglo-German Restraint During World War II (Ithaca, N.Y.: Cornell University Press, 1995), p. 100. See also Theo Farrell and Helene Lambert, “Constructing Nuclear Use: Deterrence Norms and International Law in State Practice,” paper presented at the ECPR-ISA Joint Conference, Vienna, Austria, September 16–20, 1998.

[47] See IISS, The Military Balance, 2004-2005 (London: IISS, 2005), p. 124; and IISS, The Military Balance, 2011, pp. 309–310.

[48] Martin S. Navias, Going Ballistic: The Build up of Missiles in the Middle East (London: Brassey’s, 1993), pp. 20, 24.

[49] Samore, Iran’s Strategic Weapons Programs, pp. 89–105.

[50] IISS, The Military Balance, 2011, p. 310.

[51] Fitzpatrick, Iran’s Ballistic Missile Capabilities, p. 61.

[52] Ibid., pp. 132–133.

[53] See Helen Chapin Metz, ed., “Iran: A Country Study,” December, 1987, http://www.country-data.com/cgi-bin/query/r-6398.html. 54

[54] IISS, The Military Balance, 2011, p. 311.

[55] For detailed specification of the combat aircraft, see Gordon M. Burck and Charles C. Flowerree, International Handbook On Chemical Weapons Proliferation (Boulder, Colo.: Westview, 1991), pp. 508–509 table 9.1.

[56]IISS, The Military Balance, 2011, p. 296.

[57] Isobelle Jaques, Afghanistan: Beyond Bonn (Steyning, U.K.: Wilton Park, May 2005), p.16.

[58] Ben Smith, Afghanistan Where Are We? Central Asian Series, No. 05/30 (Oxford: Conflict Studies Research

Centre, June 2005), p.18.

[59] Shahram Chubin, ”Does Iran want Nuclear Weapons?” Survival, Vol. 37, No. 1 (Spring 1995), pp. 89, 93.

[60] For the details of the Memorandum of Understanding between Iran and Sharjah, see Hooshang Amirahmadi,

Small Islands, Big Politics: The Tonbs and Abu Musa in the Gulf (London: Macmillan, 1996), p.162.

[61] IISS, Strategic Studies, 1993–1994 (London: IISS, 1994), p. 141.

[62] Kenneth Katzman, Iran Sanctions, Congressional Research Service (CRS), Report for Congress (Washington,

D.C.: CRS, September 13, 2012), p. 2.

Continue Reading
Comments

International Law

Environmental Governance and Human Rights: The Role of The Civil Society And Challenges in India

Published

on

The Indian judiciary is often credited for developing environmental jurisprudence in India. The Indian courts have devised and put to use a unique method of imparting environmental justice-doing away with the principle of locus standi and devising Public Interest Litigations (PILs) instead. Moreover, environmental governance largely rests in the hands of the government, the Ministry of Environment, Forest and Climate Change (MoEFCC) being the nodal agency in the administrative structure of the Central Government for the planning, promotion, co-ordination and overseeing the implementation of India’s environmental and forestry policies and programmes. However, active participation of the local communities, farmers, students, environmental activists, academicians, lawyers, NGOs and members of Civil Society in galvanizing the government machinery for establishing and implementing norms related to the environment as well as in mobilizing the masses for environmental causes must not be overlooked.  While the top-down approach followed by the Judiciary in recognizing and enforcing environment principles is often appreciated, the bottom-up approach adopted by the civil society to strive for environmental justice also deserves mention.

Civil Society and Environmental Governance-An Interface

Although there is no clear-cut definition of civil society, it is mostly understood in contrast to the state. Cohen defines civil society as “we understand “civil society” as a domain of social exchange between economy and state, comprised above all of the close area (especially the family), the sphere of associations (especially voluntary groups), social movements, and forms of public communication. Modern civil society is created through forms of self-constitution and self-mobilization. It is institutionalized and generalized though laws, and especially subjective rights, that stabilize social differentiation. While the self-creative and institutionalized dimensions can exist separately, in the long term both independent action and institutionalization is necessary for the reproduction of civil society.”The American writer Jeremy Rifkin calls civil society “our last, best hope’’; New Labour politicians in the UK see it as central to a new “project” that will hold society together against the onrush of globalizing markets, the United Nations; the United Nations and the World Bank see it as one of the keys to “good governance” and poverty-reducing growth. The membership of the civil society is quite diverse, ranging from individuals to faith-based and educational institutions to pressure groups such as NGOs or not-for-profit organizations.

Governance is often described as a new form of regulation that differs from traditional hierarchical state activity (‘government’). Generally, ‘governance’ implies notions of self-regulation by societal actors, of private-public cooperation in the resolving of societal issues and new forms of multilayered policy. Environmental Governance is defined as the process that links and harmonizes policies, institutions, procedures, tools and information to allow participants (public and private sector, NGOs, local communities) to manage conflicts, seek points of consensus, make fundamental decisions, and be accountable for their actions. In the context of Global Environment Governance, Gemmmill and Bamidele-Izu have identified the following five major roles which civil society might play in global environmental governance: (1) collecting, disseminating, and analyzing information; (2) providing input to agenda-setting and policy development processes; (3) performing operational functions; (4) assessing environmental conditions and monitoring compliance with environmental agreements; and (5) advocating ecological justice. The increasing role of civil society in global environmental diplomacy is often explained with two arguments: 1) Civil society representatives provide valuable information and expertise to governments and thus help them reach “better,” that is, more effective, agreements. This information provision role becomes particularly important when governments face budgetary constraints. 2) They provide legitimacy to intergovernmental negotiations and thus mitigate the “democratic deficit” in global policy making, which takes place far away from domestic political arenas and the national demos.

Environmental Movements in India and Role of Civil Society

The environmental movement is a type of “social mobility that involves a group of individuals and alliances that perceive a common interest in environmental protection and act to bring about new changes in environmental policies and practices.”In India, these movements emerged as a response to the environmental challenges arising due to the developmental policies espoused by governments. The Chipko Movement or the Chipko Andolan was perhaps one of the first ecological movements which saw the participation of marginalized and tribal communities in forest conservation. Starting as Forest Satyagraha in the 1930s in Uttar Pradesh (now Uttarakhand), the movement has spread too many other States in India like Himachal Pradesh, Rajasthan, and Karnataka by 1980s.  The upsurge of similar environmental movements, demanding that forest ownership and management must revert from state to communal hands and that local communities should be actively involved in afforestation programs brought significant changes in government’s policy about forest management. A large number of non-governmental organizations (NGOs) ably assisted the environmental movements in their efforts: the directory of environmental NGOs in India published in 1989 lists 879 large and small NGOs spread throughout the country of which half were involved with forest-related issues.

The success of this collaborative struggle was reflected in India’s National Forest Policy of 1988 and the Circular on Joint Forest Management of 1990. In revising its national forest policy in 1988, the Indian government for the first time declared that forests were not only to be commercially exploited but must also contribute to soil conservation, environ mental protection, and the survival needs of the local population. Another significant environmental movement in the history of modern India is the movement against the Silent Valley Project. The Silent Valley is a stretch of Tropical Evergreen Forest in Pallakad district of Kerala.   The Movement was launched against the decision of the State government to build a hydroelectric dam across the Kunthipuzha River that runs through the Silent Valley. However, because of the strong opposition from NGOs, conservationists, academicians and eminent writers, corporate and political leaders along with the media, Silent valley was declared a protected area in 1981 and the Project was called off in 1983.

The Save the Narmada Movement (Narmada Bachao Andolan, NBA) is the people’s movement launched against the construction of huge dams on the river Narmada. NBA is a non-governmental organization (NGO) that mobilized tribal people, adivasis, farmers, environmentalists and human rights activists against the Sardar Sarovar Dam being build across the Narmada River, Gujarat. Their campaign led to the establishment of a Bank commission in 1991 to independently review the project, which ultimately recommended the World Bank’s withdrawal. One of the most important features of these environmental movements in India has been the active involvement and participation of local voluntary organizations or Non-Governmental Organizations (NGOs). For example, Dasholi Gram Swarajya Mandal (DGSM),a cooperative organization started by Chandi Prasad Bhatt actively participated in the Chipko Movement along with activist Sunder Lal Bahguna. Inspired by Gandhian principles of Non-violence and the idea of Sarvodaya (self-determination), the cooperation educated the village-community and mobilized them against the logging of trees.

Similarly, the Kerala Sastra Sahitya Parishad (KSSP) started the agitation against the Silent Valley Project. KSSP, a People’s Science Movement (PSM) founded in 1962 from Kerala published a socio-political report on the ecological, economic, and social impacts of the hydro-electric project proposed in the Silent Valley. The Movement also saw the participation of eminent poets and writers, who educated the masses about the significance of the valley through stories, poems, dramas, speeches, and articles. Poet-activist Sugathakumari’s poetry “Marathinu Stuthi” (Ode to a Tree) became the opening song/prayer of most of the “save the Silent Valley” campaign meetings. The KSSP also worked for the energy needs of the State and developed environmental- friendly alternatives such as smokeless chulhas and irrigation using ground water to the optimum extent. The alternatives suggested by the organization were widely adopted or practiced that the UNESCO conferred its Right to Livelihood Award on KSSP and the UNEP included it in its `Roll of Honour. The protest groups formed in all three affected states of Gujarat, Maharashtra and Madhya Pradesh and included or were supported by persons facing displacement, students, social activists, Indian environmental NGOs, international NGOs, and transnational networks. The support groups of Narmada Bachao Andolan mainly of activist groups and registered NGOs mainly classified into three main groups- those with interest in human rights, the environment, and alternative development.

Environmental Human Rights and Environmental Justice: The Legal Strategies and the Role of Civil Society

India owes its environmental activism mostly to Public Interest Litigations (PIL) developed by Justice P.N. Bhagwati and Justice Krishna Iyer, two Supreme Court judges in the 1980s. The Supreme Court of India declared that “where a wrong against community interest is done, the principle of locus standi will not always be a pre-requisite to draw the attention of judiciary against a public body for their failure in discharging constitutional duties.” By taking on board the citizens’ concern about an inactive or indifferent legislature and executive, the Supreme Court has created space for the civil society groups to engage as active participants in the scheme for protecting the environment and ensuring an individual right to a healthy environment. As a result, in some cases, civil society groups have put forward different views on development activities such as the socio-cultural and environmental impact of development policy in the environmental decision-making process. Moreover, by allowing the third party to file cases related to the environment, the court has given voice to the inanimate objects, like forests and rivers, which cannot represent themselves in courts.

However, the role played by concerned citizens and NGOs in filing these PILs is essential. A number of these cases, beginning with the Dehradun Lime Stone Quarrying case (1989 AIR 594) followed by the Tehri Dam case (AIR 2008 MP 142),Bichhri Village Industrial Pollution case, (Writ Petition No. 967/1989)Vellore Leather Industry Pollution case, (AIR1996SC2715) Sariska Wildlife Sanctuary case (1993 SCR (3) 21) and T.N. Godavarman case ((1996) 9 S.C.R. 982) came to court’s attention through Public Interest Litigations and were filed by either Non-Governmental Organisations (NGOs)or concerned citizen/environmental activists on behalf of other persons or groups or public. Several environmental activists like MC Mehta have filed PILs in Supreme Court of India to protect the environment. The lawyer cum environmental-activist, single-handedly, has filed petitions in the courts to protect the environment. Landmark environmental cases filed by him include the Taj Mahal case, ((1997)2 SCC 353) Ganges Pollution case (1988 AIR 1115), Vehicular Pollution case (AIR 1999 SC 301),Oleum Gas Leak Case(1987 SCR (1) 819), Kamal Nath Case ((1997)1 SCC 388) and many other such cases.

The Supreme Court Case Reports show that that out of 104 environmental cases from 1980-2000 in the Supreme Court of India, 54 cases were filed by persons who were not directly the aggrieved parties and 28 cases were filed by the NGOs on behalf of the affected parties. What makes these cases interesting is that in most of them, the Supreme Court has read environmental rights into basic fundamental rights (especially Article 21) guaranteed under the Constitution, thus making them a bedrock of environmental jurisprudence in India. The Supreme Court has also taught various environmental principles like Sustainable Development, Polluter’s Pay Principle, Precautionary Principle, Public Trust Doctrine and Principle of Absolute Liability into these cases, and thus, within environmental jurisprudence.

Environmental Governance Challenges: The Road Ahead

Indian Courts, while deciding upon an environmental issue, are often confronted with the problem of striking a balance between development needs of India and protection of the environment. For example, in Rural Litigation & Entitlement Kendra, Dehradun v. The State of Uttar Pradesh(AIR 1985 SC 652), the Supreme Court, was informed about the developmental needs of the region that the closure of the mining operations would result in and the subsequent loss of jobs by the workers. The Court took the position that its action would undoubtedly cause hardships to them, but argues that it was the price that had to be paid for protecting and safeguarding the rights of the people to live in the healthy environment with minimal disturbance of the ecological balance and with avoidable hazard to them and their cattle, homes and agricultural land. The case is the classic example of the dilemma faced by the courts in resolving the debate between development and environment.

However, the problem faced in the enforcement of the decisions of the courts is more acute. In many respects, the Indian government machinery has failed to adequately enforce the existing environmental laws and the decisions of the court. Although there are many causes for this failure, the primary reason is corruption. While the judiciary has acted as the savior of environmental rights in India, the implementation of these rights has been highly problematic. Corruption exists at all levels of governments in India and its impact on the environment is profound, and amount to a clear violation of Article 21 of the Indian Constitution. One of the other reasons why executive has not been able to enforce environmental laws and decisions effectively is the inefficiency of the administrative bodies concerned with the implementation of these laws.  Since environmental concerns came into existence under the pressure of environmentalists and NGOs in India, therefore, one finds a piecemeal approach rather than an integrated approach at the planning level. Vyas and Reddy point out the problems in environmental governance in India, i.e. lack of coordination between various departments concerned with environmental issues. He notices that the functioning of various departments does not reflect the concern of the policy-makers towards environment since most of these departments are ineffective in implementing the environmental policies due to the limited powers are given to them.

Moreover, they do not have resources to assess the extent of environmental degradation scientifically. This lack of coordination seriously affects the implementation of laws and policies related to the environment. Another concern in this regard is the role played by the masses in implementation of the court’s orders. For example, in the Delhi Vehicular Pollution Case, the role of civil society, especially citizens, is criticized. In this case, despite Court’s pivotal role, lack of public participation was responsible to some extent for slow progress in cleaning up of Delhi air. To make the policies effective the available human resources capacity need to be augmented to address the environmental issues.

Long before the courts in India started delivering landmark judgments for protecting the environment, the civil society has generated enough environmental consciousness amongst the people to stand against any major destruction of the ecosystem they thrive on. Various social cum environmental movements spread along the country made it evident that people at the grass root, who are directly affected by the developmental policies persuaded religiously by the governments, will not surrender their cultural and social rights easily. These subaltern movements saw unprecedented participation and support of people from all walks of society; villagers, women, academicians, lawyers, students, activists, politicians, and NGOs. The environmental consciousness generated by and in the civil society as a result of these movements later found expression in the form of Public Interest Litigations. PILs became a tool in the hands of environmental crusaders and activists to persuade the government to uphold the rights of the citizens. However, the road for achieving environmental justice in India is fraught with challenges. The courts are often faced with the dilemma of choosing between development and environment, and the decisions are often not implemented in the way courts have meant them to be implemented. The reason is the lack of efficient machinery and widespread corruption.

Continue Reading

International Law

70 Years On: UN Declaration on Human Rights from the lens of Victimology

Published

on

Michelle Bachelet, United Nations High Commissioner for Human Rights

Authors: Srimal Fernando and Vipin Vijay Nair*

The Universal Declaration of Human Rights (UDHR) adoption by the General Assembly of the United Nations (GAUN) 70 years ago, nonetheless, is more relevant to the future and today’s society.  Everyone is entitled to all the rights and freedom set forth in this landmark declaration requires major attention. However, these defining characteristics of the UDHR constitute not only its strength, but also its weaknesses.  This important milestone in the UN history is a testament to the commitment of the UN to global rules and values. On this important occasion of the 70th anniversary of UDHR her press statement on 9th December, UN High Commissioner for Human Rights Michelle Bachelet said, “the document has gone from being an “aspirational treatise” to a set of standards that has “permeated virtually every area of international law”.

The most meaningful words of   UN High Commissioner on the notion of human rights resonates in today’s discourse. In the recent past conflicts, migration related issues, racial  polarization  and  inequalities   have  played   a large  role   in breakdown of societies.  Given the uncertainties, the numbers of people victimized due to hate crimes are unquestionably high. The distrust of reason is perhaps one of the most important traits of such issues. In fact, one could argue that victimology, as a subject doesn’t immediately spring to the mind over these issues or as a problem-solving method. There is no doubt of Victimology as a branch of criminal justice studies has been responsible for the expanding knowledge focusing on the victims of crimes. Perhaps in order to understand the dynamics of victimization, Victimologists offers a more realistic picture about   Victimology as a domain of social science. Hence the introduction of victimology   was major step forward in strengthening the fundamental principals of the Universal Declaration.

Looking at some characteristics of victimology narratives within the judicial proceedings requires alternative   behavioral and forensic science methods to investigate the causes, is a part of a larger study of the victimology specialty. Therefore, the element Forensic victimology, a sub-division of victimology reinforces and is closely linked to criminal justice studies.  In this context Forensic victimology analyses victim’s lifestyle and circumstances, the events leading up to their injury, and looks into the precise nature of any harm or loss that he or she had suffered.

While some nations looked for new laws to prohibit hate crime against individuals or groups, others sought the answers in solving this pertaining issuing relating to victimology using home grown methods. Various intervention strategies have been implemented in the recent past. There are various laws, declaration, codified rules and regulation that prevent individual under the international law, but these are working towards penalizing the wrong-doer and not focusing on the overall aspect and perspective of the crime. In the global context, laws that prohibit any type of hate crime against an individual or groups were partially fruitful.  Very few countries in European Union, North and South America have focused on implementing laws against hate crime.   However, 45 states in America expanded   this law and was major step forward.  Unquestionably, the most renowned organizations in the world such as United Nations High Commissioner for Refugees (UNHCR), International Criminal Court (ICC), The World Society of Victimology (WSV) holding consultative status with UN and Council of Europe, International Criminal Justice Institutes and other   related agencies have been playing a realistic role intervening in furthering of victimology subject. International consensus is growing on human rights and freedom’s discourses that is designed to look beyond the victim stereotype and improves the policies relating to the prevention of crimes as well as to look into the victim themselves.

*Vipin Vijay Nair is Doctoral Research Scholar at Jindal Institute of Behavioral Sciences (JIBS) and a Research Fellow at Jindal Global Law School (JGLS)

Continue Reading

International Law

US Migrant Crisis and the Global Human Rights Protection Standards

Dr. Nafees Ahmad

Published

on

Migrants and asylum seekers from Central America have been marching towards the US for protection and shelter. But US government has deployed around 6000 soldiers to prevent them from entering into the US. These migrant and asylum seekers convoys have been dubbed as “a foreign invasion” by the incumbent US President that needs to be confronted by the US army. President Trump hard-headedly argued that “immigration is a very, very big and very dangerous, a really dangerous topic” that prompted the US army officials of firing tear gas shells at migrants’ convoys. It is nothing but the portrayal of an invasion by the Central American migrants and asylum seekers into the US. Such a US posturing on international migration is a manifestation of the US tradition of hypocrisy and its deep-seated aversion towards the migrants that violates global human Rights protection standards (GHRPS). Thus, the across-the-board new migration strategy of the US is based on the idea of ultra-restrictionism that deprives the immigrants from public benefits, and recently President Trump has entirely abolished the Deferred Action for Childhood Arrivals (DACA) programme along with the abrogation of the temporary status protection programmes. These measures have adversely impacted the GHRPS required for the 2 million regular migrants in the US which spawned the emergence of a well-founded fear of persecution, far-right nationalism, and socio-cultural schism.

New Migration Strategy

The US restrictive measures have attracted international media attention and the US is hell-bent to send a message to the international community that it would not be privy to the non-binding standard for a safe, orderly and regular migration known as the UN Global Compact on Migration (GCM) arrangement scheduled to be agreed in December 2018 and US is alone capable to take its decisions on immigration issues under America First Policy (AFP).Therefore, the GHRPS for migrants and asylum seekers are apparently immaterial in the US immigration policy objectives. Trump administration under AFP discourse envisions restrictionism, deterrence, and pre-emption against GHRPS while denying public benefits to immigrants at par US citizens. Unfortunately, strong and inclusive migration control strategy has been devised and is being implemented to restrict the rights of those migrants and immigrants who are already there in the US. For example; Trump administration has been attempting to temper the 2020 US census that is bound to influence the political scene for the advantage of Republicans in the years ahead.

However, ex-President Barack Obama also resorted to the deployment of US armed forces on the US-Mexico international border to curb migration that resulted in some cases of family-separations but at a low rate if it is measured against the present Trump administration. The point of distinction between the Obama and Trump administrations is that the former recognized the contribution of migrants to the US’s growth; however, this understanding has steadily acquired a negative narrative under the later administration. President Trump has been demanding $5 billion to construct a wall along the US-Mexico international border otherwise intimidating shutting down the US government. However, Trump administration apparently does not leave any stone unturned in case of violently pushing back migrants and asylum seekers. Trump administration has inaugurated its immigration policy with a Travel Ban from seven Muslim countries and now it has been stretched to Latin American countries against all norms of GHRPS and international law.

Global Human Rights Protection Standards

The incumbent US administration is more interested in denying migrants and asylum seekers the access to benefits under the US national laws and global human rights protection standards. The latest Trump’s proclamation is to contain the new arrivals from Mexico and its Southern nation-states which restrict the right to seek asylum in the US beyond the port of entry. Further, impugned presidential proclamation defers well-established US asylum legislation that contravenes due process of law, the rule of law and international treaty law recognized and sanctified under the Constitution of United States of America. However, this presidential proclamation or asylum ban has, for the time being, been stopped by the San Francisco Federal Court under a restraining order.

In spite of this, the Immigration and Nationality Act, 1965 states that any “alien or foreigner who is physically or personally present in the US or who comes in the US (whether or not at an officially designated port of entry, irrespective of such alien or foreigner’s status, may apply for asylum.” However, under Section 212 (f) the US President is empowered to enforce immigration restrictions by issuing a proclamation. Further, the US President may if feels that “the entry of any alien or foreigner or any class of foreigners or aliens into the US would be detrimental to the American interests suspend the entry of all foreigners or aliens or any class of aliens or foreigners as non immigrants or immigrants, or impose on the entry of foreigners or aliens any restrictions he may deem to be appropriate.” Precisely, President Trump invoked this provision of law to clamp these insensitive and punitive restrictions. This presidential decree has aggravated the Trump’s AFP to new levels of castigation. Groups and individuals seeking asylum and entering the US while avoiding official ports of entry were slapped with criminal cases that got them separated from their families. Such irregular entries were criminalized by the US border authorities in violation of “the right not to be penalized for irregularly entering into the territory of High Contracting State” under Article 31 of the 1951 UN Convention relating to the Status of Refugees (UNCSR) with its 1967 Additional Protocol that has been acceded to by the US.

Having hit with such transgressions, the criminal charges leveled against asylum seekers did not affect their asylum claims, and they were duly entitled to have their asylum claims heard. However, this scenario is no more there as new reports indicate that a single-digit number of asylum applications are disposed of daily at the designated entry ports. Therefore, such a situation has led to inordinate delays in processing the applications of asylum seekers at the border that is a violation of Section 1 of Amendment XIV of the Constitution of United States of America that codifies the core values of the people of the USA. But many persons have been denied access and abducted, raped and thrashed to the hilt. However, Article 33 (1) of the UNCSR contains the principle of non-refoulement stemming from the customary international law that works as “a safety valve” which obligates the nation-states to protect a refugee, migrants, stateless and asylum seekers who is fleeing from persecution, risk or danger to life in his or her country of origin or homeland. Few scholars contest the applicability of the principle of non-refoulement extra-territorially; however, the UNHCR (United Nations High Commissioner for Refugees) has already recognized the extra-territorial application of the non-refoulement principle, and the denial of entry into the US is a violation of the UNCSR.

Moreover, there is another principle of international law where under collective or mass expulsion of the refugees, migrants or asylum seekers is prohibited and obligates the nation-states to examine objectively and cumulatively every expulsion action of each individual and group of persons. The “hot return” policy of the US clearly violates this obligation under GHRPS. Thus, this practice primarily rescinds the right of the huge majority of migrants and asylum seekers to seek for asylum. Therefore, it also circumvents the objects and purposes of the UNCSR.

The Hot Return Policy

The hot return policy stems from the US Department of Justice regulation of 1953 that entails the “100 Air Mile Zone” rule; however, that negates the Fourth Amendment of the US Constitution under which the right and protection against arbitrary and random searches have been provided within this zone. But Border Patrol officials have been empowered to operate the immigration checkpoints in this vast zone with extra-constitutional powers. Under the “zero tolerance policy” Department of Homeland Security wields enormous powers and conducts speedy ejections of undocumented migrants within this area. The fundamental rights and freedoms such as the right to counsel or the right to a hearing before a judicial immigration authority and the right against expulsions are not available in the situation of “hot returns.” The new regulation has precisely been founded upon this mechanism and whosoever arrives at the designated checkpoints will be pushed back devoid of any due process of law. Anti-migration-driven steps like the family separation, ankle-monitors for asylum seekers and detention of asylum seekers during the process of determination of their asylum claims. Therefore, it has become a double-edged weapon as when asylum seekers try to apply at authoritative ports of entry they are prevented from doing so and when some migrants and asylum seekers do not follow the law and try to manage surreptitiously asylum benefits they are also prevented from claiming asylum within the US. In fact, the impugned policy violates the UNCSR, customary international law and the provisions of general international law. Therefore, civil society institutions like the Center for Constitutional Rights, the Southern Poverty Law Center and American Civil Liberties Union filed cases in the US courts against such illegal actions of the Trump administration.

The Rights of Migrants and Asylum Seekers

There is a plan to have secret measures to restrict the rights of migrants and asylum seekers in the US against all protection standards of the so-called civilized world. The rights of refugees, migrants, and asylum seekers are in active violation in the US who espouses the cause of human rights, the rule of law, democracy and diversity worldwide. For example; in the Matter of A-R-C-G- et al. decided on August 26, 2014 at the US Department of Justice by the Executive Office for Immigration Review where the Board of Immigration observed that “married women in Guatemala who are unable to leave or run away from their relationship” which can constitute a cognizable “membership of particular social group” that establishes the basis of the right to seek asylum or withholding of removal under Sections 208(a) and 241(b)(3) of the Immigration and Nationality Act, 1965 and which is also a prerequisite for meeting the criterion of refugee definition under Article 1 of the UNCSR. However, law officers under the Trump administration adamant to subvert the well-established legal standards that provide respite and reprieve in the cases of domestic violence.

There is a perennial cycle of legal measures that are bound to belittle existing human rights protection standards like latest Trump administration’s endeavour to reverse the Flores v. Reno popularly known as Flores Settlement Agreement (FSA) in September 2018. The reversal of FSA will be the most inhuman act of the present US administration as separating and snatching children from their parents cannot be justified under any circumstance whatsoever.  FSA determines the limits on the duration and conditions under which children could be incarcerated in immigration detention, and it also regulatesthe detention, treatment, and release of detained minors by the immigration authorities. However, Trump Administration seeks to terminate the FSA’s legal defences for children, including the provision that children must be shifted to a non-secure, licensed facility within three to five days of detention, which has been construed to allow for an extension of up to 20 days in times of “emergency” or “influx.” The proposed regulations include some policies which, if implemented, would allow the government to incarcerate more families for even longer periods. Primarily, FSA’s goal was to release families and minor children from immigration custody quickly. Therefore, if FSA is reversed now, it would violate GHRPS and due process of law.

Way Forward

The US is the first country in the world that has been recognized as a country of migrants, enriched by the migrants and celebrates multiculturalism as an inalienable part of its existence since time immemorial. However, US policies based on the doctrine of American interests worldwide has done a massive disservice to the lives of the people worldwide.  The US supports and protects many national governments who serve its interests, US exploits and expropriates the natural resources of many countries and its prescriptive approach in formulating economic policies, forced regime change, subjugation of international organizations and selective discharge of international obligations have also contributed in displacing people from their roots. Therefore, it has to share the responsibility of hosting migrants and asylum seekers, particularly from its vicinity. In fact, many anti-migrants measures violate US municipal law, the US’s international treaty obligations as well as general international law. The US has to abdicate its restrictionism based on hate, threats, and xenophobia in consonance with its historical traditions of liberal democracy, diversity, and multiculturalism.

In this context, all anti-migrants restrictions and sanctions must be withdrawn while respecting GHRPS and international law obligations.As pictures circulate worldwide of US firing of tear gas enveloping migrants, asylum seekers and their children on US-Mexican border and terrified faces of children who are being snatched from their parents by the US Border Patrol agents, a UN Global Compact on Orderly and Safe Migration is likely to win near-universal approval at the inter-governmental conference scheduled to be held in Marrakesh, Moroccoon December 10-11, 2018 expected to be the final step before the UN Global Compact for Safe, Orderly and Regular Migration is formally adopted by the UN General Assembly. It has been a long-drawn journey to achieve such an ambitious plan for regulating and governing international migration by the international community. However, it would not be a legally binding treaty even then, unfortunately, US has already shunned this global initiative against the mandate of its own constitution.

The Constitution of the United States of America is a sacred covenant achieved by an immeasurable amount of human investment that has established an equal society in America. But, unfortunately, these restrictions on the rights of migrants and asylum seekers have weakened the US constitutional guarantees and liberties under the current administration. The emergence of the far-right political discourse that is being well-sponsored and patronized under the Trump administration must be countered by strengthening the liberal democratic political discourse, and same must also be reflected in the institutional governance frameworks of the United States of America.

Continue Reading

Latest

Trending

Copyright © 2018 Modern Diplomacy