By Ted R. Bromund
Thursday, July 23, 2015
So far, the most intense criticism of the Obama
administration’s deal with Iran has focused on its wildly imbalanced nuclear
provisions, under which, in exchange for limited inspections, Iran gets to keep
many of its centrifuges, its entire nuclear infrastructure, its research and
development programs, and its ballistic-missile program, among many other
things. This criticism is certainly warranted, but the deal will have
consequences beyond the realm of nuclear weapons: The fate of the regime of
Western sanctions on Iran matters just as much, because those sanctions have
wide-ranging global implications.
When politicians and journalists discuss such sanctions,
the verb they invariably use is “impose” — a blithe word for a devilish
reality. Sanctions regimes are not like a parking gate that swings up or down,
closing and opening at the whim of its operator. They are more like medieval
cathedrals: each one based on blueprints, each one in practice a custom job,
built painstakingly, piece by piece, through the labor of many hands. Turning
the blueprints of precedent and preparedness into reality takes years, and the
work is never really done, because rogue states like Iran are constantly
looking for new ways to evade the sanctions placed on them.
Of all the world’s sanctions regimes, none has achieved
greater complexity and sophistication than the one the West, with the U.S. in
the lead, imposed on Iran. By comparison, U.S. sanctions on North Korea are
limited and feeble. The U.S. has not even managed to designate Kim Jong-un,
North Korea’s uncontested tyrant, responsible for North Korea’s evasion of the
existing restrictions. As North Korea expert Joshua Stanton points out, Iran,
unlike North Korea, is subject to special measures under section 311 of the USA
Patriot Act, as well as to comprehensive transaction-licensing requirements and
terrorism-related sanctions.
Supporters of the deal like to argue that the only
alternative was war. President Obama is a past master at posing this kind of
false choice, and in his speech on July 14, after the deal was done, he was at
it again, asserting that “no deal means a greater chance of more war in the
Middle East.” On the contrary: Sanctions offered the only chance of convincing
the Iranian regime to genuinely give up its program, constraining its ability
to realize its nuclear ambitions, or creating enough discontent to lead to the
regime’s overthrow by the Iranian people. By posing his false alternative, the
president has in fact created it. As Churchill said of Chamberlain, Obama had
the power to choose, but he considered only two options: dishonor and war. He
chose dishonor, and he will get war.
That is because, by Obama’s own telling, the Iranian
regime was extremely attached to its dangerous nuclear program, so attached
that sanctions were necessary to bring the regime to the table. The president’s
logic then dictates that the only thing capable of preventing the regime from
returning to its program is the threat of the re-imposition of those sanctions.
But the deal makes that impossible, for three separate but related reasons.
First, as Robert Satloff and Elliott Abrams have pointed
out, the now-infamous “snapback” of sanctions must ultimately go through the
U.N. Security Council. While the clever procedural devices of the deal preclude
a Russian or Chinese veto, the involvement of the Security Council in practice
means, as Satloff puts it, that there will “be no punishments for anything less
than a capital crime.”
Second, the “snapback” is an all-or-nothing affair, which
means that no one responsible for this agreement will be willing to admit
failure by supporting renewed sanctions as long as there is the slightest hope
of Iranian compliance. All the Iranians have to do is show a bit of leg now and
then, and we’re theirs. By contrast, under the terms of the deal, the Iranians
are free to declare that it’s null and void if either the U.S. or the EU fails
to refrain from any policy “specifically intended to directly and adversely
affect the normalization of trade and economic relations with Iran.” A policy
of preparing to re-impose sanctions in anticipation of Iranian violations could
certainly be held to violate those terms. In practice, the deal will be binding
on us, while giving a get-out-of-jail-free card to Iran — particularly because the
“snapback” doesn’t apply retroactively, so any business deals Iran signs while
out of jail will remain in place, exempt from any future re-imposition of
sanctions.
The third reason is the most subtle, and the one that
will be with us the longest. Much of the text of the deal has nothing to do
with its conditions: It merely lists the Iranian individuals and companies that
will no longer be subject to sanctions. Leaving aside all other concerns, the
idea that sanctions on a catalog of evaders this vast can simply snap back is a
fantasy. If the Iranians have an ounce of sense, they will ensure that, should
sanctions ever reappear on the horizon, they have new front companies for all
their sanctions-busting activities, with new, seemingly legitimate individuals
at their head. By that point, months or even years will have passed, today’s
list will be of mostly historical interest, and an entirely new list will have
to be painstakingly built. The deal, in short, makes the elementary error of
treating sanctions as a parking gate.
But that is not the worst of it. Iranian sanctions are
not just about Iran. As Juan Zarate explains in depth in his book Treasury’s
War, since 9/11 the U.S. has developed a new kind of financial warfare, one
that uses its central position in the world’s financial markets to restrict
terrorist financing and put pressure on rogue regimes. But as important as our
own efforts on this front are, they can be much more effective if other nations
— in particular, the Europeans — move in parallel.
That’s been challenging. The history of U.S.–European
disputes over sanctions is long and angry. Churchill and Eisenhower battled
over trade with China in the 1950s; Reagan and Thatcher followed suit over
Soviet pipelines in the early 1980s. The Left likes to accuse the U.S. — blood
for oil, and all that — of allowing its economic interests to determine its
foreign policy. But far more often it’s the Europeans who want to do business,
and the U.S. that has the qualms. In the post-9/11 world, one of the big
problems with the EU is that its courts show little deference to their
democratic governments, and remarkable solicitude for agents of autocratic
sanctions-busters.
When I explored this subject in these pages in early
2014, I pointed out that Iranian-inspired legal challenges, apart from being a
fine example of lawfare, were “a playbook for any future subject of sanctions.”
Unfortunately, that was too optimistic, because the future turned out to be
now: By early 2015, EU sanctions faced more than 100 legal challenges. The EU’s
system has many weaknesses, including its inability to take cognizance of
secret information, but at root, a fundamental problem is that the U.S. cares
more about sanctions than the EU does, and is more competent at implementing
and maintaining them. The great advantage of having Iran at the center of the
discussion was that, precisely because the sanctions regime against it was so
broad and so widely agreed to be essential, it offered the U.S. a structured
way to press the EU to improve its ability to impose sanctions — and not just
on Iran.
Critics of EU sanctions, and there are many, argue that
they unfairly condemn a man without allowing him to present his case in court.
Similarly, they charge that the EU often imposes sanctions based on inadequate
evidence, prosecutorial allegations from new regimes that often have a vested
interest in pursuing the old order, or mere political pressure. In some cases,
this may well be true: The brief German arrest of Ahmed Mansour, an Al Jazeera
journalist, on an Egyptian warrant that accused him of torturing a lawyer in
Tahrir Square in 2011, is a case in point. But it is one thing to arrest a man
because of what the autocratic leader of Egypt claims, and quite another for
democratic governments in Europe to refuse to give an Iranian firm access to
their markets.
In the eyes of the law, unfortunately, this is a distinction
without a difference. It doesn’t matter that few if any of the critics of
sanctions would be willing to trust their lives or property to an Iranian
court, and that there is therefore ample reason not to allow Iranians access to
Western markets and financial institutions: The rule of international relations
is reciprocity. But since the Kadi case in 2008, when the European Court of
Justice annulled the EU’s implementation of the listing of one Yassin Kadi on
the U.N. Security Council’s sanctions list, the EU, and its member nations,
have increasingly abandoned the rule of reciprocity and attempted to cram their
sanctions into the framework of criminal law, with its ill-fitting standards of
procedure and proof.
The EU has moved one way, toward treating the subjects of
sanctions as individuals possessing the right to be innocent until proven
guilty. The U.S. has, at the same time, moved in another direction, eschewing
traditional state sanctions in favor of tighter and more-targeted ones,
inevitably aimed at specific individuals and firms, and thus inevitably
triggering the EU’s protections. In theory, this creates a wide gap: Because
sanctions, even on an individual, are indeed political in the broad sense of
the term, the only way to escape the EU’s protections for individuals would be
to return to sanctions that are avowedly political and imposed on nations as a
whole. In practice, though, the gap has narrowed and the EU has moved toward a
legally defensible system, thanks in large part to U.S. pressure.
And that is exactly what the Iran deal makes far more
difficult. Yes, we will still have North Korea, Zimbabwe, and Russia, among
others, to worry about and work on, but there is nothing like the international
consensus on — or the depth to the measures against — those regimes that
compares to what we had painstakingly built in Iran’s case. When the
Iranian-sanctions regime dissolves, we will not just lose our ability to
pressure Iran. We will lose the central spur for the development of more-effective
and more-comprehensive sanctions regimes around the world, regimes that have
been at the heart of U.S. foreign policy since 9/11, and that are the only
plausible alternative to the use of military force. For that reason alone, the
Iran deal is a disaster.
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