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Bryan Schwartz

 
Bryan Schwartz on the Iran Nuclear Agreement : Deal is Far from Being an Adequate Barrier to Iran's Nuclear Path to Genocide

by Bryan Schwartz, August 9, 2015

 

 

Editor's Note: Below is the speech delivered by Prof Bryan Schwartz at the Winnipeg Friends of Israel Rally on the Iran Nuclear Agreement at the Manitoba Legislative Assembly Grounds on July 30, 2015 ] 

 

My English name is Bryan Schwartz.  I am a law professor.   I have published and taught extensively in areas that include international law.  

 

 My Hebrew name is Binyamin.

 

I was named after my grandmother's brother, Binyamin Green.  In the late 1920s, living in Poland, he foresaw the Holocaust.  He warned his family to get out if they could.    My grandmother was able to.   He was a physician, so was not allowed to leave.   He was betrayed by a neighbour and murdered along with his wife and children.   So was every other member of my grandmother's family living in Europe.  After the war her only close living blood relations on earth were her own children.

 

The only memorial in the world to my namesake is here at the grounds of the Manitoba Legislature. It was dedicated to preserving the memory of the Holocaust victims who have surviving family members here in Manitoba.  There is no other monument, no gravestone, no marker, anywhere in the world for him or millions of others.

 

The idea for the Holocaust memorial on the grounds of the Manitoba Legislature came from my late father in law Philip Weiss.   He was a survivor of five concentration camps.

 

My own children are two generations from the ashes. 

 

They live in a world where antisemitism is at a height not seen since the 1930's.   In Europe, I would not feel safe wearing the Jewish symbol for life, the letters “chai”, anywhere in public.  

 

They have been murderous anti-semitic attacks in France, in Belgium, a rising wave of anti-semitic incidents in the United Kingdom and elsewhere.[2]

 

And what of Israel itself, where most of the remaining Jews in the world live, where more are going for a safe haven?

 

The President of the United States says this deal protects Israel. 

 

He acknowledges Iran's aggressiveness, but says it is it is easier to deal with Iran when it does not possess nuclear weapons.

 

This deal is far from being an adequate barrier to Iran's  nuclear path to genocide.

 

The inspections regime is weak.  As Prime Minster Netanyahu has explained, it could take three months to finally inspect a suspicious site. [3]

 

And what are the consequences if Iran cheats Iran cheats as it has so many times on so many other agreements? President Obama says there is provision for the sanctions to be reinstated.

 

The reality is that it is almost certain there will be no snapbacks of sanctions  in response to new Iranian evasions and cheating.

 

Suppose Iran were in breach of the agreement .Suppose the United States wants to do something about it.   It would have to convince a majority of the seven parties to the deal, including Iran to agree.[4]   Who will be in that majority of four? Iran?  Russia?  China?   If not, you need everyone single one of the European states UK, Germany, France. They may have powerful business interests in Iran.  They may have leaders who are hostile to Israel.

 

What if the US somehow goes all the way to the Security Council, and sanctions are restored?   They will not apply to any business deals already in place.  And will any party, for example, Russia, that votes against restoring sanctions actually enforce them?

 

And if sanctions are restored against Iran?  Its regime has stated in express terms in the deal its intention to regard the deal as over.[5]

 

End of the deal?  Would a President like Obama be willing to seek renewed international sanctions if that means the end of the deal?   He keeps threatening that no deal means war. [6]   He is actually threatening only his own side, not Iran, because Iran does not believe he has the will to take military action.

 

Teheran is not afraid of a US President who keeps saying he was elected to end wars, not start them, who has abandoned Iraq, who led from behind in Libya and left it in chaos.

 

But supposed there is some resolve by a future US president to respond to a breach by Iran using individual sanctions by the United States.

 

He could not respond through national sanctions – including reimposing ones that have been waived by executive action - without breaching the deal.[7]

 

Under paragraph v of the preamble of the deal:

 

"This JCPOA will produce the comprehensive lifting of all UN Security Council sanctions as well as multilateral and national sanctions related to Iran’s nuclear programme, including steps on access in areas of trade, technology, finance and energy."

 

Nowhere in the deal does it preserve the right of the United States to individually impose sanctions on Iran if there is a proven breach of the agreement.  

 

This President, without 2/3 of the Senate to ratify a treaty, without a majority in congress, will have approved a deal whereby the United States cannot  make its own decision to impose sanctions to respond to breaches of the agreement.

 

The special restrictions on Iran are not only weakly enforced, they are temporary.

 

Afterwards, Iran will be in a position as any other state in the world that is a party to the Non-proliferation Agreement.    

 

A nuclear deal was signed with North Korea in 1994.   North Korea exploded a device within a decade, and its regime is just as tyrannical to its own people and hostile to the world as ever.

 

Pending the lifting of the special restriction, the regime will potentially be assisted by the West in preventing "nuclear security threats"; does that include surveillance and espionage activities, especially by states that might want to keep the military option on the table?

 

Much has been said about the weakness of the deal to actually block Iran's nuclear path to genocide.

 

What is often overlooked is the potential effect of the deal on efforts to block Iran's conventional path to genocide.  

 

First, never forget that Israel's enemies have not needed nuclear weapons to commit genocide.

 

Iran cleansed itself of the overwhelming majority of its remaining Jewish population at the time of the 1979 revolution.  It started off by conventionally shooting some leading Jewish figures.

 

The Nazis and other fascists in Europe who perpetrated the Holocaust did not have nuclear weapons.

 

The pogroms in Russia that killed tens of thousands of Jews were conducted by men on horseback.

 

The kings and queens and priests of Spain who expelled the Jews and conducted the inquisition did not need missiles or fusion weapons.

 

The Roman legions who ended Jewish independence for two thousand years had swords and shields.

 

Ancient history?

 

In 2013, an Iranian General announced that Iran had the missiles to destroy Tel Aviv and Haifa.[8]

 

In March of this year, the head of the Basiji militia, Mohammad Reza Naqdi stated that the wiping of Israel off the map is "not negotiable"[9].

 

In July, while this deal was being finalized, the official Iranian holiday Al Quds day took place.   The Prime MInister of of Iran attended as crowds changed death to Israel and burned pictures of the prime Minister [of Israel]. "

 

General Safavi, now the chief military advisor to Supreme Leader Khomeini spoke of "armed jihad" as the only strategy for saving and liberating" Jerusalem.  [10]

 

The Lebanon war of 2006 ended with a Security Council resolution that Hezbollah would be disarmed and no outside state would supply it with weapons.  But Iran continues to arm and supply Hezbollah, which now has fifty to one hundred thousand missiles.

 

Let me quote from Hassan Nasrallah, leader of Hezbollah.

 

"If they (Jews) all gather in Israel, it will save us the trouble of going after them worldwide."[11]

 

In 2006 he characterized Jews as the "grandsons of apes and pigs" and "Allah's most cowardly and greedy creatures."[12]

 

Armed with his conventional hatred and conventional weapons, Hassan Nasrallah and Hezbollah have access to missiles that he can fire at Israel, both military and civilian populations.   

 

Iran is the world's leader in state sponsorship of terrorism.   Don't believe me?  Then believe the official assessment of President Obama's own administration, Director of National Intelligence, James Clapper, in a letter to congress dated June 3, 2015.[13]

 

President Obama says that this deal is only intended to stop the Iranian nuclear threat. 

 

The deal should have had some minimal linkage to ending Iran's conventional threats to destroy Israel.    As Prime Minister Netanyahu said, if Iran wants to be treated like a normal country, it should act like a normal country. [14] It should stop threatening Israel with annihilation. It should stop arming Hamas and Hezbollah.

 

Is the deal even neutral on the conventional path to genocide?

 

It is liable to make things worse.  

 

Tens of billions of dollars are pumped into the Iranian government.   More money for the leading state sponsor of terrorism; more money to build and buy weapons to supply Hezbollah and Hamas.  The end, in a few years, to a Security Council ban on the import of ballistic missiles into Iran. The Joint Action plan lends legitimacy and international acceptance to an Iranian regime.    The President, by his passivity, sends the signal to the regime that it can enjoy economic cooperation, even cooperation from the West on nuclear research, while still pursing the conventional path to genocide.

 

But Iran will actually use the Joint Action Plan to resist any such action plan.

How?

 

Iran will say that any new measures aimed at blocking the conventional path to genocide are improperly undermining the nuclear deal.

 

Suppose the United States wanted to strengthen enforcement or adopt tough new measures aimed at Iranian financing of terrorism, imports or exports of arms.

 

The Iranian regime will say that the US is breaching the deal.   It will argue that increased sanctions are actually aimed, at least in part, at the Iranian nuclear program and that in any event the U.S. efforts would be undermining the overall normalization of relations contemplated by the deal.

 

After all, the Iranian regime will say, "The E3/EU+3 and Iran commit to implement this JCPOA in good faith and in a constructive atmosphere, based on mutual respect, and to refrain from any action inconsistent with the letter, spirit and intent of the Joint Act Plan..."[15]

 

The regime will insist the deal promises that the parties will not resort to measures that amount to a restoration of nuclear-related sanctions[16].

 

The  regime will argue, "[t] he EU and its Member States and the United States, consistent with their  respective laws, will refrain from any policy specifically intended to directly and adversely affect the normalisation of trade and economic relations with Iran  inconsistent with their commitments not to undermine the successful  implementation of this JCPOA.

 

The regime will quote that the deal promises that "the The United States will make best efforts in good faith to sustain this JCPOA and to prevent interference with the realisation of the full benefit by Iran of the sanctions lifting specified in Annex II. The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from re-introducing or re-imposing the sanctions specified in Annex II that it has ceased applying under this JCPOA,"

 

Yes, the deal preserves the right of the United States to investigate and enforce existing non-nuclear sanctions. But it is very clear that those laws have not been sufficient to stop Iran arming Hezbollah and otherwise supporting terrorism. 

 

It is only when the US and the international community massively increased their  sanctions against Iran that Iran came to the nuclear talks.  

 

So the United States, Iran will insist, has effectively precluded its ability to use (individually or in combination with other states) some of the of potentially most effective known sanctions - the same sanctions that brought Iran to the nuclear table - to block Iran's conventional path to genocide.

 

And, perversely, Iran can make sure it creates lots of problems with enforcement of the plan.   That will make it especially hard to say the United States is not reacting to their bad nuclear behaviour or their bad conventional behaviour

 

There will be a vigorous debate over the deal in the United States Congress    There might  be enough Democratic party  votes to get the one third needed in one Chamber  to avoid an outright Congressional block of the agreement. 

 

But Congress should not only consider what it is against.

 

It should use the next two months to state unequivocally and clearly what it is for, whether the deal is stopped or not.

 

Even if the deal is not blocked, its meaning and effect will be determined by more than its text. 

 

It will be affected by what the parties say and do while it is being considered and after it comes into force.

 

But there is an affirmative agenda that Congress can follow.

 

An affirmative law should be enacted before the vote on the treaty takes place.

 

It could be called the Clarity on Iran Act.

 

Congress should confirm the facts: that Iran is a grave violator of the human rights of its own people, that it is the world's foremost state sponsor of terrorism; that it continues to arm Hezbollah in grave breach of Security Council resolutions, that it threatens the existence of Israel, and that all these acts are contrary to international law.

 

Congress should recall all of its laws and resolutions concerning the inadmissibility of Iran's actions, and confirm that all of them remain in force and should be enforced vigorously.

 

Congress should enact additional measures to curb Iranian measures to arm and finance Hezbollah and other terrorist organizations. It should identify any gaps in existing economic sanctions and use of force resolutions concerning support and arming of terrorist groups and the arming of Hezbollah and Hamas.

 

Congress should recall that the Non-proliferation Treaty is a binding agreement in international law, approved by Congress and is the Supreme Law of the United States, and that no executive agreement can or does derogate from the obligations has under international law or impair the authority of the Congress and President the United States to take measures under existing or future laws to ensure compliance.

 

Congress should make it clear that the United States retains the authority to enforce any and all existing measures, and any necessary new measures, to curb Iran's unlawful activities with respect to conventional weapons and warfare, regardless of whether these measures coincide with measures that have been or will be directed against its unlawful nuclear activities.

 

In closing, just as I am proud to live in a province that has provided a public Holocaust memorial on the grounds of its legislature, I am proud to live  in a country where our  Minister of Foreign Affairs issued the following  statement:[17]

 

 “We appreciate the efforts of the P5+1 to reach an agreement. At the same time, we will continue to judge Iran by its actions not its words. To this end, Canada will continue to support the efforts of the International Atomic Energy Agency to monitor Iran’s compliance with its commitments.

 

Iran continues to be a significant threat to international peace and security owing to the regime’s nuclear ambitions, its continuing support for terrorism, its repeated calls for the destruction of Israel, and its disregard for basic human rights.

 

We will examine this deal further before taking any specific Canadian actions.”

 

In the meantime, my country will retain its sanctions.

 

 

Bryan Schwartz holds a doctorate of law from Yale Law School and has been a full time law professor for over thirty years. He is the author of ten books and over eighty academic articles.

 

 


[1]  The following text was the basis for Dr. Schwartz' remarks.  It appears here with minor revisions.

[2] http://www.theatlantic.com/international/archive/2015/02/anti-semitism-europe-france-grave-desecration-Zvika-Klein/385547/

 

[3] http://www.timesofisrael.com/netanyahu-under-nuke-deal-iran-has-months-to-hide-illicit-activity/

[4]  Joint Comprehensive Plan of Act, Article 36 and 37.

 

[5] Joint Comprehensive Plan of Action, Article 37.  Iran has stated that if sanctions are reinstated in whole or in part, Iran will treat that as grounds to cease performing its commitments under this JCPOA in whole or in part."

 

[6] http://www.reuters.com/article/2015/07/16/us-iran-nuclear-idUSKCN0PP2BQ20150716

 

[7]  Preface:  "This JCPOA will produce the comprehensive lifting of all UN Security Council sanctions as well as multilateral and national sanctions related to Iran’s nuclear programme, including steps on access in areas of trade, technology, finance and energy.|

[8] http://www.worldtribune.com/2013/04/17/iran-says-enhanced-missiles-could-destroy-tel-aviv-haifa/

 

 

[9] http://www.timesofisrael.com/iran-militia-chief-destroying-israel-nonnegotiable/ 

[10] http://www.gatestoneinstitute.org/6160/iran-quds-day-death-america-israel

[11] http://www.camera.org/index.asp?x_context=7&x_issue=11&x_article=1158

[12] ibid

[13] http://www.foxnews.com/politics/2015/06/26/us-intel-chief-calls-iran-leading-terror-sponsor-as-nuke-talks-enter-final/     In early August, after the speech based on this text was delivered,  Ayatollah  Khamenei released  a book explaining the rationale and means of destroying Israel by conventional means;  http://townhall.com/tipsheet/aaronbandler/2015/08/05/ayatollah-khomeini-publishes-book-explaining-his-plan-to-destory-israel-n2035127

[14] http://www.ynetnews.com/articles/0,7340,L-4633107,00.html

[15] Joint Comprehensive Plan of Action, paragraph viii

[16] E3/EU+3 will refrain from

imposing discriminatory regulatory and procedural requirements in lieu of the

sanctions and restrictive measures covered by this JCPOA."; paragraph viii of the preamble

[17] http://www.international.gc.ca/media/aff/news-communiques/2015/07/14a.aspx?lang=eng

 

 

 
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