Due to its inhumane and aggressive policies, the Iranian regime finds itself grappling with a complex web of interconnected domestic and international crises. These crises have left the ruling theocracy deeply concerned about its security, prompting a continuous cycle of crisis management and strategic evaluation by state officials, despite their outward displays of bold rhetoric.
In a series of highly confidential and urgent documents that were recently disclosed, a legal expert working in the national security sector of the regime warns about various international challenges that could further complicate the regime’s affairs in the near future. These documents were obtained by the dissident group known as “GhyamSarnegouni,” and were sourced from the Presidential Organization of the regime.
Dated February 2023, a communication from the head of the Presidential Center for International Legal Affairs to then-Secretary of the Supreme National Security Council Ali Shamkhani outlines potential risks, solutions, and scenarios where legal issues may pose significant problems for the regime on the international stage.
The analysis highlights the concerns of state officials regarding the potential impact of the ongoing uprising on their global standing. They anticipate that their international adversaries may adopt a more confrontational approach and they are apprehensive about how to navigate such worst-case scenarios.
The document and its translation are reflected below:
Reference Number: 61954/M
Date: February 13, 2023
Time: 13:00
Classification: Highly confidential
Urgency: Urgent
Legal Department
Head of the Center for International Legal Affairs
Rear Admiral Shamkhani
Honorable Secretary of the Supreme National Security Council,
Subject: Report on Risks and Solutions Related to Potential International Legal Scenarios in Light of Recent Events
Greetings,
I am writing to provide a report on potential scenarios to address the unprecedented increase in economic, political, social, and legal pressures imposed on our country by Western nations in recent months. These actions have necessitated a comprehensive response from the Islamic Republic.
Introduction:
Since mid-September 2022, there has been an escalation of domestic unrest in Iran. Simultaneously, negotiations regarding the United States’ potential return to the Joint Comprehensive Plan of Action (JCPOA) have been ongoing. Despite a year and a half has passed since the new government took office in Iran, a definitive conclusion to these negotiations has not been reached. Currently, there is no agreement between Iran and the 5+1 countries for the full implementation of the JCPOA.
European countries, including Germany, France, and the UK, have raised concerns about Iran’s lack of cooperation with the International Atomic Energy Agency (IAEA) at the Board of Governors of the organization. The IAEA has issued two resolutions urging Iran to fully cooperate with the agency and allow access to the sites in question. These locations have aroused suspicion due to claims made by the Zionist regime regarding Iran’s nuclear activities.
On the other hand, since November 2022, there have been allegations made by officials from the United States and Europe regarding Iran’s involvement in the armed conflict between Ukraine and Russia. The Ministry of Foreign Affairs of Iran initially denied sending any weapons, including drones, to Russia. However, they later confirmed that Iran had exported drones to Russia prior to the commencement of hostilities in March 2021 (as stated on the website of the Ministry of Foreign Affairs and in the spokesperson’s response to journalists’ questions on October 3, 2022). However, media reports expanded on the potential extent of Iran’s involvement in Russia’s conflict with Ukraine, suggesting that Iran may have been providing missiles and military contractors to Ukraine.
After some time, news emerged that an Iranian contractor had been killed in the Crimean Peninsula (according to ILNA news agency, citing the Guardian on November 25, 2022). It is important to note that the alleged matter of arms exports from Iran to Russia for use in the Ukraine war was also addressed in a report by Ms. Di Carlo, the United Nations Deputy Secretary-General for Political and Peace Affairs, dated December 19, 2022. The report was presented to the Security Council concerning the implementation of Council Resolution 2231. Ms. Di Carlo expressed that the United Nations is currently examining the available information and will report to the Security Council at the appropriate time if necessary.
As domestic unrest intensified, the governments of Germany and Iceland demanded the discussion of grave violations of women’s and children’s rights in Iran at the UN Human Rights Council. Eventually, during the Council’s meeting in late November 2022, the majority of council members decided to establish a committee known as the fact-finding committee. This committee is tasked with conducting an investigation and presenting an initial report to the council in June 2023, followed by a final written report in February 2024. In mid-December, the head of the Human Rights Council appointed three women as members of this committee.
In December 2022, another significant development occurred concerning Iran. The United States government called for Iran’s expulsion from the [UN] Commission on the Status of Women, which is the oldest and most prominent body related to women within the United Nations. During the Commission’s meeting in mid-December, Iran became the first country in the history of the Commission to be expelled by a majority vote of member states.
Recently, the governments of Ukraine, Sweden, and the United Kingdom, with Canada taking the lead, have urged Iran to resolve disputes by accepting “binding international arbitration” regarding the downing of the Ukrainian plane. According to Article 14 of the Convention in question, if the parties fail to reach an agreement on arbitration within six months of a dispute arising from the interpretation or implementation of the Convention, the dispute can be referred to the International Court of Justice. If the case remains unresolved in domestic courts and negotiations do not yield a conclusion, the option of filing a lawsuit in court will be pursued in mid-June or by the end of June 2023.
Each of the aforementioned entities has the ability to devise its own strategies based on various options. However, the objective of this report is to present an overview of the subject matter and outline a range of worst-case scenarios related to the relevant situations. Predicting legal matters requires considering a broad spectrum of possibilities, particularly in dire situations. This enables the preparation of forecasts to assess the severity of the situation and contemplate appropriate measures to prevent it, if necessary.
Legal Possibilities ahead
Based on the historical context provided, we will now outline a scenario that highlights potential developments regarding Iran within the framework of international legal mechanisms. It is crucial to note that various imminent possibilities concerning Iran could be simultaneously raised and taken seriously by other countries. It is significant to acknowledge that Iran’s nuclear program was referred by the Board of Governors of the IAEA to the Security Council with an unprecedented consensus against Iran. Additionally, it is important to consider all the subsequent cases as a collective whole. There is a high likelihood that European governments and the United States may pursue most, if not all, of these cases against Iran. This collective action can be likened to an “international legal siege,” with the aim of depleting Iran’s energy and focusing on managing both its internal affairs and foreign policy:
7.1. It is essential to highlight the involvement of the Security Council in addressing Iran’s nuclear activities, initiated through the referral mechanism by the International Atomic Energy Agency’s (IAEA) Board of Governors. This has led to the reintroduction of the Iranian nuclear issue in the Security Council, which includes considering options such as the termination of Resolution 2231, the reinstatement of previous sanctions, and the application of Resolution 1737 regarding Iran. It should be emphasized that the commencement of Iran’s nuclear program in 2006 resulted in the imposition of multiple sanctions through Resolutions 1737, 1747, 1835, and 1929, all stemming from the same referral mechanism from the Board of Governors to the Security Council. It is important to note that, from a procedural perspective, potential negative votes from China and Russia cannot prevent the Agency from referring Iran’s nuclear program to the Security Council again.
7.2. Regarding the “snapback” mechanism by European countries and the reinstatement of previous sanctions by the Security Council against Iran, it is important to note that European countries, as participants in the Joint Comprehensive Plan of Action (JCPOA), initially triggered this mechanism in response to Iran’s gradual reduction of its JCPOA commitments since April 2019. However, during the final stages of its implementation, their focus shifted to observing the negotiations for the full restoration of the JCPOA between the United States and Iran. In this case, it is important to note that there is no possibility of vetoing the actions of the government or governments requesting to initiate the mechanism for the reinstatement of sanctions against Iran, as outlined in Resolution 2231.
Another crucial point to consider is that during the Trump administration, the reason for not implementing the aforementioned mechanism against Iran was the consensus among global actors. European members of the Security Council, such as France and the United Kingdom, shared a common stance in opposing the Trump administration’s decision to withdraw from the JCPOA. Similarly, Russia and China expressed their opposition to the reinstatement of the proposed sanctions. This consensus among key players prevented the issue from being included on the Security Council’s agenda for further deliberation. In the current situation, the likelihood of a similar scenario occurring for Iran is extremely low, near zero. This is primarily due to the consensus among European Security Council members and the support of the United States. The efforts of China and Russia to oppose the proposed mechanism for reinstating sanctions against Iran are minimal.
Considering the rotating presidency of the Security Council held by the United States and European Union countries, and the inclusion of the proposed mechanism for reinstating sanctions against Iran on the agenda, it is anticipated that the practical implementation of this mechanism, as detailed in paragraphs 11 to 13 of Resolution 2231, will be ineffective.
The submission of the preliminary report by the Fact-Finding Commission in the month of Khordad 1402 [May/June 2023], which highlights severe human rights violations during the unrest in the country, has the potential to prompt the inclusion of the matter in the agenda of the United Nations General Assembly or the Security Council. This can occur upon the request of any member state of the United Nations. In such a situation, various alternative options are anticipated as a result of the commission’s activities and the publication of its report.
8.1. The General Assembly holds the authority to request specific actions from governments concerning the situation in Iran, which may include the adoption of restrictive diplomatic measures.
8.2. Additionally, it is conceivable that the Security Council would perceive the situation as a threat to regional peace and security, prompting the adoption of specific measures to assess and enforce strict decisions against Iran. The imposition of sanctions on the Syrian government by both the Security Council and the European Union serves as a comparable example that emerged following internal unrest in Syria. The Security Council possesses the authority to impose partial or comprehensive measures on the situation in Iran, drawing upon the principle of “responsibility to protect.” Notably, the case of the Libyan unrest and the subsequent military intervention in 2011, which received Security Council attention, stands as a significant precedent. It appears that this option represents the most severe and predictable scenario outlined in this report, and there are indications that European countries, Israel, and the United States are undertaking political and legal preparations accordingly.
8.3. Another potential option that may emerge following the publication of the preliminary or final report by the fact-finding committee is the proposal put forth by certain countries and entities advocating for a separatist solution. This option becomes more likely if the current situation persists and there is a transfer of light weaponry to specific cities and provinces within the country, which have diverse ethnicities, with the intention of fomenting internal armed conflict. This scenario, in conjunction with the previous one, is considered the most severe and extreme possibility. It could act as a precursor to the potential utilization of the responsibility to protect principles by the Security Council or relevant countries.
8.4. The proposal of initiating a case against Iran in the International Court of Justice based on the International Convention on the Elimination of All Forms of Racial Discrimination (Convention on the Prevention and Punishment of the Crime of Genocide, 1966) by certain countries.
These two conventions have been frequently invoked by governments in the International Court of Justice over the past three decades. It is worth noting that the Iranian government has recognized the jurisdiction of the court in both conventions without reservations. Consequently, there is a possibility that lawsuits filed against Iran based on these conventions could involve the participation of third-party countries, similar to the Ukraine case against Russia concerning the Genocide Convention. In such a scenario, the plaintiff government could request interim measures against Iran’s actions during the internal unrest. While it is uncertain whether the case(s) against Iran would result in a specific condemnation, it is important to acknowledge that the legal process in the court is typically slow and time-consuming, often taking a minimum of 3 to 7 years for proceedings and the issuance of a decision. During this extended period, the plaintiff country or countries can exert necessary propaganda and legal pressure on Iran by publicizing the lawsuit, potentially leading to their desired temporary outcomes. The primary documentary evidence presented by the plaintiff government(s) against Iran in these lawsuits would likely be the reports of the Fact-Finding Committee, which hold significant evidentiary value within the court’s procedures under the auspices of the United Nations.
8.5. Another potential course of action is pursuing the filing of multiple lawsuits against Iranian officials in national courts based on the invocation of universal jurisdiction. This point has been indirectly addressed in the resolution adopted by the Human Rights Council, which emphasizes the use of the final report of the Fact-Finding Committee.
8.6. Referring the situation in Iran to the International Criminal Court by the United Nations Security Council is another option to be considered, taking into account the circumstances of the case. A precedent for this can be observed in the referral of the situation in Sudan in 2009, where a Fact-Finding Committee was established prior to the referral. The committee examined gross violations of human rights and humanitarian law during the internal unrest and armed conflict in Sudan and concluded that the occurrence of international crimes, such as genocide, crimes against humanity, and war crimes, was probable. Subsequently, based on the commission’s assessment, the Security Council referred the situation in Sudan to the International Criminal Court. Following a review by the Prosecutor’s Office and confirmation by the pretrial chamber, an arrest warrant was issued for the then-President and several military and government officials of Sudan. The trial of some of the allegations against these Sudanese officials is still ongoing in the court.
Next case, the Ukrainian plane incident has grown more intricate due to the protracted resolution process between Iran and Ukraine, as well as the allegations of Iran’s role in the armed conflict between Russia and Ukraine. Consequently, the following scenarios may be pursued against Iran:
9.1. Ukraine’s lawsuit against Iran in the International Court of Justice regarding the Ukrainian plane accident, with a high probability to be accompanied by Canada, Great Britain, and Sweden as claimants or third parties, is one of the options being pursued by these four countries to establish a deterrent mechanism. The resolution of the dispute is outlined in Article 14 of the 1971 Montreal Convention, which has been recently communicated to the Iranian government. Another option mentioned in the recent joint statement of the four countries is to raise the issue in the ICAO Council and subsequently escalate it to the Court.
9.2. According to the Ukrainian government, in its second declaration accepting the jurisdiction of the International Criminal Court (ICC) under Paragraph 3 of Article 12 of the Rome Statute, it seeks to address crimes falling within the Court’s jurisdiction since 2014, without a specified end date. Given that the Court’s jurisdiction extends to incidents involving ships or aircraft registered under Paragraph 2 of Article 12 of the Rome Statute, the Court will likely consider the Ukrainian plane accident in its investigations and proceedings.
Iran’s alleged involvement in the armed conflict in Ukraine can lead to various legal consequences, including the following:
10.1. If it is proven that Iran has participated in the armed conflict in Ukraine by providing weapons to Russia with the knowledge that these weapons would be used in the conflict, it would constitute a violation of the principles of neutrality in war as stipulated in the 1907 Hague Convention on the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Convention V). According to the provisions of this convention, the Ukrainian government would have the right to take necessary measures against the neutral state that fails to respect the principles of neutrality and assists the other side of the conflict. These measures may include stopping, searching, and confiscating the exported items and weapons.
10.2. As a result of the claim regarding Iran’s participation in Russia’s armed conflict with Ukraine, in accordance with the principles of international humanitarian law, the government of Ukraine is able to declare Iran as a direct participant in the conflicts. Consequently, Iran, along with relevant Iranian officials and assets, may be designated as legitimate military targets.
10.3. Due to the fact that the Ukrainian government, in its second declaration granting jurisdiction to the International Criminal Court (ICC) under Paragraph 3 of Article 12 of the Rome Statute, has specifically requested the investigation of crimes falling within the Court’s jurisdiction since 2014, with no specified end date, the Prosecutor’s Office of the Court will consider the alleged involvement of Iran in the armed conflict and the potential for Iran’s role in committing possible crimes during the conflict as part of its investigation.
10.4. Additionally, it is conceivable that European countries may independently propose arrangements in the United Nations General Assembly during or after the conclusion of the armed conflict in Ukraine, similar to certain international criminal courts like the Extraordinary Chambers of Cambodia. The issue of establishing a court to address crimes committed by the parties involved in the armed conflict in Ukraine could be raised in the General Assembly.
10.5. In accordance with the article on the responsibility of states for internationally wrongful acts, if a state willingly and knowingly aids and assists another state in committing a wrongful act, it will be considered internationally responsible. Therefore, if a government engages in criminal activity with the awareness that another government is receiving assistance, such as committing a crime or participating in an act of aggression, the facilitating government can also be held accountable.
The next matter under investigation pertains to the inclusion of the names of generals in the European Union sanctions list, initiated by the German government, as well as the strengthening of European sanctions against the IRGC. This is accompanied by the filing of numerous lawsuits in domestic courts of European Union member countries, the European Court of Human Rights, and the European Court of Justice. These legal actions are based on the alleged attribution of harmful actions resulting from assistance, encouragement, support, control, or alleged orders issued by the IRGC to carry out terrorist acts within the territorial jurisdiction of the European Union member states, thereby jeopardizing their peace and security.
Conclusion:
It appears that a perilous situation is emerging for Iran, involving multiple significant cases in the Security Council )including nuclear issues, participation in the war in Ukraine, and human rights concerns(. The simultaneous presentation of these cases in the Security Council increases the likelihood and potential for action under the seventh chapter of the UN Charter, while opposition to it weakens the effectiveness of veto power. In the meantime, one of the most probable options is to utilize the responsibility mechanism to endorse the report of the fact-finding committee. Furthermore, to overcome the aforementioned challenges, it is essential to take swift and effective measures in the following areas, prioritized in the following order:
1- Eliminating any doubts regarding Iran’s involvement in Russia’s armed conflict against Ukraine.
2- Creating the conditions for the revival of the implementation of the Joint Comprehensive Plan of Action (JCPOA) through the United States’ return to the agreement.
3- The settlement of the Ukrainian plane accident in the form of negotiations with the Ukrainian government and a one-time payment to the Ukrainian government for settling the issue.
4- The formation of a national fact-finding committee with the presence of people accepted by the state and protesters and transparency in dealing with possible violations.
5- Cooperation with the fact-finding committee of the Human Rights Council, of course, abroad, in order to provide correct information and possible answers.
Tavakol Habibzadeh
Transcript:
– Dr. Dehghan, the legal deputy of the President, for your information
– Honorable deputy for legal and parliamentary affairs of the Ministry of Intelligence
– Dr. Najafi, Honorable Deputy of Legal and International Affairs of the Ministry of Foreign Affairs
– Dr. Honarmandzadeh, Honorable Administrator of the Legal Department of the Secretariat of the Supreme National Security Council
Source » ncr-iran