by Peter Jenkins

On October 21, 2016 the Congressional Research Service (CRS) published a substantive assessment of Iran’s foreign and defense policies.

For the most part this research meets the high standards of accuracy and objectivity that we have come to expect of the CRS. In two respects, however—concerning Iran’s development of ballistic missiles and its possession of a capability to produce chemical warfare agents—the report is misleading. This matters if members of Congress look to the CRS for accurate assessments when debating policy proposals.

The report correctly notes that UN Security Council Resolution 2231 of July 20, 2015 “calls upon” Iran not to develop or test ballistic missiles designed to be capable of delivering a nuclear weapon for up to eight years. The report goes on to say that this wording “is interpreted by Security Council members as a ban on Iran’s development of ballistic missiles.”

We cannot be sure how each and every member of the Security Council interprets the missile-related provision in Annex B of Resolution 2231. But I would be very surprised if Russia or China or members of the Non-Aligned Movement interpret it as a ban on development and testing. After all, they know that there is a world of difference between the Security Council “deciding” under Chapter VII of the UN Charter that a state will or will not act in a certain way, and the Council “calling upon” a state to act in a certain way. The former wording creates a binding obligation, the latter does not.

Ironically the CRS recognizes this distinction elsewhere in the report. For instance, it describes an earlier Resolution on Iran, 1737, as follows: “It called for but did not require countries to cease selling arms…”

No one contests that in Resolution 1929 of June 9, 2010 the Security Council prohibited Iranian development of ballistic missiles capable of delivering nuclear weapons. The Council did so, however, by “deciding [under Chapter VII] that Iran shall not undertake” any activity related to ballistic missiles capable etc. And that prohibition was repealed by Resolution 2231.

Professor Daniel Joyner, whose recent publication I reviewed on this site has this to say about the distinction:

The substitution of the legal phrase “calls upon” in the text of Resolution 2231 has legal significance. The change to this invitational yet legally nonbinding phrase means that, as of January 16 2016, Iran is no longer under a legal prohibition regarding its ballistic missile activities from the Security Council.

Nor, I should add, is Iran under a prohibition regarding ballistic missiles from any other internationally recognized legal source. There is no international legal instrument governing the development and possession of ballistic missiles. In this domain there is no equivalent of the Nuclear Non-Proliferation Treaty, the Chemical Weapons Convention, or the Biological and Toxic Weapons Convention.

The United States therefore has no basis in international law for claiming that Iranian ballistic missile tests violate a binding obligation (as Ambassador Samantha Power implied, according to the CRS, last March). Instead the United States and allies must resort to diplomacy, negotiation, and persuasion (not meant as a euphemism for coercion) if they want influence over Iranian ballistic missile activities.

This is not a message that Congress wants to hear. Diplomacy and negotiation imply recognition, acceptance, respect for the rights of others, courtesy, and restraint. Many senators and representatives deem Iran undeserving of such courtly treatment. But that is no excuse for their being misled into thinking that there is a prohibition in force—still less into inferring violations of that prohibition to justify sanctions.

Chemical Warfare

Another misleading assertion in the CRS report concerns chemical weapons:

US reports indicate that Iran has the capability to produce Chemical Warfare agents…..This raises questions about Iran’s compliance with its obligations under the Chemical Weapons Convention…

This passage implies that possession of a capability to produce CW agents is or has potential to be a violation of the CW Convention (CWC).

Yet, the CWC does not prohibit the possession of such a capability. Dozens of parties to the CWC have such a capability. And many parties not only have a capability but also produce agents for accepted, peaceful purposes—for instance, phosgene for use in metallurgical processes. The CWC even permits the production of nerve agents for certain medical and other purposes.

Iran had an unsophisticated CW program that ceased before Iran became a party to the CWC on November 3, 1997 (not June 8, 1997, as the CRS imagines). Iran has been subject to a rigorous Organization for the Prohibition of Chemical Weapons (OPCW) inspection regime since becoming a CWC party. The OPCW has found no evidence of CWC non-compliance.

State Sponsorship of Terrorism

The CRS report also lists “major Iran or Iran-related terrorist acts or plots.” Sixteen entries span the years from 1979 to 2015. Whether ultimate responsibility for each and every one of them is rightly ascribed to Iran could be debated. For instance, al-Qaeda, not an Iranian-sponsored Saudi group, could have been responsible for the Khobar Towers bombing in June 1996. But that’s not the most important point.

More interesting is that since the 1996 bombing there have been only three “major terrorist acts or plots” in which the CRS sees evidence of Iranian involvement. These are:

October 2011: an alleged plot to assassinate the Saudi ambassador in Washington, DC.

February 2012: the wounding of the wife of an Israeli diplomat by Lebanese Hezbollah in Delhi.

July 2012: a bombing in Bulgaria, ascribed to Lebanese Hezbollah, that resulted in the death of five Israeli tourists.

Do three acts/plots in the course of 20 years justify the State Department’s continued description of Iran as the world’s leading state sponsor of terror? Would it not be more accurate to say that Iran used to be the leading state sponsor of terror but that since 1996 it commissioned just two terrorist acts, in which five people died and one person was injured?

Those deaths must have caused great pain to the families concerned, and are inexcusable. But a sense of proportion is in order, given that Iran’s enemies in Congress, and elsewhere, rely on the “terrorist label,” among other tactics, to seek to prevent the US government from adopting rational and proportionate policies towards Iran. In reality, although Iran is not a model member of the international community—far from it—it’s not the source of all evil.

Congress should be helped to understand that. Good research makes for good policy—and misleading research makes bad policy more likely.