War On The Rocks | Philip H. Gordon: “My policy on cake is pro having it and pro eating it,” quipped then British Foreign Secretary Boris Johnson, when insisting in 2016 that the United Kingdom could somehow restrict immigration from Europe but remain in a customs union with the European Union at the same time. Four years later, the British government is bereft of cake, of course, but the quip came to mind this week after the Trump administration announced plans to demand that the U.N. Security Council re-impose sanctions on Iran for violating the nuclear agreement that the United States itself abandoned two years ago. Trump is no more likely than Johnson to have it both ways. Even worse, Trump’s gambit could end up freeing Iran from all nuclear restrictions, undermining the U.N. Security Council, alienating America’s European partners, and damaging U.S. credibility for a long time to come.
The proximate cause of the new U.S. effort is the scheduled expiration of a U.N.-imposed arms embargo on Iran in October. Since that embargo was only imposed on Iran in 2010 as part of the effort to persuade it to agree to a nuclear deal, Russia, China, and Iran demanded that it be immediately lifted when that deal was reached in 2015, notwithstanding the objections of the Obama administration and its European partners. As a compromise, a U.N. Security Council resolution endorsing the nuclear deal extended the arms embargo for five more years, until October 2020. The embargo had not significantly affected Iranian military capabilities, regional behavior, or ability to arms its proxies. So as White House coordinator for the Middle East at the time, I agreed with President Barack Obama and my administration colleagues that allowing its eventual expiration was a price worth paying for a deal that would ensure Iran could not develop nuclear weapons.
Today, determined to increase pressure on Iran and prevent it, at least in theory, from purchasing heavy conventional weapons, the Trump administration now plans to introduce a resolution extending the embargo, an effort Russia is certain to block. When it does, Trump will then press the European participants in the deal — the United Kingdom, France, and Germany — to invoke a provision in the agreement that allows any participant that alleges noncompliance by another to force the “snapback” of U.N. Security Council sanctions and extend the arms embargo, after a process lasting up to 30 days. Of the three, the United Kingdom is the most likely to support this. Johnson, now prime minister, might do Trump’s bidding because he is desperate for good relations with Washington and a post-Brexit trade deal. But this is not assured: He might also balk because he knows a snapback would likely end the nuclear deal that the United Kingdom still supports. At that point, devoid of alternatives, the United States would perform legal jujitsu and claim that for the purposes of enforcing the deal it remains a “participant,” even though it ended its participation with much fanfare in 2018.
Pompeo insists his interpretation of the Security Council resolution is “not fancy lawyering” but “just readin’,” even though most “readers” would not consider the United States a participant in a deal it no longer complies with and when it has repeatedly stated that it is not. The U.S. Special Representative for Iran, Brian Hook, argued with no apparent irony on April 30 that “There is no qualification in 2231 where ‘participant’ is defined in a way to require participation in the JCPOA.”
The administration’s gambit is not just too clever by half, but counterproductive and potentially dangerous. Because the move is on such thin legal ground (even most of America’s European partners find the logic twisted) Russia, China, and others may just ignore the result of any Security Council procedure that results from it. Iran, impoverished by U.S. sanctions and grappling with low oil prices, is hardly in a position to make large arms purchases anyway (as was the case in the years prior to the embargo’s adoption), but even if it were, a resolution that few countries consider legitimate would not significantly curb its ability to do so. Iran is vastly outgunned by the United States and most of its regional rivals, and while the U.N. embargo applies to heavy conventional weapons it doesn’t even cover the types of systems that would most concern American and regional defense planners, such as advanced air defenses. Trump’s ploy will thus produce little change in the regional military balance while weakening all previous and future Security Council sanctions and resolutions, damaging U.S. credibility, and setting a precedent whereby countries that withdraw from the obligations of international agreements can try to claim the rights conferred by those agreements. Getting the unilateral power of snapback written into the resolution was a unique and major achievement for the Obama administration in 2015. If the United States violates that resolution now it will never get a similar one again.
Unilaterally invoking “snapback” without a firm legal basis, after Europeans with the clear right to do so had refused, would also be a further deep blow to already fragile transatlantic relations. Trump has already severely damaged the transatlantic alliance by questioning NATO’s Article 5 defense guarantee, withdrawing from the Paris climate agreement, pulling U.S. troops out of Syria without consulting allies who also had troops there, unilaterally imposing steel and aluminum tariffs on dubious “national security” grounds, and withdrawing from the Iran nuclear deal despite desperate European pleas to support it. Another step that risks killing that deal while weakening international law and undermining the Security Council will only raise further doubts about the alliance’s future.
Perhaps most important, this latest unilateral U.S. attempt to alter the nuclear deal in its favor will likely be the one that finally destroys it. Notwithstanding the economic pain imposed by the Trump administration’s “maximum pressure” campaign — which has failed to produce either a new nuclear deal, a change in Iranian behavior, or regime change — Iran has so far chosen to remain a party to the deal, even while refusing to fully implement it. Tehran has not withdrawn from the deal in the face of U.S. sanctions because it still hopes that a Democrat elected in November 2020 would return to compliance in exchange for Iran’s willingness to do so. But if the United States manages to force the re-imposition of all U.N. sanctions by using the provisions of a deal it had violated itself, Iran will likely leave that deal altogether, leaving it free of all its restrictions and verification measures. Trump will be able to claim that he had destroyed the “worst deal ever,” but Iran would be free to expand its nuclear program without international supervision — unless the administration is willing to use military force to try to stop it.
The Iranian regime destabilizes the region, threatens its neighbors, and mistreats its citizens. The United States should thus seek to prevent it from acquiring advanced weapons by working closely with its European and other global partners, enforcing the wide range of existing regional arms embargoes, exercising diplomatic leverage with Russia and China, and if necessary sanctioning countries or companies that facilitate Iran’s weapons acquisitions. What it should not do is pursue the goal of containing Iran on the basis of a concocted legal theory that will do little to help achieve that goal and much to undermine American standing and interests in the world.
Philip H. Gordon is the Mary and David Boies senior fellow in U.S. Foreign Policy at the Council on Foreign Relations and served as White House coordinator for the Middle East, North Africa, and the Gulf Region under President Barack Obama. His book Losing the Long Game: The False Promise of Regime Change in the Middle East will be published in fall 2020.