The Fatwa FailureStone follows up his idea of criminalizing proliferation in Taiwan with the notion of doing something similar in Iran via a fatwa and legislation. This Chapter shows how the idea occurred and how it moved along and failed.
On the evening of October 20, 2004, asked by an Iranian if I had an “original idea” on the nuclear confrontation between Iran and the International Agency For Atomic Energy (IAEA) on nuclear weapons, I said the problem was that no one believed Iran. The question then was how, under these circumstances, one could make credible that Iran would not, in the future, build nuclear weapons. My answer was to “issue some kind of religious fatwa making such activities a sin” and to embed the notion in legislation.
The idea occurred for a peculiar reason. That very afternoon, at 4:00 P.M., I had been talking to a National Security Council official about the problem of criminalizing proliferation with regard to Taiwan—which, as shown in the Section on China, in the Chapter on "Blowing the Whistle"—had been showing interest in nuclear weapons. I told him I had suggested this idea to some key people in Taiwan.
He said that the G8 powers, at the Sea Island summit in 2004, had already agreed to “criminalize” proliferation. He said they had agreed to pass legislation that would make it a crime for individuals to violate their agreement to international laws precluding proliferation (e.g., the nonproliferation treaty and/or the IAEA agreements). President Bush had given a speech on this at the National Defense University. I began reading about it.
I wondered if Iran could criminalize proliferation by advising scientists that proliferation—even in their own country—was a sin. If religious authorities said, with sufficient emphasis, that weapons of mass destruction were sinful—and that the Islamic faithful should not participate in building such weapons—this might be useful. Such a fatwa, and legislation embodying it, would have the further benefit of extending the idea of “sinfulness” beyond Iran's borders to the rest of the Islamic world—something obviously quite important. I vaguely recalled that the Supreme Leader had already once said something about weapons of mass destruction being un-Islamic.
Iranians said this idea was consistent with the “mental framework” in Iran, that is, a framework whereby they were doing only peaceful work and had no interest in exploding a bomb. And so I suggested it.
Obviously, many audiences would not accept criminalizing proliferation as dispositive or determinative of Iran's future behavior, but I thought it might play a psychological role in moving the negotiations forward inside Iran.
In retrospect, this may have been, to some extent, reinventing the wheel. Unbeknownst to me, Ayatollah Ali Khamenei, the supreme leader of the Islamic Republic of Iran, had made a number of speeches opposing nuclear weapons. On March 21, 2003, at the Imam Reza Shrine in Mashhad, he said, “We are not interested in an atomic bomb. We are opposed to chemical weapons.... These things are against our principles.” On July 20, 2003, he told Revolutionary Guards that Iran did not want nuclear, chemical, or biological weapons.
On August 6, 2003, in front of Khatami, Karrubi, Shahrudi, cabinet members, Rafsanjani, and others, he said: “Contrary to what our enemies have been propagating, we are not after production of nuclear arsenals, and by principle and fundamentals we are against WMD, just like we have considered biological and chemical weapons as prohibited weapons even at the time of the Imposed War.” (Note) And on October 22, 2003, he told university students that “we do not need nuclear weapons because we never believe that the possession of such weapons would provide the ground for the country's strength and authority.” And, a year later, five weeks before I had the idea, the Iranian Foreign Ministry spokesman Hamid-Reza Asefi had said, on September 12, 2004, “We believe that the use of nuclear weapons is religiously forbidden; this is the leader’s fatwa.” (Note)
Still the October 20 idea—with its notion of embedding the fatwa in legislation—seems to have had some catalytic effect. References to the fatwa and the notion of legislation began to move forward.
In a November 5 commentary in the Los Angeles Times, the Iranian ambassador to the United Nations, Mohammad Javad Zarif, referred to “serious ideological restrictions against weapons of mass destruction, including a religious decree issued by Ayatollah Ali Khamenei, the leader of the Islamic Republic of Iran, prohibiting the development and use of nuclear weapons.” On the same day, the Supreme Leader gave a sermon in which he said, “We have stated our religious views [on the nuclear weapon]. (More info) And, in particular, on November 6, a legislator named Hamid-Reza Haji-Babaei said he expected unanimous support for a bill banning the production of nuclear weapons and said that this bill would show Iran's peaceful intentions. (Note)
But another legislator, Hojatoleslam Mohammad Taqi Rahbar, put his finger on a serious flaw in the argument. He said, “There are no Shari'a [religious law] or legal restrictions on having such weapons as a deterrent,” that is, to “scare the enemy and prevent it from attacking.” (Note)
I was in China at the time but followed some of the debate on the Internet. It was obvious that the debate over the law was going forward in terms that were much too vague—saying nuclear weapons were “not necessary”—and the debate and legislation were not, in particular, quoting Khamenei’s fatwa.
Still, it was clear that, in Iran, some advocates were trying to get a strong fatwa wrapped in legislation and with references to UN Resolution 1540. On November 11, the legislation seemed to pick up some steam, and a quote from Khamenei that “our religious teachings do not allow us to seek the manufacturing of atomic weapons” was being used.
But it does not seem to have been passed.
Meanwhile, Billington’s trip to Iran was controversial in Iran. A pro-Khatami paper called it “ping-pong” and compared it to the opening to China. But the deputy head of the commission on culture, Javad Arianmanesh, said the Billington visit was “poor taste if not treason” and not apolitical at all.
On November 12, I heard that it was Palestine Liberation Day in Iran and that demonstrations were going forward, with chants of “Death to America” and “Death to Israel.” That same day, I learned that 60 Minutes was going to air a program on terrorism. It was going to include reports that a sheik in Saudi Arabia had said it was Islamic to use weapons of mass destruction against America. Accordingly, this program was going to persuade Americans that “Death to America” would really mean the Iranians approved of destroying our cities and that the importance of a fatwa against this was rising.
On November 5, according to Foreign Minister Kamal Kharrazzi, Ayatollah Ali Khamenei reiterated a fatwa “prohibiting the production, stockpiling and use of nuclear weapons.” (Note)
On February 8, 2005, Hassan Rowhani discussed the issue at length on Iranian television, emphasizing that it was the country's “most senior official politically, religiously, and militarily, the commander-in-chief of the armed force, the country’s most senior political and religious leader” who had “clearly” stated this fatwa during Friday prayers. (Note)
The fatwa played a role in negotiations with the Europeans. On February 25, the Iranian negotiator Hassan Rowhani referred to it in his joint press conference with Joschka Fischer in Germany when he said “based on our stated position on the rejection of nuclear arms and Ayatollah Khamenei’s fatwa on this issue.” On May 24, he said it again, referring to a “fatwa on the status and prohibition of [all] these weapons [of mass destruction].” (Note)
In August, I decided to provide Steve Aftergood’s Secrecy News with the elements of this story, which, indeed, he had been helping me with. He wrote “Iran’s Missing Anti-Nuclear Fatwa.” He pointed out that the August 9 statement of Iran to the IAEA had talked of a fatwa on “production, stockpiling and use of nuclear weapons” but had not referred to “development,” while Ambassador Javad Zarif had said the decree “prohibits the development and use of nuclear weapons.” This showed the need for a document.
Furthermore, Aftergood pointed out, an effort to legislate this idea had failed, raising further confusion—with one legislator saying that there was no legal restriction on the use of such weapons as a “deterrent.” (Note)
Aftergood’s summary of the situation, sent by e-mail to hundreds of news outlets and picked up by listserves of experts, produced some renewed interest. One expert, Shahram Kholdi, responded that “technically speaking” a religious opinion does not have a binding effect unless it is formulated as a fatwa clearly and unequivocally. And he wondered which verses in the Koran or the Hadith disallow using “any means” necessary to destroy the enemies of Islam. In short, upon what could the fatwa be based?
A second problem was that Ayatollah Khomeini had introduced the principle of expediency/exigency as a guiding light to preserve the Islamic Republic. His doctrine of Valiyeh Faqih said that his powers were not lower than that of the Prophet. Hence, if the survival of the regime was at stake, “even the basic tenets of the religion could be shut down to protect the Islamic System from destruction.” This idea, put forth in an open letter in 1986 to the present Supreme Leader, gave rise to a doctrine of Maslihati Nizami Islami, that is, the doctrine of the “Expediency of the Islamic Regime.” Under such a doctrine, laws contrary to the basic tenets of Islam could be finalized by the Expediency Council.
So even a properly issued fatwa might not be truthful but only expedient. (Note)
Some Iranians felt that, in the process of passing legislation, any flaws in the fatwa would be resolved. However, in conversation, asked how many Iranian scientists would take a fatwa seriously in deciding whether to work on nuclear weapons, one said “perhaps one in a hundred.” So it all depended upon the fatwa being introduced in legislation and on the legislation being enforced. Still, it provided a kind of out for the country not to build nuclear weapons if forces within it decided not to do so.
In early September, I talked to an official in the President’s Office in Iran who was preparing a speech for the president’s visit to the United Nations. On talking with him, it became apparent that he wanted help in drafting a speech that would put forth the idea of a fatwa. I decided to give this a last college try and sent him a few paragraphs. (Note)
In fact, when President Ahmadinejad gave the September 17, 2005, UN speech, it never really referred to a fatwa at all. He said simply: “The Islamic Republic of Iran reiterates its previously and repeatedly declared position that in accordance with our religious principles, pursuit of nuclear weapons is prohibited.” So this vague response was all we were going to get out of them.
By January, I had learned from an international source that the notion of a fatwa-type law being passed by the Majlis was part of the Iranian package deal of spring 2005 in negotiations with the European Union as an item conditional on general agreement.
Later, in 2006, I learned more about fatwas that I should have looked into earlier. In correspondence with Shahram Kholdi, at the University of Manchester, he said first of all that any fatwa would have to be put in writing so that it could be assessed from the jurisprudential (i.e., Fiqh) point of view. In other words, a valid and authentic fatwa must be predicated on the Koranic or Hadith dicta; that is, some source must be found and stated to explain and justify the fatwa either in the Koran or in actions of the Prophet.
Alternatively, it can be based on the “Expediency of the Regime’s Survival.” This doctrine arose when the late Ayatollah Khomeini wrote an open letter in 1986 to the present Supreme Leader (who was at the time the president of the Islamic Republic). In it he said that the Supreme Leader had powers parallel to the Prophet of Islam himself in interpreting the religion. Should the survival of the Islamic regime be at stake, even the basic tenets of the religion could be shut down to protect the Islamic system from destruction. After the death of Ayatollah Khomeini, an Expediency Council and the Principle of the Expediency were enshrined in the amended Constitution of the Islamic Republic, which enhanced the powers of the Supreme Leader in determining general policies of the state.
According to Kholdi, the principle of the expediency is a “two-edged sword.” He said: “While one might invoke it to assure the rest of the world that an Islamic State would never make [a nuclear weapon], however it has been formulated and based upon the Koran and the Hadith, the same principle of expediency can allow for the manufacturing of any such weapons, should the circumstances change.” (Note)
A June 2006 Washington Post article said a Turkish diplomat had quoted the Iranian nuclear negotiator, Ali Larijani, as saying “there is even a fatwa, a religious ruling, since the time of Khomeini, that Iran will not produce any nuclear weapons.” But religious authorities such as Grand Ayatollah Jalaleddin Taheri said “this question is ambiguous,” and religious texts might offer avenues that would allow stockpiling such weapons in the name of deterrence or self-defense. This notion that deterrence might permit stockpiling was supported by Mohsen Gharavian, who teaches Islamic philosophy in the Qom and is a spokesperson for Ayatollah Mohammad Taqi Mesbah-Yazdi, an archconservative.
In this article, the main supporter of the Islamic illegality of nuclear weapons was—guess who—Kazem Moosavi Bojnourdi, who said, “You are not allowed to gather weapons that are not allowed by Islam, even against your enemies” and noted that, during the eight years of war with Iraq, the Iranians never reciprocated against the bombing of Iraqi cities because of the prohibition against killing innocents. The article noted that the Revolutionary Guards, to whom any nuclear program would be entrusted, had an insignia that included a passage from the Koran reading: “Prepare any strength you can muster against them, and any cavalry with which you can overawe God's enemy and your own enemy as well, plus others besides them whom you do not know.” (Note)
In sum, the Iranian government pushed the idea of a fatwa because it had some truth to it and may have seemed useful. But the government never really produced a written fatwa because it was not feasible to do so under Islamic law and, really, was not desired by so many in favor of matching the weapons of their neighbors—including the Revolutionary Guards. Whether Catalytic Diplomacy was right to invent this idea independently and to push it can certainly be argued.
Some Iranian officials were certainly encouraged to press this notion by their belief that it might help prevent development and give rise to an agreement. Others, more cynical, may have stepped up their enunciation that the bomb was a non-Islamic notion upon hearing that some thought-to-be-experienced foreigners thought that this might “sell.” In the end, things were left pretty much where they were.
But I still believe that somewhere in Islamic attitudes lies a resistance to the use of weapons of mass destruction that is worth encouraging even if it cannot be relied upon to stop development, production, and stockpiling—as it has not in Pakistan.*
*Added on October 5. Professor Juan Cole has kindly authorized the quoting of a statement in which he defended the plausibility of the fatwa against certain criticisms. In it he said: "Khamenei is a mujtahid and has the standing to issue a fatwa... Finally, since he sets policy on such matters, what difference, in any case, would it make what exact jurisprudential standing his fatwas enjoy?
The only real question is whether he is lying and insincere. That would be a dangerous ploy on his part, in a state premised on Islamic jurisprudence and in a position premised on being `adill or upright.
As for the general Islamic law of war, it forbids killing innocent non-combatants such as women and men; ipso facto it forbids deploying nuclear weapons. I do not agree that Iran has a chemical weapons program, but in any case chemical weapons have for the most part been battlefield weapons used against massed troops or in trenches. Having such a program does not imply intent to kill innocent civilians. Whereas making a bomb does imply such intent and is therefore considered by most Muslim jurisprudents incompatible with Islamic law.
Khamenei seems to me to have decided some time ago upon having a "Japan option" (the ability, were the circumstances to call for it, to rapidly construct a bomb so as to be able to invoke Mutually Assured Destruction against an aggressive enemy). The Japan option has all the advantages of actual possession of a bomb without any of the unpleasant consequences, of the sort North Korea is suffering. A Japan option makes a country a geopolitical player and lessens the hegemony of nuclear-armed states (thus, Japan is not nearly as afraid of China as the relative military postures of the two countries might predict; and with a Japan option, Iran would be less threatened by Israel.)
The problem for the West is that the Japan option is not illegal under the Nuclear Non-Proliferation Treaty. And conveniently for Khamenei, the Japan option is not incompatible with Islamic law...."
A response to this by another specialist said: "Khamenei's writ is only valid for as long as he is alive and rahbar. Moreover, a mojtahed's fatwa can be overridden by another one, and when Khamenei is rahbar no longer, the new rahbar can issue a fatwa stating the opposite, based on his interpretation of the law."