The Iran sanctions snapback in light of the Abraham Accord

The US is no longer viewed as a callous associate of Iran's evil regime, but as a force for regional good. There is much to be done.. Op-ed.

Leonard Grunstein ,

Celebrating in street after Iran launched missiles at U.S.-led forces in Iraq
Celebrating in street after Iran launched missiles at U.S.-led forces in Iraq
Reuters

The miraculous UAE-Israel agreement, brokered by President Trump’s administration and scheduled to be signed in Washington next week, is an outstanding achievement. So too is the Kosovo-Serbia agreement and the prospects for further peace agreements between Israel and other nations.

All these wonderful and historical events are occurring against the backdrop of the ominous threats posed by Iran’s inimical and autocratic regime. These include the flagrant and egregious violation of its commitments under the JCPOA and its obligations under the Nuclear Non-Proliferation Treaty, as well as other malign activities, all glossed over by the West.

The response of the US under President Trump, in contrast to the prior administration and the ineffectiveness of the EU, may help explain why President Trump’s efforts at peacemaking have been successful, while these others failed.

Iran and the JCPOA

It is indisputable that Iran is not in compliance with the JCPOA. Whether the Iranian regime was clandestinely violating it all along, including hiding the Uranium metal disk used as a triggering device for a nuclear bomb, or this first occurred later may be a source of debate; but nevertheless, the fact remains that Iran is in non-compliance. Indeed, as the IAEA reported, Iran has already exceeded by ten times the enriched uranium limits under the JCPOA.

In response to Iran’s violations, Secretary of State Mike Pompeo delivered a notice to the UN Secretary General and president of the Security Council initiating the so-called snapback sanctions procedure, under UN Security Council Resolution 2231 of 2015.

Consider, in striking contrast, the impotent reaction of the EU. Britain, France and Germany formally accused Iran of violating the terms of the JCPOA and triggered the dispute resolution mechanism thereunder. In theory, this should have quickly led to their initiating a snapback, especially given the urgency of the situation. Instead, they have acted in concert with Iran to delay the process.

This reckless behavior and lack of support for the US’ effort to snapback is not only mystifying; it’s galling. As allies of the US and ostensibly guardians of non-proliferation under the Treaty, their pandering to the terrorist regime controlling Iran, while it continues to violate the Treaty with seeming impunity, is immoral and inexcusable.

By way of background, Resolution 2231 recognized the JCPOA and lifted the nuclear sanctions the UN Security Council had previously levied on Iran. It also sets forth a procedure for reinstating those sanctions, known as the snapback. Thus, the UN sanctions are reinstated 30-days after notice from anyone named in Resolution 2231 as a ‘JCPOA participant’ that there is believed to be significant non-performance by Iran of its commitments under the JCPOA. The Resolution provides that the only way to stop this automatic reinstatement of the UN sanctions is if, within such 30-days, there’s an affirmative vote by the Security Council to continue the sanctions relief provided for in Resolution 2231.

Who can initiate the snapback?

The US is one of those expressly named as a JCPOA participant in the Resolution and, therefore, it’s entitled to initiate the snapback, as described above. Since the US, as a Permanent Member of the Security Council, could veto any such Security Council effort to avoid the automatic snapback, the UN sanctions would perforce be reinstated into full force and effect.

Some have raised the issue of whether the US still has the right to trigger the snapback, since the President announced withdrawal from the JCPOA. However, it is submitted that this misapprehends the nature and import of Resolution 2231, as well as, the JCPOA.

First of all, it is important to understand that the term ‘JCPOA participant’, as noted above, is a defined term under Resolution 2231. This is a typical drafting device that’s often employed as an expedient means of referencing a list of names repeatedly used throughout a document. As used in the Resolution, the term includes any of the US, China, France, Germany, Russian Federation, UK and Iran, as well as, the EU. To put this in perspective, the EU is not an actual party to the JCPOA; yet it is included within the rubric of a JCPOA participant. This reinforces the plain meaning of the Resolution that being a party to the JCPOA is not a pre-condition to exercising rights under the Resolution.

It should also be noted that the JCPOA is not an actual legal agreement. It is unsigned and was never approved as a binding legal treaty by the US Congress. It was also likely not appropriately approved by the Iranian Parliament in the form presented to Congress or by Ayatollah Khamenei.

The US Department of State of the Obama administration, in a letter to then Congressman Pompeo, dated November 19, 2015, admitted the JCPOA was not a legally binding agreement and postured that it was merely a political commitment. The withdrawal from the JCPOA is nothing more than a symbolic act. Even the title JCPOA, an acronym referring to the Joint Comprehensive Plan of Action, describes it as a plan, not an agreement.

Interestingly, the letter goes on to acknowledge that the only real deterrent to Iran’s violation of its commitments is the US’ right to snapback UN sanctions and to impose its own unilateral sanctions against Iran. Legal arguments about the US’ status as a party to what amounts to a non-agreement are specious and irrelevant.

The only relevant document is Resolution 2231 and, under it as noted above, the US is definitionally a participant entitled to snapback protection. As a practical matter, this is immutable, given that this provision cannot be changed without amending the Resolution, which the US could veto. The US is, therefore, entitled to enforce the Resolution, by its terms.

Consider, the absurdity of suggesting Resolution 2231 enforcement is tied to remaining a JCPOA participant. Iran also withdrew from the JCPOA and is no longer a participant. Does that mean it too could argue it was no longer subject to the Resolution and the snapback thereunder? Of course not. The Resolution is clear and so is Iran’s commitment thereunder, never, under any circumstances, to seek, develop or acquire any nuclear weapons. It also reaffirms Iran’s obligations as a State Party to the Treaty on the Non-Proliferation of Nuclear Weapons. Remember, it was Iran’s violation of its legally binding obligations under that Treaty which was the source of the sanctions originally levied against Iran in the first place.

It should be noted that even if the EU, Russia and China balk at the US’ right to snapback the UN sanctions, the US can still act unilaterally to impose crippling secondary sanctions, including on their banking systems. This would effectively deter most business dealings with Iran. It would also impinge on the ability of Russia and China freely to do business with Iran, given their dependence on exchange currencies like the dollar and euro for trade.

Despite the assurances made by the Obama administration that as a result of the JCPOA, Iran would moderate it misbehavior, this turned out to be aspirations, not reality. Besides breaching the JCPOA, the Iranian regime has continued and even intensified its malign activities, directly or through its proxies, against the US and its allies, in the region and elsewhere. The US State Department declared Iran a State Sponsor of Terrorism on January 19, 1984 and the US intelligence community continues to view Iran as an enduring threat to US national interests, despite the JCPOA.

The JCPOA neither prevents the Iranian government from securing nuclear weapons nor incentivizes it to become a good neighbor. It merely serves to condone its reckless and nefarious behavior, including the criminal and terrorist activities of its proxies.

This was reinforced by the Obama administration’s policy of continuing to fund the Iranian regime, despite its wrongdoing. This included the notorious delivery of over $1.5 billion in virtually untraceable cash, in a variety of currencies, as a part of the many billions in assets released to Iran, which, at least in part, was funneled to Iran backed terrorists.

These Obama-Biden-era misguided policies and actions were viewed as a comprehensive shift in favor of the terrorists governing Iran and away from the US’ traditional loyal friends in the region, including Israel, the Emirates and Saudi Arabia. It was also at the expense of the Iranian people yearning to be free of their autocratic and repressive regime.

Iran's desire to continue its malign activities is a real threat

To better understand the overwhelming nature of the threat posed by the Iranian regime to US interests in the region, outlined below are just some recent occurrences and those of the not so distant past. History is an invaluable tool to deepening our understanding of those who have declared themselves to be our avowed and implacable enemies; it strongly suggests we should believe the threat is real.

The list of malign activities of the Iranian government includes:

  • Paying bounties to kill US soldiers in Afghanistan;
  • Responsibility for the death of more than 600 US troops in Iraq;
  • The ballistic missile attack on US bases in Iraq, in January of 2020;
  • Rocket attacks on US bases, by its Hezbollah proxy, in March of 2020.
  • Repeated dangerous and harassing approaches of US Naval forces in the international waters of the Persian Gulf.
  • The recent explosion in Beirut that caused so much devastation, which was the result of Hezbollah’s bomb-making activities and a new delivery of additional explosives material, funded by the Iranian government.
  • The recent International tribunal determination that Rafiq Hariri, the former president of Lebanon, was killed by Hezbollah, an Iranian proxy, as ordered Khamenei and planned by Soleimani, as a part of their scheme to exert complete control over Lebanon.
  • The firing by the Houthis, another Iranian government proxy, of Iranian supplied ballistic missiles against Saudi Arabia, as well as, their declared readiness to attack Israel alongside Iranian government backed Hezbollah and the oppression and now expulsion of the last few remaining Jews in Yemen;
  • The 1983 bombings of the US Marine Barracks and Embassy in Beirut;
  • The 1996 Khobar Towers bombing in Saudi Arabia;
  • Providing Hamas, another Iranian government proxy, with rockets, which have once again been fired at civilian targets in Israel, seemingly in response to the peace agreement between Israel and the UAE, although a Qatari brokered cease fire was just put in place; and
  • Responsibility for 9/11, as determined by Federal District Court Judge Daniels, in the Havlish case, including by Ayatollah Khomenei and development of the scheme to crash Boeing jumbo jets, with large fuel capacities, into the World Trade Center, White House and Pentagon that was code named “Shaitan dar Atash” (loosely translated as, Satan in Flames).

Nothing in the purported Iran deal changed this, as the Ayatollah continues to make clear on a regular basis. Hope and spin are no substitute for putting in place genuine safeguards to prevent Iran and its proxies from attacking the US and its allies. It’s not just about the nuclear threat. Judge Daniels found that Iran has many plans for attacking the US, including: (a) using chemical weapons and radioactive dirty bombs; (b) bombing hundreds of electrical power plants, gas stations and oil tankers; (c) using passenger airliners as bombs against US cities; and (d) bombing the railroads.

Isaiah (Chapter 28, Verse 15) offers some insights into the ineffectiveness of disingenuous agreements. He cautions the scorners and spin-doctors. An agreement purporting to establish limits, like red lines not to be crossed, or to cheat death can’t be sustained. Mere words can’t provide shelter and refuge in the face of an enemy intent on war. It’s nothing more than a false hope.

Let’s take the lessons of Isaiah to heart. The promise of safety, because of some contrived and hopeful strategy to limit Iran from completing a nuclear bomb has proven to be a farce. We cannot afford once again to promote a non-binding impotent agreement, like the JCPOA. It was also foolhardy not to address Iran’s misbehavior outside of the limited scope of its already illegal quest for a nuclear device.

With the advent of President Trump, terrorism by Iran is no longer blindly tolerated. Sanctions were levied against the Iranian regime, including bad actors like the IRGC, for egregious human rights violations, detention of US citizens on fabricated charges, support of terrorist groups and its ballistic missiles program. Murderous terrorists leaders like Solimani were surgically targeted and received their just due. It’s time to ramp the sanctions up further and, hence, the initiation of the snapback. The goal must be a genuine comprehensive peace agreement.

The UAE-Israel agreement in context

The renewed muscular and determined effort by the US to contain not only the nuclear threat posed by the Iranian regime, but also its malign activities, has restored US credibility and prestige with its allies and friends in the Middle East. It has enabled President Trump and his team successfully to broker a peace agreement between the UAE and Israel.

Last week, a US and Israeli delegation flew to the UAE, in a historic flight over Saudi Arabia, which in another breakthrough, granted permanent over-flight rights to Israel. There are also prospects for other countries, like Bahrain, Sudan, Oman and Saudi Arabia to join in making peace with Israel. Amazingly, even the President of Lebanon has hinted at the possibility of peace talks with Israel.

Unfortunately, not everyone celebrated the UAE-Israel rapprochement.

As might have been expected, the Iranian government vehemently decried the peace agreement. The club of nefarious players opposing the peace agreement also included Hamas and the PA. However, it is reported that this time members of the Arab League rejected the PA’s illegitimate demand to condemn the UAE-Israel agreement.

It’s been over a quarter of a century since the peace treaty between Israel and Jordan and more than forty years since the peace treaty with Egypt. The Abraham Accord, as the new peace deal has been aptly named, tangibly reinforces the new reality, which has taken hold in the Middle East. The US is no longer viewed as a callous associate of the Iranian regime’s ambitions. Once again the US is viewed as a force for good and a trusted ally and friend.

We should all be united in support of the US’ efforts to snap back the full weight of the sanctions. Don’t be misled by calls by those in the previous administration, who condoned the Iranian government’s wicked activities. The new approach of the Trump administration has already succeeded in yielding a real peace dividend and presents the prospect of continuing to do so.

May the New Year bring us the blessings of peace and usher in the ultimate redemption.

Leonard Grunstein, retired attorney and banker, founded and served as Chairman of Metropolitan National Bank and then Israel Discount Bank of NY. He founded Project Ezrah and serves on the Board of Bernard Revel at Yeshiva Univ. and the AIPAC National Council. He has published articles in the Banking Law Journal, Real Estate Finance Journal and more.



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