February 28, 2013
By Ariane Tabatabai – Iranian Supreme Leader Ali Khamenei has reiterated a number of times that the use of nuclear weapons is prohibited under Islamic law. One declaration in particular has received a lot of attention and has become known as the fatwa (a fatwa is a religious edict, which is traditionally issued by a mujtahid – a Shiite scholar who is competent to interpret sharia – to provide an answer to a religious question).
Khamenei’s fatwa prohibiting ‘nuclear weapons’ has once again gained international attention as various Iranian officials are pushing for it to become an ‘international document.’ The former spokesman for Iran’s nuclear negotiators, Seid Hossein Mousavian, currently a research scholar at Princeton and viewed by Westerners as a moderate voice on nuclear issues, has adopted the fatwa discussion as his leitmotif, calling for it to be taken ‘seriously’.
There are several issues with the ‘fatwa’ itself, its wordings, its binding nature, its date of issuance, in addition to questions arising from giving a key role to a religious edict that could have direct implications on the ongoing international negotiations regarding Iran’s nuclear program.
First, the Iranian authorities have never presented the text of this ‘crucial’ document and the term fatwa is in fact only used by other parties (including the Iranian Ministry of Foreign Affairs, its nuclear negotiators, and U.S. officials) and never by the Ayatollah himself. The Supreme Leader’s website, which is extremely comprehensive and includes the texts of all of his teachings, statements, and speeches, has not uploaded this piece, which is referred by others as the ultimate rule regarding the nuclear issue by Iranian officials. If this decree is indeed the key legal document regarding the most important issue in the country’s foreign policy, as it is claimed, then the fact that its exact wordings or date of issuance has not been disclosed (and does not seem to be known by the authorities) is peculiar.
Second, if such a fatwa exists, its scope has seemed to change overtime. The most relevant statement by the Supreme Leader that could be considered as the fatwa, stipulates:
According to our faith, in addition to nuclear weapons, other kinds of WMD, such as chemical and biological weapons also constitute a serious threat to humanity. The Iranian nation, which is a victim of the use of chemical weapons itself, feels the danger of the production and stockpiling of such weapons and is ready to employ all its means to counter them. We consider the use [کاربرد] of these weapons as haram [prohibited under Islamic law], and the attempt to immunize human kind from this great disaster the responsibility of all.
According to the Iranian 2005 Communication to the International Atomic Energy Agency (IAEA), the wording of the fatwa was as follows: ‘the production, stockpiling and use of nuclear weapons are forbidden under Islam.’ Yet, in Ayatollah Ali Khamenei message, which was read at the opening of the International Conference on Nuclear Disarmament and Nonproliferation in 2010 , the Supreme Leader’s explicit prohibition has merely encompassed the ‘use’ of these weapons. Recent statements, by the Ayatollah himself, merely highlight a ban of the use, with philosophical and ethical discussion about the production and stockpiling of these weapons, rather than a concrete prohibition. The possession is not mentioned in his statements, leaving a grey area in what is the key issue in Iran’s nuclear debate. The fact that the only concrete line is drawn for the ‘use’ of these weapons raises a question regarding the stance of the Supreme Leader on nuclear deterrence. Indeed, he has made it clear that he does not believe the ‘possession’ of weapons of mass destruction is in the interest of the country and raises ethical and philosophical issues with these weapons. Yet, he falls short of taking a clear legal position on the production and possession of these weapons, which may hint at his wish to.
This narrowing of the scope of this prohibition was later limited to the ‘use’ of such weapons, creating some confusion in the West, mainly due to inaccurate translations, which did not highlight this shift in the leadership’s discourse. Hence, if a fatwa was, infact, issued by Khamenei, it no longer seems to reflect his current stance on the issue.
Third, there are also a number of pending questions regarding the significance of the fatwa itself. Mousavian argues: ‘[t]he validity of the fatwa should not be underestimated. Because of the strong bond between religion and politics in Iran, the supreme leader’s religious fatwas carry both legislative and religious importance.’
This is not the case. Whether or not the Supreme Leader can even issue such a decree is debatable, as he is not a marja in the traditional sense, but rather a member of the Shiite clergy, who has received much of his authority not from his religious education and status but from his political power. It is important to note that until his presidency in 1981, Khamenei was merely a hojjat al-Islam and has, until now, not received the approval of any major marja. In fact, the requirement set by the first Constitution of the Islamic Republic, according to which, the Supreme Leader needed to be a marja was removed in the second version of it, as the founder of the regime, Ayatollah Khomeini, knew well that otherwise no one would be able to succeed to him, as among his followers were no prominent religious authorities. For this reason, an institution was established under the Islamic Republic, called shora-ye fatwa or the Fatwa Council is in charge of issuing fatawa. Hence, the Supreme Leader’s fatawa (plural of fatwa) only have a political and ideological weight and noreligious grounds. one.
Fourth, despite the growing consensus built around the fatwa being the key to solving the nature of the Iranian nuclear program among the various Iranian officials and former officials, there is no information regarding the date it was issued. Some sources cite a fatwa dating to 2003, while according to Hassan Rouhani, his ‘first negotiation with the European ministers was on December 13, 2004, a month after the fatwa.’ Yet, the country’s Foreign Minister, Aliakbar Salehi, states in his 2012 opinion piece that ‘[a]lmost seven years ago, Iranian Supreme Leader Ayatollah Ali Khamenei made a binding commitment. He issued a religious edict — a fatwa — forbidding the production, stockpiling and use of nuclear weapons.’ This would mean sometime in 2005.
Fifth, a fatwa is not an absolute and irreversible rule. Furthermore, the idea of maslahat-e nezam, the rough equivalent of Raison d’Etat in the Islamic Republic’s Shiite political ideology (the notion in its modern, abstract form does not exist in the Islamic tradition), enables the Supreme Leader to overrule any religious rule, including temporary suspension of explicit Qur’anic prescriptions – even in the cases of the foundations of the faith – in order to safeguard the regime, let alone fatawa. Indeed, the Supreme Leader’s ultimate goal is to preserve the Islamic state and the notion of maslahat-e nezam provides him the tool to do so. It was with this idea in mind that the founder of the regime, Ayatollah Khomeini, had formulated this notion: the preservation, at all costs, of the Islamic state. In other words, should Iran be attacked, threatening the Islamic Republic, it could resort to not only producing but also using nuclear weapons.
Sixth, the fatwa seems to have been created to convince a western audience of Iran’s peaceful intentions, rather than a domestic one. This is why the fatwa is hyped by the Ministry of Foreign Affairs and former officials in the west, while it has remained virtually absent in domestic debates in Iran. Indeed, while the Supreme Leader, Ahmadinejad, and other officials address various aspects of the Iranian nuclear program (including national pride and technological progress) at length in their speeches, they do not put as much emphasis on the legal issue. The Supreme Leader has addressed it in passing but the fatwa discourse has never been a central element of any of his speeches regarding the nuclear program for several reasons. First, after the 2009 presidential elections and the subsequent wave of protest and unrest, many in the country began to question the regime’s true commitment to Islamic law. Indeed, many Iranians saw the actions perpetrated by the regime, including alleged rape, torture, and killing of members of the opposition, as against the faith. Hence, many believe that the regime will do whatever it takes to survive, regardless of its ethical and religious implications. Second, with the backbreaking sanctions increasingly affecting the population, the main problem for Iranians is not whether their nuclear endeavors are military or civilian in nature and are scarcely preoccupied with its accordance with Islamic law. Rather, the main issue is how the international community perceived it and the implications of this perception for the country. The west, however, in an attempt to take steps toward Iran, and to find a common ground with the Islamic Republic, has acknowledged the fatwa, which has inspired the Ministry of Foreign Affairs and former officials to shape the nuclear discourse around it to a great extent.
The Iranian campaign for the international community to take the fatwa seriously is based on the Islamic Republic’s ideology and strategy: the portrayal of international law and the will of the international community as that of few ‘arrogant’ and ‘imperialist’ powers that need to be overcome. International law and institutions are often depicted by the Islamic Republic as obstacles to overcome, rather than means of promoting international peace and security. Therefore, the fatwa is an extension of this worldview, a way of defying the international community and undermining its will and norms. In the words of Hassan Rouhani, ‘[t]his fatwa is more important to us than the NPT [Nuclear Non-Proliferation Treaty] and its Additional Protocol, more important than any other law.’
Iran’s invocation of its religious stance to justify its compliance with international law is similar to a private citizen invoking his faith in court to support of his case. Indeed, as one’s faith cannot constitute evidence of one’s guilt or innocence, a state actor’s official religion cannot be seen as viable evidence supporting its claim to compliance with its international obligations. Additionally, a private citizen’s case cannot be supported by a religious decree as evidence of his good will in court. Likewise, a state actor’s good will cannot be measured with such a decree, may it be issued by a town cleric or its highest political power.
Some current and former Iranian officials have tried to give an international dimension to the fatwa. For instance, in January 2013, Ramin Mehmanparast, spokesperson of the Ministry of Foreign Affairs suggested the country was ‘ready for this fatwa being registered as an international document.’
This statement made ahead of the meeting between the IAEA and Tehran showed once again the country’s bizarre attitude toward international law and institutions such as the IAEA. It shows that Iran’s leaders expect the international community to take steps toward them rather than the opposite, and, rather than prove their compliance with international law, find it easier to create their own norms. This attitude toward international law and institutions indicates that the leadership is less than ready to accept and implement said law and cooperate with said institutions. International law is supposed to take precedence over domestic laws, yet a statement, which has not even been adopted as a piece of domestic legislation, is considered as superior by Iranian diplomats. To some extent, it demonstrates Iran’s lack of commitment to its international obligations and should Khamenei decide to take the extra step and weaponize, this decision would take precedence over the NPT.
Ariane Tabatabai is a Ph.D. candidate at King’s College, London, researching nuclear proliferation. She specializes in Iran and the ongoing nuclear negotiations with the P5+1.