Washington Made It Easy for Iran to Fire Its Ballistic Missiles

Iranian officials spent the frantic final weeks before last year’s nuclear agreement pushing Washington to eliminate a long-standing U.N. prohibition on its ballistic missile program. They didn’t get the ban scrapped, but they did get it softened.

Now, eight months later, a recent series of Iranian missile tests has many in Washington angrily calling for new sanctions on Tehran. But Obama administration officials shouldn’t be surprised by Iran’s decision to test its standing on the international stage to fire the missiles: To the contrary, the nuclear deal may have made the missile launches inevitable.

Before the July 2015 nuclear pact, Iran was expressly prohibited by U.N. resolutions from launching ballistic missiles capable of developing nuclear weapons. U.N. Security Council resolution 1929 states that the 15-nation body “decides that Iran shall not undertake any activity related to ballistic missiles capable of delivering nuclear weapons.” In U.N. legal parlance, invoking the word “decides” places an unambiguous legal obligation on all states to comply.

But in exchange for Iran’s signature on the landmark nuclear accord, the United States granted Tehran greater wiggle room to advance its ballistic missile program. Last July’s U.N. Security Council resolution 2231 — which endorsed the nuclear pact — replaced the prohibition with more permissive language: “Iran is called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons.”

At the time, U.S. Secretary of State John Kerry and other top administration officials portrayed the concession as a victory, saying they had successfully rebuffed attempts by Iran, supported by China and Russia, to eliminate the prohibitions on ballistic missiles altogether. Instead, the United States secured an agreement to maintain restrictions on Iran’s ballistic missiles for up to eight years.

There’s just one problem: The updated measures are neither legally binding nor as restrictive as the measures in place at the time of the nuclear pact. In essence, resolution 2231 provides Iran with a loophole big enough to develop medium- and long-range missiles without the risk of running afoul of Security Council dictates. It also complicates efforts to define what kinds of missiles are capable of carrying a nuclear warhead.

The U.N. has long relied on guidelines for sensitive rocket technology set by the Missile Technology Control Regime (MTCR), an informal group of 34 countries that seeks to impose export restrictions on equipment that can be used for nuclear weapons and other weapons of mass destruction. According to the MTCR, a ballistic missile with a range of 300 kilometers and a payload capacity of 500 kilograms, or roughly 186 miles and 1,100 pounds, is considered capable of delivering a nuclear warhead.

The Iranian missiles fired this month would reach far beyond that range.

“The missile launches are a clear violation of the spirit, if not the letter, of resolution 2231,” said Jacqueline Shire, a former member of the U.N. Security Council panel responsible for overseeing U.N. sanctions against Iran. “It is unfortunate that all members of the council cannot agree on this basic premise.”

Shire’s comments may have been directed at Russia, whose U.N. ambassador, Vitaly Churkin, has dismissed the prospect of sanctioning Iran over the missile tests. Churkin argues that the big-power deal didn’t include any constraints on Tehran’s missile program, which means Iran technically did nothing wrong. “A call is different from a ban, so legally you can’t violate a call,” he told reporters.

Churkin has a point: The revised restriction on Iran’s missile program doesn’t call on Iran to simply not launch missiles that can carry a nuclear warhead. Instead, it calls on Tehran not to launch missiles “designed” to be capable of delivering that type of warhead. Iran has long insisted that its missiles haven’t been specifically engineered to do so.

“The language is undoubtedly softer,” said Paulina Izewicz, a research analyst at the International Institute for Strategic Studies in London. “The new formulation, in essence, hinges on intent. This, by its virtue, is quite difficult to establish, and Iran has already pushed back on it.”

Izewicz added that she believed the current language was written “precisely to give the Security Council some room to maneuver in the event of Iran’s future — and inevitable — ballistic missile activity.”

The latest missile crisis began earlier this month when Iran’s Islamic Revolutionary Guard Corps announced that they test-fired several missiles with a range of 850 miles, making them capable of hitting Israel. The tests provoked condemnations from the Obama administration and calls for the imposition of new sanctions from congressional leaders and Democratic presidential front-runner Hillary Clinton. The tests constitute a “blatant violation of Iran’s [U.N.] Security Council obligations, and such violations must have consequences,” Clinton said.

State Department spokesman John Kirby and U.S. ambassador to the U.N. Samantha Power have characterized Iran’s missile tests as being “inconsistent” with the spirit of the nuclear accord and in clear “defiance” of U.N. resolution 2231 but avoided explicitly saying that the launches contravened U.N. dictates.

Another State Department official told Foreign Policy that U.N. resolution 2231 “does not let Iran’s ballistic missile program off the hook,” and maintains restrictions on ballistic missile trade for eight years.

The official said the modified Security Council language will have a negligible impact on Iran’s missile capability because Tehran has never abided by the previous U.N. ban on its missile activities. “In fact, Iran has boasted about dozens of ballistic missile launches since 2010,” the official said. “Iran is quite public that it sees ballistic missiles as part of its legitimate national defense, even if the international community does not agree.”

“Similarly, we have no intention of of changing our strong posture to disrupting and interdicting missile technology going to Iran,” the official said. “It is and will remain the policy of the United States to oppose the proliferation of missile technology – conventional or otherwise – to or from Iran.”

On Monday, Power convened a Security Council meeting to press for a response to Iran’s tests. She didn’t say what that response would be, however, and stopped short of declaring that Tehran had crossed a line. Instead, she condemned the missile tests as “dangerous, destabilizing, and provocative” and vowed to make the case before the council that Iran’s missile technology is “inherently capable” of being used to deliver nuclear weapons.

Kirby, for his part, said Monday, “We could have an interesting discussion about the degree to which it’s technically a violation. It doesn’t mean, though, that it’s OK, and it doesn’t mean that the council should look the other way.”

It does mean, though, that the United States has a weak case as it pushes for action against Iran, which would almost certainly be vetoed by Russia and China.

Tehran, meanwhile, maintains the nuclear pact “does not prohibit legitimate and conventional military activities,” including the development and testing of ballistic missiles.

Iran “is fully entitled to build a credible conventional capability to deter and defend against any aggression,” the country’s U.N. mission said in a statement Monday. “Brazen threats against Iran’s sovereignty and territorial integrity, multiplied in the past several years, have made it all the more imperative for Iran to build a legitimate deterrent capability.”

Photo credit: Arash Khamoushi/AFP/Getty Images