The legal obstacle before defeating ISIS

Iran has played a significant role in the fight against the Islamic State (ISIS). It has contributed advisers, training and arms to the Iraqi government, allowing the latter to fend off the brutal terrorist organization with relative success and liberate major cities like Tikrit. So far, Tehran’s help has effectively prevented the fall of Iraq’s fragile government, saved Baghdad from falling into the hands of ISIS and averted the likely genocide of minorities, like Kurds and Turkomans, namely in the Amerli region. 

In fact, Iraqi officials have publicly praised Iran’s contribution to the battle on numerous occasions and U.S officials, whom would normally downplay anything positive emanating from Tehran, have acknowledged Iran’s constructive role, albeit diffidently. The Obama administration just recently said it would not mind if Iran wanted to contribute in the ongoing Iraqi operations against ISIS; and some American foreign-policy actors have even unprecedentedly called for a strategic cooperation between Tehran and Washington on this particular matter. After all, many people in Washington still remember that Iran’s help to the U.S lead coalition was crucial in the toppling of the Taliban back in 2001. 

{mosads}However, there is a major legal hurdle before Iran’s effort to assist Iraq in its effort to root out ISIS from its territory. Since the UN Security Council took over Iran’s nuclear dossier in 2006, it has issued a series of resolutions that cumulatively impose a stringent arms embargo on Iran. Under these resolutions, Iran is not only prohibited from procuring conventional weapons, but it is also prohibited from transferring light arms to other states, like Iraq.  

Today, many would admit that this prohibition – that was mainly devised in the midst of nuclear talks to coerce Iran into giving more concessions at the negotiating table – is disturbingly out of touch with the realities on the ground and recklessly neglects the security landscape of the region. In fact, it appears that, when devising this arms embargo, no one really foresaw the unintended “security” consequences of imposing such a ban on a regional actor like Iran, whom has effectively fought back Salafi and extremist Sunni groups in the Middle East for the past two decades. 

Indeed, while United Nations’ arms embargoes are usually imposed in reaction to an ongoing civil war, a war of aggression, a genocide, an illegal coup, war crimes or other serious humanitarian crises, the arms embargo against Iran is an unprecedented measure that only serves as “leverage” in negotiations that have nothing to do with atrocities or conventional weapons. So unlike in the cases of Afghanistan, Angola, Ivory Coast, Haiti, Rwanda, Ethiopia, Sudan or Yugoslavia, where the embargoes’ function was actually to prevent an unfolding disaster or to quickly restore security, in Iran’s case, it looks like it has the exact opposite effect.

This embargo situation is all the more concerning in light of the United States’ apparent insistence to keep the ban intact even after a nuclear agreement is signed with Iran, and despite the Islamic State’s worryingly territorial advance in Iraq.

Indeed, when Iran and the P5+1 (the United States, Russia, China, France, the U.K and Germany) reached an agreement in early April over the scope of Iran’s nuclear program in Lausanne, the White House issued a controversial “factsheet” in which it claimed that important restrictions on conventional arms and ballistic missiles will remain in place, even after other sanctions on Iran are lifted. If this assertion is true, the world faces a situation where on one hand, Iran is called to cooperate with the Iraqi government in its fight against ISIS (and occasionally praised for it), and on the other, it is to remain legally deprived of the means to do so; something that raises serious questions as to the credibility and coherence of U.S foreign-policy.

But this contradictory policy, if implemented, would not just hurt U.S credibility.  It would also seriously dent the credibility of the Security Council, whose primary role – after all – is not to provide “leverage” to one side of an ongoing international negotiations, but to effectively “maintain international peace and security” (Article 24 UN Charter). In this context, making “illegal” any meaningful cooperation between Iran and Iraq in their fight against the most consequential terrorist organization on earth seems indeed at odds with this mandate. Moreover, maintaining an unrealistic embargo that would inevitably be breached out of necessity by all parties would also be a dent to the “authority” of the Security Council.

Therefore, for the sake of coherence, U.S credibility, U.N credibility, and to avoid the unintended consequences of this arms embargo on the security of the region, it is important for the Obama administration to seriously reconsider this policy. 

Nasri is an international lawyer and expert in Charter law and Iranian affairs from Geneva’s Graduate Institute of International and Development Studies.