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, in Shiite jurisprudence, is traditionally issued by a mujtahid – a 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 questions surrounding 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 ruling regarding the nuclear issue by Iranian officials. This decree has been a key legal document supporting Tehran’s claims that its nuclear ambitions, the most important issue in the country’s foreign policy, are merely peaceful. The fact that its exact wordings or date of issuance has not been disclosed can be viewed as peculiar. Publishing the fatwa, as well as accurate translations of it, on the Supreme Leader’s website, providing a link to it on the new nuclear energy website, could help address these issues.
Second, observers note that 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 highlighting 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 what seems to be a shift in the leadership’s discourse. Yet, a number of observers have noted the change, which has led many to be skeptical of the fatwa. Tehran could address these concerns by publishing the exact text of the decree and highlighting its scope, by describing whether it covers the production, transfer, stockpiling, possession, threat of use, or use of nuclear weapons.
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.’
Yet, whether or not Khamenei has the authority to even issue such a decree has been debated. Some argue that 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. They 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 nonreligious grounds. To address this issue, Tehran could take a key step. Indeed, while a number of Iranian Shiite clerics have spoken on the matter, supporting the view that nuclear weapons are indeed prohibited by the faith, a number have not expressed their views on the matter. Collecting the views of prominent Shiite maraje’ would help shed light on this issue.
Fourth, a key argument against the fatwa is that it does not constitute an absolute and irreversible rule. Furthermore, the idea of maslahat-e nezam, the rough equivalent of Raison d’Etat in the Islamic Republic’s 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, critics argue that should Iran be attacked, threatening the Islamic Republic, it could resort to not only producing but also using nuclear weapons. However, it is important to note that the reversal of such a decree would come at a great political cost. Indeed, not only has the decree been issued by the highest political power in the country, it has been relied upon as the key plank of the Iranian nuclear narrative for over a decade.
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. However, the fatwa can be instrumental as a confidence-building measure. Tehran could further empower this tool by making it into a piece of national legislation, banning nuclear weapons.
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 is unlikely to be taken seriously. 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. It shows that Tehran is less than ready to accept and implement said law and cooperate with said institutions. Taking a unilateral by focusing on a piece of national legislation prohibiting nuclear weapons, based on the Supreme Leader’s fatwa, and officially releasing the text of said decree would be more effective measures to build trust.
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.