Iran’s Nuclear Fatwa

I never cease to be amazed at how poorly we understand Iran.  The amount of deliberate and unintentional ignorance of Iranian history, religion and politics is epidemic.  I’ve already posted about the mistranslation of Ayatollah Khomenei’s statement about Israel disappearing from the pages of history (twisted into ‘wiping Israel off the map’).  But Yossi Melman, in the article I posted about earlier today, added another common misconception.  To some this may seem technical or drily theological.  But it goes to our abysmal ignorance of modes of Iranian political and religious leadership.  Such ignorance is not only embarrassing, it’s potentially fatal when issues of war and peace are involved.

In his article, Melman notes Iranian claims about a fatwa that prohibits the country from developing WMD.  But along with MEMRI and other pro-Israel sources, Melman casts doubts on the existence of the fatwa:

…They [the Iranians] have declared over and over that they have no intention of producing a nuclear weapon.  To strengthen this claim, reports have repeatedly circulated in Iran claiming that Khomeini and Khamenei wrote fatwas that the production of a nuclear weapon would be a violation of Shiite halacha [religious law].  Israel claimed loudly that this was another bald lie from the Iranian workshop, which allows Shiites to lie in a matter of utmost of urgency.

It is true that despite all the public expressions by Khamenei against the production and possession of nuclear weapons, until this day no official Iranian source has ever shown clear evidence confirming the existence of this legal ruling.

Though as I wrote in my earlier post, Melman’s article is generally excellent and, even in this case, he doesn’t ascribe undo importance to this point, it’s important to note the fallacies inherent in the belief that the fatwa is fake.

First, Melman and others who question the claims about the fatwa don’t understand the nature of Shiite religious jurisprudence.  I’ll let Juan Cole explain:

In Islam the laity ask their clerics how to follow Islamic law. The cleric replies with a considered opinion on the purport of the law, which is called a fatwa. In the Usuli school of Shiite Islam, deriving the law from the relevant sacred texts is achieved in part through the application to them of legal reasoning. That is, the law in some senses inheres in the mind of the jurisprudent. If he reconsiders a case and comes to a different, more mature conclusion later on, he is bound to reverse himself. His followers are bound to follow his most recent conclusions.

A high-ranking cleric appointed as a jurisconsult to the state, who gives official fatwas, is called a mufti. But any trained clerical jurisprudent can issue a fatwa. (The system is virtually identical in Judaism, where rabbis answer the questions of the faithful about halakha or Jewish law with responsa.)

So a fatwa is not like an American law that has to be published in the Congressional Record and in official law books. It is just the conclusion to which a cleric’s reasoning leads him, and which he makes known, even in a letter. In Shiite Islam, laypersons who follow a particular ayatollah are bound by his fatwas. When an ayatollah such as Khamenei delivers oral remarks in public, these have the force of a fatwa and are accepted as such by his followers. That is, Khamenei’s recent statement forbidding nuclear weapons in a speech is in fact a fatwa:

“the Islamic Republic, logically, religiously and theoretically, considers the possession of nuclear weapons a grave sin and believes the proliferation of such weapons is senseless, destructive and dangerous.”

There is another consideration. Since Khamenei is not only an ayatollah but also the Supreme Leader, it may well be that this statement is actually more important than a fatwa. It may be considered a hukm or decree of the Supreme Jurisprudent (Vali-yi Faqih), who is charged with setting the legal framework of the Islamic Republic in accordance with revealed Islamic law. That may be what Rowhani meant when he told the Danes that the fatwa is a qanun or law.

What’s ironic here of course is that the nature of Shiite jurisprudence echoes in significant ways that of Jewish halacha.  In Judaism, we have written and oral law.  The Torah is written law and as such, is primary in the same way the Quran is primary in Islam.  Jewish jurisprudence originated in legal disputation about the meaning and interpretation of the Torah.  In this way, rabbis allowed the tradition to grow and evolve as it faced new challenges it had to respond to.  These legal arguments and the traditions that grew out of them weren’t written down.  They were memorized and recited orally by officials whose job was to serve as a legal repository of memory.  Eventually, these disputations were written down and became the Talmud.  But it took hundreds of years for this process to move from memory to writing.

In other words, a Talmudic rabbi would engage in oral argument with his colleagues and in the course of their discussion a legal ruling would be made.  This ruling wasn’t written down (at least not at first).  It was codified as part of an oral tradition.

Fatwas aren’t dissimilar.  You may, but don’t have to, write down a fatwa, as Juan Cole notes.  The act of the Shiite cleric reciting his understanding of the law to his followers is the fatwa.  Which means that we are exposing our western biases by demanding that Iranian religious law and practice conform to our own western expectations.  Oral codes in religious traditions are nothing new and there’s no reason we should treat Shiite practice any different than Jewish practice or those of other religions.

I wrote to several trusted Iranian sources about this question and Nima Shirazi wrote such a thorough and well-articulated response that I thought I would just quote it in its entirety here:

This is an old canard, trotted out repeatedly as both WINEP and MEMRI talking points and invariably picked up by the usual suspects to consistently cast the Iranian leadership as liars and cheats on the nuclear issue.

Whenever this happens, articles are written to correct the record (see Juan Cole in 2012 and Gareth Porter in 2013, for instance), but obviously they never fully stem the tide of nonsense that inevitably follows.

In a Jerusalem Post piece last month, the same old nonsense popped up again. Ariel Ben Solomon quoted John Kerry saying that “the trick here – the trick – the art, the requirement here, is to translate the fatwa into a legally binding, globally recognized, international understanding.”

Scoffing at such a suggestion is professional propagandist Yigal Carmon, president of MEMRI, who insists, “Kerry’s hope will not work because a lie is a lie is a lie, and there is no ‘art’ in endorsing a lie, even for the sake of peace. You can’t trap the Iranians into doing what they refuse to do, as you end up deceiving only your own people.”

Obviously, Carmon doesn’t recall the clear commitments Iran has made for decades to establish a NWFZ (nuclear weapons-free zone) in the Middle East (consistently blocked by Israel and the US), the endless condemnation of nuclear weapons by Iranian officials, or – perhaps most notably – the comments made in late 2012 by then-Iranian Foreign Minister Ali Akbar Salehi, now (again) the head of Iran’s Atomic Energy Organization, in an interview with World Policy Journal (which I’ve written about here).

In addition to rebuffing allegations that Iran has the intention to weaponize its nuclear program and build atomic bombs, and appealing to the inviolability of the fatwa, Salehi also stated clearly that Iran would consider “translating the fatwa of the Supreme Leader into a secular, binding document that would bind the government to this fatwa, to which it is already bound, but which some in the West argue is a religious document, not a secular one.”

He continued, “But we are ready to transform it into a legally binding, official document in the UN. And so we are ready to use all means and mechanisms and conventions or safeguards to remove the concerns of the other side.”

The conditions for such a confirmation are obvious and in line with what Iran has long stated. “In the meantime, we expect the other side to recognize our right to peaceful nuclear technology, including enrichment,” Salehi explained, adding:

“And then, although we keep the right to enrichment to any level, but as our president has said, we are ready to voluntarily limit ourselves to five percent on the condition that we are given firm guarantee that whenever we need fuel whose enrichment is more than five percent that it would be supplied by the other side, by the other party. So I think if we have good intentions, if both sides have the will to get over this issue, it is possible. We remove your concern; you recognize our right. What else do we have to do?”