• Iran Missiles to Yemen: Is There Room for Circumstantial Evidence in UN Sanctions?

    by  • January 16, 2018 • Disarmament, Middle East, Security Council, US-UN Relations, WORLDVIEWS • 

    The Yemen city of Saada, hit by a barrage of airstrikes, April 2015. The country is considered the world’s worst humanitarian disaster, yet UN-led negotiations for a cease-fire appear to be dead. PHILIPPE KROPF/OCHA

    Citing an unpublished report of the United Nations panel of experts on Yemen, The New York Times said recently that Iran violated the Yemen arms embargo, according to UN experts. The same day, The Washington Post used essentially the same set of reported facts under a more judicious headline that said, in part, “Iran weapons to Yemen rebels violated embargo.”

    It was probably no coincidence that the articles appeared on the same day that President Trump announced his new Iran strategy. But where does such obvious orchestration of anti-Iranian information leave the independence and integrity of UN sanctions monitoring teams?

    What’s at stake is not only the timing of the leaks of the UN report. A far more important question is whether the underlying arms embargo provisions (found in paragraph 14 of UN Security Council Resolution 2216) can or should be used to single out Iran and basically transfer the burden of proof from the accuser to the accused. Were these consequences understood by all members of the Council when it adopted the resolution?

    Resolution 2216 was approved in April 2015 to place, among other provisions, a one-sided arms embargo on the Houthi rebels of Yemen, just as widespread Arab spring violence had turned into a full-fledged civil war in the country. The Security Council had relented to this extraordinary measure after the corrupt Saudi-puppet government of Abdu Rabbu Mansour Hadi lost significant territorial and political control to the Houthi-Shiite minority.

    Saudi Arabia, involved in decades of fighting the Shiite minority living across its border in northern Yemen, had exerted immense pressure on the UN to reverse the even-handed mediation by the UN special envoy at the time, Jamal Benomar, as well as the more balanced UN sanctions policies. The Saudis wanted to prevent the success of Benomar’s national dialogue conference and to target the Houthis with UN sanctions.

    The reversal of UN policies occurred despite repeated media reports of atrocities inflicted from airstrikes by the Saudi-led coalition of Gulf Cooperation Council countries. Since 2015, serial violations of human rights and international humanitarian laws have been documented and reported regularly by the UN experts and many other authoritative investigators.

    Nevertheless, allegations of Iranian arms deliveries to the Houthis always seem to be viewed by the United States administration — including the Obama presidency — as the bigger evil, regardless that UN experts in their previous reports had carefully defined the facts as they found them: Iranian manufactured arms were found at multiple sites, but no Iranian supply chain could be identified.

    With Houthi insurgents having fired two missiles into the heartland of Saudi Arabia in recent months, the frenzy around Iran’s alleged gun-running has reached fever pitch. Nikki Haley, the US ambassador to the UN, went as far as participating in a US Department of Defense press event on Dec. 14 at a Joint Base Anacostia-Bolling hangar in Washington to present assorted fragments of a drone, an antitank rocket and two Qiam missiles, all Iranian manufactured.

    The two missiles hit a Saudi oil facility on July 24 and the King Khalid International Airport near Riyadh, the capital, on Nov. 5. US Department of Defense experts did not explain any chain-of-custody procedures to the news media, which is the usual practice in the preservation of important evidence. Nor did they provide evidence of how this weaponry had landed in the hands of the Houthis.

    The UN experts now concur with the US view that the “military equipment and military unmanned aerial vehicles are of Iranian origin.” They also say they have established that these arms “were introduced into Yemen after the imposition of the targeted arms embargo.”

    These are all important findings by the experts. They should now present shipping documents, bank account statements, falsified end-use certification or at least credible witness testimonies to support further allegations. That is standard practice for all UN sanctions experts before they report that a country has illegally provided arms to an embargoed region.

    Yet these experts are not required to meet such evidentiary standards. Based on paragraph 14 in Resolution 2216, they must meet only the comparatively easier bar of providing circumstantial evidence to accuse a country of not taking “the necessary measures to prevent the direct or indirect supply, sale or transfer” of embargoed goods to targeted individuals and groups.

    The case in point, the experts state in their report, is Iran’s alleged negligence to prevent the “transfer of missile and unmanned aerial vehicles to the Houthi-Saleh alliance.” Iran now must prove that it undertook “all necessary measures” to prevent an embargo violation. Without a plausible explanation by Iran, the UN experts must work with the facts as they see them: Iran never exported Qiam-1 missiles to any other theater of conflict and no other country manufactures this particular weapons system. Now, paragraph 14 becomes a gotcha-sanctions provision that helps the UN experts to expeditiously — and perhaps hastily — deliver their deduction as a case of sanctions violation by Iran.

    (On Jan. 16 Reuters reported a claim by Saudi state TV, Ekhbariya, that another ballistic missile fired by the Houthis toward Saudi Arabia’s southern Jizan region was shot down by Saudi forces.)

    But is it fair or wise to introduce cases built on circumstantial evidence into the highly politicized UN sanctions system? Of course, in criminal law, cases are often decided on by circumstantial evidence. In these cases, however, prosecutors usually have subpoena power that enables them to compel a party to disclose all relevant facts. UN experts do not have such power. Therefore, they cannot exclude with full certainty that some Qiam missiles were transported for use outside Iran or may have otherwise gotten into the wrong hands in Yemen.

    Iranian officials may simply not be willing to disclose to the UN a loss of control over some of their weaponry. There is also the seemingly impenetrable question of who is in charge in Iran. It is no secret that Hassan Rouhani, the popularly elected Iranian president, the Supreme Leader Ali Khamenei and the Islamic Revolutionary Guard Corps are all at times engaged in power struggles. Can the UN experts ascertain who is in charge of, and therefore responsible for, Iran’s military and its armaments at all times?

    During the upcoming Jan. 23 meeting of the Security Council sanctions committee with the UN experts, some countries on the Council may express skepticism about the usefulness of holding a manufacturing country liable for the use of its weapons. In the past, arms-producing nations were never comfortable with the risk of being accused of sanctions violations because an exotic potpourri of their weapons float around conflict-prone regions to be used, sold and resold many times.

    Determining the national origin of arms can lead to tricky political implications. During a concerted effort some years ago, in which this writer participated as a UN sanctions expert to assess the types and origins of more than 5,000 small arms and light weapons found among ex-combatants in the eastern Democratic Republic of the Congo, we identified guns from several dozen nations. To avoid unfair and unfounded political accusations, the identities of the countries concerned were deliberately not published.

    Such caution seems to have been put aside in the case of Yemen.

    About

    Enrico Carisch is the co-author of the just-released book "The Evolution of UN Sanctions: From a Tool of Warfare to a Tool of Peace, Security and Human Rights." He is also a co-founder and partner of Compliance and Capacity Skills International (CCSI), a New York-based group specializing in all aspects of sanctions regimes (http://comcapint.com).

    Among other organizations, Carisch has worked for the UN Security Council as a financial and natural-resources monitor and investigator on sanctions violations by individuals and entities in Africa and elsewhere. Previously, he was an investigative journalist for print and TV for 25 years.

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