by Reza Nasri
According to news reports, the Trump administration is weighing the option of designating the Iranian Revolutionary Guard Corps (IRGC) as a Foreign Terrorist Organizations (FTO). In parallel, Congress also seems to be taking steps in that direction. Some of the most hawkish and ideological elements of the American foreign-policy establishment, as well as hardcore opponent of the nuclear agreement such as United Against Nuclear Iran and the Foundation for Defense of Democracies, have long pursued this designation for the IRGC. Radical Iranian opposition groups like the Mojahedin-e Khalq (MEK), a formerly “designated” terrorist group itself, have also fiercely lobbied to this end.
However, such a designation would have serious international ramifications on the legal regime governing the laws of war; It would have unintended consequences that may seriously jeopardize regional efforts to fight terrorist organizations like the Islamic State, al-Qaeda, and affiliates. And it could cause undue hardship to U.S diplomatic effort to form coalitions to fight the mentioned groups.
First, such a designation is not legally and logically sound and it could set bad precedents: Despite politically motivated claims, the IRGC is not a terrorist organization in the legal and proper sense of the term. Rather, it is the official conventional armed forces of a sovereign nation. It has all the characteristics of a regular army. For instance, it derives its authority from the Iranian constitution. It has a well-defined command structure and a ratified code of conduct that it is held accountable to according to Iranian law. Its members wear a uniform and have a fixed distinctive and recognizable emblem. Nearly half the Iranian male population does its military service in the IRGC. And it operates in accordance with the Geneva Conventions and the laws and customs of war. In fact, as documented by credible international organizations such as the Red Cross, the IRGC has a rather good record of self-restraint and compliance with international humanitarian law, even as it fought an eight-years-long war of attrition against the notoriously aggressive and WMD-using army of Saddam Hussein.
Officially labeling the conventional army of a High Party to the Geneva Conventions as a terrorist organization introduces the inherently flawed notion of a “terrorist army” into international relations. Further, it confuses and disrupts the legal regime governing the conduct of war, with unintended consequences for the U.S army as well. If this practice becomes the norm and countries begin designating each others’ armies as “terrorist organizations,” U.S service members, commanders, and even veterans could also be tried and treated as “terrorists” if captured in foreign land. Because this designating is not legally sound, it could also seriously diminish the credibility of the designation process and cast doubt over the authenticity of other U.S. designations.
Second, designating the IRGC as a terrorist organization neglects the realities on the ground and the security landscape of the Middle East. The IRGC has in fact been the most effective force containing terrorist groups such as the Islamic State (ISIS or IS) and al-Qaeda in the region. Without the IRGC, terrorist groups that have actually inflicted the most harm to U.S national security so far would have extended their reach far beyond Afghanistan. And IS would have already taken over the entire territories of Iraq and Syria, since the IRGC has worked closely with Iraqi, Syrian, and even Russian government forces against IS. Nor is the fight against IS something new for the IRGC. It played an important role in overthrowing the Taliban in Afghanistan in the months after 9/11, as its members fought alongside and advised the Northern Alliance and U.S forces in their joint military operations. Designating the IRGC as a terrorist organization would effectively kill the option for the U.S of cooperating with such an actor again, should circumstances require it.
Third, the FTO designation could constitute a U.S-initiated violation of the Iran nuclear agreement, otherwise known as the Joint Comprehensive Plan of Action (JCPOA). In fact, if the designation takes effect, it would directly affect all European and Western companies that conduct business transactions with legitimate Iranian entities in which the IRGC holds an interest, and eventually subject them to sanctions and other legal prosecutions by U.S authorities. Considering the scope of the IRGC’s involvement in the Iranian economy, the designation would constitute a violation of Paragraph 29 of the JCPOA, which mandates the United States and other parties to “refrain from any policy specifically intended to directly and adversely affect the normalization of trade and economic relations with Iran.” Of course, such a U.S-initiated violation of the accord, which enjoys the binding endorsement of the United Nations Security Council, would be inconsistent with U.S national interests, as even senior Republican Party leaders have conceded.
In sum, the designation would be an unnecessary provocative measure that stems from an unwarranted “politicization” of security matters rather than a genuine and de-politicized assessment of the region’s security landscape. The Trump administration should acknowledge the realities on the ground rather than operate based on convenient alternative facts.
Reza Nasri is an international law expert from Geneva’s Graduate Institute of International and Development Studies (HEI). He specialize in Charter law and the legal aspects of Iran’s nuclear program and has written on the role of the Security Council in the Iranian nuclear dossier, among other subjects. Photo: IRGC naval exercise courtesy of Wikimedia Commons.