by Dennis Ross*
President Trump has left little doubt about his views on the nuclear deal—the Joint Comprehensive Plan of Action (JCPOA)--that the Obama administration negotiated with the Iranians. In his September 19 speech to the United Nations General Assembly, he called it “an embarrassment.” By October 15, he must again certify to Congress that the JCPOA is in America’s national security interests. The certification process is required by Congress, not by the JCPOA; amid widespread questioning of the deal and fears that the Iranians would cheat on it, the Congress, in 2015, adopted the “Iran Nuclear Agreement Review Act” (INARA)—legislation that requires a presidential certification every 90 days.
So far the Trump administration has certified twice. But after the last certification, President Trump said, “if it were up to me I would have had them non-compliant 180 days ago.” In fact, it is up to him, and given his recent comments, it would be surprising if he certifies on October 15.
De-certification does not, however, automatically mean that the United States will walk away from the deal. I say that because certification is not part of the understandings that the US and the other members of the 5 + 1 (Russia, China, Britain, France and Germany) negotiated with Iran. Of course, should President Trump choose not to certify, it would create pressures in the Congress to take steps to re-impose the sanctions that were waived as part of the deal, and that would mean US departure from the JCPOA.
It is important to keep in mind that should the president declare the Iranians non-compliant, the Trump administration would face an immediate credibility problem: the International Atomic Energy Administration (IAEA) is responsible for monitoring Iranian compliance with the JCPOA and has again confirmed that the Islamic Republic is living up to its obligations under the terms of the deal. On September 20, the Secretary of State, Rex Tillerson, acknowledged that Iran is in “technical compliance.”
Tillerson’s admission suggests that the administration will not address the issue of Iranian compliance. Instead, it will focus on the requirements of INARA; one critical standard built into the legislation is that the president must be able to certify that Iran is not undertaking “any action that could significantly advance its nuclear weapons program.” Presumably because there has been no access to Iranian military sites and the Islamic Republic continues to test ballistic missiles, the administration will argue it is unable to certify that the Iranians are not in any way advancing their nuclear weapons program.
The other members of the 5 + 1 who are part of the deal are unlikely to accept either of these points; the former, because if the US wants access to non-declared nuclear sites in Iran, it can furnish information that makes the site suspicious and which justifies access. The latter, because ballistic missile testing—and other de-stabilizing Iranian actions--are not part of the JCPOA.
Thus, if the Trump administration were de-certify and then pull out of the deal, it would do so alone. It would isolate itself and not the Iranians and it would find it more difficult to affect Iranian behavior through non-military means. In fact, it would find it more difficult to mobilize the Europeans or international responses to Iran’s threatening behaviors, including its use of Shia militia proxies in the Middle East.
Does that mean the US must not de-certify? Not necessarily—but it does mean that if the Trump administration does not certify, it must at the same time explain that it is not walking away from the JCPOA and it is not asking Congress to restore the sanctions on Iran that have been waived as part of the deal. Rather it is doing so to put everyone on notice—allies and the Iranians alike--that at some point in the coming 6-12 months, it will walk away from the deal if American concerns about Iran’s regional behavior, its testing of ballistic missiles, and JCPOA’s sunset provisions are not addressed.
While all other members of the 5 + 1 are committed to the JCPOA, President Macron of France has recently called for a supplemental understanding to preserve some of the key limitations imposed by the JCPOA on the numbers of Iran’s centrifuges, their quality, level of enrichment permitted, and the prohibition on nuclear reprocessing capabilities—all of which would otherwise expire in 2030. If nothing else, Macron’s declaration suggests that the administration has leverage.
European leaders surely do not want the United States to walk away from the JCPOA, and it is conceivable that they will seek to keep the US in the deal. But a delicate balance must be struck. President Trump is extremely unpopular in Britain, France and Germany and it will not be easy for Prime Minister May, President Macron, or especially German Chancellor Merkel—who must now put together a government—to appear to be responsive to him on this issue. At a minimum, if President Trump wants the Europeans to join with us in building pressure on the Iranians—which was the key to getting the Iranians to negotiate on their nuclear program—then he must tone down what he says in public; make clear he will not walk away from the JCPOA without working with the Europeans to address our concerns about Iranian behaviors; and as we do so, he will take European concerns into account in the process of our discussions.
Iranians will not be idle bystanders as we proceed on such a path. They will portray themselves as living up to the deal and it is the Trump administration that is threatening it. On this basis, they will try to divide the 5 + 1 in order to deflect any new moves toward pressuring Iran or requiring it to alter its policies. As President Rouhani and Vice President Salehi have now done, they will also play on fears of their renewing their nuclear program if the US walks away from the deal. At the same time, they will also signal that if there are to be any “supplemental” understandings, Iran will require additional concessions from the US, to include, for example, an end to America’s non-nuclear sanctions on terror and human rights which continue to have a chilling effect on many multinational financial institutions doing business in Iran. In other words, the Iranians will argue if the Americans want more from them, they must give more.
Anticipating the Iranian moves is important for being able to counter them—and for understanding that the Europeans will not simply go along with what the Trump administration seeks to “fix” the JCPOA and alter other Iranian behaviors. It needs to recognize as well if we walk away from the JCPOA without having at least the Europeans join us in applying new pressures on Iran, the effect of the US moves will be limited. It was the European willingness to impose a boycott on buying Iranian oil—not unilateral American sanctions—that devastated the Iranian economy.
The point is that an American threat to walk away from the JCPOA does create leverage on the Europeans who will look for ways to preserve the deal. But the Trump administration needs to keep in mind both the potential and limits of our leverage should it not certify. And that means having a plan for how to explain what it is doing and how it will work quietly with the Europeans to present a united front toward the Iranians. In other words, the US must make sure that if it does not certify, it has an approach that will isolate Iran and not America.
*American Middle East envoy Dennis Ross has served in the Administrations of Presidents Jimmy Carter, Ronald Reagan, George H.W. Bush, Bill Clinton, and Barack Obama, and is counselor and Distinguished Fellow at the Washington Institute for Near East Policy in Washington.