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memri
November 14, 2014 No.
5881

Tehran Again Offers Khamenei's Nonexistent Fatwa In Negotiations As A Guarantee That It Is Not Developing Nuclear Weapons

As November 24, 2014, the target date for reaching a P5+1-Iran nuclear agreement, approaches, the issue of the nonexistent fatwa by Iranian Supreme Leader Ali Khamenei that allegedly bans developing nuclear weapons is again being brought up by Iran.

Recently, Iranian regime officials Majlis speaker Ali Larijani and President Hassan Rohani raised the matter. On November 8, Larijani said, "Leader [Khamenei's] nuclear fatwa is above all legislation."[1] On November 12, President Rohani clarified that "the Islamic Republic of Iran is bound by all the international regulations [in nuclear matters] and is committed to carrying out the fatwa of Leader [Khamenei], which is the greaest guarantee that Iran['s nuclear program] will move [only] along the civilian track."[2] In recent days, Khamenei's office has been posting almost daily on its official Twitter and Facebook accounts about the fatwa's ban on nuclear weapons.


@Khamenei_ir, November 12, 2014

The issue of guaranteeing that Iran will not develop nuclear weapons is at the focus of the nuclear negotiations. In addressing this issue, the U.S. is taking the approach of accepting the existence of this fatwa as fact, and demanding that its content be anchored in a legal document. Speaking in Amman on November 13, 2014, U.S. State Secretary John Kerry said:" Obviously, the fatwa of the leader is a very important instrument, and we respect it enormously as a matter of religious edict. But that has to be translated into a lay person’s regular document, a legal one, if you will, with all of the things that are necessary for an agreement regarding potential nuclear programs."[3] In contrast, the Iranian position is that the fatwa supersedes any law or agreement guaranteeing the peaceful character of Iran's nuclear program, and, in fact, renders such laws and treaties superflous.[4]

But, as stated, the fatwa does not in fact exist. Supreme Leader Khamenei has never issued such a fatwa and it exists nowhere in any online record of his official fatwas, even years after the issue has become central to the negotiations. Though Khamenei has in the past issued political delcarations against nuclear weapons, these do not have the religious legal status of a fatwa. Further proof of this is that, in a June 2014 pulbication by the Iranian Foreign Minister which listed fatwas by iranian clerics against nuclear weapons, the alleged Khamenei fatwa is conspiciuous in its absence (for the list, see the Appendix).

See several MEMRI reports on the matter of the nonexistent fatwa:

MEMRI Inquiry & Analysis Series Report No. 825, Renewed Iran-West Nuclear Talks – Part II: Tehran Attempts to Deceive U.S. President Obama, Sec'y of State Clinton With Nonexistent Anti-Nuclear Weapons Fatwa By Supreme Leader Khamenei, April 19, 2012

This report will review two publications by Iranians that cast doubt in recent months on the estixtence of the fatwa that the Iranian regime calims that Supreme Leader Ali Khamenei issued against nuclear weapons.

Iranians Question Existence Of Khamenei Fatwa Banning Nuclear Weapons

In the summer of 2014, the existence of the alleged fatwa by Supreme Leader Ali Khamenei banning nuclear weapons was questioned in two publications by Iranians. A July 16, 2014 BBC Farsi website article by Iranian law expert Bahman Aghai Diba, titled "Where is the Iranian Leader's Fatwa About Nuclear Weapons?", noted that the traditional Shi'ite fatwa format consists of a question posed to a senior ayatollah and, following that, the ayatollah's response. It pointed out that Khamenei's alleged fatwa did not conform to this format, since it was apparently delivered as part of a message by Khamenei to a conference in Tehran. He stressed that the fact that the fatwa was not posted on a single one of Khamenei's websites – which feature many of his other fatwas – raises questions regarding its very existence and makes it impossible to examine its sources and its content.

Additionally, on July 24, 2014, exiled Iranian cartoonist Nikahang Kowsar published a cartoon in the e-daily Rooz mocking the regime's claim that such a fatwa exists.

The following are excerpts from Aghai Diba's article and a translation of Kowsar's cartoon:

Bahman Aghai Diba: "Where Is The Iranian Leader's Original Fatwa Banning Nuclear Weapons?... [This] Fatwa... Was Published Nowhere, Its Form And Content Are Unclear... Thus Far, No One Claims To Have Seen [It]"

"The Iranian government claims that the Islamic Republic of Iran does not aspire to use nuclear energy for military [purposes], and that this is proven by a fatwa published by Iranian Leader [Khamenei] banning the use of weapons of mass destruction. Iranian Foreign Minister Javad Zarif recently said that this fatwa would become law in order to assure several countries that Iran's nuclear program [is civilian]. The U.S. Secretary of State also said that this fatwa is important but must become law. Previously, Iranian Foreign Ministry spokeswoman [Marzieh Afkham] said that the Islamic Republic intends to register this fatwa as a UN document.

"But where is the original Iranian leader's fatwa banning nuclear weapons? And what does it say? In fact, thus far no one claims to have seen this fatwa.

"Every fatwa has a legal-religious procedure that is unique [to fatwas]. There are rules for the form and content that a fatwa must have. A fatwa is usually presented as a question [to a Shi'ite religious authority], and the religious authority provides an answer based on Islamic legal sources.

"Since the Iranian leader's fatwa banning nuclear weapons was published nowhere, its form and content are unclear. Who asked the question (a layman? a legal expert)? What formulas and rules from Islamic law were used to answer it? For instance, does the word 'forbidden' appear in it, and does it include stipulations regarding the ban? According to the accepted definition of a fatwa ([i.e.,] according to the explanation in existing sources known to all), it is to include a public-religious directive on a specific topic and based on the four sources: the Koran, the Sunna [tradition], Ijma'a [consensus] among clerics, and a logical interpretation by the jurist.

"The Iranian leader's fatwa banning nuclear weapons is said to have been published around 2005. On October 31, 2013, Majlis Speaker Ali Larijani said that the Iranian leader had banned the use of nuclear weapons and that the Iranian government wished to register [this ban] as a UN document. It is therefore clear that at least until the abovementioned date [October 31, 2013], the fatwa had not been presented to the UN in any way. Additionally, there is no historical precedent of registering such a fatwa with the UN.

"When a fatwa is published by a Shi'ite jurist, this religious directive reaches the public in various ways. In this era, when clerics have extensive public and private means [for publishing them], their fatwas appear on on many websites, including the official websites of the individual jurists. The Iranian leader's religious directives and fatwas regarding almost every topic are posted on his personal and official websites in a detailed and organized manner, and hundreds of additional sources reiterate them.

"These directives are also [easily searchable, as they are] arranged by word, language, and terminology. But such an important fatwa – banning nuclear weapons – which is relied on by various officials in the regime of the Islamic Republic, appears nowhere in any of the aforementioned sources. Its text does not appear in any language on any website or in any of the multitudes of collections published by various individuals and organizations, such as The Center for Preserving and Publishing the Works of the Leader.

"This fatwa's unavailability prevents it from being read in order to understand on what basis it bans weapons of mass destruction. What level of mass destruction does it include? When Iranians and Iraqis died en masse in the (1980-1988) Iran-Iraq war (particularly because of Iran's human wave war strategy), no jurist, including Ayatollah Khomeini, issued a directive banning massacres, or called all this destruction and slaughter non-Islamic.

"Ayatollah Khomeini didn't even declare Iraq's nuclear program to be un-Islamic, even though it was clearly military in nature (this project was stopped when Israel bombed Iraq's nuclear facilities).

"Several sources tried to say that Ayatollah Khamenei's fatwa was [actually] his April 4, 2010 message to an Iranian conference on demilitarization condemning the use of weapons of mass destruction, and in which he called WMDs 'a violation of human rights and a prominent example of war crimes.' But this claim is unacceptable, because the message did not constitute a fatwa.

"The Iranian leader's fatwa banning nuclear weapons remains a mystery."[5]

Cartoon By Nikahang Kowsar: Where Is The Nuclear Fatwa?

On July 24, 2014, exiled Iranian journalist and cartoonist Nikahang Kowsar published a cartoon in the Iranian e-daily Rooz titled "Where is the Nuclear Fatwa?"


It reads as follows:

Top, right to left: Layman: "No matter how hard the researchers looked, and no matter how they searched the Internet, they found not a trace of a fatwa banning nuclear bombs by Leader [Khamenei], and no one even submitted a query [to him about the matter]."

Middle: Foreign Minister Zarif to layman: "Where are you looking? [The 11th-century Persian theologian] Sheikh Tusi published a fatwa 100 years ago on the use of uranium and plutonium."

Layman: "Don't lie, Javad."

Hashemi Rafsanjani: "I remember that the day after he died, the Imam [Khomeini] told me about the nuclear fatwa by Leader [Khamenei]."

Bottom: Leader Khamenei: "But there was no fatwa. One day, [Ayatollah Khomeini's son] Mojtaba asked me, 'Do you want a peach with a nucleus [i.e. pit] or without one?' I said that I didn't care, but that if you ate a peach with the pit you would end up in the hospital."

Layman: "And thus the myth of Mr. [Khamenei's] anti-nuclear weapons fatwa is still 'hidden' [like the Shi'ite Hidden Imam], and no one has seen it yet."[6]

Appendix: Iranian Foreign Ministry Publishes List Of Ayatollahs' Anti-Nuclear Weapons Fatwas, Which Does Not Include Khamenei's Nuclear Fatwa

In June 2014, the Iranian Foreign Ministry published a list of fatwas by Iranian ayatollahs against nuclear weapons; [7] the list did not include the fatwa that the regime claims was issued by Khamenei. The following is the list, as published, in English, by the Iranian news agency Fars on June 17, 2014:

"TEHRAN (FNA)- The Iranian Foreign Ministry on the eve of a fresh round of talks with the world powers in Vienna released a paper on the religious foundations of the edicts issued by not just the Iranian Supreme Leader, but all Shiite jurists on the prohibition of the acquisition and use of the Weapons of Mass Destruction (WMDs), including nuclear weapons.

"What follows is the full text of the paper.

"The Religious Foundations of the Edicts (fatawa)1 by Shi'ite Jurists Prohibiting Weapons of Mass Destruction

"Summary of a paper presented by Ayatollah Abolqasem Alidoost Conference on "Nuclear Jurisprudence"

"Tehran, March 2014

"Introduction

"Weapons of mass destruction (WMD) are a relatively new phenomena in international affairs, and therefore, Islamic jurisprudence, including Shi'ite scholars, did not specifically address them in the previous centuries. However, Islamic jurisprudence has a number of well-established general principles that can be applied to this issue. These principles can, and have been, used as the basis for religious edicts on weapons of mass destruction by contemporary Islamic scholars, including Ayatollah Khamenei and other prominent jurists.

"The most prominent general principles that can be applied to weapons of mass destruction are principles governing differentiation of targets, protection of the environment and ensuring safety and security of non-combatants during war and conflict.

"Since by definition, WMD are indiscriminate, make no distinction between military and civilian targets, have a long-lasting, destructive impact on the earth and the environment, and endanger the health of everyone, including those of future generations, one can readily find several long-established general principles of Islamic and particularly Shi'ite

"Jurisprudence applicable to WMD. Reference in this regard can be made to texts and edicts which are over a thousand years old.

"Traditional Shi'ite religious edicts on nonconventional weapons

"In the religious edicts of earlier Islamic and particularly Shi'ite scholars, Muslims were prohibited from using poison in times of war, or from contaminating their enemies' drinking water with poison. The indiscriminate effect of poison was advanced as the jurisprudential basis for this ruling. The most prominent Shi'ite jurists, as early as 1,000 years ago, argued that poison acted indiscriminately and did not distinguish between combatants and civilians. They further contended that it had a destructive impact on the environment and living creatures. Applying the same principles that were used to explicitly prohibit the use of poison in warfare, one can readily establish that the use of more contemporary means of warfare with similar impact and consequences, including chemical, biological and nuclear weapons, is also forbidden in Islamic legal tradition and doctrine.

"There are several narrations (Hadith) from Prophet Mohammad (PBUH), which explicitly prohibit the utilization of poison against infidels (Mushrekin)2 and their territories.3 It is thus evident that contemporary religious edicts, which ban the use of

"WMD, are pillared on principles as old as Islamic Sharia itself.

"As early as the time of the first compilations of Shi'ite jurisprudence by early Shi'ite scholars, the rules governing the use of various means of warfare available at that time were described in treatises dealing with the concept of Holy Struggle (jihad). In this regard, reference should be made to Abu Jafar Muhammad Ibn Hassan Tusi, also known as Sheikh Tusi, who is considered to be among the most preeminent Shi'ite scholars of all times and whom lived in the 11th century (5th century After Hijrah in the Islamic Calendar.) In his book, "A Concise Description of Islamic Law and Legal Opinions" (Al-Nihayah fi Mujarrad al-Fiqh wa al-Fatawa), Sheikh Tusi states that:

"'It is permissible to fight with infidels using all sorts of deadly tools except for poison. The dispensation of poison in their land is not permissible.'4

"Sheikh Tusi's religious ruling, which was issued over a thousand years ago, has since been acknowledged and espoused by numerous other scholars, who have issued similar edicts (Fatawa) in their own treatises. Among them, the following reference texts, are particularly worth mentioning:

  • "Kitab al-Sara'er5 by Mohammad bin Īdris al- Hīllī also known as Ibn-i-Īdris

  • "Ghunīyat-al-Nuzū' ilā 'Ilmay-al-Usūl va'l-Furū6 by Alī bin Zuhrah bin Husain ī Halabī also known as Ibn-i-Zuhrah

  • "Al-Mukhtasar al-Nāfi' fi fīqh al-Imāmīya7 by Jamal ad-Din Hasan ibn Yusuf ibn 'Ali ibn Muthahhar al-Hilli also known as Allamah Hīllī

  • "Al-Duroos Al-Sharāiyeh8 by Sheikh Shams-eddin Mohammad Makkī al-Āmelī also known as Al-Shaheed Al-Awwal

  • "Al-Maqāṣid fī Sharḥ al-Qawāʻid9 by Alī ibn al-Ḥusayn Muḥaqqiq al-Thānī

"The religious rulings of all these prominent scholars contain conditional and primarily absolute prohibition of the use of nonconventional weapons that act indiscriminately. It should be borne in mind that the absolute prohibitions emphasize the impermissibility of such weapons, even if their use could lead to the victory of Muslims in war.

"Contemporary Shi'ite religious edicts on WMD

"Among contemporary Islamic scholars, the prominent Najaf-based jurist, the late- Grand Ayatollah Khoei and a majority of his students, have issued religious edicts imposing restrictions in relation to the means and weapons of war, which can be directly interpreted as prohibiting the use of WMD.10

"Many of the living Shi'ite Grand Ayatollahs11 have also expressed their edicts on this issue, which are generally consistent with the religious edict (fatwa) against WMD - including development, stockpiling and use of nuclear weapons – issued by Iran's Supreme Leader, Grand Ayatollah Khamenei. Below are some of the edicts (fatawa) related to WMD issued by senior Islamic clerics.

"Grand Ayatollah Makarem Shirazi

"'As Iran's Supreme Leader has declared nuclear weapons to be impermissible (haram), I too as a source of emulation (marja taqlid), view such arms as impermissible.'12

"Grand Ayatollah Javadi Amoli

"'Scholars believe that possession and development of atomic weapons and WMDs are not permitted and have issued religious rulings in this regard.'13

"'Mass killing and genocide are forbidden by divine religions.'14

"Grand Ayatollah Sobhani

"'Given the principles of Islam in regards to human beings and the respect it holds for mankind, utilizing atomic weapons is absolutely prohibited - even for deterrence purposes.'15

"Grand Ayatollah Nuri Hamedani

"'We do not allow the use of nuclear weapons.'16

"Grand Ayatollah Khamenei, Iran's Supreme Leader, has on numerous occasions announced his legal understanding and resulting jurisprudence in relation to this topic. For instance, Ayatollah Khamenei has expressed the following:

"'In our opinion, in addition to nuclear weapons, other WMDs such as chemical and biological arms also pose a serious threat to humanity. We declare the use of such weapons as impermissible (haram) and believe that protecting mankind from this great disaster is a public duty.'17

"'We do not believe in nor seek atomic bombs and weapons. Based on our religious principles, utilizing such WMDS is absolutely prohibited and impermissible. It is tantamount to pillage and genocide, which the Holy Qur'an forbids.'18

"'The Iranian nation is opposed to such weapons based on its Islamic principles, as well as prudence and rationality.'19

"'We do not want atomic bombs, and are even opposed to the possession of chemical weapons.'20

"'There is also the Nuclear Non-Proliferation Treaty, NPT, which everyone has accepted, including Iran.'21

"'The Islamic Republic of Iran has repeatedly announced that it is against using and developing nuclear weapons in accordance with its principles and Islamic jurisprudence.'22

"It is thus evident that Ayatollah Khamenei's religious edict against nuclear weapons is deeply rooted in Islamic jurisprudence, and is not new or unique."

[Endnotes of Fars document:]

"1 "Fatawa" is the plural form of "Fatwa," or religious edict in Islamic jurisprudence.

"2 In Islamic texts, infidels (Mushrekin) refer to those not believing in any Divine religion.

"3 See for Instance, Sheikh Hor Ameli, Wassael al-Shia, Institute of Al Al-Bayt, Qom, 1414 H. Volume 15, Abwab Jihad al-Ado (The Chapters on Jihad with the Enemy), Chapter 16, Page 62.

"4 2- Muhammad Ibn Hassan Tusi, Al-Nihaya fi mujarrad al-fiqh wa l-fatawi, Dar al-Kotob al-Arabi, Beirut, 1st, 1390 H, Volume 1, Page 293.)

"5 Muhammad Ibn Idrīs al-Hillī, Kitab al-Sara'er, Islamic Publishing Institute, Qom, 2nd, 140 H, Volume 2, Page 70

"6 Hamza bin Ali Ibn Zuhrah, Ghuniyat-al-Nuz ila Ilmi-al-Usul wal-Furu, Imam Sadegh Institute, Qom, 1st, 1417 H, Page 201

"7 Abolqasim Najm al-din Jafar ibn Muhammad ibn al-Hassan al-Hilli, Al-Mokhtasar an-Nafe' Fi Fiqh al-Imamiyah, Mostafavi Book Store, Qom, Bi Ta, Page 211

"8 Shams al-Dim Muhammad ibn Makki al-Ameli (Ash-Shaheed Al-ëAwwal), Al-Duroos Al-Sharaiyeh Fi Fiqh al-Imamiyah, Islamic Publishing Institute, Qom, 1st, 1417 H, Volume 2, Page 32

"9 Ali ibn al-Hussain al-Korki (Mohaqqiq al-Thani), Jami al-Maqased Fi Sharh al- Qawaid, Aal Al-Bayt Institute, Beirut, 1st, 1411 H, Volume 3, Page 385

"10 Seyyed Abulqasim al-Khoei, Minhaj ul-Saliheen, Madinat-ul-Ilm, Qom, 28, 1410 H, Volume 1, Pages 372 and 373. Also annotations to Minhaj ul-Saliheen by other high ranking jurists (Maraji) as well as Grand Ayatollah Khoei's students.

"11 They are commonly referred to as "sources of emulation" (marāji al-taqlid), meaning that Shi'ite Muslims can follow them in the conduct of their religious duties.

"12 Iranian News Agencies, Dec 22nd 2013

"13 Fars News Agency, February 19th 2014

"14 Fars News Agency, February 19th 2014

"15 Iranian News Agencies, May 16th 2014

"16 Iranian News Agencies, October 2nd 2013

"17 Iranian News Agencies, April 16th 2010

"18 Iranian News Agencies, February 19th 2010

"19 Iranian News Agencies, June 3rd 2008

"20 Iranian News Agencies, March 21st, 2003

"21 Iranian News Agencies, July 1st, 2004

"22 Iranian News Agencies, August 30th, 2012."

Endnotes:

[1] Econews.ir, 8.11.2014.

[2] President.ir, November 12, 2014.

[3] M.state.gov, November 13, 2014. In a March 22, 2014 Voice of America interview, U.S. Secretary of State John Kerry said: "Well, I have great respect for a fatwa. A fatwa is a very highly regarded message of religious importance. And when any fatwa is issued, I think people take it seriously, and so do we, even though it's not our practice. But we have great respect for what it means. And – but the trick here – the trick – the art, the requirement here, is to translate the fatwa into a legally binding, globally recognized, international understanding. And so I hope that's achievable. And I think it's a good starting place. And President Obama and I both are extremely welcoming and grateful for the fact that the supreme leader has issued a fatwa declaring that [emphasis MEMRI's]. That's an important statement. But now we need to take that and put it into a sort of understandable legal structure, if you will, that goes beyond an article of faith within a religious belief or a process into a more secular process that everybody can attach a meaning to." State.gov, March 22, 2014.

[4] For example, Iranian Atomic Energy Organization director and former foreign minister Ali Akbar Salehi, who is very well acquainted with the nuclear negotiations, said at a February 19, 2014 Iranian National Conference on Nuclear Law in Tehran marking "Khamenei's issuing of his historic fatwa banning nuclear weapons": "This historic fatwa can be treated as a legitimate document, with validity equal to the validity of the text of international treaties." Kayhan (Iran), February 19, 2014. The Iranian news agency Mehr reported on April 11, 2012, that Iranian judiciary head Ayatollah Sadeq Amoli Larijani had said: "The fatwa that the Supreme Leader has issued is the best guarantee that Iran will never seek to produce nuclear weapons."

[5] Bbc.co.uk/Persian, July 16, 2014.

[6] Roozonline.com, July 24, 2014.

[7] English.farsnews.com, June 17, 2014.