Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
Issue No. 18 - Evidence - Meeting of February 15, 2017
OTTAWA, Wednesday, February 15, 2017
The Standing Senate Committee on Foreign Affairs and International Trade, to which was referred Bill S-219, An Act to deter Iran-sponsored terrorism, incitement to hatred, and human rights violations, met this day at 4:15 p.m. to give consideration to the bill.
Senator Percy E. Downe (Deputy Chair) in the chair.
[English]
The Deputy Chair: Colleagues, today we will continue our examination of Bill S-219, An Act to deter Iran- sponsored terrorism, incitement to hatred, and human rights violations.
Appearing before us by video conference, live from New York, is Mr. Richard Nephew, Senior Research Scholar at the Center on Global Energy Policy, Columbia University.
Thank you for joining us, Mr. Nephew. We will hear your presentation, and then I'm sure the senators will have questions. You have the floor.
Richard Nephew, Senior Research Scholar, Center on Global Energy Policy, Columbia University: Thank you, Mr. Chairman, and I very much appreciate the opportunity to appear here before you today. I also appreciate the opportunity to testify via video conference, which is an innovation that I wish my own Congress might consider.
I appear today as a friend of Canada, but not as a Canadian citizen. I was asked to offer my comments on Bill S- 219, and I do so conscious of the fact that my testimony may shape the decisions of another sovereign country. Given this reality, I feel it is best if I describe my views in comparison to what I would consider to be standard sanctions practice, offering my opinion as a former practitioner and current professor of the art of sanctions.
I say this in part because, though I find the intention behind this bill laudable, I believe there are potential problems in and deficiencies with this legislation. I have no stake in the politics that may surround this bill, but I share a common interest with Canada to ensure your country's future prosperity and the efficacy of your sanctions regime. After all, I hope one day to work again with the Canadian government, and sanctions have been a tool that we have utilized together to great effect.
I will group my comments and reactions in three parts, each related to a particular concern.
First, I believe this bill usefully underscores the prevalence of hate speech and incitement in Iran, as well as Iran's long-standing support for acts of terrorism and its deplorable human rights record. However, I believe that the bill's requirement to correct all of these bad acts before sanctions relief can be enjoined is a dangerous practice, and it runs the risk of undermining prospects for progress in any of these areas.
Simply put, as I read it, this bill requires Iran to make progress on such a great variety of bad acts that it removes the Canadian government's ability to respond to and reward improvement in any one particular element. "All for one and one for all'' is a good rallying cry but, in sanctions practice, it often leads to the absence of any material progress along multiple fronts. There is simply no incentive for a foreign government to take the potentially difficult steps necessary to address bad behaviour because they will simply expect the sanctioning state's demands to never cease.
Put another way, this legislation could be a roadblock to the Canadian government's ability to incentivize positive changes by Iran in areas of terrorism or human rights. The mere utterance of the words "Death to America'' by an Iranian government official would, as I read the terms of this legislation, preclude any offer of sanctions relief. As a U.S. citizen, I would strongly prefer that Iranian officials keep this horrid, semi-religious practice if the trade-off were actual improvements in human rights and terrorism policy. Regardless, the risk of the strategy, which is clearly intended to coerce massive changes across the board by Iran, is that Canada loses the inherent coercive value of its sanctions for specific policy improvements.
This concern takes me to my second point, which is one of definitions. The terms of this legislation go well beyond what I would consider to be the standard for international sanctions. That, of course, could be a good thing if Canada's actions were to push the envelope forward, but my concern is that, in practice, Canada would simply find itself on the margins of international relations with Iran.
Take, for example, the decision to consider any service in the Basij or the IRGC as a disqualifier for immigration to Canada or a potential cause for sanctions. Many Basij and IRGC are draftees who did not ask to serve but were instead drafted. As this legislation currently stands, draftees and true believers are considered one and the same. The United States does not use this standard, at least since the executive order President Trump had signed was enjoined, and I suggest that it also goes too far for Canada.
Relatedly, the terms of the bill would change the definition of ownership and control with respect to the IRGC and EIKO to merely 10 per cent. In Iran's current economy, that's the equivalent of requiring an embargo. The burdens of finding out whether there is an 11 per cent ownership stake — perhaps made through intermediaries and cut-outs — would preclude most companies from doing business with Iran. The Canadian government might not ever find enough evidence to impose an asset freeze, but companies will likely interpret this as a signal that no transactions are possible and will act accordingly. This very scenario may be your intention but, as a practitioner, if that is your intention, I would urge Canada to instead adopt a comprehensive embargo and establish exemptions for those transactions you do support. This is a cleaner approach, more accommodating for companies and their compliance officers and, frankly, I think it's more honest and direct.
Lastly, this legislation takes away a considerable amount of flexibility and autonomy for the government, at least insofar as IRGC terrorism designations and sanctions against EIKO are concerned. It essentially cooks the books, defining IRGC bad acts in such a way that it is almost impossible for the associated ministers to not make sanctions determinations. Likewise, it presupposes that EIKO is a bad entity on its face without the basis for justification.
I served at the National Security Council for President Obama, and in that capacity I spearheaded the drive for the U.S. designation of EIKO. As the State Department's Deputy Sanctions Coordinator, I signed off on the decision to designate it in 2013 and I understand its complexities. Importantly, EIKO's primary crime — at least in terms of U.S. sanctions definitions — was that it helped to evade all the nuclear sanctions the U.S. had in place; however, it only engaged in bad acts insofar as other U.S. sanctions were implicated. It's for this reason that, when the JCPOA was adopted, the United States dropped sanctions against EIKO. The underlying bad acts were no longer happening; therefore, from that perspective, there was no reason for U.S. sanctions to remain.
In my professional opinion, reliance on independent assessment of bad acts, as well as clarity of the nature of those bad acts, is an absolutely vital element of sanctions imposition. It ensures sanctions are focused on the ills they seek to correct, creating a sense of fairness and justice, along with the means for the targeted entity to get itself out of trouble. Establishing rigid designation frameworks, which this legislation would cement into force by eliminating executive and foreign policy flexibility, as I understand it, damages the tool of sanctions and compromises its legal and ethical principles, in my view.
There are fixes for each of the issues I've identified that I think would help improve this legislation and confirm its coherence with standard practice. I encourage the drafters to consider making those changes, and I encourage the entire committee to accept my outsider perspective in the spirit in which it is given, which is as a friend of Canada, a former U.S. official who has worked very closely with your foreign ministry and perhaps now is an overly pedantic academician.
Thank you again for the opportunity to speak before you, and I would welcome your suggestions and questions.
The Deputy Chair: Before we turn to the questions, as lead sanction expert for the United States government team negotiating with the Iranians, what was your view of the sanctions? Were they effective?
Mr. Nephew: I think so, and I think so on the basis of really two points: One, that we saw that President Rouhani was motivated to engage in negotiations with us when he came into office and saw the treasury was empty and that he didn't have a lot of flexibility to fix that problem. Two, when we entered negotiations, the Iranian officials tried to make a big deal about, "We don't need your sanctions relief, this isn't a trade, we just want to set the scales even,'' but when we said, "Okay, fine, we won't include sanctions relief, you can just make the scales even by doing nuclear steps uncompensated,'' they quickly said, "No, we do need to have sanctions relief in there as well.''
I think they were motivated to come to the table because of sanctions pressure and I think that they desperately sought to have sanctions removed.
Senator Dawson: First of all, I have major reservations on the bill, but you offered that some changes could be made and you would be ready to work with the drafters. You used the expression "tweaking,'' which is an expression that was used this week by one of your important citizens. In the interpretation of "tweaking,'' depending on whether you are an elephant or a mouse, what the elephant considers tweaking the mouse considers a major threat. As you know, Canada is the mouse and U.S. is the elephant.
I don't see any tweaking that is possible on this bill. I think my reservations are too strong. You said you would make recommendations to drafters. If we were to amend it, I would like to consider your amendments, if you have very clear examples of tweaking.
Mr. Nephew: Yes, senator, I am happy to offer a couple of thoughts. For example, I think the issue of ownership and control could be tweaked in a way that again conforms with more standard practices of what the definition is. The proposal in this bill is to set the standard at 10 per cent, but that's very low, and I think, as I said in my opening comments, I think it's too low to really be effective and to not cause compliance burdens for all those people who are trying to adhere to the law. That could be changed.
In the U.S., our standard definition as of now is 50 per cent. I think that probably is the standard definition that Canada would use normally. I think you could tweak the bill to confirm that 50 per cent will be the standard. I personally would be reluctant to go below 50 per cent, but you could go —
Senator Dawson: Fifteen or 50?
Mr. Nephew: Five zero.
Senator Dawson: There was some interpretation that it might be 15, but I heard your correction.
Mr. Nephew: If you went to the 50 per cent that conformed to more normal practice, it would also lower that compliance burden that would exist on companies and on officials who are trying to judge whether or not bad acts were in place. I personally would not recommend going below 50 but, if there was a desire to be more stern toward Iran, frankly, the higher the percentage, the easier it would be to make a reasoned judgment as to what the problem is. I would say closer to 50 is better than closer to 10. That's an example.
You could also change the way in which EIKO is addressed in the entire legislation. You could require a report, for instance, on EIKO's activities, whether or not it is in fact engaged in any activities of concern to Canada, such as terrorism, violations of human rights and so forth, and then on that basis make a decision. In this legislation, it just simply assumes that EIKO is a bad actor and requires imposition of sanctions, and I don't think that's the right way of approaching that target.
Similarly, I think you could change the service issue with regard to the IRGC and the Basij and say maybe someone who has served in a position of leadership, either a senior enlisted soldier or a senior officer, maybe above a major or something to that equivalent. I say that because then it's somebody who has decided to make a career in the IRGC. They have decided to become part of the upper echelon and have more control over the decisions as opposed to an 18- year-old kid who simply didn't want to go to jail for dodging the draft in Iran.
Those would be examples of adjustments you could make that would make the bill more conforming with international practice while at the same time delivering the effects that are intended here.
Senator Marwah: Thank you for those very useful comments. They certainly provide another perspective for us.
I had a broader issue. I fully understand that we can tweak or amend this bill, but just standing back for a minute and given your experience with sanctions in general, is there much benefit to a small country like Canada going at it alone when the world seems to be going in the opposite direction? Is it really effective at all?
Mr. Nephew: Senator, I think it's certainly true that if you're going to engage in sanctions, it's better to have friends. That's not just true for a small country; it's certainly true for the United States as well. I would point to our historical experience. We went alone on Iran sanctions from 1996 until roughly 2006. There were a few targeted, very small things that a few countries and groups did, and they didn't have much effect. Iran wasn't able to do business in the United States, but it was able to do business in Europe, Japan, Canada and other places. Our effect was also limited there too.
I think it is certainly true that sanctions are more effective as multinational instruments that have a lot of partners and coalitions behind them. The reason I spent some time travelling to Ottawa was to work with your government to establish a like-minded coalition to present real pressure to Iran from a number of different fronts.
That said, I don't want to minimize the effect that leadership can also have here too. It's certainly true that it's better to go together, but if there are important international leaders who are prepared to make certain stances clear about human rights, for instance, and their unwillingness to do business for human rights purposes or out of concern for human rights, that can allow for a leadership role that's outsized to the practical economic implication.
I would note that Canada's leadership in pushing for a special rapporteur for human rights from the UN, which is very much driven out of Canada, had an outsized impact. Certainly it has had an impact on Iranian thinking and concern. I think in keeping with that, limited human rights sanctions from Canada would potentially not be a bad thing; they just might not have that practical impact. It's more of a leadership issue, if that makes sense, senator.
Senator Woo: Thank you, Professor Nephew, for your testimony.
You expressed a view that if this bill was passed, Canada would find itself on the margins of relations with Iran. We would be an outlier. Could you elaborate on what it means to be on the margins of relations with Iran and, in particular, how that would affect Canadian business interests, Canadians of Iranian descent, visitors, tourists going to Iran, Iranian tourists coming here, the entire spectrum of ties that currently exist between Canada and Iran? You may or may not be aware of the current state of our diplomatic re-engagement process, but perhaps you could talk about that as well?
Mr. Nephew: I think there are a couple of countries that have no relationship with Iran aside from the most limited of interactions. My country is an example of that, notwithstanding John Kerry and Javad Zarif's attempt to work together a little bit more over the last year or so of the Obama administration. But beyond that, I would say most countries on earth have a different interaction with the Iranians, one where they have trade ties and, at a minimum, more enhanced diplomatic relations with Iran.
I'm very much aware of Canada's current issues in terms of re-establishing any kind of relationship with the Iranians and some of the history. Canada may be closer to the U.S. in this than potentially countries in Europe and elsewhere. The impact is that if you are not on the ground in the Iran, you lose two things. You lose the ability to have diplomatic presence and the ability to interact with the Iranian government, and you lose the ability, on the second hand, for intelligence collection and the ability to provide informed assessments.
The same sorts of things can come from too many sanctions as well, because the Iranians respond aggressively to sanctions imposition, frankly, if it's coming from partners who are not essential to their own economic health. If you are China and you buy most of Iran's oil, they will walk more carefully around you. It's the same thing with India if you are a supplier of a lot of rice and a purchaser of oil, and to a lesser extent with Europe, because Europe is still reintegrating. However, those relations give you a stake in the Iranian system if you have concerns with what they are up to.
In my view, one the reasons the European Union has had a fairly successful human rights dialogue with Iran — although I agree the results have not been wholly positive — is that there is a desire in Iran to maintain decent enough relations with Europe, for trade and travel reasons and so forth. The European Union in particular is big enough that it can throw a bit of weight around, although not so much that it can't be told by the Iranians to get out.
For Canada, because you are more remote and distant, and because trade ties have been fairly modest, potentially aggressive steps, especially if not taken in concert with other actors, would mean the Iranians would say, "Forget it. We don't need to deal with you all that much.''
My view is there is a role Canada can play in terms of shining a spotlight on bad acts, and that's why parts of bill could be reformed and adjusted to help drive that leadership home without compromising Canada's ability to interact with the Iranians. It's that balance that the Canadian government ought to be seeking, to be able to put a spotlight on bad acts but maintain a chance of real re-engagement with the Iranians to be able to encourage them to do better things across the board, whether it's support for terrorism or human rights or so forth.
Senator Bovey: I want to add my thanks for you being with us today and for your remarks. I want to say how much I enjoyed an article you wrote in April 2015 called The Humanitarian Impact of Sanctions, and that's where I'm coming from.
I read that article, and there are a couple of things I would like to quote.
You said:
When officials in charge of sanctions are confronted with questions about the humanitarian impact of their tool of choice, they often respond in one of two ways: denying the impact, citing the presence of exemptions to sanctions that are intended to mitigate such consequences; or, blaming the target, pointing to the misbehavior that led to the problem in the first place.
In your conclusion, you stated:
Sanctions often do far less harm than military conflict — particularly to targeted populations . . . But, sanctions are a weapon and weapons do damage. They should be wielded carefully, wisely and in full recognition of the costs they impose.
With that said, I would be interested to hear your thoughts on what the non-nuclear sanctions led to and the change in the Iranian society. I would be interested to have some examples of how non-nuclear sanctions have led to progress and what effect they've had on Iranian people.
Mr. Nephew: Thank you very much for the question, and I appreciate you looking at that article. It's one that, when I came out of government, I was energized to write. You could imagine that, as a former official, sometimes you have things you can't say until you are "former,'' and that is useful.
Senator Bovey: I gather you wrote that in response to a student's question, which I found interesting.
Mr. Nephew: I did. In fact, the student was much gentler than an activist who had confronted me while I was in government, but it was motivation nonetheless.
I would say three things: First, I still very much believe in the conclusions of that paper. It's part of the reason why I take the imposition of sanctions very seriously and think that anyone, anywhere who seeks to impose sanctions needs to do the same. To some extent, the unintended consequences — and in some places the intended ones — can be quite severe.
In this case, the unintended consequences on the humanitarian impact of this bill are probably fairly slight because the measures themselves are reasonably targeted with respect to bad actors and what they are up to. Again, there is a problem in definitions. You might avoid doing business with someone who is completely legitimate, and you can imagine some scenarios in which that could have a humanitarian negative impact, but that's probably reasonably slight if other humanitarian channels exist.
I think the biggest negative impact would be with regard to the IRGC and Basij draftee issue I mentioned. I note that in the legislation there is a provision to allow the minister to make exemptions on a case-by-case basis. One could imagine a family of refugees escaping from Iran and, if the 18-year-old kid is a draftee, the family deciding not to try Canada because of risk of being denied access and the child having to go back home. Similarly, it could be a 60-year- old person who was a draftee many years ago and doesn't even remember their service potentially being excluded for the same reason. There is a potential humanitarian downside for that, depending on the circumstances.
Again, the exemption potentially limits that impact, but I don't know enough, senator, about the mechanisms in Canada for case-by-case review and I don't know whether or not those cases are expeditiously reviewed or what that process looks like. That would be a question that I would have, if I were still in government, for your system, about how they would ensure against that kind of risk.
In terms of your broader question on the impact of non-nuclear sanctions in general, I would say that I think human rights sanctions against Iran have had an impact. They certainly don't like them. The history of Iran, especially revolutionary Iran, is one of trying to get the rights of the population protected from the Shah, and I think there are a lot of people in the Iranian government who take great umbrage to being called a human rights violator. It cuts against a national sense of self. I'll tell you, we designated hundreds of Iranian officers, and when it was for missiles or support for terrorism, they didn't bat an eye. When it was human rights, they got very upset.
There is a value there in terms of messaging, but I think it has to be very targeted and it has to be linked with dialogue about how to improve that underlying set of circumstances. I hope that helps.
Senator Oh: Thank you, Mr. Nephew, for your remarks.
Surely sanctions are most effective when there is a consensus in the international community. Have other countries introduced legislation similar to Bill S-219?
Mr. Nephew: Senator, the only place where I'm aware of similar legislation is in the United States. I'm not aware of similar legislation in Europe, Japan or Korea, who are our strongest partners in terms of sanctions against Iran. There are some designations of individuals that may overlap, like with the IRGC, but that's a slightly different question, I think.
Senator Cordy: Thank you very much for appearing before us today, and for your interpretation of the bill.
The bill states that the minister of Canada must report to our Parliament every year, and clause 3(3) has a list of government officials that they must report on, including EIKO. EIKO doesn't even report to the Iranian Parliament, so how realistic is it to expect that a Canadian minister is going to be able to collect data from EIKO and a long list of other government officials in Iran in order to be able to report to Parliament?
Mr. Nephew: Senator, I think that's a key issue with these kinds of lists, to be very blunt with you. Some of the details that are required to make effective reports are simply hard to find, and EIKO is a good example of that. It's an organization that many had never heard of before, until we designated it in 2013, because it was associated with the supreme leader's office and it was very quietly administered.
I think gaining information about these organizations is going to be difficult. I know that, obviously, intelligence resources can assist governments to develop cases here, but being able to find evidence that substantiates bad acts is always going to be very difficult, no matter what the target is. I think that's certainly the case here with EIKO as well.
Senator Cordy: I think we all understand the human rights violations and the problems that we have with Iran, but is there any point in having a bill, such as the wording in this bill, where it's going to be next to impossible, if not impossible, for a Canadian minister to get that information?
Mr. Nephew: I think part of the problem is that it will always be difficult to judge some of the culpability behind those bad acts with any degree of coherence that meets legal standard.
It's an interesting question, in part because people tend to assume, well, of course there's evidence that the supreme leader is directly complicit in bad acts — he has to be, right? — and that his office would be and so forth. But that's not a legal justification. I would just submit that our friends in the European Union have found the problem of making "of course'' justifications of sanctions designations, and they've lost a lot of cases in European courts as a result. Their sanctions program looks rather weak and ineffective, and it's under a lot of strain as a result.
I assume that within the Canadian system, the same level of judicial review exists as it does in New York and in Europe. In that case, the chances of a designation being made off of this report, especially with a small amount of information, is potentially very damaging to the Canadian designation framework and to the ability to do sanctions.
If you have a lot of due process violations cited as, again, the European Union has, and as we've experienced in my country in the last month under President Trump's travel ban, that's pretty damaging to the integrity of that system. It's a concern I would have about the efficacy of Canada's sanction system if that kind of data wasn't available.
Senator Gold: Thank you for your presence and for your presentation. You seem to have a very clear-eyed view, as we would expect, of some of the bad acts that Iran has done, whether in the area of sponsoring terrorism or in the area of human rights. I also understand that, despite the consequences that inevitably flow from sanctions, they are sometimes necessary, and dare I say desirable, certainly to bring recalcitrant folks to the table as it did with respect to Iran.
If this bill is not the right bill for all the reasons that have been canvassed, what other instrument or instruments might you recommend for us to consider? It's not a hidden subtext to this because we've —
The Deputy Chair: We have a technical problem here, so we'll hold for a moment.
Senator Gold: Mr. Nephew, can you hear us?
Mr. Nephew: I can hear you in between others.
The Deputy Chair: We're back now. Senator Gold?
Senator Gold: The question was: What other instruments might we consider? In particular, this committee is looking at a Magnitsky-type law in another context, and, not to ask you to comment on the details of that at all, but just more generally, what policy instruments would you recommend to us, if any?
Mr. Nephew: Senator, it's a great question. I would say there are three thoughts that I would have. First, on a Magnitsky-type law, I'll tell you, I was initially very sceptical of the value of the Magnitsky Act in the U.S. system and of a global Magnitsky act, which has been discussed and debated in my Congress. I think it's probably going to come back up this year. I know there's a lot of interest in it.
I've come around on that. I think that individual targeted designations of high-level officials in governments have a useful demonstration effect. It serves the point of saying that this person — the head of the judiciary or the head of this prison or so forth — is a particular bad actor, especially if it's linked to a specific visa ban and potentially even an asset-freeze mechanism for that person. Then you're targeting that head of the judiciary, and they can't come to Canada unless it's for UN business which, obviously, would be a bigger issue for us, potentially, than for Canada, but they are not allowed to come in, they are not allowed to holiday there and they are not allowed to spend money there until they are able to correct their behaviour.
I think that has a lot of utility, especially if it's framed around human rights issues and corruption issues, highlighting someone who is stealing from the state or diverting badly needed resources — things like that — to truly try to highlight the danger that someone is causing to their own population. That's an example of something that, in my view, is nicely targeted, it's discrete in its impact and it can be linked to a specific message of improvement of behaviour, unlike, for instance, widely targeting an IRGC draftee or Basij draftee. That's one example.
I think the other kinds of measures depend a bit on the bad act you're trying to deal with. With regard to support for terrorism, for instance, I still strongly believe it's reasonable to freeze the assets of banks and institutions inside of Iran or anywhere else that are supportive of acts of terrorism. I think that makes sense. It has utility; it helps to isolate those bad actors.
Ultimately, we shouldn't expect that to change Iran's relationship with Hezbollah, for example, which some folks have pointed to and said if only we sanctioned some Iranian banks, they wouldn't support Hezbollah. They have been supporting Hezbollah since 1984 and will continue to support Hezbollah until 2084, if Hezbollah is still around.
I think those measures have some direct impact, but we need to be honest about what we think the efficacy of them is, particularly considering there's an entire state apparatus that's prepared to take up the slack from one particular bank or another.
This takes me, senator, to a more fundamental and third point, which is: there are some problems that sanctions simply cannot solve. I don't think that any amount of sanctions, as I said, would affect Iranian support for Hezbollah or Iranian willingness to involve itself in Iraq. Those are national security interests for the Iranian state that simply go beyond the impact of sanctions, at least any sanctions that wouldn't have the kind of humanitarian problems or risk doing violence to the Joint Comprehensive Plan of Action, which is still quite essential for dealing with Iran's nuclear program.
From that perspective, I think there are other measures we need to consider, whether they are interdictions, or direct halting of arms shipments as required under UN Security Council resolutions with regard to Hezbollah in Yemen, for instance, or just direct work with governments like Iraq's to be able to try and lessen the overall influence and impact of Iranian agents operating in the country. Frankly, with what's been happening in the last decade in Iraq, I think our expectation for efficacy there should be pretty modest as well.
I hope that answers your question, senator.
Senator Woo: Without taxing our witness too much, I hope the chair will consider inviting him to testify specifically on the Magnitsky bill that is before us. I hope you have a chance to read our version of the Magnitsky bill so that you can perhaps give us a more thorough review of that bill.
On the current bill that's before us, I want to ask you about what you term as the one-for-all and all-for-one problem, kind of a joint and several issue in the legislation, and say a little bit more about why you find some of the criteria problematic, the criteria for assessing whether human rights has improved in Iran.
I note, just reading quickly through the list, incitement of hatred is one, and you've given an example of how that could be problematic, but we also have items such as allowing for freedom of expression, including less restricted access to the Internet, prohibiting by law all forms of discrimination on the basis of, and then a long list of things. Could you comment on other problems you might see in this long and somewhat exhaustive list of criteria?
Mr. Nephew: Senator, I'm happy to. I would also be happy and honoured to read your version of Magnitsky and to comment, if you'd like, at any point.
With respect to your specific question, you put your finger on the problem, which is everything you listed is an independently good thing. There's no one in your room or my room who would oppose the idea of free expression being something that we ought to cherish and try and encourage; the same with avoiding incitement to hatred, terrorism and so forth.
It comes down to a question — and I hate to be so blunt about it — of realism about how much progress you're going to make in a country like Iran and what is a minimum, acceptable improvement that you might accept.
For example, if inside of Iran they ban the execution of anyone below the age of 18; if they change the rules associated with those executions to make it only for the most heinous of crimes, murder and rape and so forth; if they released most political prisoners, but there's a couple that we may suspect are someplace; if they allow limited additional free expression and access to the Internet, but it's pretty clear that sometimes they shut down some of the valves just as they do in other countries around the world, I guess the fundamental question would be: Isn't that an improvement that's worth rewarding, especially if the risk of not rewarding that is the Iranians saying, "Forget it. We're not going to do anything''?
I gave the potentially extreme example of one utterance of "death to America'' precluding the ability to move forward. As I read the legislation, that is as little as, potentially, would be required. Again, they're not going to make this trade. But I will tell you now, if they're prepared to stop doing business with and supporting Hezbollah and your minister is able to verify that over two reports, as is required by the statute, I think we should relieve those sanctions even if at every anniversary of the taking of the U.S. embassy they say a lot of horrible things.
The same thing if we were to have a lot of improvement in the human rights record in the country. If we had those executions go down like I suggested but they are still supporting Hezbollah, isn't the human rights situation in Iran improving something that we ought to reward to keep them on the right trajectory?
This is a very difficult question. It's one that we struggle with all the time, too, but my concern is that by linking a lot of separable things together, you create the same problem that we might have had on the nuclear issue had President Obama not said we're going to divide up the world into nuclear and non-nuclear sanctions, where for lack of cooperation on "death to America,'' we're unable to stop the Iranians from having something that could actually achieve it.
The Deputy Chair: Mr. Nephew, on behalf of the committee, I want to thank you. Your expertise, your work and your education have made you an expert witness before us today. We very much appreciate your taking the time. We look forward to having you back again in the future.
Mr. Nephew: Thank you very much, chair. I appreciate the opportunity.
The Deputy Chair: We're going to adjourn the meeting and then go in camera very briefly to deal with a few administrative matters.
(The committee continued in camera.)