• Middle East Program
    Constitutions Thick and Thin
    The sharp debate in Israel last year over “judicial reform” raised basic questions that arise in most democracies about constitutions: What are they meant to be and to do? Even the definition of a “constitution” is debatable. University College London tells its students this: A constitution is the rule book for a state.  It sets out the fundamental principles by which the state is governed.  It describes the main institutions of the state, and defines the relationship between these institutions (for example, between the executive, legislature and judiciary).  It places limits on the exercise of power, and sets out the rights and duties of citizens. By that definition, constitutions serve two basic functions. First, they set forth the rules that define the structure of government, allocating roles to key institutions and describing their interrelationships. Second, they define and protect citizens’ rights. As the International Institute for Democracy and Electoral Assistance put it [PDF], constitutions place “the fundamental rights of citizens in a higher law that cannot be unilaterally changed by an ordinary legislative act.” Most countries have constitutions that at least on paper achieve both objectives. Only five countries do not have a written constitution: Canada, Israel, New Zealand, Saudi Arabia, and the United Kingdom. They have laws, “basic laws,” and legal traditions, but lack a single unified constitutional document. The “Thin” Constitution Because many rulings by the U.S. Supreme Court have been controversial when handed down, the United States has seen decades of debates over the meaning of the U.S. Constitution. In 1999, constitutional scholar Mark Tushnet of Harvard Law School proposed that the “real” U.S. Constitution, what he called the “thin constitution,” is comprised not of the Constitution’s articles and amendments but rather of the Declaration of Independence and the Preamble to the Constitution. Those two documents (or at least what he says are the key parts of them) provide “fundamental guarantees of equality, freedom of expression, and liberty.”  In his view, constitutional law should consist of interpreting those two documents. Judicial review as the United States has known it throughout its history should be eliminated, he argues. It shifts too much power from the elected representatives of the people to unelected judges. It leads citizens and legislators to concentrate on the rulings of courts and the views of judges rather than on the fundamental precepts of American liberty. Legislators think too much about the courts when legislating and leave constitutional issues to the courts when Congress itself should judge how proposed laws will affect the liberty of its constituents. So Tushnet proposes a constitutional amendment that says, “[t]he provisions of this Constitution shall not be cognizable by any court.” Tushnet’s idea of a “thin constitution” without judicial review has been criticized for vagueness. He calls “a law committed to the principle of universal human rights justifiable by reason in the service of self-government.”  The reviewer of Tushnet’s Taking the Constitution Away from the Courts in the Yale Law Journal wrote that “Tushnet’s thin constitution can be made to mean absolutely anything in practice, which signifies that it actually constitutes nothing.” Others have argued similarly that a U.S. Constitution based solely on the Preamble and the Declaration would not be judicially enforceable because the concepts are malleable. Perhaps the deepest criticism of Tushnet’s thin constitution is that it assumes wide agreement on the concepts embedded and exemplified in the Declaration and the Preamble—the consensus the late Harvard political scientist Louis Hartz described in his classic work The Liberal Tradition in America as based in the theories of John Locke and the realities of a United States that grew without roots in a feudal past. Tushnet says “ordinary people” back the basic concepts of his thin constitution, but he offers no evidence to prove it. The “Thick” Constitution There is another, directly contrary definition of a “thin constitution” that turns Tushnet upside down. In this theory, a thin constitution is one that sets only the rules of the game—the relations among institutions of government—but does not speak to the rights of citizens or to conflicts over values at all. This kind of thin constitution is being proposed today in Israel, which suffered highly divisive debates over judicial reform in 2023. One of the main advocates for this view, Israeli law professor Yedidia Stern, argues that Israel is still on a dangerous and slippery slope toward war between the branches of government….The root of the problem lies in the fact that in Israel, contrary to what is accepted in most constitutional democracies, the rules of the game regulating how the branches of government operate and interact can be changed by a simple Knesset majority….the rules of the game must be anchored in a constitutional document that cannot be changed without broad agreement. Stern would prefer a “thick” constitution that “addresses the other big questions governed by constitutions—the core principles of the state and a bill of human rights.” But he has concluded that “given the heterogeneity of Israeli society and the deep disagreement over the vision of the state, we must regrettably acknowledge that achieving broad public consensus on these critical issues appears to be an unsurmountable challenge, at least in the foreseeable future.” That seems like a reasonable view, but Hanna Lerner of Tel Aviv University argues that it’s too late even for a new “thin” constitution once a state has been established. Agreeing on the rules of the game, she says, can only occur at the inception of the state: “moments of ‘new beginning’ when state institutions are in their formative stage.” After that, “the institutional legacy that evolved over the years—particularly the constitutional dialogue between the legislature and judiciary—hinders the separation between constitutional debates over institutional issues from disputes over the character of the state.” Israel’s earlier constitutional debate in between 2003 and 2006 exemplified that, Lerner argues. Those seeking to draft a constitution were unable to separate “the two aspects of the constitutional debate—institutional design or re-design (e.g., regarding procedures of legislation or questions regarding the structure of the judiciary) and the foundational debate on the definition of the state’s identity (e.g., concerning the role of religious law or the right to equality).” Stern’s approach is to deal solely with the “less controversial” structural and institutional matters, but Lerner argues this is impossible:  “Having evolved over many years, the institutional legacy impedes the isolation of institutional design from intricate ideological conflicts that divide society.” Tushnet avoids these problems by suggesting that the two existing documents, the Declaration and the Preamble, serve as guides for Americans. But as critics have noted, those documents were the product of a particular era and society. We are now 235 years from the ratification of the U.S. Constitution, and it’s not at all clear that its main precepts still characterize the beliefs of U.S. citizens about political structures and rights. Tushnet’s desire to eliminate judicial review and leave constitutional questions to Congress might be a formula for change—or for even more divisiveness and partisan wars than Americans now face. The Unamendable Constitution Constitutional changes of the sort Stern wants for Israel will not happen in the United States (and so far not in Israel either). The U.S. Constitution is very difficult to amend, requiring a two-thirds vote in both houses of Congress and approval by three-quarters (now thirty-eight) of the states.  No amendment has been adopted since 1992 (the Twenty-Seventh Amendment says, “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened”) and no significant one since 1971 when the voting age was set at eighteen by the Twenty-Sixth Amendment. The Founders thought amending the Constitution would be easier, perhaps because the nation was not yet divided into political parties that would judge amendments by the effects on their own partisan interests. It’s no coincidence that those last two amendments did not seem, at the time of adoption anyway, to afford either party an advantage over the other. Jefferson thought that each generation should make its own laws, and that, “Every constitution then, & every law, naturally expires at the end of 19 years.” That’s not how it has turned out, and some observers think amendments that go beyond small technical changes are simply a thing of the past: Jill Lepore calls the Constitution “effectively unamendable.”  Perhaps it is—or perhaps, to phrase it as Yedidia Stern would, only amendments to the United States’s thin constitution are possible, affecting only procedural rules, but not amendments to the “thick constitution” governing the fundamental rights of citizens. The inability of Americans to amend their constitution or of Israelis to write one are not unique; consider the case of Chile. After widespread protests in 2019, Chile appointed a commission to write a new constitution to replace the 1980 version adopted under the military dictatorship of Augusto Pinochet. A lengthy draft viewed as left of center was rejected in a 2022 referendum, by a vote of 62 percent to 38 percent. Back to the drawing board: another, shorter draft was produced that was viewed as right of center. In 2023, that draft was rejected in a referendum by a vote of 56 percent to 44 percent. Chile has now abandoned its constitution writing process. It seems much easier to write and adopt a constitution in a democracy if the society understands that it is temporary. The constitution adopted in 2010 in the Dominican Republic, for example, was its thirty-ninth, and Ecuador’s 2008 constitution was its twentieth. Fiji’s 2013 constitution was its fourth since independence in 1970. In those and similar cases, there is apparently less of what Hanna Lerner called an “institutional legacy” to hamper efforts at change. But when change is rare and extremely consequential, constitutional reform is difficult even without U.S.-style procedural requirements. Perhaps this is a good outcome: if a constitution is meant to protect basic rights, frequent change can mean frequent opportunities and temptations to undermine those rights whenever they become politically unpopular. Here we return to the critique of Tushnet: this may not be a problem if there is a very broad and deep consensus on liberal principles and the protection of citizens’ rights, but it is a danger when those rights are hotly contested. What is the right answer, then: thick or thin constitution, a constitution that sets procedures or one that protects basic human rights, a constitution whose interpretation relies on the courts or one that allows the legislature to act from very broad principles? The stability of procedures and protection of rights in Canada, New Zealand, and the United Kingdom, all of which have no written constitution, reminds us that constitutions are not a magical talisman against abuses or failures. Laws and constitutions reflect the societies that give rise to them. In some cases, that is a guarantee of liberty and effective government. In others, it is good cause for worry. This publication is part of the Diamonstein-Spielvogel Project on the Future of Democracy.
  • Iran
    Iran’s Succession Woes, ICC Angers Israel, South Africa’s Election, and More
    Podcast
    Iran’s regime carefully vets candidates for new presidential elections after the death of President Ebrahim Raisi in a helicopter crash; Israeli leadership reacts to the International Criminal Court (ICC) request for warrants to arrest Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant; South Africa prepares for a general election that could contest the ruling African National Congress’ long-standing majority; and Taiwan inaugurates Lai Ching-te as the new president, aggravating China.
  • Middle East Program
    Virtual Media Briefing: Iran After Raisi and New ICC Charges
    Play
    CFR experts discuss the implications of the death of Iranian president Ebrahim Raisi, new International Criminal Court charges against Benjamin Netanyahu and Hamas leadership, and other updates from the Middle East. ROBBINS: Thanks so much, Will. And welcome, everybody. As Will said, this is on the record. I’m Carla Anne Robbins. I’m a senior fellow here at the Council. And I’m co-host the Council’s The World Next Week podcast.   We’re joined today by three Council experts and friends of mine. They’re well known to everyone, so I’m just going to give a very brief introduction.  Steven Cook is in the Eni—I can never do this one, Steven—the Eni Enrico Mattei senior fellow for Middle East and African Studies. And he’s an expert in Arab and Turkish politics and U.S. Middle East policy. He’s also a columnist at Foreign Policy magazine. And his next book is The End of Ambition: America’s Past, Present, and Future in the Middle East.   David Scheffer is a senior fellow with a focus on international law and international criminal justice. And among his many roles during the Clinton administration, he was the first-ever U.S. ambassador at large for war crimes issues and led the U.S. delegation to the U.N. talks establishing the ICC, and signed the Rome Statute of the ICC on behalf of the United States on December 31, 2000, before the George W. Bush administration pulled out. He also negotiated the creation of five war crimes tribunals.   And Ray Takeyh is the Hasib J. Sabbagh senior fellow for Middle East Studies at the Council. His area of specialization are Iran and the modern Middle East. Prior to joining CFR, he has served as a senior advisor on Iran at the State Department, a fellow at Yale University, Washington Institute for Near East Policy, and Middle East Center at University of California, Berkeley—my alma mater. And is most recently the author of The Last Shah: America, Iran in the Fall of the Pahlavi Dynasty.  Steven, Ray, David, and I will have a discussion for about twenty minutes and then open things up for your questions. So, Ray, can we start—(background noise)—who’s talking to me? So, Ray, can we start with you? How does the death of Iran’s president in this helicopter crash change the power structure in Iran? Not only was he the president, the betting was he was going to replace the ayatollah, supreme leader.   TAKEYH: Well, this certainly was a succession crisis that the regime did not anticipate. And it creates a measure of paralysis in how it works. Ebrahim Raisi was a fairly lackluster president. He lacked the imagination and the skill for that job. But he was Ali Khamenei’s ideal president because he was so in line with him with everything that he said, and so forth.   Whether he was suitable successor to the current leader I’m not entirely sure, because he lacked that sort of skill and cunning that you need for that job. But he was—certainly would have been part of the structure that would appoint the new supreme leader. So in that particular sense, that particular structure—which is fairly opaque—has to be reconsidered anew, and perhaps a new member added to the commission that was already investigating that possibility and vetting various candidates. He could very well have come up to that job, given the fact that the Islamic Republic is sort of a grading on a grade inflation basis these days.   In terms of the—and, obviously, they have to have a new president. That opens up the possibility of election within fifty days. That opens up a lot of old wounds about who’s going to allowed to be run, who’s not going to run, and who will actually be anointed to become the next president. So it will create some sort of a division within the elite once more. Those divisions, of course, have always been there, as the Islamic Republic has been so relentlessly purged of the old establishment figures in the past few years. So, once again, you begin to see those wounds be aggravated.   And then the decision will be about who should be the next president and whether you go for the younger generation that are waiting for his turn, or some of the more seasoned political figures. My guess is, it’s probably going to be one of the members of the younger generation who are a dominant faction in the parliament, and so forth. In terms of Iran’s foreign policy, it doesn’t really affect it that much. Raisi rarely, essentially, said anything about matters of international relations other than supporting whatever the regime was doing at the time. He doesn’t—he didn’t seem to take initiative, foreign policy was not an area where he was active, like his predecessor President Rouhani.   In terms of the management economy, the economy is cratering at high inflation, unemployment rates, and his policies have largely been criticized on that front. And, as I said, on the security issues he would usually be an affirmative voice for what was happening, as opposed to initiate his own—his own ideas, and so forth. So there’ll be some changes, but those changes are going to be particularly in the realm of succession about who is to succeed and what is a process of succession.  And also it will be impacted, in terms of the country has to have another election in fifty days. It can potentially go beyond that. And that will create some degree of political space where you begin to see all disagreement surface and the possibility of some degree of disquiet at home, given the fact that the Iranian people are going to be summoned to certify another choice for president that they had very little to do with. That may create some degree of popular agitation. And that’s what the regime has to be very concerned about.   This is only the second time the Islamic Republic has had to deal with a president who was killed before his term expired. The first time, ironically enough, was in 1981-1982, when Ali Khamenei rose to the office of presidency, because his predecessor was blown away by a terrorist. So they haven’t had that kind of experience for a long time. And now they have to deal with this issue, at a time when they’re dealing with so many other issues whether it’s in the region or at home. And this was a complication that the system certainly didn’t need.   ROBBINS: So, just really quickly, were you surprised that they so quickly attributed to mechanical failure and didn’t go for the conspiracy theory? Maybe that the Israelis were behind it, perhaps?  TAKEYH: Well, the conspiracy theories are going to be pervasive throughout the country anyways. The official explanation is never accepted. So they’re going to be attributing it to Israelis, to the Americans. They’re going to be attributing to internal political factions, this and that. So the official explanation is unlikely to be accepted, because it appears that in Iran today nobody dies of natural causes or accidents. So some conspiracy theories will find their way into the political atmosphere in that country, irrespective of the—of the official explanation. But I think the official explanation is not only correct, but also does not invite for the confrontation at this time with Israelis.  ROBBINS: I mean, I think that’s mainly why I was asking it. It seemed almost, dare we say, a responsible response on their part.  TAKEYH: Right. It would be very difficult for Israelis to build that mountain so quickly anyways. But so I think incompetence is usually the way to go on these issues. These helicopters were, I believe, Bell helicopters that the shah was building in Isfahan in 1978-79. And Javad Zarif has actually complained about the fact that the sanctions on the aviation industry has caused these mechanical failures. So for those who want to see if the sanctions work, well, they seem to have worked in this case, in an indirect way. But, you know, the existing explanation seems sufficient for their purposes at the moment.  ROBBINS: Thanks. David, the ICC prosecutor Karim Khan said today that he had requested warrants for prosecution for Israeli Prime Minister Benjamin Netanyahu, his Defense Minister Yoav Gallant, for Yahya Sinwar, Hamas’ leader within Gaza, for Mohammed Deif, Hamas’ military leader, for Ismail Haniyeh, Hamas’ Qatar-based political leader. What does that mean, a request? What comes next? And can you talk a little bit about the crimes? President Biden, I think, said all of this was outrageous. Is this it? Is this an indictment? And what do we take away from this?  SCHEFFER: Well, thanks, Carla. The procedure under the International Criminal Court is that the prosecutor must request an arrest warrant, which we would consider to be an indictment. And that has to be then approved by a three-judge panel on what’s called the Pre-Trial Chamber of judges. What’s a little unusual—and that can take weeks, it can take months. There’s varied practice before the ICC as to how quickly these judges actually arrive at these determinations. It would not surprise me whatsoever if the judges take a few months. It also would be a little surprising to me if perhaps they did not reach decision before their summer break in August. I would think they’d sort of pin that as an objective, to try to reach a decision before the August break at the court. But it certainly—unless, you know, I’m shocked—unless it’s an immediate decision by the judges, but I somewhat doubt that.   I am a little surprised that the prosecutor went public with this request to the judges. That’s somewhat unprecedented at the ICC. Typically, the prosecutor keeps this in house, gets the judicial decision, and then there’s the public announcement of the arrest warrant. In part because you don’t want the targeted individuals to flee prematurely before the arrest warrant is actually confirmed by the judges. So I think maybe an interesting question for the media with the court would be perhaps to try to ask that of the prosecutor’s office. Why is there a public announcement before the judges have actually decided?  In terms—and, by the way, nonetheless, this does not surprise me as an intensive watcher of the court. We know that this has been under investigation since late October, early November. Obviously, at some point there are going to be arrest warrants issued, given the scale of the alleged criminal conduct in the Israel-Hamas war—whether it be on the Hamas side or the Israeli side. I mean, it’s not going to be indefinitely no arrest warrants. Of course there are going to be warrants at some point. I was a little surprised at how quickly this came, but so be it.   In terms of the crimes that are actually in the arrest warrants, the arrest warrants against the Hamas individuals focus very, very much on sort of the raw crimes of war crimes and crimes against humanity—extermination, murder, sexual violence, rape, torture, holding of hostages, et cetera, cruel treatment. These are all signatures of what we’ve been reading about in terms of the Hamas actions.   When it comes to the Israeli—the arrest warrants against Netanyahu and Gallant on the Israeli side, interestingly the warrants focus pretty exclusively on the crime of starvation and the consequences of starvation with the civilian population. The prosecutor pointedly did not put any charges in that arrest warrant dealing with the bombing campaign in Gaza. And he actually says towards the end of his explanation, that remains under investigation. But this arrest warrant against Netanyahu and the other one against Gallant do not have the bombing campaign.   Now, I would also say that there are no genocide charges whatsoever in these arrest warrants. Both sides, you know, are—I mean, certainly, we know from the South Africa case in front of the world court that the charge of genocide is very central to that particular case, at the world court. And, of course, Israel could quite legitimately argue that the actions on October 7 were very genocidal in character, and that Hamas is demonstrating that genocidal intent. None of that is in these particular charges. Genocide is off the table, at least for the moment, in terms of these announcements.   And then, finally, I would just say that, from what I’ve seen this morning coming out of both Israel, Washington here, I would not have suggested that what has happened today is, quote/unquote, “outrageous.” I mean, it’s entirely predictable. No one should be surprised by this. But I would say that—you know, obviously, it would be fair to say that it’s very distressing to see these arrest warrants being applied for with respect to whatever side you want to express your distress on, particularly the Israeli side. But “outrageous” is sort of, if I may coin a term, you know, a bit over the top in terms of how one might describe this.   And then may I just finally say, Carla, very, very quickly, I think we should keep in mind how this could all play out in a negotiated settlement to the end of the war. There are lots of options that are now on the table because of what’s happened this morning that could play very critical roles in any negotiation to actually end this conflict. And there’s leverage put on the table now. And I can get into that if someone wants to question me about it.  ROBBINS: I’m sorry, can you just answer that really quickly? Which is, doesn’t this—if the court agrees with the indictments, I mean, the court doesn’t get to sit around the table and say we’re going to take the indictment off the table if you agree to a two-state solution.  SCHEFFER: No. No. No, no, of course, not.  ROBBINS: Doesn’t it mean that there’s less leverage there? Because he can’t go to 124 countries then, if he’s indicted.  SCHEFFER: No. No, that’s not the way it could work.   ROBBINS: OK.  SCHEFFER: It could work as follows, that the negotiators at the table—let’s say it’s—it’ll have to be Israel, it’ll have to be the Palestinians. I mean, at some point they have to talk to each other. And they can actually reach a couple of agreements.   One would be that, upon recognizing the state of Palestine—in other words, the end of the process would have to be a two-state settlement, of course, or solution. That when that occurs, then Israel and Palestine would enter into what we call an Article 98(2) non-surrender agreement, under the Rome Statute, whereby they would each agree not to surrender any suspects to the ICC which are in their custody. OK, for Israel and Palestine. Now, that would be a tough deal, because, you know, obviously, many would want to see the Hamas targets prosecuted someday. And then, of course, many on the other side would want to see the Israeli officials prosecuted. But that could be a deal cut in order to get to a two-state solution.   The other possibility—and I’ll stop with this—is that there could be an agreement among the permanent five of the Security Council as part of a two-state settlement or solution deal that the Security Council would vote under Article 16 of the Rome Statute to suspend all ICC investigations and prosecutions relating to the Israel-Hamas war for one year. And that would just then block the ICC from taking any further action. And then they—of course, they’d have to renew that each year, if it were to be perpetuated. I’m not advocating any of that. I’m just saying those are objective options that could be put on the table.  ROBBINS: Huh. That’s—thanks. Thank you, David, for that.   So, Steven, even before what happened with the ICC, it wasn’t—it was a pretty horrible, terrible, no-good week for Bibi Netanyahu. His War Cabinet was seen to be publicly unraveling. There was a resumption of street protests, which had been very quiet. Can you talk a little bit about what was going on before, and how this changes it or doesn’t?  COOK: Yeah. It has been not a very good period for Prime Minister Netanyahu. It obviously hasn’t been a good period for him since October 7. But, nevertheless, last week was particularly bad. And the trigger for this was the fact that the IDF was back engaged in pretty intensive fighting in the northern part of the Gaza Strip, a place that Defense Minister Yoav Gallant declared “pacified” in November.   And Gallant went public with his criticism of Netanyahu and his resistance to hammering out a day-after plan. And, also, he called upon the prime minister to say and declare that Israel has no intention of establishing settlements in the Gaza Strip. This came on the heels of a rather large protest of the settler right, which is seeking to resettle the Gaza Strip. Not an insignificant number of people and not an insignificant percentage of the Israeli public actually support the resettlement of the Gaza Strip. And Gallant, I think echoing the IDF high command which does not want to be the military administration in the Gaza Strip, was calling for, one, that declaration, as well as a day-after plan.  A couple of days later, Benny Gantz—the other member of the War Cabinet, in addition to Netanyahu—came out and said, basically, he needs a day-after plan. And he needs it by June 8, otherwise he’s going to leave the government. Netanyahu, obviously, responded and said: Our first goal is the destruction of Hamas. If Gantz leaves the government—the War Cabinet, it doesn’t really matter in terms—and the government—it doesn’t really matter, because Netanyahu’s coalition would still command sixty-four seats in the Knesset.   And the reason why Netanyahu is unwilling to comply with the demands from his defense minister, as well as his—other members of the War Cabinet, as well as the United States, is that if he spells out day-after plan that does not include settlement in the Gaza Strip, Itamar Ben-Gvir and Bezalel Smotrich, who together control fourteen seats in the Knesset, will bolt from the government, thereby bringing the government down. And then the question of Prime Minister Netanyahu’s legal jeopardy once again emerges.   So that is where things stood before this statement from the ICC prosecutor. I’ll leave it to David and others to figure out why he went outside the norm to declare that he was seeking these warrants. I’m not an expert in that area. But the Israeli response has been to criticize, obviously, the ICC for putting the prime minister of Israel and the defense minister of Israel—a country that still has a functioning judiciary—on the same plane as the terrorists of Hamas.   And in despite the fact that Netanyahu has been at loggerheads with Benny Gantz and Yair Lapid, both Lapid and Gantz have come out with scathing criticism of the ICC decision. So it may actually end up helping Netanyahu, this closing of the ranks, the perception—you know, David is quite right. You know, nothing has actually been decided here. But in Israeli political discourse, as well as American political discourse, a lot has been decided. And we know that we live in an era where narrative is the most important thing.   And so it may help Netanyahu with the Israeli public, who already feels besieged and isolated. The world is against them. Antisemitism is rife everywhere. And in may encourage the Israelis to ignore those kinds of warnings from the Biden administration, despite the president’s criticism of the ICC thing, to really go forward in a very big way in Gaza. Which I think they’re planning anyway, but then I think the outlook will be, well, we have nothing to lose anyway. No matter what we do we’ll be criticized or indicted or warrants will be sought for our arrest. And so we might as well, as Netanyahu said before the country on Israel’s independence day, if we have to go it alone, we will go it alone. We’re the only ones who know how to secure our country.  ROBBINS: With that, happy thought, I’d turn it over to our many participants.  Will, can you explain—remind people how to ask a question?  OPERATOR: (Gives queuing instructions.)  ROBBINS: Waiting for people to raise their hands. So as we do that, this could be, of course—we have an explanation in the chat about how to do this. So waiting for people to ask questions. We have reporters. Come on, you guys, ask questions. I’m a reporter. I’ll ask a question. So, Steven, just a little bit more on the—we seem to have—ah. Can you—is it Pouya Lavian? Can you identify yourself and ask your question?  Q: Hi. Good afternoon. This is Pouya Lavian from Wells Fargo. Thank you all for taking the time.   Question for Ray. Do you see any sort of change in attitude for support of proxies by the Iranian regime while they’re dealing with internal issues relate to succession? Or do you feel it’s going to be full speed ahead for what they’ve been doing, you know, to date?  TAKEYH: The proxy war strategy, the notion of axis of resistance, that is a consensus position within the state. Within the regime it’s a consensus position because it’s been so spectacularly successful. They have managed to have a multinational force that they can deploy with limited cost and has been very effective in various fronts. So I don’t see disruptions in that particular realm.   Now, in terms of their approach overall to the Israeli-Gaza conflict that is taking place, well, they have to kind of figure out what their next steps are, because their entire strategy was that they would inflame the Israeli boundaries, and they would inflame international opinion, and they would inflame the American opinion, and that would impose some restrictions on Israeli conduct of war. And that has happened. Israel has become a very isolated country internationally, as was indicated with these particular measures by the international court. It’s been increasingly division—a divisive issue within the American political system. But all of that has not led to restraints on Israel, per se. So where they go from here in terms of that strategy remains to be seen.  This is the first time that the axis of resistance strategy hasn’t worked as was intended to. And it even led to a confrontation between Iran and Israel that hadn’t happened in forty-five years and could have potentially seriously gotten out of hand. So that aspect of it has to be rethought and reconsidered, and maybe be more aggressive in terms of the rings of fire around Israel, or hopefully that somehow the international community will once again seek to impose some kind of a restraint on Israeli public. And maybe that is—that is going to happen. But it hasn’t happened thus far. But overall, in terms of using these proxies to achieve your strategic objectives, that is a position of consensus—at least within the governing elite.  ROBBINS: Steven, can you talk a little bit about the sort of regional reaction to this level of potential instability inside of inside of Iran?   COOK: Well, you know, clearly the Saudis are, you know, interested in maintaining that level of dialogue that they established with the March 2023 resumption of diplomatic relations. They’re very plain in saying that they believe that the Iranians have violated every aspect of their agreement, but that they do not—but they value the continued dialogue because they see it as a source of stability. The Emiratis view in a similar fashion and are seeking to gain some leverage with the Iranians by dint of investment in joint projects, as we’ve seen over the last couple of years or so. So there is obviously concern about instability and power struggles across the Gulf, because it would potentially impact them.   There’s obviously no love lost between the Iranian regime and these—and the leaders. Particularly unhappy about the axis of evil and the way in which Iran’s proxies have essentially been given license to spread instability around the region. And this could be yet another source of it. But there’s really—I don’t think, unlike the discourse in the United States about Iran in which there is an endless debate about moderates versus hardliners and so on and so forth, the Gulfies really don’t make those distinctions whatsoever. And I think it’s a more realistic view of Iran.   So whoever comes after Raisi will be, as Ray pointed, another affirmative voice in what the Gulf states believed to be is an aggressive foreign policy. The reason why they pulled back from a confrontation from it, is because they just don’t trust the United States would be with them. So they will continue to maintain the kind of dialogue they had to keep the Iranians away from at least undermining their stability and security.  ROBBINS: David, why do you think that there was an announcement about this request from the prosecutor? There are two ways of looking at it, as someone who is not an expert on the court at all. One was they’re trying to jam the judges. And the other one is that they see this as potentially so urgent and that they’re making a political statement, and that perhaps they can save some lives by pressuring the Israelis right now, or pressuring Hamas right now. And they want to get their political message, their deterrent message, out there as fast as possible.  SCHEFFER: Carla, those are precisely the two reasons that are in the back of my mind.   ROBBINS: Darn, I’m good.  SCHEFFER: (Laughs.) Yeah. You’re very good.   First, it’s to literally sort of put the judges on the spot. Which is unusual, because they don’t like being put on the spot like this. They’re going to be under pressure from both the Israeli and the Palestinian side before they reach a decision. There’ll be an enormous amount of lobbying—obviously, through the media, et cetera, and, you know, op-eds and whatever—to try to influence their decision. That’s why you don’t go public like this.  The other thing, of course, is the prosecutor deciding that the imperative of ending these alleged crimes is so important that he’s not going to wait for that multi-week, multi-month process before he—you know, he’s made many statements, or at least several of them, including all the way back to late October, warning parties, both sides—and in particular Israel—don’t overplay your hand. There’s still international humanitarian law that has to be complied with. No one’s questioning the right of self-defense or the just war theory. It’s the question of how you wage just war that is at issue here. And I noticed some of the Israeli comment this morning seems to think that there’s this big criticism of a just war, that somehow it’s not a just war. That is not the argument. It’s how you wage the just war that’s the argument.   Could I just pick up on one thing that Steven said, which I think is very important from the Israeli point of view? The prosecutor made it a point in his statement this morning to say, complementarity is the—is the supreme rule of the International Criminal Court. Namely, if it can be demonstrated that these issues are being dealt with at the domestic court level, then the ICC essentially backs off. That’s a central theme of the entire Rome Statute structure. What Israel could do at this point, given that it has a superb, you know, legal system, is, frankly, before these judges reach a decision, they could demonstrate that there are legitimate inquiries before the courts of some character—I mean, they’d have to figure that out—as to the compliance of their top leaders with international humanitarian law, particularly of the character identified in the arrest warrant which focuses on starvation. And that Israeli courts will take this on affirmatively, and with determination they will—they will investigate this.   Now, I know that’s tough politically. But I’m just saying that’s one way to actually—the judges could just say, well, we’re going to back off and wait until complementarity takes its course. This is exactly what happened for years between the court and the country of Colombia about the whole civil war between FARC and the Colombian forces, Colombia kept saying, back off ICC, we’re dealing with this domestically, we’re going to handle it. And ultimately, they did and the ICC definitively backed off. So it’s a tactic, but it has to be done very, very smartly in order to demonstrate that complementarity.  ROBBINS: Given the fact that—of, what, the Netanyahu government’s desire to basically dismantle the autonomy of the Supreme Court, you could imagine the relationship between the judiciary. I can’t imagine that happening. But, Steven, you know more about Israeli politics than I do. Can you imagine them doing that?   COOK: Well, they have not yet actually undermined the independence of the—of the judiciary. What was happening in Israel prior to October 7, was an effort to do that. But that has not yet been accomplished. And there was significant response from the Supreme Court itself on this issue. I think, though, in the current political environment, it seems unlikely that the Israeli courts will take it upon themselves to investigate charges by the prosecutor that, I think, the vast majority of Israelis believe to be illegitimate and politically motivated. And so I think that that’s probably unlikely. They’re unlikely to find a way to solution that way.   And I suspect—and, again, after listening to David—I suspect that the prosecutor understands that none of these people will ever really be brought to justice. And that may be a reason why, in fact, he went public so quickly with this. There will be—and I think it was a miscalculation on his part. And there’ll be consequences as a result. I don’t think it’s going to save any Palestinian lives. I think there’s going to be consequences in terms of American action, particularly congressional action targeting the ICC. So it is unlikely to do much good on the battlefield and it’s unlikely to do very good in terms of international law.  ROBBINS: Luis Oganes, can you identify yourself, please?  Q: Hi. Luis Oganes, JPMorgan.   My question is for Ray. You mentioned that, you know, the—what’s just happened in Iran won’t change, you know, the hardline position vis-à-vis foreign policy, because that is—there is consensus about, you know, the position of Iran. However, domestically, you know, President Raisi was very unpopular. I understand that only 30 percent of Iranians participated in the last election. And there is a process of, you know, trying to block any reformers from participating in elections. Do you think the conditions are there for a bit more of a wider opening for the next round of candidates, that actually a reformer could emerge this time around? Thanks.  TAKEYH: Well, that’s got to be the very controversial debate within the country, because there will be reform candidates signing up for participating in the election and being vetted by the Guardian Council—the Council of Guardians, which all of this has to take place in the compressed period of time of fifty days. The reform faction has long been exorcized from the body politic. I mean, even before the previous round of elections, the reform candidates were not allowed to participate. And, really, they were not allowed to participate since 2009, with the contested presidential election between former prime minister and, currently in house arrest for all these years, Mir Hossein Mousavi. So that faction is no longer relevant in terms of participation in politics at a formal level, although I think their views and pronouncements remained quite popular within the public at large.   What has happened in the previous elections that was—happened in the mid—for Assembly of Experts and the parliament, that had happened a couple of months ago, is that you have people like former President Hassan Rouhani being disqualified. The longest speaker in the history of the Iranian parliament, Ali Larijani, being disqualified, former minister of interior, and quite a killer in its own right, Mostafa Pourmohammadi being. So right now the disqualifications are no longer centered on reformists that have kind of different political ideas, but only the most reliable and ideological members of the political establishment, which increasingly are younger people in their forties and so forth that have come to political fruition, that dominant faction in the parliament today. And they’re rebelling against the old faction. And those rebellions are being successful, because they tend to be supported by Ali Khamenei.  So in this particular election, you’re going to have, my guess is, a limited number of choices, and limited number of candidates moving forward, simply because you need to fill that spot with alacrity. And you need to essentially fill it with people that are already vested in the system as it’s currently constituted and is currently—the belief structure that they all have. So I don’t see this as an opening for the reform movement, irrespective of the lack of popularity of President Raisi, as, I think, you suggested. I think in the last round—which was, to be fair, for parliament, Assembly Expert, it wasn’t 30 percent. In some of the major cities, like Tehran, it was probably 5 to 10 percent participation rate.  I don’t think the regime cares that much about that at this point. They sort of have bigger fish to fry. They’re going to suggest a greater degree of popular acclaim anyway. I think they suggested 47 percent of popular views. So I don’t see that as a new opportunity for opening the political system. The problem they’re going to have, as they’re dealing with this particular succession, is if somehow Ali Khamenei becomes incapacitated. Then I think the regime will be seriously in danger of the wheels falling off.  ROBBINS: You mean, because they’ll have a dual crisis?  TAKEYH: They’ll have a dual crisis, yeah.   Q: Thank you.  ROBBINS: Andrzej, you’ll have to identify yourself, including your last name.  OPERATOR: Andrzej, please accept the unmute now prompt.  Q: My name is Andrzej Dobrowolski. And I’m the New York correspondent for the Polish Press Agency.   I have two questions. First of all, what impact President Raisi’s death might have of Iran’s relations with Israel, Russia, other regional players, and the United States? And the second one is, how will his death affect Iran’s support for militias in the Middle East and its involvement in the Ukraine war?  TAKEYH: Those are fair questions. As I said, Ebrahim Raisi was not what you would call a foreign policy president. He wasn’t much of a domestic one, either. But at least he did—he kind of spoke about domestic affairs more so in his speeches. He talked a lot about economy and so forth, and mismanaged it rather dramatically. So he didn’t actually venture that much into providing a perspective on foreign relations, and all the issues that you spoke about, that differed from the established orthodoxy and establish pronouncement of the system. Those are not—those were not his thing. And, to be fair, his principal qualification for the job was that he was a member of the repressive state for a long time, in the judiciary and others, where he had very little problem executing people on as flimsy charges as possible.   So that was kind of his forte. That was his calling card. Now, he could comment on that if you asked him. But, you know, the intricacies of foreign relations, that was beyond him. And that was sort of beyond his foreign minister, actually. His foreign minister, who also perished in this particular accident, was also relatively lackluster in his approach. There is—what is happening in Islamic Republic, that’s been so thoroughly purged Ali Khamenei at all levels, is that you have people who are coming into the system that on a good day aspire to be mediocrities. And they don’t quite get out there, but at least aspire to that. So they don’t have a Zarif kind of a person that could charm the Westerners. They don’t have a Rouhani, who actually thought about issues differently—wrongly, it turned out.  But now you have people who kind of have their talking points, they seem to believe it, they’re authentic in terms of the revolutionary convictions. They believe, in terms of the larger international relations, that Iran has a place in the global configuration of powers, it has these global alliances with Russia and China, and all these three powers are in the same conflict with the United States and the West. And the West in this particular case is identified as Israel, as well as an adjunct of the American power and the Western imperialism in the Middle East. And they seem to think of Iran is a sort of a vanguard state within this great-power alignment. The other great power allies don’t think so. But, you know, as the 1970s song says, you should care if you’re feeling good. So, you know, they’re sort of going along with this.   That particular alignment, between Iran, Russia, and China, will change. And Iran will become more of a player, more of an equal player, when and if it gets nuclear weapons. It no longer will be satisfied with a junior partner status. As far as intervention in Ukraine, that makes no sense. It makes no national sense. It makes no ideological sense. There are no Islamist claims at stake in Ukraine. But that is the price you pay for great-power patronage. With great-power patronage also comes great-power responsibilities. And one of those is for Iran to be, at least for now, almost in an implicit war against NATO—an indirect war against NATO. That’s not in the national interest, or it doesn’t redeem any sort of ideological mission, but that is the price you pay for your great-power allies.  ROBBINS: We have—thank you for that. We have—and I’m going to remember that the great-power responsibilities for proxies as well.  So, Jessica Yellin, if you can really ask your question very quickly, identify yourself, and I’m going to let Steven, and David, and Ray have—jump in with one sentence, whether or not it answers your question. So, Jessica.  Q: Great. Hi. It’s Jessica Yellin. I’m with News Not Noise.   I’m wondering if you’d talk a little bit about the supreme leader’s son. I think is pronounced Mojtaba Khamenei.   TAKEYH: Yeah.  Q: If he were to—(inaudible)—Raisi, would you expect him to prioritize with the leadership change in any meaningful way?  TAKEYH: The Islamic Republic traditionally and historically does not do dynastic successions. That is what happens in—the Persian monarchs did that. The Arab presidents do that. That’s not what they do. Now, that doesn’t mean that the system up and down is not filled with nepo babies. Ali Bagheri is a nepo baby. His uncle was a great member of the clerical aristocracy. And he has all the smugness of arrogance of a nepo baby, if you ever met him. This system has all these nepo babies in it. You know, there’s a marriage to this, to that. But you can’t really formally have your supreme leader as a son of the former one. That’s not the way the system works.  The Islamic Republic, since its founding, has dispensed with some very essential criteria for the position of the supreme leader. You no longer have to have charismatic authority. You no longer have to have theological erudition. But you can’t be a kind of—the guy’s son and come to that post. Now, you can play a big role in the background, and so forth. And I think in that sense, Raisi may have been the right figure because he might have been a fairly passive supreme leader outside, you know, need for executions here and there. But I don’t see them doing dynastic succession.   If a dynastic succession does take place, that tells you how far the Islamic Republic has veered away from its original founding mission and its original creed and original way of doing things. As a matter of fact, most of the president’s songs, whether it’s Ahmadinejad, Rouhani, Rafsanjani, actually don’t do well in that system. Some being prosecutors, some are giving lucrative positions here and there. But in terms of ascension to the ultimate authority in the country, that would be hard to swallow, hard to justify. If they do it, that means they really have moved away and essentially abandoned the original mission of the Islamic Republic, which was some measure of egalitarianism in terms of the selection process.  ROBBINS: Thank you, Ray. It’s 2:45. Steven, twenty seconds. You got one last thought?  COOK: We could use a lot more news than noise. And I think that the that—what’s happening at the ICC is—as I said before—is backing the Israelis into a corner. And that’s not a place where I think it makes for productive negotiations or thinking about how to end this conflict.  ROBBINS: And, David, last thought to you.  SCHEFFER: Well, my last thought is just be cautious about these false equivalence arguments that we are seeing emerge now, that the Hamas side of the equation says, how dare you indict Hamas? The Israeli side says, how dare you indict the Israeli side? The court really doesn’t work that way. But I would suggest that it would have been rather remarkable if he had only issued arrest warrants against Hamas leaders. You can imagine the uproar that would have created. If he only indicted the Israelis, there would have been an uproar on that side as well. So he’s sort of trapped. And I don’t think it’s really a false equivalence. It’s just what do the facts show and where does that take you in terms of framing an actual arrest warrant?  ROBBINS: I want to thank you. Thank you for that. I want to thank David Scheffer. I want to thank Ray Takeyh. I want to thank Steven Cook. Transcript for this will be—can be found on CFR.org, additional resources on CFR.org and ForeignAffairs.com. I think Ray is going to have a piece up in a few hours, if not already up there. And thank you all for joining us.  COOK: Thank you all.  SCHEFFER: Thank you.  (END) 
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