Mark Hibbs on the IAEA’s Legal Authority to Investigate PMD Allegations

Mark Hibbs has a new post over at Arms Control Wonk.  In it he addresses Iran’s invitation to the IAEA to visit a site in Iran which the IAEA previously alleged was the site of nuclear weaponization work.  This of course was also the subject of a recent post by Bob Kelley, which I highlighted here.

Aside from a bit of thinly veiled snark about Bob’s and Gareth Porter’s articles on this topic, overall I think Mark’s post is thoughtful and fair. And in the end it seems to me that he does not essentially disagree with what Bob and Gareth have written about the Marivan invitation. He concludes:

In the short term, it looks like Iran has maneuvered Amano into a corner. If the IAEA doesn’t go to Marivan on Iran’s terms, Iran’s spin doctors will claim that the IAEA is not cooperating to resolve PMD allegations. If the IAEA instead goes to Marivan, and finds nothing, Iran will declare the case closed.

I was actually most interested, though, in a paragraph earlier in the piece in which Mark writes this:

There may be internal deliberations concerning the IAEA’s authority and priorities. While UNSC resolutions endorse the IAEA’s pursuit of PMD-related activities in Iran, Iran’s CSA (and for that matter the AP) expressly endorse the IAEA’s authority to inspect as deriving from a nexus to nuclear materials. To my knowledge, no allegations have come forth that Iran used nuclear materials in any undeclared activity at Marivan. The IAEA may be more interested in pursuing allegations at Parchin if it has information suggesting that nuclear materials may have been involved in undeclared activities at that site.

This interests me because it seems that here Mark is agreeing in essence with a point that I have been making for a long time – i.e. that the IAEA does not have the legal authority to investigate or assess questions concerning nuclear-weaponization-related activities that do not directly involve fissile materials.

I wrote this back in 2011 here, and have repeated it many times on this blog. Since then, the assertion that the IAEA does have the authority to investigate PMD issues not necessarily involving fissile materials, has been made by many in the establishment arms control wonk community.

Mark and Andreas Persbo wrote a piece back in January that discussed the issue of the IAEA’s authority to investigate PMD allegations against Iran, but as I read that piece they didn’t take a clear position on the matter at that time. But reading Mark’s new ACW piece at least appears to clarify his position, and demonstrate that it is in agreement with mine. Good to know.


IAEA Declines to Inspect an Area Where They Formally Alleged Weaponization Activities Took Place in Iran

Here is another absolute must read piece from Bob Kelley over at LobeLog.  He titled it “The IAEA Faces a Major Credibility Test,” and he hit the nail right on the head with that title. What he’s talking about is the recent offer that Iranian officials made to the IAEA to come and inspect a site in Iran, in the city of Marivan in Northwestern Iran, that was named in the IAEA’s 2011 PMD report as being linked to weaponization-related activities. The IAEA has declined the invitation to visit. This paragraph from Bob’s piece sums the situation up perfectly:

Marivan is important. In fact, it is the litmus test for the credibility of the IAEA’s 2011 report. If the IAEA claims detailed knowledge of a test and its location, it is critical that it work with Iran to verify that information. If, however, the information turns out to be false, irrelevant, inactionable or beyond the scope of IAEA’s expertise, then the agency should either withdraw its 2011 “Weaponization Annex” or issue a revised report after a thorough vetting of the rest of its contents. As noted above, the large-scale high explosive experiments are the most detailed claim in the agency’s weaponization report. That claim needs to be investigated and resolved, and the IAEA’s reluctance to do so is deeply disturbing.

I agree with Bob that the IAEA’s decision to decline this invitation is in essence an admission by the IAEA that this allegation in its November 2011 report was incorrect. And if this allegation was incorrect, by the IAEA’s on implicit admission, then that should call into question all of the allegations in the 2011 report.  Again, the sources of these allegations were never made public, or communicated to Iran, or subjected to any transparent qualitative assessment.  The question of the IAEA’s ability to assess third-party-source information about nuclear weapons programs is something that Bob has addressed at length before.

Although I doubt it actually will, this development should make all of the Iran hawks in NGOs and in governments think twice about the evidence they are relying on in their rush to scuttle diplomatic negotiations between Iran and the West.


Chemical weapons in the Middle East remain sensitive

[Cross-posted from The Trench]

On 4 December I addressed a workshop on Nuclear Safety, Security and WMD Non-proliferation. The event was organised by Atomic Reporters and the Vienna Center for Disarmament and Non-Proliferation (VCDNP), together with the Stanley Foundation and the James Martin Center for Nonproliferation Studies (CNS). The target audience consisted of more than 20 journalists from or working in the Middle East.

My presentation ‘Responding to chemical weapon use in Syria’ addressed the allegations of chemical weapon (CW) use in Syria since early 2013 and the international CW disarmament operation over the past 15 months.

The audience’s reactions at times illustrated how sensitive the question of CW remains in the Middle East. When people are forced outside their comfort zone offered by established reference frameworks, regional security discussions quickly become tense. If ever serious progress is to be made on the idea of a zone free of non-conventional weapons in the Middle East, preparing a common reference framework for the participants in the debates—particularly civil society constituencies who must prepare the ground to make proposed solutions politically and socially acceptable—will be an unescapable task.

Lale Kemal, a Turkish journalist, captured the exchanges very well in a piece for the Daily Zaman on 8 December. If she leaves you with the impression that the discussions were not just intense, but also most stimulating, then I can confirm they were.

Middle East’s ‘unique’ status on chemical weapons

A colleague from a Middle Eastern country reacted sharply when a speaker in a recent workshop in Vienna used the term “Muslims” in some of his references to the countries in the region during his presentation on the issue of chemical weapons. The colleague urged him to use the names of the countries instead of generalizing them with their affiliation to Islam. The topic of chemical weapons is a sensitive one. Jean Pascal Zanders, director of The Trench — a website specializing in reporting on chemical weapons — told the workshop audience in Vienna that with the exception of the First Indochina War, all cases of major chemical warfare after World War II have taken place in the Middle East.

Yet this journalist’s reaction to the speaker in his usage of the term “Muslims” does not change the reality that — in the words of Mehmet Dönmez, head of Turkey’s Religious Affairs Directorate — around 900 Muslims per day are killed by fellow Muslims around the world, including in the Middle East. Nevertheless, the topic of the workshop for journalists from the Middle East, held in Vienna between Dec. 3-5, was on nuclear safety, security and WMD non-proliferation. WMD is short for “weapons of mass destruction,” which are chemical, biological and nuclear weapons — the deadliest weapons that have so far been developed by humankind.

The workshop was sponsored by the United Arab Emirates (UAE), along with nongovernmental organizations the James Martin Center for Nonproliferation Studies (CNS), the US-based Stanley Foundation and Vienna-based Atomic Reporters. The event was hosted by the Vienna Center for Disarmament and Non-Proliferation (VCDNP). It was a follow-up to the first workshop, which was held in I.stanbul in June of this year in cooperation with I.stanbul’s Okan University.

Going back to the topic of chemical weapons in the Middle East, Zanders from The Trench cited the known incidents of the usage of chemical weapons in the region, including Egypt during its war with Yemen in the 1950s and Iraq against Iran in 1984 during the long-lasting war between the two countries in the 1980s, as well as Iraq’s use of mustard gas against its own Kurds. Syria lately staged a sarin gas attack against its own citizens in Ghouta, near Damascus. Syria’s chemical weapons were destroyed under a deal it struck with some world powers, yet it is unclear whether the country is still hiding some of its chemical weapons stockpile.

Meanwhile, Israel is the only country in the Middle East widely known to possess nuclear weapons, even if it neither denies nor confirms their existence. Iran is accused by the international community of seeking to develop nuclear weapons under the guise of developing nuclear energy power plants.

Dr. Chen Kane from the CNS strengthened Zanders’ assertion, saying during the workshop that, concerning cases of the usage of chemical weapons as well as their possession, the region is unique. According to her, in the Middle East, all three categories of weapons of mass destruction — chemical, biological and nuclear — have been pursued by different states and chemical weapons have even been used in the region on several occasions. She mentioned fundamental ongoing territorial, religious, ethnic and other disputes that underline that the reality of WMDs and that the acquisition of WMDs in the region is interrelated and politically and security-motivated. Out of the seven violations of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), Dr. Chen said five are from the Middle East — Iran, Iraq, Libya, Syria and Egypt. This situation illustrates the risk associated with nuclear programs in unstable countries and war zones. It is unclear if any Middle Eastern country possesses biological weapons. The unstable nature of the Middle East also carries the risk of terrorist groups obtaining WMDs.

In February 2015, the Ja?far al-Tayya-r brigade and the al-Nusra Front gained control of the al-Kibar site (also called Dair Aizour) in Syria, where a nuclear reactor believed to have been under construction was destroyed by Israel during an air raid in 2007. According to Zanders, the Islamic State in Iraq and Syria (ISIS) — a terrorist group against which US-led Western and Arab coalition forces are currently carrying out an air campaign in both Iraq and Syria — has not obtained WMDs.

Turkey, a NATO member and a neighbor to the Middle East, came under criticism a long time ago for using white phosphorus — a kind of a chemical weapon — against militants from the outlawed Kurdistan Workers’ Party (PKK). However, Zanders stated that such allegations from the PKK have never been confirmed by international organizations addressing WMDs.

The absence of a security framework or organization in the Middle East — where there is no regional conventional arms control culture — to mitigate the danger of WMDs poses a great threat to the region in particular and the world in general.


Wow! Did the OPCW really say that?

[Cross-posted from The Trench]

It is true that pressure for Israel to join the Chemical Weapons Convention (CWC) is steadily mounting. Presently 190 states are party to the treaty. Besides Israel, only Angola, Egypt, Myanmar, North Korea and South Sudan have not ratified or acceded to it. As participants in the 2014 Jonathan Tucker Conference on Chemical and Biological Arms Control heard yesterday from Dr Peter Sawzcak, Head of Government Relations and Political Affairs Branch of the Organisation for the Prohibition of Chemical Weapons (OPCW), Myanmar is expected to ratify the CWC in its forthcoming parliamentary session in January. The Council of Ministers of Angola, which will take up a non-permanent seat in the UN Security Council next year, is to decide on joining the Arms Trade Treaty, Biological and Toxin Weapons Convention, and CWC really soon. South Sudan may also become a party to the CWC in the near future as part of a broader package deal under development. As was pointed out by some other speakers at the Jonathan Tucker Conference, being in the company of North Korea is not good for a democracy such as Israel.

However, in an article published on 11 December the Times of Israel quoted an anonymous OPCW official affirming that Israel has a chemical weapon (CW) stockpile. He also stated that he knew the size of the chemical arsenal, but refused to go into details. According to a second article in Arutz Sheva Israel Radio quoted the official as saying that the UN needed to begin an investigation of Israel on its chemical weapons stores, as it did with Syria.

According to the Times of Israel, he also said that Egypt has thousands of tonnes of CW.

Israel is a CWC signatory state. Under Article 18 of the Vienna Convention on the Law of Treaties a signatory state is obliged to refrain from acts which would defeat the object and purpose of a treaty. In other words, if Israel were indeed to have a CW stockpile, it would be in a clear breach of its international obligations. This is not a light accusation to make. Particularly if it is made in the name of the multilateral organisation that is responsible for ridding the world of these heinous weapons.

Striking too is the lack of nuance in the claims. Egypt and Israel have had past CW programmes. But in the absence of reports of troop training and testing of munitions, how useful is it to retain aging stockpiles? Would the agents be subject to degradation? Are stocks being replenished (which implies active CW production facilities)? Egypt’s ‘thousands of tonnes’ puts the country in the same league as Iraq under Saddam Hussein and North Korea (according to South Korean assessments) and well ahead of what has been removed from Syria over the past eighteen months. Mohamed Heikal, an Egyptian journalist and commentator on Arab affairs, described in his excellent book Illusions of Triumph: Arab View of the Gulf War (London: Fontana, 1993, pp. 91–93) how then Egyptian President Anwar Sadat closed down Egypt’s CW production plant after the 1973 Arab-Israeli war and in 1981 refused to reopen it to supply Saddam Hussein with CW. To the best of my knowledge, this passage has not yet been seriously challenged.

Considering the culture of confidentiality at the OPCW and the organisation’s systematic refusal to comment on individual states—just take the many anodyne press statements on the CW disarmament project in Syria—the incident is remarkable to say the least. One would hope that those specific assertions were intended to be wholly off the record, but even so…

 Update

OPCW Statement Regarding Israeli Media Reports on a Recent OPCW Briefing
Thursday, 11 December 2014

OPCW officials met with a group of journalists from Israel on Monday of this week and briefed them on the OPCW’s work, achievements and future challenges. On the issue of achieving universality of the Chemical Weapons Convention (CWC), it was mentioned to the journalists that there are six non-States Parties to the Chemical Weapons Convention, including Israel.

In regard to the capacities of those six countries, it was clearly stated that the CWC verification regime functions on the basis of declarations, and that the OPCW would be able to ascertain possession of chemical weapons by any non-State Party only after it joined the Convention and made a formal declaration to the Organisation.


Additional Protocol Negotiating History

A friend recently brought to my attention a three volume treatment of the negotiating history of the IAEA Additional Protocol:
Volume I: http://www.bnl.gov/isd/documents/71012.pdf

Volume II: http://www.bnl.gov/isd/documents/71014.pdf

Volume III: http://www.bnl.gov/isd/documents/71015.pdf

The report was published in 2010 and authored by a group from Brookhaven Science Associates, which has close ties to the U.S. national laboratories. I haven’t read the whole thing, but what I have read looks very good. What I like most about it is that it seems to actually be descriptive of what the various parties to the negotiations of the AP said and did during the negotiations. Some works that purport to be negotiating histories are really just the opinions of one party to the negotiations.

For example, on the issue of the IAEA’s authority to investigate and assess the question of whether undeclared fissile materials exist in a safeguarded state that is a party only to the INFCIRC/153 CSA – an issue that I have debated with former IAEA head safeguards lawyer Laura Rockwood - compare the treatment of this question in a source that she cites to in her piece, which you can find here at pgs. 33-43, with Volume II of the Brookhaven Additional Protocol study here at pgs. 6-11.

Do you see the difference? In the treatment that Laura cites to, there is very little if any discussion of what states other than the US thought about the question when negotiating INFCIRC/153. While in the Brookhaven AP study, they take pains to consider statements from a wide array of negotiating parties on essentially the same question which had been brought up again in the context of the negotiation of INFCIRC/540. This makes the Brookhaven AP study, at least on this point, a much more credible representation of negotiating history on this subject, in my opinion.

I would encourage readers (and Laura if she’s reading) to look at pgs. 6-11 of Volume II of the Brookhaven AP study on this question, because I think it’s very insightful into the debates that took place when the AP was being negotiated. And I think that the review of this negotiating history clearly supports my interpretation of the IAEA’s authority under INFCIRC/153, which I presented in my response to Laura’s article.

As the authors of the study conclude from their review:

Although the issue of whether additional legal authority was needed for many of the proposed measures for strengthening safeguards was fundamental to many of the decisions of the Board and Committee 24, it received relatively little debate in either forum. Both the Secretariat and the member states either wanted new explicit authority or seemed prepared to proceed on the basis of an assumption of the need for additional legal authority. This would, thereby, avoid a lengthy and possibly contentious and inconclusive debate as to which measures did and which did not require additional legal authority. Although suggestions arose that would have permitted States to use different mechanisms for providing the IAEA with the necessary authorities, a consensus emerged, and is reflected in the Model Additional Protocol, that a single instrument was best. This would achieve uniformity and avoid any risk of different interpretations arising.

Although some Board actions during the period from 1991-1997 suggest that the Agency might have the legal authority to apply protocol measures in states with comprehensive safeguards agreements that have not concluded a protocol, the fact of the Additional Protocol, itself, suggests otherwise politically, if not also legally. As a result, obtaining universal adherence to Additional Protocols is the best, perhaps, the only way, to provide the Agency everywhere with the authorities contained in the Model Additional Protocol.


I Love Bob Kelley

If you’re interested in the Iran PMD issue, which of course I have written about here many times over the past couple of years (see, e.g. here), and in particular Western/IAEA allegations concerning the Parchin military facility (see here), Bob Kelley’s new piece over at LobeLog is an absolute must read. It explains the allegations and their overall incredibility so clearly and comprehensively.

It’s so important to have people like Bob who are highly qualified, independent technical experts, and who can explain such complex technical issues to us non-technical people. And this is important stuff – even though it shouldn’t be, the PMD issue is still very much a part of the ongoing negotiations between the IAEA and Iran, which are of course intimately politically connected to the Iran/P5+1 negotiations.


Arms Control Law Included in the ABA Journal’s Blawg 100 List Again!!!

I just recently got word that ACL has been chosen for the second year in a row for the ABA Journal’s Blawg 100 list, as one of the top 100 best blogs for a legal audience!!!

See the official announcement here.

Let me first say that I really appreciate all of those who took the time and effort to answer my request back in July to nominate the blog for this distinction.  In particular, Professor Nader Entessar of the University of South Alabama wrote in some very kind comments about ACL, which the ABA Journal quoted in its announcement:

This is by far the best blog for impartial, yet critical, discussion of important legal issues about arms control law and its application. The posts debunk the simplistic analysis one reads in the news media.

This is certainly what I have hoped this blog would accomplish, and the recognition from readers and from the ABA Journal once again is extremely gratifying. I of course share this honor with all of the other contributors to ACL who have written posts this year.

This seems like an appropriate moment to mention some thoughts that have recently crystallized in my mind about the purpose of this blog, and all the writing that I, in particular, do on it (I do not presume to speak for the other bloggers on ACL).

It’s no secret that I have often been frustrated by the dynamics of the arms control epistemic community.  Here I should of course clarify. I see several distinct communities, or audiences, existing under this broader umbrella, that I try to address and engage with in my work.

The first is the international law scholarly community, of which I consider myself firstly and foremost a part. This is my home community, and with very few exceptions, I respect and value the collegial engagement that I have always had with the members of this community, a number of whom are bloggers with me here at ACL. This community includes university students of international law at all levels (undergraduate and graduate).

The second is the policy community. This is of course comprised of officials of governments and international organizations working in the arms control area. Here I experience all the complexities that any academic does in trying to engage and influence relevant policymakers. It is my hope that my writing on this blog, and also in my books and articles, has had and will continue to have an influence in this community.

The third is the primarily NGO-based arms control wonk community, about which I have written critically on numerous occasions (recently here). Unfortunately, in at least some circles of the policy community (e.g. the US government, the IAEA), the arms control wonk community has a disproportionate influence. I have tried to engage with the wonk community on many occasions, but overall these attempts have been rebuffed.

So this is my newly crystallized resolution. I write what I write on this blog, and in my scholarly books and articles, primarily for the international law scholarly community, and for the policy community. The arms control wonk community is, for reasons I’ve discussed previously, essentially impervious to ideas from sources outside of its own cliquish, incestuous, and self-referential circles. It has become clear that they are not open to genuine engagement, and are therefore essentially beyond influencing.

I do have some hope, however, that university students who will in the future become members of the arms control wonk community, may yet be susceptible to influence, and so I will include them in my understanding of the audience of this blog and my other work. In fact, I think of them as a key audience, because they will in the future have influence in policy circles, and I’m hopeful that my work can influence them before they become indoctrinated by their mentors in the existing wonk community. It is for the sake of these future arms control wonks that I will point out the shortcomings of their predecessors.

This reappraisal of the audience of this blog and of my other work is basically a part of my ongoing mid-career crisis, in which I’m trying to identify my professional identity and plan for the future.


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