Jack Straw on the Possibility of a Military Strike Against Iran: “War is not an option.”

This is a very interesting piece by Jack Staw, the former UK Foreign Minister. Before I get to his real substantive points, I have to say that when I first read this, and saw Straw quoting from the UN Charter and giving an analysis of international law in the first few paragraphs, I was shocked at the hypocrisy of the man. This is the same Jack Straw, after all, who infamously rejected the legal advice of his own excellent legal adviser, Sir Michael Wood, when Straw was Foreign Minister and Sir Michael clearly advised him that the 2003 invasion of Iraq was in violation of the same sources of international law Straw now quotes. Read this story on that little bit of history. So I don’t know if Straw is now trying to re-create his image, after having been fully a party to Britain’s involvement in that imprudent and disasterous war. Maybe he sees this as the only way he’ll ever be part of another Labour government in the future. In any event, it smelled funny to me.

On a more minor legal point, I don’t agree with his legal assessment that Iran’s failure to declare Natanz and Arak before 2003 constituted a violation of the NPT. As I’ve explained previously, if anything this was an instance of non-compliance with Iran’s IAEA CSA and no more.

But here are the real substantive analyses and conclusions of this particular piece, with which I do very much agree:

I have never been complacent about a nuclear-armed Iran, which is why I   devoted so much time to negotiations with the country. My own best judgment   is that Iran’s Supreme Leader, Ayatollah Khamenei, who controls the nuclear   dossier, probably wants to create the intellectual capacity for a nuclear   weapons system, but will stop short of making that system a reality. If I am wrong, further isolation of Iran would follow; but would it trigger nuclear   proliferation across the Middle East? Not in my view. Turkey, Egypt and   Saudi Arabia “have little to gain and much to lose by embarking down such a   route” is the accurate conclusion of researchers from the War Studies Department of King’s College London.

In any event, a nuclear-armed Iran would certainly not be worth a war.

There has been no more belligerent cheerleader for the war party against Iran   than Benjamin Netanyahu, Israel’s prime minister. Netanyahu was widely   expected to strengthen his position in the January elections for the Israeli   parliament, but lost close to a third of his seats. The electorate seemed to   take more heed of real experts such as Meir Dagan, a former head of Mossad,   Israel’s external intelligence agency, and Yuval Diskin, a former chief of Shin Bet, its internal security agency.

In 2011, Dagan described an Israeli attack on Iran as a “stupid idea”. More   significantly, both Dagan and Diskin have questioned the utility of any   strike on Iran. Diskin says there’s no truth in Netanyahu’s assertion that   “if Israel does act, the Iranians won’t get the Bomb”. And Dagan is correct   in challenging the view that if there were an Israeli attack, the Iranian   regime might fall. “In case of an attack [on Iran], political pressure on   the regime will disappear. If Israel will attack, there is no doubt in my   mind that this will also provide them with the opportunity to go ahead and   move quickly to nuclear weapons.” He added that if there were military   action, the sanctions regime itself might collapse, making it easier for   Iran to obtain the materiel needed to cross the nuclear threshold.

As with the reality of a nuclear-armed North Korea, the international   community would have to embark on containment of the threat if, militarily,  Iran did go nuclear. But these hard-boiled former heads of the Israeli   intelligence agencies are right. War is not an option.


New Report on the Effectiveness of Iran Sanctions

This new report from the National Iranian American Council on the impact of Western sanctions on Iran’s nuclear calculations looks excellent and very insightful. I recommend it highly.


Future of the CWC in the post-destruction phase

The future of the CWC in the post-destruction phase
Report – No15 – 27 March 2013
Yasemin Balci, Richard Guthrie, Ralf Trapp, Cindy Vestergaard, Jean Pascal Zanders
edited by Jean Pascal Zanders

http://www.iss.europa.eu/publications/detail/article/the-future-of-the-cwc-in-the-post-destruction-phase/

From the Foreword by Ambassador Jacek Bylica, Principal Adviser and Special Envoy for Non-proliferation and Disarmament, European External Action Service:

The international community can be justifiably proud of the Chemical Weapons Convention. It has banned an entire category of weapons of mass destruction and provided for their verifiable elimination under international supervision. A small but effective intergovernmental organisation, the Organisation for the Prohibition of Chemical Weapons (OPCW), has been created for this purpose.

[…]

In the present international situation it is important to note that the Convention has created a de facto legal norm against the production, possession and usage of chemical weapons for military purposes. This prohibition goes beyond the letter of the Convention and stems from the reactions to the tragic experience of World War I and more recent cases of CW usage, including against non-combatants.

[…]

This volume features contributions derived from some of the presentations made by world-class experts at the workshop organised by the EU Institute for Security Studies in cooperation with the European External Action Service on 10 September 2012. The workshop offered an opportunity to reflect on some of the challenges facing the CWC over the next decade in preparation of the Third Review Conference at The Hague in April 2013. I am confident that this report presents an invaluable contribution to the debate on the future direction of our joint efforts which aim at the total and irreversible elimination of chemical weapons from the face of the Earth.

ISS_15_cover_7dfd6989e4


Stuxnet an “Act of Force” Against Iran

I just saw this story in the Washington Times. It cites to the conclusions of the authors of the new Tallinn Manual on the International Law Applicable to Cyber Warfare. The lead author, Michael Schmitt, is quoted/cited as saying the following:

The international group of researchers who wrote the manual were unanimous that Stuxnet — the self-replicating cyberweapon that destroyed Iranian centrifuges that were enriching uranium — was an act of force, said Mr. Schmitt, professor of international law at the U.S. Naval War College in Newport, R.I.  But they were divided on whether its effects were severe enough to constitute an “armed attack,” he said.

What I interpret him to be saying here is that Stuxnet was an international act of force that caused enough damage to constitute a use of force against Iran by the U.S. and Israel in violation of Article 2(4) of the U.N. Charter. I certainly agree with that conclusion. But then he goes on to conclude that Stuxnet did not rise to the level of an “armed attack.” This is in reference to Article 51 of the U.N. Charter, which says that the right of unilateral self defense can only be exercised as against the authors of an armed attack. There’s always been interesting debates among international legal scholars over whether and to what extent the criteria for use of force under Article 2(4) and the criteria for armed attack under Article 51 differ. I personally think that there is a difference in intensity evidenced in the applicable legal sources, so that finding that an act meets the test for a use of force, but does not meet the test for an armed attack, as Schmitt does here, is certainly plausible.

Overall, I would probably agree with the assessment Schmitt makes here, that Stuxnet was illegal as a use of force prohibited by Article 2(4), but that it did not meet the criteria for an armed attack, which would have given rise to the right of unilateral self defense on the part of Iran. I would add, though, that the fact of its illegality under Article 2(4) WOULD however trigger Iran’s right to engage in lawful countermeasures, as defined in the law on state responsibility, best represented in the ILC’s Draft Articles on State Responsibility, Articles 49-53 (ARSIWA).

I have already floated some ideas on what form such lawful countermeasures could hypothetically take in the comments to a post by Sahib Singh over at EJIL:Talk!  In those comments, I concluded that closing the Strait of Hormuz completely, which Iranian officials have at times mentioned doing in response to cyber attacks including Stuxnet, and to the killing of their civilian nuclear scientists, would not satisfy, inter alia, the relevance and proportionality requirements in response to these unlawful acts against Iran, so as to fit under the law of countermeasures in the ARSIWA.

However, I argued that if Iran were, say, to seize a number of privately owned vessels passing through Hormuz, owned by Israeli and/or American companies, and take the vessels and cargo as reparations for these unlawful acts, this action would in fact present a pretty strong case for constituting a lawful countermeasure on the part of Iran in response to these unlawful acts. The seizure policy could be targeted specifically to incentivize the US and Israel to cease their internationally wrongful conduct, as it would introduce risk into US and Israeli shipping commerce and thus undoubtedly negatively affect the economies of the US and Israel, and would thus put economic pressure on them. It would dually serve to provide a source of reparation for Iran for the damage caused by the illegal acts, as contemplated in the official comments to the ILC Draft Articles. The policy could of course be quickly ceased as soon as the US and Israel came into compliance with international law and ceased their internationally wrongful acts. And in my view such seizures would not be classifiable as international uses of force, and thus not prohibited as countermeasures for that reason.

So again, this would in my view be one alternative for legal countermeasures by Iran in response to the illegal use of force against it by the US and Iran constituted by the deployment of Stuxnet.

I certainly would not advise Iran to actually do this – it would be very strategically imprudent and unwarranted, and would obviously lead to an unwanted escalation of tension, and possibly to war.  But speaking from a strictly legal perspective, I do think it would be be a lawful response to the unlawful attack on Iran by the US and Israel which Stuxnet represents.

I would also like to cite to the ancient legal maxim: “What’s good for the goose, is good for the gander.” Here meaning that, in agreeing to set the criteria for armed attack high for cyberattacks, we must remember for future reference that the same criteria would apply to cyberattacks upon the US. And it will be just as difficult for the US to claim a right of unilateral self-defense on that occasion, as we are now agreeing it is for Iran to do on the occasion of the use of Stuxnet and Flame against it.

ACL’s own David Fidler provides an excellent review of the legal issues regarding Stuxnet, though reaching different conclusions from mine, in a piece that can be accessed through the below link. ACL’s Marco Roscini is also currently writing a whole book on these issues, under contract with OUP, and has previously blogged on Stuxnet here.

Fidler on Stuxnet and IL

ADDENDUM: I just saw this CNN opinion piece with some very interesting thoughts about “Cyber Arms Control”


Chemical Warfare allegations in Syria – An initial assessment

Reports are coming in about the use of chemical weapons (CW) near Aleppo in Syria. The source is the Syrian government, who alleges a rebel attack. Up to 25 people may have been killed; scores more injured.

Russia confirms the reports in a strong-worded statement; the US denies the attacks, but is waiting for further analyses of the reports. The Director-General of the OPCW expressed his grave concern over the reports.

I just saw images from a hospital, where a lot of people wearing surgical masks attend to people having infusions, on BBC World. Sana-Syria has published pictures.

My quick take on these developments:

  •  I am not convinced that the footage and pictures I have seen prove a CW attack;
  • There are no images of the site of the attack; just of some affected people. These people do not show outward symptoms of a CW attack. Definitely not mustard; definitely not a nerve agent.
  • There are far too many people, including non-medical staff, around the affected persons. Apart from a surgical mask, nobody wears any protective garment or gas masks. If there would have been a CW attack with one of the agents known (or believed) to be in Syria’s arsenal, then most of the people present would have been fatally or seriously contaminated.
  • I am deeply sceptical of allegations that the insurgents would have resorted to CW. There would have far greater propaganda benefits if they were to demonstrate to the world that they had overrun one of the storage or production facilities. In addition, insurgent spokespersons were very quick to deny the government allegation.
  • Regarding a case of a transfer to (and, hence, use by) surrogates of the Syrian government, I have already expressed my views on such a scenario.
  • Present-day battlefields are extremely toxic. Many materials may be propelled into the air and inhaled by bystanders. If some (toxic) chemical container were hit by a shell, then bystanders could be badly affected, as we have seen in a variety of recent internal conflicts (former Yugoslavia; Sri Lanka; Iraq; etc.). Bhopal reminds us of the large-scale effects of an industrial accident. Any investigation of the allegation must first exclude plausible alternative explanations.

Possible developments I do worry about include:

  • Is the Syrian government allegation the type of statement often heard in the past to justify ‘retaliatory’ chemical attacks? If so, the next days and weeks may become very nasty indeed. Not just because of chemical warfare, but also because of the various red lines Western states, and the US in particular, have drawn if such an escalation with CW were to take place.
  • Why has Moscow confirmed the Syrian allegation so quickly and in such strong words? What is the motive behind this? Just contradicting the West again? If not, why is it so tied to Bashar al-Assad? What can it gain from this position? Of course, Syria got most of the technology and expertise to set up and run its CW programme from the former Soviet Union. Did the former head of the Soviet CBW forces, Anatoly Kuntsevich, not die on his return from Syria in 2003? Furthermore, if Syria were ever to become a party to the CWC, it would have to declare the origins of its CW programme. Whatever we wish to believe, it potentially sets up Moscow against any country that might intervene militarily because of CW use.
  • In three weeks time the States Parties to the CWC will convene for the 3rd Review Conference. Confirmation of the allegations or escalation described in the bullets above would have a most serious impact on the proceedings.

Anyway, this is just a quick take on an unfolding story. I am sure to follow up if anything further happens.


Thinking of Halabja Today – 25 Years Later

16 March marks the 25th anniversary of the chemical warfare attacks against the Kurdish town of Halabja. Since the First World War it was one of the few cases wherein chemical weapons (CW) were deliberately used against a civilian target. Human Rights Watch documented over 3,200 deaths and many times that number of other casualties. Since then, thousands more of people have succumbed to their injuries or preventable infections affecting organs damaged by exposure to gas. Many women also suffered extensive genetic damage, thus passing the consequences of the gas attacks down the generations.

The town of Halabja in northeast Iraq has become a modern-age symbol condemning chemical warfare. Together with Ieper, a medieval town in the Belgian province of West Flanders. On 22 April 1915, the day on which scientific research, industrial production and military art finally found each other, German Imperial troops released a chlorine cloud from thousands of canisters buried in the trenches on the northern flank of the Ieper salient. Two years later, in the night of 12–13 July 1917, the town became associated with the first use of a new chemical warfare agent—mustard gas (which the French subsequently called ‘Yperite’). Mustard was also one of Iraq’s agents of choice against both the Iranians and the Iraqi Kurds.

The Iran–Iraq war lasted twice as long as the First World War: from 1980 until 1988. Iraqi use of toxic chemicals against Iranian soldiers was first reported in 1982, but by the end of 1983 press outlets told of widespread usage of mustard gas and tabun, a nerve agent. In April of the next year, a UN team of experts confirmed chemical warfare. From then onwards, Iraqi chemical attacks escalated, reaching a first peak in 1986 in the southern marshes. Two years later Iraqi forces had also assimilated CW for offensive operations and employed them with increasing effectiveness until Iran’s capitulation on 8 August 1988.

Possibly earlier, but definitively from 1987, Saddam Hussein opened a second chemical front against the Iraqi Kurds in the north. Names of towns such as Erbil (Hewlêr in Kurdish) in the north of the country or Penjwin, east of Sulaymaniyah, recurred frequently in interviews I had with Kurdish Peshmergas coming for a break to Belgium. They recounted chemical strikes against agrarian communities in north and east Iraqi Kurdistan. They described how eating the vegetables from their fields poisoned women and children many weeks after a CW attack. Unwittingly, they ingested the mustard agent that had settled on the bottom side of the leaves. The Peshmergas also depicted bombing raids high in the mountains, after which the mustard gas rolled down the mountain sides, penetrating deep into any cave sheltering Kurdish fighters.

About two years later, when listening again to my recordings from 1987, I recognised another town being referred to—Helebce, since then better known in the West as Halabja. The local population had risen up against Saddam Hussein, who brutally crushed the revolt. Half of the city fled to Iran, about 15 kilometres to the east, according to the interview. When Kurdish guerillas fighting alongside Iranian troops ‘liberated’ Halabja on 15 March 1988, supreme vengeance against an insurrectionary town came the next morning in the form of a gas cloud. Attacks were to continue until the 18th. Privately I have always been convinced that the 1987 uprising together with the ‘betrayal’ of the Iraqi Kurds seeking to break Baathist control over northeast Iraq with Iranian help in 1988 provoked the extraordinary escalation of chemical warfare against Kurdish guerillas and civilians alike. From that perspective, Saddam Hussein’s campaigns against the Kurds through August and September 1988 merely systematised the Halabja method on an even grander scale.

Indelible impressions

A few weeks after the attacks against Halabja, members of the Kurdish community in the Leuven area (where many Iraqi Kurds stayed with relatives and local acquaintances for a breather from combat) took me to the Erasmus hospital in Anderlecht, just outside Brussels. It had accepted four or five victims of chemical warfare for treatment. One was an Iranian soldier badly affected by mustard gas; one was a boy aged around five recovering from the chemical attacks on Halabja; the remainder were farmers from a wide area surrounding the town. Iraqi chemical strikes had neither been limited to 16 March, nor to the town of Halabja, it became clear to me. Joost Hiltermann later confirmed this impression in his detailed study ‘A Poisonous Affair’ (2007).

Two things struck me during that visit. The local Kurdish community treated the young boy as one of their own. He was slowly recovering from a low red blood cell count (possibly from a cyanide breakdown product after tabun exposure), and by the time I visited him he was already sitting up surrounded by pretty expensive toys. Most striking was a large replica with moving wings of an F-14 jet, with which the child was playing most of the time I was there. The treating physician told me of his incomprehension of why the boy had been given so many war-related presents. He also remarked on how the boy winced whenever a commercial jetplane flew over, an observation that added to his puzzlement. Three years later, when I was intensely following developments in the war over Kuwait, my son was both restless and agitated. After asking in a supermarket for a small, but accurate metal model of the A-10 close air support aircraft, which he recognised from TV newscasts, he settled down markedly. It seemed as if by holding the object of his anxiety, he was able to control the source of his angst. The Kurdish boy had definitely seen Saddam’s fighter-bombers up close.

The second lasting impression was how my Kurdish hosts tore me away from the Iranian soldier. He was by far the worst victim of gas exposure in the hospital (he was to die not too long after my visit). His skin looked blackened where white ointment did not fully hide it. Lesions from the vesicles covered parts of his body and his difficult, assisted breathing betrayed internal injuries. A faint, but unforgettable smell of decayed flesh penetrated the dominant odour of disinfectants. He had fallen victim to mustard gas outside of Halabja, possibly being one of the soldiers along whose side the Peshmergas were fighting against Saddam Hussein. The Kurds, however, did not spare a thought for him. This somehow offended my unconscious belief that victims of chemical warfare are all equal. At least, I knew of no such distinctions being drawn between Allied and German gas casualties of the First World War. In Belgium, common cause is against chemical warfare, full stop. And 25 years ago, the suffering in the trenches was all still part of national living memory.

The other face of Halabja

This incident was my first concrete exposure to the deep ethnic, cultural and religious cleavages in the Middle East, difficult to bridge and a perennial source of misunderstanding and hostility. It also shows why Halabja can never be a symbol for Iran’s suffering from CW in the way Ieper does for all chemical warfare during the First World War. For a while Halabja stood for all atrocities committed during Saddam’s reign of terror; the new Iraqi regime now commemorates the Halabja attacks as a national tragedy. Iran widely publicised the gassing in the weeks and months after the air raids. Halabja, however, lay in occupied territory. UN experts could not enter the town without Iraq’s authorisation. Although access to the victims transferred to Iranian hospitals was possible, lack of onsite verification diminished the value of the findings. Moreover, most victims were not Iranians, but Kurds—an ethnic group whose members living inside Iran also suffered from violent oppression by the theocratic rulers.

Iran’s own Halabja is called Sardasht, a municipality without much military significance across the border north of Sulaymaniyah. Saddam’s air force hit the town on 28 June 1987, almost nine months before Halabja. Although initial reports of CW victims were low, it soon emerged that almost three quarters of a population of 12,000 had been exposed to the toxicants. Some 130 people died, most of them civilians. The international press barely noticed this strike on a target with hardly any military significance.

Sardasht emblemised Iran’s predicament. The Islamic revolution of 1979 bought the country few friends. With the hostage taking in the US embassy, pent up anger over Washington’s unwavering support for the Shah’s repressive regime exploded into the open. The new leadership also refused rapprochement to the Soviet Union. Meanwhile it called for Islamic uprisings against the corrupt, autocratic leaders in the Gulf and beyond. When Iraq invaded its neighbour, Saddam Hussein presented himself as the bulwark against Persian territorial designs and Islamic revolutionary fervour. Although the United States and the USSR found themselves on the same side of the war; having lost a major regional ally, Washington nevertheless sought to pry Iraq away from the Soviet sphere of influence. The tide soon turned against Iraq, but the international community could not afford to let it lose the war. Such geostrategic calculations were to clash with international law.

When Saddam Hussein ordered the first chemical attacks, he breached the 1925 Geneva Protocol. Both Iran and Iraq had been party to the agreement for many decades. To Iraq, CW were a force multiplier that arrested the incessant Iranian human wave attacks when it was about to lose the war. National governments expressed their outrage, but the UN Security Council, while condemning the chemical attacks, never specified Iraq as the perpetrator for the duration of the war with Iran.

Countries adopted national sanctions and restricted access to certain chemical warfare agents and their precursors, but, absent a specific designation of responsibility under international law, applied them to both belligerents. The Geneva Protocol did not deny Iran the right to retaliate in kind, but international ‘evenhandedness’ certainly precluded it from achieving a CW capacity before the war’s end. The international stance had its moral merit. This, however, did not apply to the refusal to assist Iran with defensive countermeasures, including gasmasks, decontamination equipment, other types of individual and collective protection or prophylaxis. In 1985–86 an Iranian delegate to the Conference on Disarmament in Geneva even had to travel to several European countries (including Spain) to procure active charcoal in order to develop chemical warfare defences in Iran. (I have detailed Iran’s defensive and offensive CW efforts in a study published by the Swedish Defence Research Agency in December 2003.) Often the Iranians were conned, leaving no option for the country to start developing its indigenous capacities—for CW defence as well as offense.

Just like Trotsky concluded after Russia’s capitulation to Germany in 1917, those experiences convinced Iran of the need to overcome technological backwardness in order to survive. They also taught the country that international law does not guarantee international justice, and it harbours deep misgivings about international promises for assistance. Adding insult to injury, from 1989 onwards US officials indicated several times that Iran rather than Iraq had gassed Halabja, a claim so preposterous that its motive remains a mystery to me until today. Self-sufficiency, self-reliance, autarky in all security-related matters drives today’s political leadership. Most Iranian politicians of all persuasions, as well as much of the population, belong to the generation that grew up on the battlefields of the Iran-Iraq war. War is therefore not necessarily a state of affairs they will seek to avoid in the pursuit of national interests. Nor do international confrontation or the threat of war particularly frighten them. Layer upon layer of fresh economic and political sanctions only confirm convictions that had eight long years to take root in the blood-soaked trenches along the Iran-Iraq border.

Halabja therefore also symbolises the long-term fallacy of short-term interests. It is the one lesson the world does not seem to have learned.


New IAEA DG report on Iran Still Incorrect on the Legal Mandate of the IAEA

The February 21, 2013 IAEA Director General’s report on implementation of safeguards in Iran provides a good opportunity to revisit one of the points I made in a blog post last year, which has been fairly widely discussed and which was the subject of an ISIS report (read hatchet job) by David Albright and some of his friends, only one of whom is a lawyer (I responded to their report previously here).  The point in question is the incorrectness of the IAEA Director General’s (and by extension the IAEA Office of Legal Affairs’) understanding of the scope and content of the IAEA’s legal mandate to investigate and assess compliance of states parties to INFCIRC/153 Comprehensive Safeguards Agreements with the IAEA. (See also my contributions to a roundtable on this question published by the Bulletin of the Atomic Scientists)

Much of the discussion on this point in my earlier post, and in the Albright & Co. report, focused on a recurring footnote in IAEA DG reports on Iran. As Pierre-Emmanuel Dupont noted in his excellent review of this question in light of the new DG report on Iran, in this new report there was a slight but (to lawyers at least) significant change in the footnote text (fn. 61).  Here is the new version, with the change in italics:

The Board has confirmed on numerous occasions, since as early as 1992, that paragraph 2 of INFCIRC/153 (Corr.), which corresponds to Article 2 of Iran’s Safeguards Agreement, authorizes and requires the Agency to seek to verify both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness) (see, for example, GOV/OR.864, para. 49 and GOV/OR.865, paras. 53-54).

Pierre was kind enough to speculate in his post that this change in the footnote text was a result of my arguments in my previous post.  I have to say that that was my first thought as well when I saw the new report. If that’s true, then I am glad to see that the lawyers in the IAEA OLA are taking note of the commentary on ACL. I do very much hope that this blog will add to serious consideration of arms control law issues among governments and international organizations.

Unfortunately, however, I must agree with Pierre that the addition of the document GOV/OR.865, paras. 53-54, does not provide support to the DG’s erroneous understanding in the text of the footnote that “paragraph 2 of INFCIRC/153 (Corr.), which corresponds to Article 2 of Iran’s Safeguards Agreement, authorizes and requires the Agency to seek to verify both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness)”

Let’s first deal with the threshold fact that in footnote 61, as in its incarnations in previous DG reports, the IAEA DG cites to decisions of the IAEA Board of Governors for authority in interpreting the legal mandate of the IAEA to investigate and assess compliance of states with CSA obligations. This in and of itself is incorrect as a matter of law.

The IAEA BOG is comprised of 35 states, out of the 162 member states of the IAEA. The IAEA Statute does not confer on the BOG any special proprietary entitlements with regard to interpretation of the IAEA Statute or CSA’s. As Pierre insightfully pointed out in his piece, decisions of the BOG are therefore very different in their interpretive implications for relevant treaties from, say, the consensus Final Documents of NPT Review Conferences, under the rules on treaty interpretation contained in the 1968 Vienna Convention on the law of Treaties, and the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.  Unlike the consensus decisions of all NPT parties contained in Final Documents of NPT Review Conferences and their very real implications for interpretation of the NPT, decisions of the 35 members of the IAEA BOG have absolutely no interpretive implications per se for the IAEA Statute, or for individual CSA’s.

So let’s first of all be clear on this point – the IAEA BOG does not have the authority to interpret the IAEA Statue or individual CSA’s, and they do not have the authority to determine the scope or content of the IAEA’s mandate to investigate and assess state compliance with CSA’s. The IAEA’s authority, as that of any international organization, is a product of its constituting documents (here the IAEA Statute), other authorities specifically given to it by states (e.g. CSA’s), and its practice as accepted generally by states (see the ICJ’s 1949 Reparations case for these principles of law).  I made this point in my original post on this topic.

However, for the sake of interest, and because of the erroneous reliance by both the IAEA Director General (or rather the IAEA Office of Legal Affairs) and Albright & Co. on these decisions by the IAEA BOG as a statement of the IAEA’s authority to investigate and assess compliance with CSA’s, let’s proceed to take a look at the new addition to the footnote, GOV/OR.865, paras. 53-54.

We do find in this newly cited document, as was not present in the previously exclusively cited GOV/OR.864, a record of the continuation of the BOG’s March 30, 1995 meeting, which records a decision by consensus of the BOG to accept the chairman’s previously recorded summing up, as reflecting “the broad majority view in the Board.” This decision was taken even though there was very serious disagreement expressed with the summing up statement by a number of governors, as I noted in my original post, and as Pierre has noted as well.

So, GOV/OR.865, paras. 53-54 records that the Board eventually decided to accept the chairman’s summing up as a majority statement. Do note this fact. The BOG decided to accept that a majority of the members of the BOG agreed with this summing up statement. They didn’t agree that they all agreed with it.  Again, this goes to the interpretive weight of this statement – which is nil.

But, to proceed. Let’s look at the chairman’s summing up statement, with which a majority of the Board agreed, to see what it actually says.

The Board reiterates that the purpose of comprehensive safeguards agreements, where safeguards are applied to all nuclear material in all nuclear activities within the territory of a State party to such an agreement, under its jurisdiction or carried out under its control anywhere, is to verify that such material is not diverted to nuclearweapons or other nuclear explosive devices.

Ok stop right there. Did you read that? Here the Board correctly states that the purpose of CSA’s is to verify the non-diversion of fissile materials to nuclear weapons. This comes right out of Article 2 of the CSA.  So right off the bat, this shows that the Board, at least in 1995, understood that the purpose of CSA’s, and thus the mandate of the IAEA, DOES NOT extend to investigations or assessments of research and development related to nuclear warheads – i.e. “possible military dimensions” of a safeguarded state’s nuclear program, as the DG has grown fond of phrasing it. That has certainly changed over time. See my JURIST piece on this subject following the release of the DG’s report on possible military dimensions of Iran’s nuclear program in November 2011.

Continuing  with the summing up statement . . .

To this end, the safeguards system for implementing comprehensive safeguards agreements should be designed to provide for verification by the Agency of the correctness and completeness of States’ declarations, so that there is credible assurance of the non-diversion of nuclear material from declared activities and of the absence of undeclared nuclear activities.

This is the sentence that the IAEA OLA, and the Albright brigade of mostly non-lawyers in their report criticizing my legal analysis, think is so important in showing that the IAEA has the legal mandate under the INFCIRC/153 CSA to investigate and assess not only the correctness but also the completeness of an NNWS’s CSA declaration.  But what does the text of the summing up actually say?  It says that the system for implementing CSA’s should be designed to provide for verification by the IAEA of both completeness and correctness of the declaration. Ok. So are they saying here that the basic CSA – the INFCIRC/153 – ALREADY provides this authority? No, they are not saying that. Pierre very insightfully in his piece referenced the context of these deliberations of the BOG in 1995, and the 93+2 program that was their subject. In light of this context, it is clear that what the BOG is referencing at this point in the summing up statement is the Additional Protocol, which was the second component part of the 93+2 program, and which was the primary subject of this statement of the Board.

So with this understanding, what is the BOG, or I should say a majority of the BOG, saying here? They are saying that NNWS under IAEA safeguards should adopt the new Additional Protocol in order to allow the IAEA the authority and tools to verify not only the correctness but also the completeness of the INFCIRC/153 declaration.  Now read the rest of the excerpt with this interpretation in mind.

It was recognized that under comprehensive safeguards agreements the States parties and the Agency have an obligation to co-operate fully in achieving effective implementation of the agreements. While recognizing that a strengthened safeguards system will benefit from technological developments and call for greater access to relevant information and greater physical access to relevant sites for the Agency, either on the basis of existing authority provided for in comprehensive safeguards agreements or on the basis of complementary authority to be conferred by the States involved, while noting that some Governors have reservations at this stage about the need for greater access to sites and while not at this stage taking a decision on any of the specific measures proposed in document GOV/2784 or on their legal basis, which were not fully discussed at the present session, the Board endorses the general direction of Programme 93+2.

It makes sense, doesn’t it? Authority and tools for the IAEA to investigate and assess the completeness of a state’s declaration, as well as its correctness, was to come from “complementary authority to be conferred by the States involved” – i.e. through the adoption of an Additional Protocol, on a state by state basis.

So to sum up, both the IAEA DG (OLA), and Albright & Co. are incorrect in a number of ways on this point.  First, they are incorrect in relying on decisions by the IAEA BOG as a basis for determining the scope and content of the IAEA’s authority to investigate and assess safeguards compliance.  Second, they are incorrect in asserting that the decision of the IAEA BOG recorded in GOV/OR.865, paras. 53-54 in any way supports the understanding that, pursuant to the terms of the INFCIRC/153 CSA alone, the IAEA has the authority to investigate and assess not only the correctness but also the completeness of a state’s CSA declaration. As I have explained in my previous post, and in my contributions to the BAS roundtable on this topic, the IAEA’s mandate under an INFCIRC/153 CSA, which is the only safeguards agreement in force in Iran’s case, is limited to investigation and assessment of the correctness of the state’s (here Iran’s) declaration, pursuant to the terms of its CSA.

Thus, when in the February 21, 2013 IAEA DG report on Iran, the DG once again states that the IAEA “continues to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs declared by Iran under its Safeguards Agreement,” he is making an assessment under the only lawful authority the IAEA has for investigations and assessment of safeguards compliance. In this assessment, the DG confirms once again that Iran is currently in full compliance with its IAEA safeguards obligations, as verified by the IAEA.