Hibbs on Closing the Iran File

A couple of days ago I wrote a post in which I said this about Mark Hibbs’ most recent post over at Arms Control Wonk:

While I’m writing, I might as well also quickly address Mark’s other recent piece over at Arms Control Wonk. This one is entitled Closing the Iran File, and contains Mark’s prescription for how Iran can normalize its relationship with the IAEA. I honestly don’t see much that is novel in this piece. It seems to just be saying that Iran should do everything the IAEA and UNSC says it should do, and that if they do, in time the IAEA may back off on its scrutiny of Iran’s nuclear program and normalize its safeguards relationship with Iran. The piece doesn’t seriously engage with any of Iran’s objections to the substance or process of IAEA/UNSC actions regarding it, or with Iran’s proposals for normalizing relations with the IAEA. It appears to offer no new insights into how the dispute between Iran and the West can practically be resolved.


It is of course all wrong in its fundamental assumption, upon which the entire piece is based, that the IAEA should be investigating ”potential military dimensions” in Iran, or anywhere else for that matter. But I’ve made this point so many times before that I didn’t really see it as worth the time or effort to do so again in comments to this new piece.

After writing this, I decided to make a short comment to his post, agreeing with Yousaf and Johnboy and some of the others that had commented. Mark didn’t allow my comment to be posted. So I suppose I’m now officially persona non grata with both Mark Hibbs and Jeffrey Lewis, the latter of which has made his disdain for me very clear for a long time. Lewis is of course a poster child for the US nonproliferation epistemic community, which I critiqued here.

But I have actually respected Mark Hibbs for years, and continue to think that his work is extremely valuable overall – in particular his more journalistic and explanatory pieces. And if you were to look at his pieces over the past several years on ACW, you’ll see that I’ve been very openly complimentary of him in the comments to many of them.  Its really only on the issue of Iran that I have taken issue with his analysis. Its a bit strange to me – on other issues Mark seems to be quite open minded and willing to challenge the US and the IAEA on things. But on the Iran issue, somehow it seems that Mark has drunk the Kool Aid flowing from the DC echo chamber which, along with its unfortunate implications, was recently insightfully discussed by Robert E. Hunter in a post over at LobeLog.

Oh well. I guess its a good thing that I have my own blog now where I can say anything I want and neither Lewis nor HIbbs can stop me.

With regard to Hibbs’ most recent post, I stand by what I said previously. PMD issues are not within the IAEA’s mandate to investigate and assess. Period. Nothing has changed, or can change that. At one point in the comments, Mark says:

There can be no question that the IAEA has that authority to pursue these issues in the case–as I outline in the blog post–should Iran volunteer to ratify, bring into force, and implement its Additional Protocol.

And then he cites to the hatchet job report that Albright and friends did on my work a while back. Fortunately, Yousaf was allowed by Hibbs to reply to that comment and to site to my responses to that report, and to my earlier Jurist piece on the PMD issue specifically. Mark’s allusion to the AP here is confusing and inapposite.  The AP gives the IAEA no additional remit of authority to investigate PMD issues than it has under the CSA, which is zero.  The AP is about increasing the IAEA’s authority to verify both the correctness and completeness of a safeguarded state’s declaration about the location and amounts of fissile material within its territory. Its not about giving the IAEA the authority to investigate or assess nuclear warhead development related research within the state, which is what the PMD issue is all about. As I’ve explained before, the entire PMD issue is a red herring that should be completely and immediately dropped by the IAEA.

Many of the regular commenters here at ACL have, however, been allowed to comment on HIbbs’ post, and I’ve been very glad to see the excellent legal points that you’ve been making there. In a comment to one of my earlier posts, Johnboy asked me a question about something Hibbs wrote over there:

Dan, I’m reading the comments in Mark’s post at armscontrolwonk, and one of his statements left me puzzled.

This comment in reply to Cyrus:
“The Board of Governors made a big mistake in not responding to the IAEA’s 2003 findings of 18 years of systematic deception by Iran, by passing a resolution stating clearly and without further ado, in 2003, that Iran was in non-compliance with its safeguards obligations and then ordering Iran to suspend sensitive nuclear activities pending clarification of outstanding issues related to the non-compliance finding”

That the Board can pass a resolution declaring that based on the “IAEA’s 2003 findings” that Iran is guilty of non-compliance with its safeguards is not something that I dispute.

It’s the “and then ordering Iran” bit that leaves me puzzled, because I can’t see where the Board of Governors has the authority to order anyone to pull the pin on their uranium enrichment plant.

It does rather suggest that Mark thinks that the Board has the authority to be judge, jury and executioner which – to say the least – is a level of unaccountable power that is Somewhat Open To Abuse.

Maybe I’ve missed something.

Maybe the Board of Governors does have the power to “order” a country to “suspend sensitive nuclear activities pending clarification of outstanding issues”.

What’s your take?

My take is that you’re not the one who is puzzled, Johnboy. You are right on the law, as have the other ACL commenters been, and Hibbs is wrong. Of course the IAEA BOG has no authority to “order[] Iran to suspend sensitive nuclear activities pending clarification of outstanding issues related to the non-compliance finding.” All the BOG can do is determine that a safeguarded state is in noncompliance with its safeguards agreement, and, if it chooses, refer the matter to the Security Council. Its this kind of comment, from someone as knowledgeable about the IAEA as Hibbs, that shows me how much misunderstanding there is in the nonproliferation community about what the actual legal authority of the IAEA is, and how limited it is.

At another point, George William Herbert makes this statement: “. . . I believe that the AP has caused the international standard / legal expectation to be that the IAEA becomes the NPT enforcer.”  Again, this isn’t even in the ballpark of a correct understanding of the IAEA’s legal authority.

I know that all of these guys – Lewis, Albright, Hibbs, Herbert, Fitzpatrick, Pollack, Ford, Wulf, Kittrie, and the rest of the US nonproliferation crowd, along with their few foreign friends like Persbo and Heinonen, think I’m just a pain in the butt, and an Iran apologist. They’ve made that very clear. And I’m sure I am a pain in their collective butts in bringing up these legal issues that they would rather not have brought up. But I am right, and people who really understand international law agree that I’m right. And the rest of the world, that actually cares about international law and the lawfulness of acts of international organizations, thinks these things are important and shouldn’t be marginalized. 


10 Comments on “Hibbs on Closing the Iran File”

  1. Dan:

    Do not feel lonely. My comments have also not been posted at Arms Control Wonk. I guess we do not follow the official line of these people.

  2. Cyrus says:

    Well, I’m not sure if it is a good thing or bad thing that my comments are allowed at ACW but I sincerely hope that the wonks can learn to appreciate the views of knowledable experts such as Dan over hacks like me.

    I too am surprised when otherwise rational and fairminded individuals suddenly just lose it when it comes to Iran.

    Regarding this particular article, I too was left wondering what Mark Hibb’s point was other than to say that Iran should just do everything demanded of it. Here Mark Hibbs is just being wilfully blind to the political context, in which there’s a long history of Iran making compromises only to be met with increased demands. For example nevermind the illegalities of the demands, since specious arguments can always be made (ironically by mostly non-lawyers over at ACW.) Nevermind that Iran has already offered to cease 20% enrichment — which it was forced to engage in in the first place due to sanctions preventing the sale of nuclear fuel to a reactor that has NO real weapons proliferation concern. Nevermind that Iran has repeatedly also offered to ratify the AP (indeed, to go well beyond the requirements of the AP in imposing additional voluntary restrictions on its nuclear program that no other nation has agreed to.) Oh but Iran breached safeguards! Nevemind it was a result of the US interference of otherwise perfectly legal efforts by Iran to obtain technology tha the NPT states Iran has an “inalienable right” to have. Nevermind that the IAEA itself stated that the previously undeclared activities had no relation to a weapons program and involved no diversion of nuclear material to non-peaceful uses. No, nevermind any of that.

    The bottom line — and something that the wonks don’t want to acknowledge– is that the entire nuclear dispute with Iran has been deliberately cooked up by the US to be used as a justification and pretext for a policy of imposing regime change there — a conclusion that ElBaradei and others have reached too. Thus, no compromise by Iran will ever suffice and instead goalposts will always shift. And especially since no amount of IAEA inspections can EVER establish that one day in the indefinite future Iran COULD NOT make a bomb, and no amount of inspections can ever PROVE that there are no “undeclared nuclear facilities” in Iran, and since any country with a basic nuclear program could be characteriazed as having obtained the “capability to make nukes”, the standards applied to Iran are intentionally designed to be non-achievable.

    With the new president in Iran, and suggestions that yet more compromise offers are forthcoming, we will see if this has changed. I doubt it and instead I think we’ll just see a repeat of the previous pattern of Iran offering concessions and the US slapping them away and making yet greater demands. And in this midst there will be cheerleaders posing as wonks who no doubt stand to benefit from grants and fellowships as long as they say the right things.

    • Cyrus says:

      Oh and another political angle that goes missing: THere are some wonks who have recently written that the election of Rohani in Iran may be an opportunity for a breakthrough and criticize the US side for not being flexible enough in making better offers to Iran. However these people are ignoring the political facts: There are very powerful voices in Washington who are dead set against any sort of easing up on Iran, and nothing short of regime-change or war will satisfy these people. They hold sway over Congress. The President is himself pretty powerless since most of the sanctions are imposed by the legislative not the executive branch (which has its own interesting constitutional implications.)

      So how exactly would the US ease up on Iran?

      The political reality is that the US cannot make any compromise offers in return for Iran’s concessions. Obama has nothing of value to offer Iran even if he wanted to offer something. Lifting sanctions is a third rail. The US has painted itself into a corner so that raising the stakes is the only politically viable option for any US politician.

  3. Cyrus says:

    Andby the way if you liked Hibbs’ post you should read Robert Einhorn’s piece at Foreign Affairs — according to him there is no right to enrich and furthermore Iran has “forfeited” her rights under the NPT anyway and Iran has to learn that its nuclear program has to be met wit the “approval” of the US …. but the negotiations should not be “hung up on rights.”

    Wow, no wonder why this issue has dragged on for so long.

    • Nick says:

      Einhorn brings up number and type of centrifuges IRI can be allowed to have, that I also have mentioned here long before he did with this article.

      With this attitude and what he and Ross have said about break out period, there is no solution to this issue, I am convinced of that.

      What do they expect, for all these next generation centrifuges (IR4, IR6, etc.) under development to be chucked? If the end state, as he puts it, is to have couple of thousands IR1 to spin at SWU of 0.7 when the best Urenco and others can offer is at least 70 times better, then this is non-starter, in my opinion. They might as well call the result of these negotiations a failure.

  4. Pirouz says:

    Don’t feel bad, Dan. I’m also persona non grata over there.

    You have to realize that the AC community is something of a club where if you step out of bounds you lose professional standing, access and perks.

    I don’t even read ACW any more beyond scanning the title of their posts. IMO the site took a nose dive years ago when Geoffrey Forden departed (boy, was Jeffrey pissed when Forden congratulated Iranian rocket scientists on their successfully putting a satellite into earth orbit).

    • masoud says:

      I do recall Jeff was quite annoyed with Geoff about those remarks. I think Geoff probably stopped blogging because he was recruited to some government job where he receives access to classified information. He was the only ‘proffessional’ Iran watcher that even allowed for the possibility that the Iranian space program was anything more than the launching of refurbished North Korean Nodong’s. He was also the only analyst to react with anything other than disbelief to Iran’s initial launch and begin to piece together what had actually happened with any degree of credibility.

  5. Denis says:

    My experience at ACW echo chamber is pretty much the same, and that is as a layperson just asking questions to try and understand the technical points, not as a professional AC dude with an agenda. I don’t bother to comment on any of Lewis’ posts, and rarely even read them anymore. The legal topics/discussions here and the technical topics/discussions at the FAS security and secrecy blogs provide more than enough to think about.

    OTOH, I do read Michael Krepon at ACW. His stuff is good and his responses are sincere and helpful.

    I may be seeing blue and white monsters under my bed, but it seems to me that the best way to get booted from ACW is to 1) criticize Israeli policies; 2) be insufficiently critical of IRI policies; or 3) criticize the anti-IRI dogs like Albright. It all adds up to what seems to me to be pro-Zionist cheer-leading for another bloody regime-swap.

    Which may be working. It bothers me that Bibi is suddenly releasing prisoners and talking 1967 borders. I worry that if GoI gives Obama that quid, the quo will be US B61-11 nukes busting IRI’s bunkers, probably the only things that can get to those centrifuges. Obama would probably attack IRI if it meant he would be the president to crack the Palestine/Israel nut.

    Unfortunately, the international law has never been written that will stop that.

  6. masoud says:

    “All the BOG can do is determine that a safeguarded state is in noncompliance with its safeguards agreement, and, if it chooses, refer the matter to the Security Council.”

    I know this is me being a little pedantic, but I don’t think this is strictly true. The BOG also has the option of suspending the privelege’s Iran receives by virtue of being a member of the IAEA. I guess this means they can stop joint training programs, withhold technical expertise, demand the return of any equipment on hold, stop processing requests for the purchase of enriched fissile material etc…

    Essentially a whole lot of things that the IAEA has in many cases already done underhandedly and informally.

    I think many people mistake, or purposely misconstrue, that particular language in NPT to mean the IAEA can demand Iran stop specific nuclear activities. But that’s ridiculous: the ability to engage in enrichment and even reprocessing activities aren’t priveleges granted by the IAEA, they are sovereign rights that pre-exist both the NPT and IAEA. I know for a fact that this has been brought to Mark’s attention, as well as the attention of the rest of the folks at ACW, many many times. Somehow they seem to plough on silently ignoring these inconvenient facts, even though historically this issues have been raised repeatedly in their comments sections.

    While i can’t say i know for sure why this happens, I have a strong hunch it has a lot to do with funding. I think the people who pay to fund departments and chairs, not to mention allow for research opportunities and provide ‘access’ to top decision makers in the US for this specific study are overwhelmingly tied to the national security state. At the end of the day, you got to give the client what he’s looking for. I’m sure it would be an extremely dumb career move for any of these folks to agree with reason when it contradicts US defined national security perogatives. And who knows? Maybe our collective chatter on their forums has cost someone an extra car, or the payments on a cottage or something. We can only hope.

    As a fellow outcast ACW outcast, I can’t for the life of me figure out why Cyrus is still allowed to comment there. Maybe he’s just more likeable than the rest of us.

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