Nuclear Weapons Life Extension Programs and Article VI of the NPT

Garrett Hamel — Nuclear Life-Extension Programs

A couple of weeks ago I posted a paper written by one of my students in the class I recently taught at the University of Ottawa School of Law.  I said there that two of the papers turned in by students in that class were so exceptional in their quality, and in the timeliness of their subject matter, that they deserved a broader audience.

The second of those papers was written by Garrett Hamel, a JD student at the University of Ottawa, on the topic of nuclear weapons life extension programs and international law. This is a very timely subject, as the question of the future expense of nuclear weapons modernization programs in the US is high politics right now. Garrett did a really excellent job in this paper reviewing life extension programs, and then considering the obligations on all states imposed in Article VI of the NPT related to nuclear disarmament. I highly recommend the piece to readers.

Sources Say the IAEA Thought About Writing a Report, But Didn’t . . . Details at 11 . . .

This new article by Fredrik Dahl really is just the worst kind of empty sensationalism, and in my opinion is also just bad journalism.

It reports that “sources” say the IAEA thought about releasing a new report presenting more information about the possible past military dimensions of Iran’s nuclear program, but then decided not to. These sources don’t know what would have been in the report, had it been written, although they are certainly willing to speculate about what may have been in the report, had it been written, and how important what may have been in the report, had it been written, might have been to ongoing negotiations between Iran and the IAEA.

This is the worst kind of speculative navel gazing about something that DID NOT HAPPEN, and so can’t be challenged on the basis of what ACTUALLY DID HAPPEN. Do they edit things over at Reuters?

Pretty clearly the purpose of this piece is to join with David Albright, whose latest little bit of propaganda is cited in the article, in trying to keep the PMD issue in the spotlight, and by so doing attempt to scuttle any potential deal between the P5+1/IAEA and Iran.

Once again, not cool, Fredrik Dahl.

CW Law Symposium at Roma Tre

CW Law Program

I just wanted to quickly bring attention to the program of a symposium on chemical weapons law that is being organized by my friend Mirko Sossai at Roma Tre University on March 20-21.

This is a truly excellent lineup of participants and speakers, including our good friend Jean Pascal Zanders. Many of the very best people working in the field will be attending. I can’t attend myself, but I wish I could.

New Pieces by Friends

Just wanted to call attention to a few new pieces by friends that make important contributions.

First, a new piece by Peter Jenkins over at Lobelog on the recently released IAEA DG report on Iran’s safeguards compliance.  Peter states very clearly and correctly that:

The latest IAEA report suggests that Iran is in full compliance with its Nuclear Non-Proliferation Treaty safeguards obligations, and states unequivocally that “the Agency continues to verify the non-diversion of declared nuclear material at nuclear facilities…declared by Iran under its Safeguards Agreement.

Second, a new piece by Yousaf Butt in Reuters, offering a thorough and insightful critique of the IAEA’s politicization and failings under current DG Yukiya Amano.

Third, a very important new piece by Robert Kelley, detailing the history of Iran’s nuclear program and disputes surrounding it. Bob does an excellent job of being rigorous, honest and balanced in his assessment.

I recommend all three pieces highly to readers.

PMD Thoughts

With the latest round of talks between the P5+1 and Iran in Vienna, there has been another resurgence of writing on the PMD issue. Some good. Most uninformed and/or agenda-driven.

One theme that I’ve noticed running throughout a lot of the commentary on the PMD issue is speculation about the intentions behind whatever nuclear weapons related R&D work went on in Iran up until 2003. And this speculation is often presented more as a statement of fact than as speculation.

For example, Jeffrey Lewis in a piece in Foreign Policy a while ago said:

Left to its own devices, the 2007 NIE suggests, Iran would likely have acquired a nuclear weapon.

Similarly, in his piece just posted yesterday over at Arms Control Wonk, Aaron Stein said:

According to my research, Iran made the decision to proliferate sometime after March 1984, but before the end of 1985.

Here and elsewhere, observers are speculating about Iran’s intention in doing whatever weapons related R&D they were doing. They’re speculating that Iran’s intention was linear – i.e. to progress linearly from R&D straight onward to building and fielding a nuclear weapon.

I think it’s fallacious, and possibly specious to assume that this was or is Iran’s intention. And more to the point, it is pure, unevidenced speculation.

Don’t the facts of Iran’s R&D work with nuclear weapons – even accepting as facts those allegations that are controversial and that Iran has denied – equally or more persuasively support the hypothesis that Iran’s intent or purpose in carrying out that R&D work was to reach a level of technical and industrial capacity and knowledge at which Iran would be capable of producing a nuclear weapon, without necessarily taking the decision to build a nuclear weapon?

This is the concept of “nuclear hedging,” as introduced by Ariel Levite in his groundbreaking article in International Security in 2002. As Levite explained:

Nuclear hedging refers to a national strategy of maintaining, or at least appearing to maintain, a viable option for the relatively rapid acquisition of nuclear weapons, based on an indigenous technical capacity to produce them within a relatively short time frame ranging from several weeks to a few years.

In its most advanced form, nuclear hedging involves nuclear fuel–cycle facilities capable of producing fissionable materials (by way of uranium enrichment and/or plutonium separation), as well as the scientific and engineering expertise both to support them and to package their final product into a nuclear explosive charge.

Nuclear hedging is a strategy that may be adopted either during the process of developing a bomb or as part of the rollback process, as a way of retaining the option of restarting a weapons program that has been halted or reversed.

So again, don’t the facts of Iran’s R&D work on nuclear weapons pre-2003 better fit a nuclear hedging policy, than a policy of a linear march to a bomb? I mean it’s fairly clear that Iran’s impetus for doing the nuclear weapons R&D that it did during this period was its traumatic war with Iraq, which had included the use of chemical weapons against Iran, and the continued threat that Saddam Hussein posed to Iran. Doesn’t it make sense that, faced with this very real threat and history, Iran would want to develop the capacity to produce nuclear weapons to defend itself in the case of another war with Iraq? But again, just because it makes sense that they might want the capability to do this, does not mean that they would have ever exercised the option to build a nuclear weapon.

It’s also fairly clear that Iran stopped its nuclear weapons R&D work around 2003, due to the invasion of Iraq by the West – effectively removing the Iraqi threat – and to concerns that if its own weaponization R&D work were discovered, it might be next on the US hit list. To me, this is a persuasive narrative with bookends, and again fits perfectly with the idea that Iran achieved capability in some aspects of weaponization, and overall is keeping its options open with regard to the future, but has not made a decision to build a nuclear weapon. In short, that Iran’s case is perfectly described by the concept of nuclear hedging.

It is well known that there are a number of states in the world today who are nuclear weapons threshold states – who have all the necessary knowledge and the technical and industrial capabilities to build a nuclear weapon in short order. And the fact that they have not yet exercised that option, is proof of the prudence that a number of states see in achieving and maintain the capability to build a nuclear weapon, but choosing not to exercise that option.

So again, whatever nuclear weapons R&D work Iran did in the past, we do not know and should not speculate about their intent in doing that work and obtaining that knowledge and capability. Nor should we speculate, as so many do, what Iran’s intent is regarding the future. There is absolutely no evidence, and this conclusion is borne out by the conclusions of the US intelligence community, that Iran is currently seeking to build a nuclear bomb, or that they will seek to do so in the future.

Another thing that you always hear when particularly US government officials, but also IAEA officials, talk about the PMD issue, is that it’s necessary to include the resolution of the PMD issue in the negotiations between Iran and the P5+1/IAEA, because only through Iran’s transparency about this work, and admission of its having been done, can the international community begin to build trust with Iran, and confidence that Iran is not currently engaged in nuclear weapons related work.

But have you ever stopped to really think about that rationale, and whether it makes sense?  How, in practical terms, will knowing the details about what Iran did in the past regarding weaponization R&D, give other states or the IAEA any meaningful confidence about what Iran is or is not doing now regarding weaponization R&D?

How will knowing the details of what Iran did in the past, and having Iran admit to them, actually increase other states’ ability to trust Iran now?

I confess I don’t see a real, practical connection between the propositions in either of these questions.

Don’t we already have the conclusions of the US intelligence community that, whatever weaponization R&D work was going on in Iran pre-2003, it has been halted since then, and that there is no evidence that Iran has made or will make a decision to re-start it or to build a nuclear weapon?

Isn’t that exactly what this rationale says we need to know about Iran’s current program?

So how does knowing more about the details of what happened 15-20 years ago increase our confidence about what is going on now, or our trust in Iran about the future? To me it doesn’t make sense logically.

To me it appears that IAEA/Western insistence on having the PMD issue as part of the P5+1/IAEA negotiations with Iran, is more persuasively explained as a witch hunt for past truth and a concession of embarrassment for Iran which, while perhaps cathartic and a moral victory for the West, really serves no practical purpose for the present or future. It strikes me as more of a truth and reconciliation mission, which I think Iran understandably has no interest in. As Mark Hibbs has explained:

On February 3, Iran’s Foreign Minister, Javad Zarif, visited the German Council of Foreign Relations in Berlin. Zarif explained to us that Iran has no aim or interest in having nuclear weapons. In fact, he said that the credibility of Iran’s regime was founded upon Iran not having such an ambition or interest. That’s the crux. If the credibility of Iran’s regime rests on its disavowal of nuclear arms, then any admission by Iran to the IAEA that the Islamic Republic of Iran has been engaged in nuclear weapons-related research or experiments–which prima facie would have to be reported to the Board of Governors– would severely damage the regime’s reputation. Shia theology might imply that nuclear weapons are sinful, but the IAEA’s dossier poses a potential major credibility problem. For Iran at any point to admit that it worked on nuclear weapons would be orders or magnitude more significant than Iran admitting, as it did in 2003, to having failed to declare to the IAEA a flurry of nuclear activities which could be justified by Iran’s peaceful nuclear program.

So there is zero likelihood that Iran will ever sign a confession detailing nuclear weapons related R&D that may have gone on pre-2003, and for the West and the IAEA to insist on such a confession is a sure way to guarantee the failure of the current diplomatic effort with Iran.

I was having a conversation earlier today with a colleague, and he raised an insightful question about the purpose of international law, and how it might shed some light on how this issue should be dealt with in the context of the current negotiations between Iran and the West.

Most of the corpus of international law, including the sources of nuclear nonproliferation law such as the NPT and IAEA safeguards agreements, is most analogous to domestic tort and contract law, which focus on identifying breaches of law as between parties, and ensuring that the party responsible for the breach makes the damaged party whole. As long as an extra-judicial settlement of the issue can be reached among the parties, in these areas the law is generally happy to approve of that settlement, and allow the parties to move forward on the basis of that settlement. If that settlement can be reached – and it is often necessary or at least useful in order for such a settlement to be reached – without dragging into public view all of the sins of the parties against each other, and requiring a confession of guilt by the party responsible for the breach, the law will recognize the settlement in the interest of moving forward.

The exception to this paradigm occurs in criminal law, which is purposed in a clear explication of the facts of the breach of law, in order to establish the guilt of the responsible party, and to mete out an appropriate punishment for that party. Revelation of the facts of the case is also considered necessary both for the sake of the victim, as well as for the sake of broader society. In criminal law there typically is no such thing as a non-judicial settlement between the perpetrator and the victim that the law will recognize. A judicial finding of guilt or innocence is necessary for the disposition of the case.

In the context of negotiations between Iran and the West/IAEA over Iran’s nuclear program, I think it is clear that we are and should remain within the first, contract/tort law paradigm, and that we should not allow considerations more fitting for a criminal law paradigm to interfere – and they will interfere – in the peaceful resolution of this dispute, which can then allow the parties to move forward.

US Shared Liability for Iraq’s Use of Chemical Weapons Against Iran

Jennifer Kiss US Iraq Chemical Weapons Responsibility

As I mentioned a few posts back, I spent about three weeks this past January teaching a short course at the University of Ottawa School of Law.  I taught my signature “WMD Law & Policy” course to about ten students.  I was genuinely impressed by the quality of the students in the course, particularly when they turned in their end-of-the-course papers to be assessed.

Each student chose a subject relevant to the course on which to write their paper. The results were on the whole truly excellent.

I thought that two papers in particular were so exceptional in their quality, and in the timeliness of their subject matter, that they deserved a broader audience. One of those papers is by Juris Doctor candidate Jennifer Kiss, who wrote her paper on the topic of: The United States’ Decision to Ignore the Use of Chemical Weapons in the Iran-Iraq War: An Involvement that Remains Unpunished.  This is a tremendously important, and timely subject given the recent confirmation of US knowledge of Iraq’s use of chemical weapons during the Iran-Iraq war, and its continued material support for Iraq notwithstanding this knowledge.

I asked Jennifer for her permission to post her paper on ACL, and she kindly agreed.

On the topic of her paper, I think that, just from a moral standpoint, the revelations about US support for Iraq, in full knowledge that Iraq was using chemical weapons, seriously weaken the credibility of US protestations about the use of chemical weapons by any other state, including Syria.

But Jennifer goes further and uses some of the most cutting-edge legal scholarship on shared responsibility in international law, to argue that the US should additionally be seen to share in Iraq’s legal liability for this grave violation of the laws of armed conflict.  As Jennifer writes:

The revealed declassified CIA documents provide substantial amounts of concrete evidence proving that the United States not only knew about the Iraqi use of chemical weapons in the war, but that the Pentagon and the U.S. government determined that using those weapons against soldiers was acceptable because it was “just another way of killing people.” From these CIA documents and through it’s decision to play an active role in the planning of the Fao Peninsula battle strategy of Iraq in 1988, it is acceptable to believe that the U.S. knew that Iraqi military strategy involved the use of chemical weapons, therefore any plans devised by the U.S. must have included the use of chemical weapons.

As a result, it can be argued that the United States agreed to being involved in the internationally wrongfully committed acts by Iraq. Under the Article 47 of the ASR, since both states can be viewed as being involved in the wrongful acts, both the U.S. and Iraq should incur responsibility and both should be obligated to provide reparation to the Iran. The United States can be seen as having a cooperative responsibility as it aided in Iraq in committing the wrongful act against Iran, which parallels the ICJ’s decision in the Nicaragua Case when it found that both the U.S. and Honduras shared liability for the damage incurred by Nicaragua.

I think this is an excellent and persuasive analysis of an important, and too long underpublicized topic. I highly recommend it to readers.

No Iran Deal, No Problem

While I’m writing about Yousaf, I wanted to recommend highly to readers Yousaf’s most recent article in The National Interest, entitled “No Iran Deal, No Problem” (that title has kind of a Bob Marley ring to it, doesn’t it?).  In this new piece, Yousaf tackles and clarifies a number of common misconceptions about the Iran nuclear issue, including that the US is currently faced with a choice of either negotiated settlement or war. He also provides what I think is a very evenhanded prescription for moving diplomacy forward towards a meaningful resolution. Quoting from the piece:

To reach a comprehensive deal both sides should now own up to past mistakes and make amends. For instance, Iran should consider ratifying the Additional Protocol, which would provide more confidence that it would continue to abide by its safeguards agreement and minimize chances of future safeguards violations. Iran should also consider converting the Arak heavy-water reactor to a more—but still not perfectly—proliferation-resistant light-water reactor, or removing the spent fuel for disposition by a third country to prevent it from becoming a plutonium source. And Iran should be open to a frank discussion about whether it undertook weaponization research during the times of tension with Iraq in the 1980s and 1990s. Other countries, like Sweden and Switzerland, that had clandestine nuclear weapons programs—which continued to some extent even after their signing the NPT—are now in good standing with the world powers, so a resolution should not prove impossible.

In the spirit of reconciliation, the P5+1 states and the IAEA could admit to having used unorthodox procedures, partly motivated by political considerations, in handling Iran’s case. They should now support passage of a new Security Council resolution that annuls the past UN nuclear sanctions, and better captures the current reality of what a realistic end-state of Iran’s nuclear program would look like. Reforming the IAEA’s management structure and funding streams should also be seriously considered to improve the professionalism of the Agency. Bringing in a new IAEA chief who is seen as more apolitical than the current one could also be very helpful. Given its historical misuse, the IAEA should also revisit whether it will continue to accept intelligence from third parties, especially non-NPT member states.

I also want to highlight his prescription of the passage of a new UN Security Council resolution, which would effectively supersede and satisfy previous UNSC resolutions demanding that Iran cease uranium enrichment, and send Iran’s case back to the IAEA exclusively. As he says:

Fortunately, there is a simple way out of this byzantine and dangerous bureaucratic mess. The UN Security Council should now adopt a new resolution verifying that Iran is now technically in compliance with its safeguards agreement. Such a resolution would annul the previous UN resolutions calling for sanctions, and return Iran’s file to the IAEA. Individual countries that wanted to maintain unilateral sanctions would, of course, still be free to do so.

Another reason that the current set of UN nuclear sanctions on Iran should be annulled is because their prescription of zero enrichment will not be met. The negotiations between the P5+1 and Iran center on limits to enrichment—not on outright suspension. The 2006-era UN Security Council demand that “Iran shall suspend all enrichment-related and reprocessing activities” is outdated. As written, the old UN sanctions resolutions are essentially irremovable because their demands will not be met. A new UN resolution superseding the older ones would better capture the current reality while returning Iran’s file to the IAEA, the proper technical agency responsible for nuclear safeguards verification.

This article is really a first rate piece of analysis and writing, in my view. I agree with its analysis and prescriptions 100% and would urge readers to spread it far and wide through listserves, etc. Hopefully it will get in front of the right eyes.

Easy to Explain PMD Issue on the Table in IAEA Talks with Iran

The following is a quick explanation by Dr. Yousaf Butt of some important developments this weekend in negotiations between the IAEA and Iran. I really appreciate our good friend Yousaf using his considerable technical expertise to explain things like this to us simple country lawyers.

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Easy to Explain PMD Issue on the Table in IAEA Talks with Iran

By Dr. Yousaf Butt

The IAEA and Iran just released a joint statement on the talks that took place this weekend.

The agreement is a welcome development. The agreed measures are:

1. Providing mutually agreed relevant information and managed access to the Saghand mine in Yazd;

2. Providing mutually agreed relevant information and managed access to the Ardakan concentration plant;

3. Submission of an updated Design Information Questionnaire (DIQ) for the IR-40 Reactor;

4. Taking steps to agree with the Agency on the conclusion of a Safeguards Approach for the IR-40 Reactor;

5. Providing mutually agreed relevant information and arranging for a technical visit to Lashkar Ab’ad Laser Centre;

6. Providing information on source material, which has not reached the composition and purity suitable for fuel fabrication or for being isotopically enriched, including imports of such material and on Iran’s extraction of uranium from phosphates; and

7. Providing information and explanations for the Agency to assess Iran’s stated need or application for the development of Exploding Bridge Wire detonators.

This last element is part of the “Possible Military Dimensions” file that has hung up Iran’s case at the UN Security Council.

It is refreshing to see that this issue (7) will finally gain a likely resolution.

Frankly, it is surprising that it has taken this long for the Agency to get to the point of resolving the still-outstanding issue of the use of “Exploding Bridge Wire” (EBW) detonators. The Agency felt that these EBWs were for nuclear weapons (per the November 2011 IAEA report).

But there are many non-nuclear weapons uses for EBWs, especially for an oil-rich nation like Iran. One manufacturer of EBWs explains that these have “…applications in explosive welding of piping and tubing, seismic studies, oil well perforating & hard rock mining”

The manufacturer is explicit that EBWs “…have found a wide range of applications within the mining, explosive metal welding and energy exploration field. Many of these uses could not be accomplished using conventional blasting equipment without a compromise of safety.”

Furthermore, Iran was not secretive about its work on EBWs. As the November 2011 IAEA report states: Iran “provided the Agency with a copy of a paper relating to EBW development work presented by two Iranian researchers at a conference held in Iran in 2005. A similar paper was published by the two researchers at an international conference later in 2005.”

Would Iran be so open in pursuing a secretive nuclear weapon technology?

The Agency, however, noted, “Iran’s development of such detonators and equipment is a matter of concern…” It really is not given its other civilian (and conventional military) uses, and Iran’s relative openness in pursuing the technology.

As long ago as 2011 Robert Kelley, a former IAEA inspector, stated: “The Agency is wrong. There are lots of applications for EBWs….To be wrong on this point, and then to try to misdirect opinion shows a bias towards their desired outcome…. That is unprofessional.”

News reports have cast the agreement today as Iran finally providing openness on the issue — but Iran has told the IAEA before that the EBWs were for non-nuclear weapons uses.

Clearly, this issue could have been resolved long ago. But it is a positive development that the IAEA seems willing now to listen to reasonable explanations and hopefully the issue will likely – finally – soon be off the table.

Excellent New Article on the Polonium Issue

This is an outstanding new article by Jonathan Tirone, posted at Bloomberg. And very courageous – the IAEA under Amano does not take criticism well. But this is an important piece, setting the record straight about how bringing up the polonium issue now is both technically ridiculous, and threatening of the small signs of trust and cooperation that have started to emerge between Iran and the West. It includes some very good quotes by Bob Kelley and Tariq Rauf. It also cites to fascinating evidence of US and French officials intentionally trying to revive the polonium issue, after it had been resolved by the IAEA – which could be seen as an attempt to artificially gin up controversy where technically there was none, and thereby unnecessarily prolong the dispute between the West and Iran. As described in the article:

The IAEA’s March 2008 decision to suspend the investigation into Iran’s polonium experiments, made during Nobel laureate Mohamed ElBaradei’s tenure, prompted French and U.S. diplomats to seek new ways to reintroduce the issue. At the time, some diplomats didn’t want ElBaradei’s initiative to resolve allegations against Iran to derail sanctions.

France “suggested intensifying our involvement in verification of formerly outstanding issues, such as polonium, by feeding the secretariat additional information,” former U.S. IAEA envoy Greg Schulte wrote in March 2008 after the polonium file had been cleared.

Congratulations to Jonathan for this very valuable article, and for his and Bloomberg’s courage in publishing it.