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.

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10 Comments on “Mark Hibbs on the IAEA’s Legal Authority to Investigate PMD Allegations”

  1. Dan Joyner says:

    This comment is from Yousaf. He’s having trouble posting at the moment.
    ———————————-
    To me, it appears Mark is trying to clutch at straws desperately to try to justify Amano’s clearly politicized agenda. In doing so he does say some things that are correct as you point out.

    Overall, in his post Mark seems to try to justify what the IAEA is not doing in Marivan after the IAEA itself raised the Marivan issue — or more precisely, after some intelligence agency raised the issue and fed it to the IAEA.

    I’m not sure why so many words need to be written about Marivan: does the IAEA have an interest in investigating something there? If so, then why not go and check it out per Iran’s invitation. If not, why have it in the IAEA report?

    And if the Marivan allegation is now unfalsifiable as Cheryl Rofer contends then it should not be in the IAEA report either.

    And if the Marivan issue has been resolved, then the IAEA should say so. The IAEA also failed to say the 19.8kg of natU is now resolved.

    Also Mark seems to say that without an AP the IAEA’s obligations/responsibilities are also limited which is good to hear. Lucky then for the IAEA that Iran has not ratified the AP else they may be forced to look at something they raised but now are actively avoiding inspecting.

    I would give Amano the benefit of the doubt had the IAEA (and other think-tanks) not made so many technical mistakes in raising the PMD issues.

    Partial list of PMD concern’s technical validity:

    https://armscontrollaw.com/2014/06/17/what-is-the-quality-of-scientific-evidence-against-iran/

    definitive article on Parchin:

    http://www.lobelog.com/the-parchin-puzzle/

    AP graphs:

    http://wmdjunction.com/130205_graphic_distraction_iran_iaea.htm

    Po-210 propaganda:

    https://armscontrollaw.com/2014/02/03/polonium/

    The non-missing “missing” 19.8kg of nat Uranium:

    https://armscontrollaw.com/2014/11/18/the-case-of-the-missing-19-8-kg-of-iranian-uranium/

    The wrong claim on centrifuge R&D by ISIS think tank:

    “A Cautionary Tale:” by @TylerCullis https://medium.com/@tylercullis/a-cautionary-tale-83da20b004b6?source=tw-lo_193105493b22-1418880953428

    =======================================
    Why all the mistakes by the IAEA?

    http://nationalinterest.org/feature/why-the-iaea-getting-iran-wrong-11673?page=show

    • yousaf butt says:

      Thanks for posting Dan.

      re. your point: “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.”

      Even the IAEA admits: ““absent some nexus to nuclear material the Agency’s legal authority to pursue the verification of possible nuclear weapons related activity is limited…”

      http://www.iaea.org/sites/default/files/gov2006-15.pdf

    • Johnboy says:

      I agree with Yousaf regarding Cheryl Rofer’s oh-so-tedious blog post.

      She is arguing that it would be “a waste of the IAEA’s time” attempting to find out if the “large scale experiments” alleged in the 2011 report were true.

      Apparently in Wonk-World it is enough that an accusation is made; finding evidence for/against that allegation are entirely optional-extra because, gosh, look at the time…..

      Yousaf is quite correct to point out that *if* the reason why accusation is not going to be substantiated is because it *can’t* be substantiated (i.e. Rofer-logic) then the accusation needs to be withdrawn.

      After all, once that conclusion is reached then the “information” is no longer “information”, it is nothing more than “scuttlebutt”.

  2. Johnboy says:

    Dan: “But reading Mark’s new ACW piece at least appears to clarify his position, and demonstrate that it is in agreement with mine.”

    I very much doubt it. I would suggest that Mark is simply doing a very good impersonation of Humpty Dumpty: “When I use a word it means exactly what I want it to mean, neither more nor less.”

    He is “agreeing” with you in this particular case because he can come up with no other reason why Amano is being so coy.

    He will “disagree” with you in the next case where it suits his purpose, and he will do so without so much as blushing.

    You can’t expect any consistency in their arguments because they are playing politics.

    That’s exactly what the “establishment arms control wonk community” does, precisely because that’s why they exist i.e. they exist to act as the cheer squad for US Government policy.

  3. yousaf butt says:

    Re. the nuclear materials connection that Hibbs apparently now endorses as pre-requisite to IAEA involvement: wonder if this means he also favors dropping all references by IAEA to warheads and missiles that the IAEA made since those also do not involve nuclear material.

    Pretty clear anyway that the IAEA has little to no competence in evaluating missile activity. That’s simply not its job. The IAEA’s job is simple: nuclear materials accountancy. In states without an AP this is limited to declared material. In those with an AP the IAEA may be able to vouch for all nuclear material.

    Iran is 1 of 54 states where IAEA cannot confirm the absence of undeclared nuclear materials and activities:

    http://www.iaea.org/safeguards/documents/Statement_for_SIR_2013_GOV_2014_27.pdf

    “Evaluations regarding the absence of undeclared nuclear material and activities for each of these [54] States remained ongoing. ”

    So the IAEA cannot confirm the “purely peaceful nature” of 54 nations’ nuclear programs.

    No big deal because confirming the purely peaceful nature of nuclear programs is not the IAEA’s job. Their job is nuclear materials’ accountancy.

  4. Cyrus says:

    “On Iran’s terms”?? Is Hibbs implying that is the reason why the IAEA is not visiting Marivan?

    • yousaf butt says:

      His sentences are: “were the IAEA to agree to Iran’s terms for a one-off visit to Marivan, and if the IAEA failed to find anything, Iran would probably shut the door. That happened at Parchin, where the IAEA in 2005 failed to detect non-compliant activity and Iran then barred the IAEA from visiting a specific location it now wants to see.”

      He is incorrect on Parchin.

      IAEA was allowed to visit anywhere it wanted in Parchin — it chose not to go where it now has a sudden interest:

      https://armscontrollaw.com/2013/01/22/yousaf-butt-pretty-in-pink-the-parchin-preoccupation-paradox/

      QUOTE:
      ========================

      When the IAEA last went to Parchin, Olli Heinonen was head of IAEA safeguards and led the inspections – the methodology for choosing which buildings to inspect is described in an excellent Christian Science Monitor article which is worth reading in its entirety, but I quote the relevant bits:

      “At the time, it[Parchin] was divided into four geographical sectors by the Iranians. Using satellite and other data, inspectors were allowed by the Iranians to choose any sector, and then to visit any building inside that sector. Those 2005 inspections included more than five buildings each, and soil and environmental sampling. They yielded nothing suspicious, but did not include the building now of interest to the IAEA.

      “The selection [of target buildings] did not take place in advance, it took place just when we arrived, so all of Parchin was available,” recalls Heinonen, who led those past inspections. “When we drove there and arrived, we told them which building.”

      Would the Iranians really have risked exposing some nefarious nuclear weapons-related work at Parchin by making all of Parchin available to the IAEA in 2005?

      In the same article Heinonen also explains why the current IAEA approach is deeply, logically flawed:

      “Also unusual is how open and specific the IAEA has been about what exactly it wants to see, which could yield doubts about the credibility of any eventual inspection.

      “I’m puzzled that the IAEA wants to in this case specify the building in advance, because you end up with this awkward situation,” says Olli Heinonen, the IAEA’s head of safeguards until mid-2010.

      “First of all, if it gets delayed it can be sanitized. And it’s not very good for Iran. Let’s assume [inspectors] finally get there and they find nothing. People will say, ‘Oh, it’s because Iran has sanitized it,’” says Mr. Heinonen, who is now at Harvard University in Cambridge, Mass. “But in reality it may have not been sanitized. Iran is also a loser in that case. I don’t know why [the IAEA] approach it this way, which was not a standard practice…”

      As for the typically tendentious reporting on this topic, which almost always casts Iran in a negative light, the words of Hans Blix, former head of the IAEA, bear repeating:

      “Hans Blix, former chief of the IAEA and later of UN weapons inspectors in Iraq, has also expressed surprise at the focus on Parchin, as a military base that inspectors had been to before.

      “Any country, I think, would be rather reluctant to let international inspectors to go anywhere in a military site,” Mr. Blix told Al Jazeera English… “In a way, the Iranians have been more open than most other countries would be.”

      ========================END QUOTE=====

      Hibbs also states: ” If the IAEA instead goes to Marivan, and finds nothing, Iran will declare the case closed.”

      Is there a reason that that is necessarily a wrong outcome? Perhaps the case should be closed if the allegations are wrong. The belief that Iran must be wrong betrays the conclusions that many non-proliferation pundits have already formed in their heads in the absence of any evidence or technical arguments.

      In fact, a technical analysis of publicly available PMD issues shows that *all* of them can be explained as dual-use, likely forgeries, or are now resolved (as outlined in my first comment above). Or, in the case of Marivan, according to Rofer, are merely unfalsifiable allegations or rumors.

      • Johnboy says:

        Hibbs: “If the IAEA instead goes to Marivan, and finds nothing, Iran will declare the case closed.”

        Yousaf: “Is there a reason that that is necessarily a wrong outcome?”

        That’s the money-shot, right there.

        The allegation is that Something Big happened “in the region of Marivan”, and the offer is to let the IAEA pick any place it wants “in the region of Marivan”.

        If they look and find nothing then…. what, exactly, Mark Hibbs. Apparently in wonk-land it leads to a shrug of the shoulders and a muttered “The absence of evidence is not evidence of absence!”

        Because it does appear that in wonk-land what is important is that An Allegation Has Been Made, and having evidence to support it is an optional-extra.

        Here, look at the IAEA Report again….
        “Further information provided to the Agency by the same Member State indicates that the large scale high explosive experiments were conducted by Iran in the region of Marivan.”

        Notice that the word used was “information”. The word “evidence” is nowhere to be seen.

        But both Mark Hibbs and Cheryl Rofer appear to take it on faith that when the IAEA says “information” they really mean “evidence”, and their ears prick up when they hear that dog-whistle blowing.

        But this is true: the IAEA has said only what it has said.

        And all that it has said is that Somebody Nameless supplied it with “information” that Something Dastardly took place Somewhere In Marivan.

        Everything else is speculation, and it is beyond hilarious that Mark Hibbs and Cheryl Rofer castigate Gareth Porter for “guessing” when they refuse to see that they are engaging in exactly the same thing Cheryl Rofer in particular, who appears convinced that the IAEA has hard evidence only… gosh… I’d love to show it to you but…. heck, look at the time….

        It’s A-OK when they “guess”, because they know their prejudices are going to be correct.
        It’s lamentable when Gareth Porter “guesses”, because they know his prejudices are wrong.

        Why, exactly? Care to show us all your Certificate of Omniscience, First-Class With Honours?

  5. yousaf butt says:

    Odd that Rofer evidently still does not get it: She might be right that 10 yrs after the alleged event there may be no evidence of the alleged test at Marivan. But the point is that if she is right and if the information provided to the agency has passed its sell-by date, and the information is no longer proveable or falsifiable then the Agency should not have it in its reports.

    Only information that can be proven or shown to be false should be in official reports.

    Information that is unverifiable has no place in IAEA reports. Such information is referred to a unverifiable rumors.

    If Rofer is right then the IAEA is wrong to have unverifiable rumors in its reports.

    Hans Blix view on shoddy intelligence is here:

    http://www.lobelog.com/ex-iaea-chief-warns-on-using-unverified-intel-to-pressure-iran/

    Excerpts:
    ========================
    “Hans Blix has called for greater skepticism about the intelligence documents and reports alleging Iranian nuclear weapons work…”

    “I’ve often said you have as much disinformation as information” on alleged weaponization efforts….

    Such allegations, according to Blix, “can be employed as a tactic to keep the state in a suspect light—to keep Iran on the run.” The IAEA, he said, “should be cautious and not allow itself to be drawn into such a tactic.”

    Blix has been joined by two other former senior IAEA officials in criticizing the agency for its uncritical presentation of the intelligence documents cited in the November 2011 annex. Robert Kelley, the head of the Iraq team under both Blix and ElBaradei, and Tariq Rauf, the former head of the Agency’s Verification and Security Policy Coordination Office, have written that the annex employed “exaggeration, innuendo and careful choice of words” in presenting intelligence information

    Blix said he is “critical” of the IAEA for the boilerplate language used in its reports on Iran that the Agency is “not in a position to provide credible assurances about the absence of undeclared nuclear material and activities….”

    Blix added that it is “erroneous” to suggest that the IAEA would be able to provide such assurances if Iran or any other state were more cooperative.
    =========================

    Happy holidays!

    • Johnboy says:

      Indeed.

      Cheryl Rofer is showing a marked bias towards the IAEA, insisting that the IAEA has “additional evidence” because… well…. if they don’t then they would be peddling scuttlebutt, and that nice Mr Amano would never do that…

      Here, this is in her latest post over at Hibbs’ bizarre wonk-article:
      CR: “Read the November 2011 annex, which says the IAEA has additional evidence.”

      Read the November 2011 annex, which says no such thing: “Further information provided to the Agency by the same Member State indicates that the large scale high explosive experiments were conducted by Iran in the region of Marivan.”

      That’s it.

      There is nothing more in that annex regarding Marivan, and the word “evidence” is conspicuous by its absence.

      Cheryl is dismissive of the offer to visit Marivan because she is convinced – utterly and unshakeably certain – that the IAEA must have that “additional evidence” to back up that 3rd-party “information”, thereby making it irrelevant whether (or not) there is any evidence to be gleaned on-site.

      She doesn’t know what that “additional evidence” is, and she can’t actually point to any statement in that Annex wherein the IAEA states that it does have any evidence whatsoever.

      She doesn’t need any of that: she has “faith” that the IAEA must possess “additional evidence” because otherwise… well… gosh… let’s not go there, shall we?

      Don’t get me wrong: there are times when “faith” is a great thing. Religion, surely. Times of grief, definitely.

      But in nuclear arms-control?

      Why, exactly, should anyone take anything “on faith”?


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