Rauf and Kelley on the PMD Report and the IAEA Intel Problem
Posted: December 16, 2015 Filed under: Nuclear 2 CommentsTariq Rauf and Bob Kelley’s new SIPRI report providing an analysis of the IAEA PMD report is a must read. The two former IAEA insiders give a rigorous and critical review of the technical findings of the IAEA in both the original 2011 PMD report, and now in the final 2015 PMD report. You won’t find this kind of serious and independent review from the normal DC think tank crowd.
Rauf and Kelley further give some overall critical observations about culture and and administrative paradigm clashes in the IAEA, and then particularly focus on a problem that I and others have pointed to as well over the years – the increased recent reliance by the IAEA secretariat on intelligence information provided to it by third party member states. Here’s their conclusion and recommendations:
A structural weakness of the IAEA is that there is no transparent process for the supply of intelligence information and confirmation of its authenticity. The usual process is for the Member State(s) to provide the intelligence information either in documentation or electronic form to a special assistant in the Director General’s office and/or to the Deputy Director General for Safeguards, alternatively to give a closed briefing in its embassy/mission. The IAEA then deals with the information as described in an earlier section above. There is no established process to share such information with the accused State or with the BoG. In 1993, however, the IAEA Secretariat was allowed by the US to show classified satellite imagery provided by the US to the Board in a technical briefing. To the authors’ knowledge this modality has not been repeated.
The supply and use of intelligence information is a sensitive yet complex issue as noted in the excerpt from an IAEA BoG Governor cited in an earlier section above. The IAEA cannot serve as a feedback loop to intelligence agencies on the veracity of information provided by them through safeguards inspections and assessments. Nor can or should the IAEA rely on such information without confirming its authenticity. This obviously leaves the IAEA in a difficult position as is clearly evidenced by the Iran PMD file where the Agency seems to have been caught short.
RecommendationsThe authors recommend that the BoG put in place a methodology for the acceptance and use of intelligence information drawing from the practices of the Organization for the Prohibition of Chemical Weapons (OPCW) and the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO). In these two organizations, allegations of non-compliance can be raised by any State Party which provides its information to the Director General, who in turn shares it with the Executive Council. The Executive Council is convened; the Accuser State puts forward its case on allegations of non-compliance or suspicious activities in another State along with supporting information/evidence. The Accused State has the opportunity to present its defence. Following deliberations, the Executive Council can stop a challenge inspection in the case of the OPCW or authorize an on-site inspection in the case of the CTBTO. Such a practice could serve the IAEA well – the Accuser State to provide information to the IAEA Director General, who then shares it with the BoG, the Board convenes to examine the in formation presented by both the Accuser and Accused States and then to decide on the way forward preferably on the basis of consensus but by a vote if necessary. In fact, the JCPOA contains a somewhat similar provision for the Joint Commission in paragraph 36 on dispute resolution, and as noted previously in 1993, the IAEA Secretariat presented satellite imagery on DPRK from the U.S. to the Board of Governors.
It is essential that the IAEA BoG expeditiously comes up with a mechanism governing the provision and handling of intelligence information to the IAEA Secretariat. There is great potential for misuse of such information and of suborning the independence of the Agency in the absence of such a mechanism, as abundantly demonstrated by the cases of Iraq, Iran and Syria in recent time.
In my view this is first class analysis. Not only clearly identifying an important problem, but also providing an eminently workable solution that is already in practice in similarly situated and mandated arms control organizations. I truly hope that the IAEA BOG will take heed of this report and institute the changes Rauf and Kelley propose.
Arms Control Law 
Some excerpts from Iran’s communication/statements:
Iran’s communication to the Agency – INFCIRC/737 (1 October 2008):
The Agency has not delivered to Iran any official and authenticated document which contained documentary evidence related to Iran with regard to the alleged studies.
It is evident that anybody who intends to forge a document uses real names to show the material more convincing and internally consistent. The Islamic Republic of Iran however has proved that some of documents produced by the United States not only are not internally consistent but also have clear inconsistency and are in contradiction with typical Iranian standard documentation. In addition, none of these documents bear any classification seals.
How can one make allegations against a country without provision of original documents with authentity and ask the country concerned to prove its innocence or ask it to provide substantial explanations.
Iran has explicitly stated that it has not conducted any activities or studies referred to in the” alleged studies”. Therefore slides and documents produced by the United States are fabricated and baseless allegations attributed to Iran.
Statement before Board of Governors (18 November 2011):
At the outset I have to warn all Member States that the Agency Safeguards is diverted from “Nuclear material driven safeguards” to “Information driven” approach. This is a clear breach of the Statute and the Safeguards agreements. The Agency is turning into an intelligence military orientated Agency working closely with so called “Open Sources” far from its mandate stipulated in the safeguards agreement which is merely “verification of the declared nuclear material”.
Statement before Board of Governors (6 March 2013):
It is a matter of great concern that the verification is turned into “Intelligence information driven safeguards” and is based on information from open sources and there is no accountability and compensation if allegation proved baseless. We have to change this dangerous approach which is going to be precedence. One could think of the model envisaged in the CWC where a country has to officially request a challenge inspection against other member state. The requested member state is fully responsible and not the secretariat.
Unfortunately, despite Iran’s protest during several years of “manufactured crisis”, similar warnings, proposals and recommendations that provided here on the Agency’s verification mandate/method have never considered seriously by the Agency in a legal and technical framework, until a political agreement reached by Iran and the 5+1; although, this political agreement could not substitute a legal and technical approach by the IAEA.