The North Korean Nuclear Test

Readers will remember that I wrote this piece on North Korea before their most recent nuclear explosive test. I’m hearing some talk that they might be prepping for yet another one soon.

Here are a couple of the best pieces I’ve seen written about the new test recently. One is by Graham Allison in the NYT; the other is by Jeffrey Lewis at FP.

I’m not a technical guy, but the fact that NK now seems to have both a plutonium and a uranium track working for producing nuclear weapons; their apparent success in increasing test yield while at the same time making progress in miniaturization; along with the ever increasing range of their missiles – all this is pretty freaking dangerous stuff. 

As I said before, the North Koreans concern me a whole lot more that Iran, India, Pakistan, or Israel. And it’s because of what I perceive to be their just plain nuttiness. Irrationality driven by intense paranoid delusion; the completely autocratic nature of the government and its control over information to the North Korean people; and the government’s over-the-top aggressive rhetoric towards its neighbors and towards the U.S. 

If the North Koreans didn’t have such an obviously developing nuclear weapons program, all of the above wouldn’t bother me so much. On the other hand, if they were developing a nuclear weapons program and weren’t so nutty that wouldn’t bother me so much either. But the combination of the two, and the thought that some day not too far away we may have to deal with a North Korea that really does have the capacity to shoot a nuclear armed ICBM at Japan, and then soon after at the continental U.S. – this seriously concerns me.

As I said in my previous piece, I know well all of the problems associated with any attempt to seriously do something about the North Korean threat. But we have got to come up with something better than just watching this happen.

As this is a blog devoted to arms control law, I suppose I should mention the international law applicable to North Korea right now. In terms of their possession and proliferation of nuclear weapons, the only law currently binding on them is the raft of U.N. Security Council resolutions commanding them to stop their nuclear weapons program and re-join the NPT. Then of course there’s Resolution 1540 on export controls and proliferation generally.

Unfortunately, in this case, one also has to consider the rules of international law on the use of nuclear weapons. This of course was the subject of the 1996 ICJ Advisory Opinion. Not that I expect the North Korean leadership cares, but that opinion, along with what I consider to be settled customary international law at this point, establishes clearly that any use by North Korea of nuclear weapons against any other country, under any reasonably foreseeable circumstances, would be illegal under international law.

The ICJ of course waffled on the question of whether a state could lawfully use nuclear weapons “in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.” Of course, extreme circumstances of self-defense would only go, if anywhere, to the jus ad bellum question of whether a use of force against another state would be lawful. It does not go to the jus in bello question of whether the use of nuclear weapons during an armed conflict would be lawful under international humanitarian law, and its restrictive principles of distinction and proportionality particularly.  As Yoram Dinstein has written about this part of the ICJ’s holding “[This] sentence is the most troublesome. The linkage between the use of nuclear weapons and ‘extreme circumstances’ . . . is hard to digest: it appears to be utterly inconsistent with the basic tenet that [the law of armed conflict] applies equally to all belligerent States, irrespective of the merits of their cause . . .” (The Conduct of Hostilities, pg. 78)

Thus, any international use of nuclear weapons by North Korea, even if it was under full-out attack by the U.S. and South Korea and Japan, would be extremely difficult to justify under international humanitarian law. I’m sure that the imaginative out there might be able to come up with some hypothetical scenarios under which legality might be arguable – perhaps a tactical or low yield use targeting an isolated military object in South Korea, or in the Sea of Japan or East China Sea against a naval target. But fully complying with the distinction and proportionality principles relative to targeting in the modern law of armed conflict, as well as with international environmental law rules operative in armed conflict, would be extremely difficult – approaching impossibility.

Make Tehran a Serious Offer

Excellent new piece from Yousaf Butt today in the National Interest. Kind of sums up everything going on with sanctions and diplomacy regarding Iran. Yousaf is pretty incredible in keeping up with all of the good writing about Iran and producing pieces like this that give, in my opinion, the right analysis and policy recommendations. I dont think he sleeps!

“Going to Tehran: Why the United States Must Come to Terms with the Islamic Republic of Iran”

We’ve just finished the day-long symposium here at Penn State.  The event was well organized, and the hosts have been extremely kind and gracious. I thought my panel went well, and I was very impressed with Ambassador Butler. He has a true wealth of diplomatic experience, and possesses what I think to be a very fundamentally correct understanding of the NPT.  Penn State is very fortunate to have him here teaching in the School of International Affairs.

But the best thing about today, for me, was learning more about Flynt and Hillary Leverett’s new book “Going to Tehran: Why the United States Must Come to Terms with the Islamic Republic of Iran.” Reading their book and hearing both of their truly excellent presentations of their research and arguments in it, was a singular and profound thinking and learning experience for me. They are both first class scholars and intellectuals, and present their arguments in an extremely well organized, thought through, well researched and supported, and persuasive manner. Having read some of their book before I got to the conference, while I agreed on the essential thrust of the book already, there were a few points on which I was not at all sure that I agreed with them. But their discussions of their research and arguments today were persuasive, and I walk away from the conference with my mind changed on some things. That is a good day in academia. Being intellectually challenged, hearing rigorous and persuasive reasons supporting the challenge, and ultimately being persuaded to change your mind because you’ve learned something new.

I think it goes without saying, but I’ll say it anyway, that I HIGHLY recommend to readers Flynt and Hillary’s book.  It seeks to correct so many incorrect assumptions that even professor-types have about Iran, and proposes a particular approach for diplomatic rapprochement with Iran that I think is absolutely the best way forward for the US and the world.

Symposium at Penn State University

We wrote our new book, Going to Tehran: Why the United States Must Come to Terms with the Islamic Republic of Iran, out of a conviction that how Washington deals with Iran over the next few years will largely determine America’s standing as a great power-in the Middle East and globally-for at least the next quarter century. More specifically, if the United States continues its counterproductive quest to dominate the Middle East by intensifying economic warfare, cyber warfare, and covert attacks against Iran and perhaps even launching another war to “disarm” yet another Middle Eastern state of weapons of mass destruction it does not have, the “blowback” against the U.S. position and U.S. interests will be disastrous. If, on the other hand, Washington abandons its delusionally self-damaging quest to dominate the Middle East-and accepting the Islamic Republic as a legitimate entity representing legitimate national interests and “coming to terms” with it is essential in that regard-the United States will be much better able to protect its real and legitimate interests, in the region and globally.

We also believe that the course of U.S.-Iranian relations over the next few years will have enormous implications for the rules-based legal frameworks and governance mechanisms that shape international order in the 21st century. So we are pleased that, using our book as a “launch point,” the Penn State Journal of Law and International Affairs will sponsor a day-long symposium, “The U.S.-Iranian Relationship and the Future of International Order,” on Friday, February 15 see here <http://law.psu.edu/news/us_iranian_relationship> , at Penn State’s main University Park campus in State College, PA.

Both of us will give keynotes-Flynt will open the proceedings by discussing “The Iranian Nuclear Issue, the End of the American Century, and the Future of International Order,” and Hillary will conclude by addressing “How Precipitous a Decline? U.S.-Iranian Relations and the Transition from American Primacy.” There will also be panels on “Iran and the Future of Nuclear Nonproliferation” and “The Iranian Case and Use of Force Doctrine as a Constraint on State Behavior” with outstanding participants, including David Andelman, Editor of the World Policy Journal; Ambassador Richard Butler, A.C.; Vice Admiral James Houck; and Professors Daniel Joyner, Tiyanjana Maluwa, and Mary Ellen O’Connell.

For anyone in or near Pennsylvania who would like to come in person, you would be most welcome. For everyone else, a live webcast <http://law.psu.edu/events/us_iranian_relationship/webcast_2_15>  of the symposium will be available.

-Flynt Leverett and Hillary Mann Leverett,www.GoingToTehran.com

Stop! – Or We’ll Say Stop Again!

So by now we’ve all heard the news that North Korea has conducted a third underground nuclear explosive test, and according to early indications, this one is a significant improvement in terms of yield over the first two. I won’t get into all the speculation about the type of warhead (uranium or plutonium) or its size (whether improved in miniaturization or other features). I’m sure that will be the topic of discussion over at Arms Control Wonk.

To me, what comes to mind is how this is yet another illustration of how misplaced Western governments’ trust has been and continues to be in the power of economic sanctions, whether multilateral or unilateral, to address nuclear weapons proliferation concerns.  It also brings home yet again how misguided the UN Security Council’s strategy has been in dealing with both North Korea and Iran.

The empirical facts about economic sanctions, and the unlikelihood of their success in changing target state behavior in the manner desired by those applying the sanctions, is fairly well documented in existing academic literature and studies. See here, here, and in a piece I wrote about Iran a while ago.

Make no mistake, international sanctions can certainly affect the target state and its economy, and make its citizens’ life a misery. This is certainly happening in both North Korea and Iran. But that’s not the same thing as actually affecting the target state’s behavior in the manner desired, particularly in the context of high politics and security issues like nonproliferation. This is just primal, schoolyard psychology people. If a bully on the school playground orders you not to do something – or else – and if you have any backbone at all, your immediate, natural reaction is to say screw you and do it anyway. Who are you to tell me not to do it? I’ll do it just to show you I can and that you can’t stop me. And its all wrapped up in pride and saving face, and all that just primal psychological stuff that we all know well from our days on the playground and that, at the end of the day, explains so much about international relations – much moreso in my opinion than grand-looking quantitative modeling done by our friends in political science departments (I did a PoliSci MA and was never convinced of the validity of most of the quantitative explanatory work done in the field of international relations theory. Maybe more on that another time).

Rouzbeh Parsi put it well at a conference I recently attended, when he said that international economic sanctions have far more to do with the sanctioners than with the sanctionee.  They serve a cathartic purpose for the sanctioning states, so that they can say themselves and to their friends and constituents, that they are doing something about the commonly perceived problem.  I honestly think that most high level foreign policy makers know deep down that the sanctions programs they keep outwardly relying on in cases like North Korea and Iran aren’t going to work. They just don’t have any other politically realistic options for expressing to their various intended audiences – mostly consisting of each other and of their domestic political constituencies – that they are trying to do something, and are not allowing the target to “get away” with its bad behavior.

The problem is, of course, that the target keeps getting away with its behavior, and actually seems to do more of the behavior the sanctioners don’t like, in order to show the sanctioners that the sanctions aren’t working. Remember the kid in the schoolyard? So what do the sanctioners do? The only thing they can do – you guessed it – apply more sanctions. And the cycle repeats itself.

I’ve always thought of the UN Security Council’s handling of these two cases – Iran and North Korea – using somewhat interwoven mental analogies to the games of chess and poker.  In my opinion, the UNSC’s actions in these cases have shown a really unfortunate inability to look several moves ahead, as one must do in chess, in order to think through how their moves are likely to be countered by the opposing side, and then to what exactly they will do in response at each stage in order to bring their strategy to a successful conclusion (this assumes of course that they have a strategy to begin with). The decisions by the UNSC to command Iran to cease uranium enrichment, and to command North Korea not to conduct further nuclear tests, are prime illustrations of the UNSC overplaying the hand that it originally had (there’s the poker) – i.e. the power and influence that it could predictably exert over the target of their commands – and didn’t fully think through the sequence of moves by both sides that would likely flow from this play of their hand.

The result has been, essentially, that both Iran and North Korea have called the UNSC’s bluff, and now the UNSC is just standing there saying to each one of them “Stop! – or we’ll say stop again!” Unable to withdraw their commands or roll back their sanctions without losing face, the UNSC just looks more and more foolish, and more and more impotent, and their program of action more and more miscalculated, as both targets of their solemnly declared commands and sanctions continue to do exactly what they want to do, rubbing the UNSC’s nose in its inability to stop them. It didn’t have to be this way. If only the members of the UNSC had played more chess and poker.

Welcoming Dr. Jean-Pascal Zanders to Arms Control Law!

I’m extremely pleased to welcome Dr. Jean-Pascal Zanders as the newest permanent contributor to ACL!  Jean-Pascal is a Senior Research Fellow at the European Union Institute for Security Studies, and is a well established expert on chemical and biological nonproliferation/disarmament regimes and related diplomacy. In addition to email communication, Jean-Pascal and I had a very stimulating conversation over dinner in Paris recently, and I know that he will bring a wealth of insight and expert analysis to the blog.  So welcome, Jean-Pascal!

Here’s a couple of paragraphs from his bio at the EUISS webpage:

Jean Pascal, Senior Research Fellow, has been at the EUISS since June 2008. His research areas cover armament, disarmament and non-proliferation of chemical, biological, radiological and nuclear weapons, as well as space policy. He was Project Leader of the Chemical and Biological Warfare Project at the Stockholm International Peace Research Institute (SIPRI) from October 1996 until August 2003 and Director of the Geneva-based BioWeapons Prevention Project (BWPP) from April 2003 until May 2006. He holds Masters Degrees in Germanic Philology-Linguistics (1980) and Political Sciences (1992) and a PhD in Political Sciences (1996) from the Free University of Brussels.

He has published extensively on chemical and biological weapon issues in English, Dutch and French since 1986. His most recent publications with the EUISS are: (with Kathryn Nixdorff) Enforcing non-proliferation: the European Union and the 2006 BTWC Review Conference, Chaillot Paper no. 93 (November 2006), (editor) Nuclear weapons after the 2010 NPT Review Conference, Chaillot Paper no. 120 (April 2010), and A new farewell to arms: viewing disarmament in a new security environment, Policy Brief no. 6 (December 2010). He is currently researching the internal dynamics of a terrorist or criminal entity seeking to acquire a chemical or biological weapons capability, the meaning of disarmament in the current security context, and running a project on the longer-term future of the Chemical and Biological and Toxin Weapons Conventions. He also coordinates the pillar of ‘Core Issues’ (which includes, inter alia, CBRN disarmament and non-proliferation) in the European Strategy and Policy Analysis System, Pilot Study 2011, a 2010–2030 foresight exercise by the European Union.

ISIS Encourages the IAEA to Use Unauthenticated Evidence in its Reports on Iran

Friend of ACL Professor Yousaf Butt, and Dr. Ferenc Dalnoki-Veress, both highly qualified physicists, have just published an insightful new analysis of information which appears to have formed part of the evidence on which the IAEA has relied in its continuing determination of Iran’s noncompliance with its safeguards agreement.

This is important stuff, as it goes directly to the heart of evidentiary provenance and reliability, the IAEA’s practices of evidence gathering and assessment, and thus to the reliability and credibility of IAEA reports and legal determinations regarding Iran and potentially other countries.

I highly recommend that you read this. It makes the issues clear even for non-technical types like me.

Israeli Strike in Syria

I’m sitting at a cafe in the Marais district of Paris, waiting for my entrecôte to arrive, and just read about the Israeli airstrike in Syria, apparently targeting a shipment of missile parts which the Israelis expect were heading to Hezbollah for use against Israel.

Robert Kelley – Next Steps Forward for the IAEA and Iran

I am honored, and feel truly privileged to welcome Robert Kelley as a guest contributor to ACL. Bob is a nuclear engineer and a veteran of over 35 years in the US DOE’s nuclear weapons complex, most recently at Los Alamos. He managed the centrifuge and plutonium metallurgy programs at Lawrence Livermore National Laboratory, and was seconded by the US DOE to the IAEA where he served twice as a Director in the nuclear inspections in Iraq, in 1992-1993 and 2002-2003. He is currently an Associate Senior Research Fellow at the Stockholm International Peace Research Institute.

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Next Steps Forward for the IAEA and Iran

Robert Kelley

The IAEA and Iran’s government have developed a tense working relationship for which both bear blame. On several occasions, Iran has failed to declare nuclear fuel cycle-related activities in a timely way, as it is obliged to do under its agreement with the agency. At best this can be seen as bad faith in the relationship; at worst, deliberate withholding by Iran.

Beyond that, however, the IAEA is trying to expand its inspection program in Iran by demanding access to undeclared facilities. These requests are on shaky ground, partly because since Iran has not ratified the Additional Protocol they go well beyond the IAEA’s clear rights and authorities, and partly because they are based upon information that is flimsy and suspect.

By openly providing a questionable technical basis for inspections the IAEA is leaving itself open to a serious loss of credibility as a technical organization. While the IAEA seems to do a good job of accounting for nuclear materials around the world, its traditional area of expertise, there is no external oversight of this process. If there are problems with IAEA’s methods and performance they would likely only be revealed by complaints from a member state itself. Only the IAEA Board of Governors can adjudicate this.

Outside the area of materials accountancy, in the inspection of facilities deemed to be part of a suspect nuclear program, the IAEA has drifted far from its core competencies. In Syria, for example, the IAEA was successful in collecting uranium particles at a site that had been “sanitized.” But then the IAEA cavalierly dismissed Syrian explanations that the natural uranium particles found at a bombed suspect site came from Israeli missiles. The agency’s claims that the particles are not of the correct isotopic and chemical composition for missiles, displays an appalling lack of technical knowledge about military munitions based on information from questionable sources.  If the IAEA is to be respected it must get proper technical advice.  For example deep earth penetrating bombs, not missiles were used in Syria.

In the case of Parchin, the IAEA is relying upon secret information provided by unspecified states or parties. A great deal of the information has been selectively leaked to create an impression that the agency has significant reason to want to visit a particular building, among hundreds at the site. The IAEA bases its request upon a suspicion that that the building was used for experiments involving explosives and uranium to understand the hydrodynamic behavior of a neutron initiator for a nuclear explosive. Such experiments, if they occurred, would use a few grams of uranium in a huge chamber. They would probably be a violation of Iran’s nuclear safeguards undertakings. However the IAEA has failed to make a convincing case that these experiments took place. And it has added confusion by saying the most important experiments involving test explosions took place at an Iranian town called Marivan, 500 kilometers away.

Some of the experiments described by the IAEA do not and cannot use uranium. The results would be inconclusive if they did. So the basis for the IAEA’s requests continues to be opaque. The timeline for the alleged experiments is also highly suspect, with claims that massive experimental facilities had been fabricated even before they had been designed, according to the available information. The IAEA work to date, including the mischaracterization of satellite images of Parchin, is more consistent with an IAEA agenda to target Iran than of technical analysis.

Further clouding the picture is Iran’s massive redevelopment of the area around the buildings at Parchin the IAEA wants to visit, which were largely inactive for many years. This activity began with a sudden flurry after the IAEA first asked for a visit in 2012. Bulldozers and other vehicles appeared at the suspect site delivering or removing equipment, moving roads, bulldozing an area immediately east of the suspect building, and water was observed coming from one building. The sudden activity heightened suspicion that Iran was trying to hide something but it really doesn’t prove anything.

For one thing, water has been observed coming from this building and an adjacent one in past years. Moreover, sensitive environmental samples are not collected in buckets of dirt as the bulldozing suspicions might have made people think. The IAEA will not be taking soil samples around the Parchin buildings because it would be counterproductive — ordinary soil contains considerable particles of uranium which interferes with the very sensitive process of detecting nanoparticles of man-modified material. Inspectors will, instead, take very clean wipes from carefully chosen spots inside the buildings of interest. If Iran has done a massive amount of cleaning and painting inside the building to hide uranium, the IAEA will have to work harder to collect useful samples. But it can be done and traces of uranium are hard to conceal.

However, the IAEA’s continuing requests to visit a military site for tenuous reasons are an irritant to Iran and delaying a resumption of talks between the P5+1 and Iran. The IAEA should do some serious rethinking about the technical validity of its request. Based upon the evidence provided so far and the extensive leaks, there is little to suggest that Parchin is the place for IAEA to take a stand.

(A version of this article first appeared in the Nuclear Intelligence Weekly, Vol. VII, No. 3, January 18, 2013)

Why Can We Only Break International Law in order to Torture and Kill People and not in order to Help Them?

I was just coming home from driving my daughter to school, when I heard a story on NPR about how the US has been encouraging the opposition coalition in Syria politically, and in particular encouraging moderates to become involved, but that now the US is failing to make good on promises it has made to provide actual material support to the opposition, and through it to the suffering Syrian people, and in so doing is undermining those very moderate elements.  The reason for this failure to follow through on promises? Well, John Bellinger came on the radio to say that international law forbids the US from becoming involved in the internal affairs of another country, and that because the US still recognizes the Assad regime as the legal government of Syria, international law forbids giving material aid – even simply humanitarian aid – to the Syrian people through the opposition.

I’m less interested in whether Bellinger’s assessment of law is correct as I am with what seems to me to be quite a sickly ironic fact of US foreign policy. We only break international law when we think we have to kill people or torture them for national security purposes. Then the cause is important enough that international law doesn’t matter.  Iraq, Guantanamo, Bagram, assassinations in Iran, drones in Pakistan – the list could go on.  But when we are faced with humanitarian crises when our support could help thousands to live and NOT die – Rwanda, Darfur, Syria, etc. – we stay our hand, because of conservative interpretations of the niceties of international law. Now how sickly ironic is that, particularly in light of the human rights and humanitarian principles central to so much of modern international law?

If we accept that sometimes we will have to break international law in the course of practical international relations, I would be much happier about doing so in a case like supporting the Syrian opposition and Syrian people, than I am about doing so in order to disproportionately kill civilians in our ridiculously ill-conceived wars in Iraq and Afghanistan.