Something Has to be Done about North Korea

It’s time once again to note, as I periodically do, that while massive amounts of time and effort are being spent on a deal between the P5+1 and Iran – a country that has never possessed nuclear weapons – there is a country that not only possesses a well-known and reportedly expanding nuclear weapons arsenal, but that is in fact governed by paranoid lunatics who overtly threaten not only their neighbors but also the United States directly. Yes, I’m talking about North Korea.

This new NYT article by David Sanger does a good job of giving the most recent information about developments with North Korea’s nuclear capabilities, and also of distinguishing between the Iran case and the North Korea case.

I guess I’m just struck once again by how little uproar I hear about North Korea and the nuclear weapons threat it poses both to the region and to the U.S., coming from the U.S. government. The NYT article describes America’s current strategy toward North Korea’s nuclear arsenal as:

“strategic patience,” which essentially meant continuing pressure through sanctions and other levers until North Korea decided to negotiate.

This seems like a stupid idea to me. As I’ve written before, I’m well aware of all of the complexities of “doing something” about the North Korean nuclear arsenal, but it seems to me that something more needs to be done than just watch it grow bigger and more advanced and more capable of being used against states both in the region and across the Pacific.

So where is the uproar in Congress and in the U.S. administration about this very real and existent threat? Where are all the talking heads and D.C. nonproliferation think tanks proposing ten-step plans for actually addressing the North Korean nuclear arsenal? Where are the bombastic statements from Congressional Republicans threatening to annihilate North Korea if they even think about using nuclear weapons against us or our allies? I’m not saying that none of these are ever produced, but it’s the lack of density and volume that is quizzical to me, particularly in comparison to what has been produced regarding Iran. It’s true that there is no Israel in this situation to play the role of chief voice of warning and rallying cause for U.S. politicians. But again, North Korea is an actual threat to the U.S., and I would hope that that would be enough to get the serious juices flowing in DC to come up with a better plan than “strategic patience.”

As I’ve said before, I see diplomatic negotiations and deal-making between Iran and its detractors as being well worth pursuing, because I see Iran as an essentially rational actor that is highly likely to follow through on any agreement it reaches with the West. But I have absolutely zero confidence that North Korea will act in good faith toward promises it makes in diplomatic settings. I think the uselessness of diplomatic approaches with North Korea has been well demonstrated. And I think that whatever rationality North Korea’s leaders may possess is so warped by ideology, paranoia and self-preservation that it cannot be relied upon by other states to keep North Korea from undertaking aggressive actions, possibly even including the use of nuclear weapons, against its neighbors and the U.S.

We’re well beyond arms control law with North Korea. North Korea’s leaders are demonstrably not amenable to civilized relations, either with their own civilian population or with other states, under the regulation of international law.

As I’ve written previously, I do not want to live in a world in which North Korea has nuclear weapons deliverable at its psychotic whim against its neighbors and against the U.S. Where, then, is the “red line”? Where is the point at which it will be necessary for the U.S. and South Korea to take the extreme step of preemptively attacking North Korea? I don’t know, but I think it’s coming soon.  And if/when it does, I think it will be both legal under international law, and morally justifiable. While of course the principles of the jus in bello would have to additionally be met (most importantly proportionality and discrimination), I think North Korea presents the strongest case we have ever seen for the satisfaction of the criteria for anticipatory self-defense in the jus ad bellum. In this case I unfortunately see few other realistic options.


An Alternative to Another Set of Unkept NPT Review Conference Promises – Collective Withdrawal

I don’t attend the annual Carnegie nuclear policy conference. Lots of reasons. But I did take a look at the video of one of the panels tonight – the one on the prospects for the upcoming 2015 RevCon. You can find it here.

I had a number of reactions watching the panel. One was simply a reminder of how much I hate listening to politicians talk. They never say anything interesting. Just endless platitudinous twaddle.

Another reaction was to remember, and identify strongly, with a previous post I did here a couple of years ago entitled “Should the Entire NAM Collectively Withdraw from the NPT?”  I guess I was put so much into mind of that post because, as I listened to the various diplomats talk about the upcoming NPT RevCon and its “challenges,” I was struck once again by how useless a thing the NPT itself is. I wrote about this already in the post I referred to.

Think about it. The original idea of the NPT from the superpowers’ perspective, was to stop proliferation of nuclear weapons from spreading outside the five that had already tested at the time. This clearly didn’t work out well. At least five other states have manufactured nuclear weapons since 1968 (I’m counting South Africa), and four of these still have them. And I think one would be hard pressed to show that the NPT itself has actually proven to be a meaningful independent variable in stopping any country from developing nuclear weapons when they wanted to do so. This is going to be a difficult experiment without a control case, of course. But I think the “proliferation success stories” that are usually pointed to, including South Africa and Brazil, would probably have happened in much the same way they did without the NPT in place, but rather simply with an international norm having been expressed in General Assembly resolutions and elsewhere against nuclear weapons proliferation. These success stories, as well as the failure stories (e.g. North Korea), have occurred mostly due to factors outside of any direct influence of the NPT itself. They have occurred because of the particular political, historical, and economic circumstances of the state(s) involved, combined with a general international norm against nuclear proliferation, which as I said earlier could have been accomplished without the conclusion of the NPT.

As an international lawyer I know how complicated the whole idea of international law as an independent variable in influencing state behavior is. I suppose I just see the track record in this area as being pretty low on cases where respect for the law, or even incentives/disincentives specifically built into and made a part of the treaty structure, themselves played a meaningful role in influencing any state’s behavior with regard to the decision to acquire nuclear weapons.

From the developing states’ perspective, while they generally supported the nonproliferation objectives of the NPT, they also saw the treaty as their way to get quid pro quo concessions from the superpowers and other nuclear supplier states, in exchange for the obligation not to acquire nuclear weapons. These concessions are of course in Articles IV and VI of the treaty respectively.

So how are those going? I would say the current climate of international trade in nuclear materials and technologies doesn’t betray any sort of real meaningful effect of the Article IV right and obligation on supplier states. Nuclear supplier states trade with whomever they want to trade.  And if they don’t want to trade with a state, or allow their private parties to trade with that state, they simply won’t, with very little regard for the Article IV(2) obligation that they are presumably under. Trade in nuclear materials and technologies is, again, all about politics and economics. And again, I think that in the absence of the NPT, the landscape of international trade in nuclear technologies would look very much the same as it does now.

And what about Article VI? Well I think it’s pretty clear that no nuclear weapons possessing state has ever been significantly influenced by the obligation in Article VI to move towards disarmament in good faith. After more than 45 years the nuclear weapons states do just exactly what they want to do with regard to nuclear disarmament and no more. All of the changes that have been made would, I think, have been made in the absence of the NPT. The Cold War ramp up, the efforts of arms control during and after it, cuts over the past 25 years – none of these would have been any different had the NPT not been in place I suspect.

So if the NPT has failed in the ways I have described, why does every diplomat, from Russia to Nigeria, still pay lip service to the NPT as the cornerstone of the nonproliferation regime, and speak of it in hallowed terms? For the nuclear weapons states I think its clear why. They still benefit from having a treaty that allows them and no one else to have nuclear weapons, and that doesn’t seriously constrain them in any way. A treaty they can use as a normative cudgel against their enemies, but which carries very few costs for them and their friends.

But what about for developing non-nuclear weapon states? What do they get out of NPT membership? Again, the concessions they wanted out of the NPT have not been granted to them in the systematic and meaningful way they were promised in the NPT. They get nuclear supplies if and when they are on good enough political terms with supplier states. If not, they don’t. And 45+ years of waiting for the nuclear weapon states to disarm has yielded not one disarmed state among the NWS – and in fact it has produced a net addition of four more nuclear armed states outside of the treaty.

And yet in return for these promised but undelivered benefits, NNWS continue to submit to IAEA safeguards on their nuclear facilities, and to hypocritical critiques by nuclear weapon states of their failure to live up to their NPT and IAEA commitments. So I ask again, what are they getting out of NPT membership?

The answer that many will give is that NPT membership is, kind of like human rights treaties, one way that you signify as a developing state that you are among the “responsible members of the international community,” and that its simply not worth making a fuss about the non-functional NPT and rocking the boat, resulting in having your country placed on the “bad actors” list with regard to economic cooperation, and possibly even becoming the next target of the UN Security Council (kind of like the eye of Sauron that is ever searching for suspicious developing countries).

That’s where my previous post comes in. In it, I propose a walkout from the NPT en masse by the members of the Non-Aligned Movement. I’ll let you read my reasoning there. But I suppose I’m writing this to say that, there are in fact other options than just limping along year after year, RevCon after RevCon, with a treaty that ceased long ago to give non-nuclear weapon states any real benefit to their bargain. Maybe this year’s review conference will be the one when the NNWS finally say “enough!”


Different Messages on the Lausanne Accord

I think this AL Monitor piece by Shahir Shahidsaless is one of the best summaries of the various statements that have been released both jointly and unilaterally by the parties to the Lausanne talks over the past week.  It also very usefully discusses the differences among those statements. I think the author is correct when he says:

While enrichment, R&D and the Arak heavy-water reactor are all significant concerns, the most contentious issues that threaten the negotiations process are sanctions and inspections.

He then proceeds to explain these concerns well.
Commentary, both official and non-official, on the agreement reached in Lausanne has been a bit of a circus over the past week. Honestly, I’ve mostly tuned out from listening to the specifics of any side’s version of what was agreed, and what they think will be agreed to, and what they will accept. At this point, I think that pretty much all we are hearing from all sides is spin – the message that they want both the other parties and their own domestic constituencies to hear. To me it just reinforces the fact that there really is no agreement between the parties yet on anything approaching a full range of the important issues of contention. We really are just going to have to wait until June to know anything concrete.
What I have thought at times, and what may yet be true, is that the framework accord was purposed by the parties to be vague and yet to convey that the parties were making serious progress, and to allow all sides to basically sell their own version of the deal to their respective domestic constituencies.  The hope, I’m guessing, is that each side can indeed sell its version to its domestic constituency as “the deal” or at least the broad strokes of it, which will calculatedly build positive momentum (“It’s historic! It’s better than we thought! Maybe it’s the beginning of a general detente!”, etc.) for an accord in general on all sides. So much so, I think they hope, that when June roles around and each side has to walk back from some of the strong positions they’ve taken while selling the deal to their domestic constituencies, there will be so much positive momentum built up, and so much effort invested on all sides, that there won’t be enough opposition left to overcome the inertia, and the deal will be agreed to and implemented.
Just to reiterate, I’m all for a deal, and I’m not particularly picky about its terms. So I’m not sounding any alarm bells here. Just sort of giving my thoughts on what’s going on.

JCPOA First Thoughts

Like everyone who reads this blog, I’ve been glued to the news, Twitter, and email today, watching developments unfold in the announcement of a Joint Comprehensive Plan of Action between the P5+1 and Iran. This is a historic development and one that I very much welcome.  Much will be said here and elsewhere in the coming days about this framework agreement, and the process moving forward, but I wanted to share a few first thoughts today.

1. It is vitally important to understand that only the statement that was read in full by EU High Representative Federica Mogherini and Iranian Foreign Minister Javad Zarif, the text of which you can see here, represents an agreed statement by the P5+1 and Iran. The “Fact Sheet” that is being widely circulated and commented on by the media, is only a U.S. White House statement of facts, and was NOT AGREED TO BY IRAN OR ANY OF THE OTHER NEGOTIATING PARTIES.  It is a unilateral U.S. interpretation of the facts and nothing more. So it should not be treated as a correct representation of the points of agreement between the parties.

2. Within the U.S. White House statement of facts, I think that the following paragraphs are least likely to represent what will actually be agreed to over the coming months by Iran:

Iran will be required to grant access to the IAEA to investigate suspicious sites or
allegations of a covert enrichment facility, conversion facility, centrifuge production
facility, or yellowcake production facility anywhere in the country . . .

Iran will implement an agreed set of measures to address the IAEA’s concerns regarding
the Possible Military Dimensions (PMD) of its program.

I cannot see the final June comprehensive agreement including either of these provisions, at least not in any proximity to the way they are written here. For one thing, the word “suspicious” will not, I guarantee you, be a part of any language to which Iran agrees. I also think, more importantly, that the PMD issue will have to be agreed in much more detail and nuance in the months to come. I personally cannot see the Iranians agreeing to a provision that makes the entire deal hinge on the IAEA’s satisfaction in resolving its concerns over the PMD claims. As one friend put it today, that would be a poison pill for the whole agreement. So I would look for this issue to either be left out of a final agreement in June, or handled in a much different way than stated here.

3. Overall I think the framework of agreement is a very good one. Iran definitely made some very significant concessions. In fact, one might be forgiven for thinking that, with all of the specificity placed on Iranian concessions, and really only fairly vague wording on the lifting of unilateral and multilateral sanctions (i.e. regarding timing) in the joint statement, Iran showed the most diplomatic courage in agreeing to this framework. I’m sure there is much that was agreed to that we don’t know about, and I have no doubt that Zarif and his team reached a satisfactory understanding with their negotiating partners on the sanctions question from their perspective. But I suppose I just wanted to highlight that Iran is the party that made the most obvious significant concessions in this framework agreement, and I think that they should be congratulated and respected for this. Though I have zero confidence that the right wing of American politics will see it that way.

UPDATE: This appears to be the Iranian Foreign Ministry’s “fact sheet,” analogous to the one released by the White House.

UPDATE to the UPDATE: Actually, it now appears that that was not an official Iranian fact sheet. Ariane Tabatabai explains here.


Conference Report from IAI Conference on Coercive Diplomacy, Sanctions and International Law

I just received today a link to a very fine conference report of the excellent conference on coercive diplomacy, sanctions and international law in which both I and Marco Roscini participated last month at the Instituto Affari Internationali in Rome. This conference report is remarkably thorough, providing an excellent summary of the presentations, including mine beginning on pg. 24.  I’m currently revising my paper, which will be published along with the other conference papers in a volume under contract with Brill.

I again wish to thank my friends at the IAI for including me in this very successful conference. In particular, Professor Natalino Ronzitti, Nicoletta Pirozzi, and Elisabetta Farroni.


LA Times Reports the IAEA is Unlawfully Sharing Safeguards Information with the U.S. Government

I saw this story in the LA Times from yesterday, entitled “Top-Secret U.S. Replica of Iran Nuclear Sites Key to Weapons Deal.” After talking with friends, the paragraph that strikes me most in this story is this one, with my added emphasis:

U.S. officials won’t comment on the classified research, which is being conducted at an undisclosed location in the United States. But former officials and private analysts say American agencies have constructed models of the Iranian facilities, relying on informants in Iran, information from foreign governments and voluminous data about Iran’s program collected by the International Atomic Energy Agency, or IAEA, the United Nations’ nuclear watchdog.

So to cut to the chase, this new replica enrichment facility – which I can’t help thinking of as a Madurodam for US nuclear engineers (“Bill, look at the little Iranian nuclear scientist, he’s going into the centrifuge hall. And look, there’s a little Mossad figure on a motorcycle outside, waiting to kill him when he goes home from work.”). Ok, that got too tangential and too weird to continue. Let’s start that sentence again.

So to cut to the chase, this new replica enrichment facility that the US has built, was based inter alia on “voluminous data” that the US obtained from the IAEA. What?!? But Article 5(b) of the Iran’s comprehensive safeguards agreement with the IAEA provides that:

The Agency shall not publish or communicate to any State, organization or person any information obtained by it in connection with the implementation of this Agreement . . .

So how did the US government get this “voluminous data” from the IAEA? And isn’t it not OK that this happened?

This isn’t the first time that concerns have been raised about the IAEA’s inability to keep confidential information obtained through safeguards implementation in Iran. Iranian officials have complained of exactly this sort of thing happening before. And, coincidentally, the IAEA just today released a statement by Iran communicated to the agency, which on page 3 contains an entire section devoted to expressing Iran’s concerns about the IAEA’s  inability to keep information gained through safeguards implementation confidential.

But while it isn’t the first time these concerns have been raised by Iran, it is the first time I know of that a major news outlet has reported this inappropriate information sharing by the IAEA as a fact.

If what the LA Times has reported is accurate, then it’s hard to see how this isn’t a serious violation by the IAEA of its safeguards agreement with Iran. Maybe there are other explanations for how the US government got this information from the IAEA, that don’t involve bad faith by the IAEA. I don’t know. But I can’t think of any off the top of my head.

Suspicions of arms control inspection agencies being used as tools of Western espionage are not new. Allegations of this type are basically what killed UNSCOM, the first incarnation of the UN’s arms control inspection agency in Iraq after the first gulf war.

It is an absolute imperative for the IAEA to be seen as above reproach when it comes to its ability to keep confidential information obtained through safeguards implementation. If it is not so perceived, its credibility as an independent monitoring and verification body, and its effectiveness in performing this role, will be seriously undermined.


Yousaf Butt on NYT Reporting on Iran

Just wanted to pass along that friend of ACL Dr. Yousaf Butt has published a very good new piece over at The Hill, in which he takes NYT reporters David Sanger and William Broad to task for their reporting on Iran’s nuclear program. The piece is titled “The Obsession with Discredited Allegations about Iran’s Past Nuclear Work.”

I do think that this is an important subject, and I’ve noticed too that media reports about the issue of allegations made by the IAEA and the West about possible past military dimensions to Iran’s nuclear program, often express these allegations as being presumptively well supported factually, when as Yousaf and others have long argued, there are a lot of problems with these allegations.

I also think Yousaf and others have made an important point on the subject of Iran’s interactions with the IAEA, which is that the IAEA has often complained about unsatisfactory answers on Iran’s part in response to questions about these allegations, when in most instances Iran’s answer has been that the documents procured by the IAEA on which these allegations are based are fraudulent. Now, that’s only an unsatisfactory answer if an independent review has been made in some kind of credible way about the documents, and they have been found to be credible. That has not happened in this case.

To a lawyer’s mind, it’s instinctively similar to a criminal trial wherein prosecutors want to introduce evidence into the record, but won’t let the defense either see or challenge the evidence, and rather demand that the evidence be accepted categorically as credible on the prosecutor’s say-so alone, and that the defense be compelled to explain the meaning of the evidence, with a presumption that the defendant bears the burden of explaining it to the prosecutor’s satisfaction.

Obviously, that’s not how it works. The defense gets a chance to both see and challenge the evidence, and only then can the independent finder of fact have any reasonable chance of determining what to believe about the guilt or innocence of the accused.


Pincus: Israel Blazed the Trail for Iran in Developing a Nuclear Program

This article by Walter Pincus in the Washington Post is a must-read.  It’s a very timely takedown of Netanyahu’s criticism of Iran in his speech to Congress last week. Basically, Pincus calls Netanyahu out as a hypocrite, on the basis that Israel has in the past been guilty of much of what Netanyahu now argues Iran is doing.

This isn’t new information or anything, but I respect Pincus for having the guts to say it so directly.

Frankly, this narrative is exactly what I’m thinking of when I go to conferences and hear Israeli officials criticizing Iran for its deceitful, clandestine, and evil development of nuclear weapons. I’ve written about this before here.


Operation Merlin: A Violation of NPT Article I by the U.S.

Iran Statement in BoG March 2015

The other day I was reading over Iran’s most recent statement to the IAEA Board of Governors (see it at the above link), which is itself a response to the IAEA’s most recent report on Iran’s nuclear program.  In Ambassador Najafi’s statement, I was struck by the following section:

A small portion of the report, as usual and unfortunately, is the reappearance of the baseless past allegations on which our position is well known. The repetition of such unfounded accusations would not add to their value.
Indeed a recent revelation on manipulation of the evidences on the so-called “possible military dimension” testifies to the correctness of Iran’s statement and proves that all information and documents provided to the Agency on this issue are fabricated. This evidence manufacturing machine case and declassified documents submitted to the court of a member State is now a very new decisive element on the resolution of the so-called PMD issues without which the final
assessment is impossible. All of documents including the “NUCLEAR WEAPONS BLUEPRINTS” presumably intended to emplace in Iran, though never reached its destination, must be provided to the Agency for further examination. In addition, access to all personnel involved in manufacturing artificial evidences against Iran, particularly
interview with recruited foreign nuclear engineer on “Operation Merlin”, must be provided to the Agency.
Since sending the blueprints of nuclear weapons, though flawed, by one IAEA member to any other member is a serious matter, we expect the Agency request the sending country to provide explanations as well as original blueprints to the inspectors for further examination.
In our view, from now on, PMD should stand for Predominantly Manufactured Dimension.

Readers will recall that I wrote a post last week on the most recent developments in the legal case against Jeffrey Sterling, a former CIA officer who has now been convicted of having leaked details about Operation Merlin, to which Ambassador Najafi referred by name in his statement, to journalist James Risen.

Again, you can look up the details about Operation Merlin in lots of places. One good brief excerpt from Risen’s book on the operation can be found in this Guardian article. The basic gist is that back in 2000, the CIA hired a former Russian nuclear scientist to pass along to Iranian officials – specifically the Iranian representative to the IAEA in Vienna – blueprints for a critical element of a nuclear weapons design, that were complete and accurate except for at least one intentionally included technical flaw.  The idea was that the Iranians would accept these blueprints gladly, and follow them to the letter in their attempts to construct a nuclear weapon. The CIA’s assessment was that the Russian-origin design information they were providing Iran was significantly advanced in comparison to anything Iran had or could otherwise procure through open sources at the time. So, went the theory, the Iranians would take the bait and create a nuclear weapon along the lines of the design being provided to them in the flawed blueprints, but would ultimately be disappointed and embarrassed when the device they created thereby was tested and proved to be a dud. Furthermore, according to the plan, Iran would have by that point invested time and resources in the decoy project, that could otherwise have been invested in more potentially successful avenues toward creating a bomb, and so the operation would have succeeded in imposing an opportunity cost on Iran, and in delaying their success in acquiring a functioning nuclear weapon.

As Risen reports, the plan went pear-shaped when the Russian scientist courier discovered the technical flaw, and warned the Iranians about it through a letter enclosed with the blueprints.

Operation Merlin is now generally considered to have been an ill-advised (read boneheaded) idea, and isn’t something the CIA is proud of. In fact, in the worst case scenario of its consequences, the weapons design provided to Iran by the CIA might actually have helped Iran in its development of a nuclear weapons manufacturing capability. As Risen observes in the Guardian excerpt:

Iran has spent nearly 20 years trying to develop nuclear weapons, and in the process has created a strong base of sophisticated scientists knowledgeable enough to spot flaws in nuclear blueprints. Tehran also obtained nuclear blueprints from the network of Pakistani scientist Abdul Qadeer Khan, and so already had workable blueprints against which to compare the designs obtained from the CIA. Nuclear experts say that they would thus be able to extract valuable information from the blueprints while ignoring the flaws.

In a Bloomberg piece last week, Jonathan Tirone also reported that, due to the revelations about Operation Merlin that have been made in the context of the Sterling case, the information the IAEA has received over the last decade from third party states, including the U.S., regarding Iran’s nuclear program, and specifically regarding allegations of military dimensions to Iran’s nuclear program, will now likely have to be reviewed by the IAEA.

So, not the CIA’s finest hour.

But going back to Ambassador Najafi’s recent statement to the BOG, he says that the providing of nuclear weapons blueprints by one IAEA member state to another, even if flawed, is a serious matter, and he requests that the IAEA investigate the case further. This phrasing got me to thinking. He is right, after all, that this is exactly what happened. A NPT NWS party (the US) did intentionally provide nuclear weapons design information to a NPT NNWS party (Iran). There were intentional flaws in the designs, yes. But again, the whole idea was that these designs overall were more advanced than anything Iran had or could otherwise get. That was the intended bait. And indeed, Risen quotes unnamed experts who assessed that Iran likely would have been able to derive useful information from these blueprints, even with the flaws. I’ve heard this same assessment anecdotally from other people with nuclear weapons knowledge.

So notwithstanding an alternate specific intent, we have here a case of a NPT NWS voluntarily providing information to a NPT NNWS that, one can infer, assisted or is likely to in fact have assisted that NNWS in its understanding of how to manufacture a nuclear weapon.

Now let’s go back and read NPT Article I, paying particular attention to the italicized (by me) text:

Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.

Don’t we have here a pretty solid case for a violation of NPT Article I by the US?  Doubtless the rebuttal would be that there was no intent to assist Iran in its weaponization understanding, and that any assistance provided was accidental.  But the law of state responsibility for internationally wrongful acts does not include a mens rea, or mental requirement, as would be required in either domestic or international criminal law.  Nor does it require a particular failure to uphold a burden of care (i.e. negligent or reckless behavior), as common lawyers are used to finding in tort law (even though I would say that there was a reasonable foreseeability here that giving nuclear weapons blueprints to Iran might indeed assist them). Rather, the International Law Commission’s draft articles on state responsibility are based on the principle of objective liability, without a particular requirement of fault.  As stated in Article 12:

There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.
And there is further no mental element requirement in the primary rule as stated by NPT Article I. So to put it simply, if a NWS party to the NPT in any way assists a NNWS party in its manufacture or other acquisition of a nuclear weapon, the NWS party has violated NPT Article I.
I can foresee counterarguments that assistance in manufacture or acquisition cannot be committed if actual manufacture or acquisition has not yet been completed by the assisted state. That is a colorable argument that could be seen to be in harmony with the terms of NPT Article II.  But unlike in Article II, Article I explicitly makes steps that come ex ante the actual manufacture of a nuclear weapon, the subject of its prohibition – i.e. assistance, encouragement, and inducement. So I think that it would be reasonable to argue that a NWS state can be liable for violation of this prohibition on assistance in NPT Article I, even before the actual manufacture of a nuclear weapon by the assisted state.
So it would appear that Operation Merlin was not only a boneheaded idea that didn’t work as planned, it has also significantly undermined the West’s case against Iran relating to possible past military dimensions of Iran’s nuclear program, and further likely constitutes a violation of NPT Article I by the US, which is an internationally wrongful act entailing its state responsibility.

New Interview of Bob Kelley on Recent Events Including Operation Merlin Developments

Once again, Bob explains recent developments, and puts things in context, better than anyone. See the interview here.

Peter Jenkins wrote a great piece on Lobelog making several of these points this past week. See it here.

And Jonathan Tirone wrote a piece on Bloomberg about the implications of the Operation Merlin revelations for IAEA intelligence assessment, with a quote from me here.

You can Google information about Operation Merlin. It’s been known about for a long time, since James Risen’s 2006 book State of War. It has all come to the fore again recently with the espionage conviction last week of Jeffrey Sterling, for having been the source of leaks on the program from the CIA.

As I said in the Reuters piece, this incident does significantly undermine the idea that the IAEA should be relying for its assessments on intelligence information provided to it by third-party states, some of whom have proven that they have no compunction about falsifying documents, ambush-killing civilian nuclear scientists, using cyber attacks against civilian facilities, and generally doing anything within their power, including all manner of subterfuge, to frustrate Iran’s nuclear program.  And as Bob says in his interview, the IAEA is not itself an intelligence agency. It does not have the capability to independently assess the credibility of intelligence provided to it by third party states.  I’ll be writing more about this in my forthcoming book.