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.

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.

Catching Up and Michal Onderco’s Work

I know the blog has been a bit quiet of late. I don’t have much of an excuse – I’m not teaching this semester. But I am trying to devote all the time I can to writing my new book on Iran’s nuclear program and international law. I hope to have it done in August.

I’m also working, with Marco Roscini and others, on a special issue of the Cambridge Journal of International & Comparative Law on the topic of the rights of states in international law. This is a topic that Marco and I have been thinking about for a long time and that, for me, derives from my thinking over the years about what to make of the “inalienable right” language in NPT Article IV.

I just got back on Saturday from an excellent conference in Rome, organized by Professor Natalino Ronizitti and the Instituto Affari Internazionale, on coercive economic sanctions and international law. A great group of speakers.

On Monday, then, I met with Michal Onderco here in Tuscaloosa.  Michal is currently a Max Weber Fellow at the EUI in Florence (bio here).  He works at the intersection of international relations theory and international law. We talked about his current work on nonproliferation topics, and I wanted to pass along to readers one of his previous articles published in International Studies Quarterly, entitled “Accommodation or Confrontation? Explaining Differences in Policies Toward Iran.”  I found the paper’s focus on different states’ “cultures of dealing with deviance” to be particularly parsimonious and powerful. Here’s a link to the paper:  Onderco Accomodation or Confrontation

In general, I’m trying to keep up like everyone else is with the ongoing negotiations between Iran and the P5+1.  Seems a bit like a soap opera sometimes. Some days Joanie seems to love Chachi, and everything seems set for them to get married. Other days Joanie’s relatives start screaming that the pair shouldn’t get married, and Joanie has to keep them from spoiling things.  The next day its Chachi’s family screaming.  I suppose we won’t really know anything until the wedding date comes.

With Russia/US relations in the tank over Ukraine, a number of important developments concerning arms control law have recently occurred in that bilateral relationship. Russian termination of the longstanding and successful cooperative threat reduction program is perhaps the most noteworthy of these.

And of course the 2015 NPT Review Conference kicks off at UN Headquarters in New York on April 27th. Hard to predict what’s going to happen there. Alot of bad feelings in the Arab world about the failure to hold a Middle East WMD Free Zone conference, as was promised in the 2010 NPT RevCon Final Document. Difficult to predict what impact that will have on whether a final document will be agreed, and if so what will be in it. More on that issue to come.

Events on International Sanctions in London

I wanted to draw the attention of readers of this blog to two events on international sanctions which will be held by the London Centre of International Law Practice (LCILP) in London in March 2015.

The first is a two-day training workshop on International Sanctions in Practice: Legal and Business Implications (17-18 March 2015), which will address the whole range of legal and business issues raised by the implementation of international sanctions regimes, from coercive measures enacted by the UN Security Council and regional organisations, to ‘unilateral sanctions’ implemented by individual States, as well as comprehensive and sector-specific embargoes and ‘targeted’ measures against listed entities and individuals.

Drawing on case studies of various sanctions regimes currently in force, it will also focus on the multiple dimensions of growing legal challenges to sanctions brought before domestic and international courts and tribunals, or under other mechanisms.

The second event is a one-day conference on International Sanctions: Legal, Policy and Business Challenges (19 March 2015), co-sponsored by the International Law Association Study Group on UN Sanctions and International Law and the Grotius Centre for International Legal Studies at Leiden University. It will bring together some of the most prominent experts on International Sanctions to argue on issues raised by sanctions in terms of international responsibility, human rights, available remedies, and impact on cross-border trade and investment, amongst others.

The discussion and findings of this conference will also be used to further shape the agenda of the International Law Association Study Group on UN Sanctions and International Law and to inform its work.

We look forward to meeting you in London in March!

An Appeal to the EU Regarding Iran Sanctions

Reading articles like this just makes me mad. I’ve said many times that the multilateral and unilateral sanctions that have been levelled against Iran by the West over its nuclear program should not have been put in place to begin with.  I think that the reason they were has much more to do with hawkish, biased, pro-Israel politics and ideology in the U.S. than with any real, reasonable assessment of threat posed by Iran’s nuclear program.

I was so optimistic that a comprehensive deal between the P5+1 and Iran would be achieved last November. It appears that all the pieces were in place for a reasonable deal to be reached, and honestly I still don’t know what went wrong.  As I wrote at the time, and appears now to be coming true, the prospects for a deal will only dim with the passage of more time, due to domestic pressures on both sides.

Of course, it has long been known that even if such a deal were to be struck, the likelihood that the U.S. would actually follow through on meaningful sanctions relief on its part, given the poisonous partisan atmosphere in Washington, is vanishingly small. We can see evidence of this by the fight brewing even now on whether to impose yet additional sanctions on Iran.

I’m actually working on a paper right now that examines the limits which international law places on the application of international economic/financial sanctions, whether unilateral or multilateral. I think this is an important theme in the modern era of the use of coordinated economic sanctions as a method of foreign policy coercion, particularly by powerful states against developing states. Among the limits which international law places on economic sanctions are:

1) the general international law principle of non-coercion;

2) the law of countermeasures; and

3) human rights law, and in particular the principle of proportionality

I’ll have more to say about this after I finish the paper, but in brief I think that there’s a good case to be made that the sanctions being imposed on Iran regarding its nuclear program are violative of the principle of non-coercion, and principles of human rights law.

At this point my only real hope is that the EU and its member governments will demonstrate once again their greater regard for international law, and their more reasonable objectivity in foreign relations, as compared to that of our leaders here in the U.S., and actually meaningfully scale back their sanctions on Iran, to allow for a normalization of trade relations, whether a comprehensive deal between Iran and the P5+1 is reached or not.

The scholarly literature could not be more clear that economic sanctions are ineffective in changing a target state’s policies on an established, entrenched national security related issue such as nuclear nonproliferation.  Sanctions do not change state behavior.  They only hurt average people, like the people of Iran, contrary to principles of human rights law.

And in the case of Iran, if there is no deal and the international sanctions regime continues unabated, there’s every reason to think that the moderate government of President Rouhani will be short lived, and that conservatives in the Iranian government will gain in influence, which is in no one’s best interests – not the people of Iran, and not the world.

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.

IAEA Declines to Inspect an Area Where They Formally Alleged Weaponization Activities Took Place in Iran

Here is another absolute must read piece from Bob Kelley over at LobeLog.  He titled it “The IAEA Faces a Major Credibility Test,” and he hit the nail right on the head with that title. What he’s talking about is the recent offer that Iranian officials made to the IAEA to come and inspect a site in Iran, in the city of Marivan in Northwestern Iran, that was named in the IAEA’s 2011 PMD report as being linked to weaponization-related activities. The IAEA has declined the invitation to visit. This paragraph from Bob’s piece sums the situation up perfectly:

Marivan is important. In fact, it is the litmus test for the credibility of the IAEA’s 2011 report. If the IAEA claims detailed knowledge of a test and its location, it is critical that it work with Iran to verify that information. If, however, the information turns out to be false, irrelevant, inactionable or beyond the scope of IAEA’s expertise, then the agency should either withdraw its 2011 “Weaponization Annex” or issue a revised report after a thorough vetting of the rest of its contents. As noted above, the large-scale high explosive experiments are the most detailed claim in the agency’s weaponization report. That claim needs to be investigated and resolved, and the IAEA’s reluctance to do so is deeply disturbing.

I agree with Bob that the IAEA’s decision to decline this invitation is in essence an admission by the IAEA that this allegation in its November 2011 report was incorrect. And if this allegation was incorrect, by the IAEA’s on implicit admission, then that should call into question all of the allegations in the 2011 report.  Again, the sources of these allegations were never made public, or communicated to Iran, or subjected to any transparent qualitative assessment.  The question of the IAEA’s ability to assess third-party-source information about nuclear weapons programs is something that Bob has addressed at length before.

Although I doubt it actually will, this development should make all of the Iran hawks in NGOs and in governments think twice about the evidence they are relying on in their rush to scuttle diplomatic negotiations between Iran and the West.